Questionable testimony sends crime lab chemist back to court

By MARTHA BRYSON HODEL
Associated Press

CHARLESTON, W.Va. 9-6-01 -- At one time, Fred Zain was a prosecutor's dream: a respected crime lab chemist with a compelling courtroom demeanor whose testimony helped convict hundreds of people.

The trouble, authorities now say, is that much of what Zain had to say was questionable at best, or outright lies at worst.

Today, it will be Zain who stands accused, facing five felony fraud charges for accepting a salary and benefits in West Virginia while allegedly failing to correctly perform his duties. The trial is expected to last about a month.

It's Zain's second trial in West Virginia. In 1995 he was acquitted on one perjury charge; a second was dismissed. In 1997, he avoided a perjury trial in Texas because the statute of limitations had expired.

Defense lawyer Tom Smith got the upcoming trial moved from Charleston to Beckley after a poll of potential jurors found that most had heard of Zain, and half of them believe he's guilty.

In fact, no one knows precisely how many convictions came of Zain's testimony, or how many people are still imprisoned in West Virginia, Texas and the 10 other states where he served as a consultant.

But Jim Lees, who led a 1990s investigation into Zain's work, said Zain testified in "hundreds and hundreds, if not thousands" of murder and sexual assault cases.

It was Lees' probe that led to a 1993 West Virginia Supreme Court ruling that ordered a review of all cases involving Zain. The high court found that, "as a matter of law, any testimonial or documentary evidence offered by Zain at any time should be deemed invalid, unreliable and inadmissible."

In West Virginia alone, at least seven convictions have been overturned, and other appeals are pending. To date, the state has paid at least $6.5 million to settle lawsuits; Texas also has settled lawsuits in which Zain's work was questioned.

Zain has repeatedly denied wrongdoing. In a 1997 interview in Texas, Zain said he had been made the "scapegoat" by powerful political forces in West Virginia and Texas.

No phone number is listed for him in Florida, where he now works for a state environmental lab. His lawyer agreed to relay an interview request but said he would recommend that Zain not talk to reporters.

His career dates back to 1977, when he began working in the West Virginia State Police crime lab. There he was singled out as a rising star -- and it wasn't long before he was head of the serology division, where blood and other body fluids are tested.

Strain soon developed among the lab's employees, and at least two complained about Zain's work. Publicly, the first hints of trouble followed a cemetery worker's 1987 conviction on 19 counts of kidnapping and sexual assault.

Glen Woodall got two life terms plus 335 years. But charges against him were dropped in 1992, when DNA testing showed he could not have committed the crimes. Without a lawsuit being filed, the state agreed to pay Woodall $1 million, the maximum allowed under its insurance policy.

Steven McGowan, a Charleston lawyer and former state trooper who investigated the case for the state's insurer, said Zain pinned the rapes on Woodall using a test that state police did not have the ability to perform.

The pattern of government agencies settling lawsuits followed Zain to Bexar County, Texas, where he was fired in 1993.

Bexar County paid Gilbert Alejandro $250,000 for his 1990 wrongful rape conviction. Jack Warren Davis, accused of killing a teacher, settled a $10 million lawsuit for $600,000.

The Zain story is similar to an Oklahoma case involving now-disgraced police chemist Joyce Gilchrist. Problems with her testimony have led to the release of three inmates, including one who was on death row.