CHARLESTON – A man is suing Kanawha County, as well as county officials and agencies, after he claims he was wrongfully convicted.

Kanawha County, Kanawha County Commission, the Kanawha County Prosecuting Attorney, William C. Forbes, Reagan E. Whitmyer, John J. Frail and Charleston Police Department were all named as defendants in the suit

Jimmie C. Gardner filed the lawsuit against the defendants in the U.S. District Court for the Southern District of West Virginia on Sept. 6, alleging that his 1990 conviction was wrongful and that he had been wrongfully imprisoned for more than 26 years. He claims he has spent more than 26 years of his life behind bars for a crime he did not commit.

For many years, the Kanawha County Prosecuting Attorney’s Office used West Virginia State Police Serologist Fred Zain as an expert witness on their cases, as a matter of pattern and practice, despite knowing or recklessly disregarding information that Zain was not properly vetted, lacked appropriate qualifications and was regularly presenting false testimony in criminal cases.

Even after Zain left West Virginia and moved to Texas, the prosecuting attorney’s office continued its association with Zain by approving him as a contractor and vendor and continuing to use him on its cases.

“The repeated use of Zain in these cases was no coincidence, but rather part of a pattern and practice of using unvetted, unqualified and unreliable witness to provide supposed expert testimony,” the complaint states.

After Zain left, the State Police laboratory personnel refused to stand by the results of work Zain had done while with the State Police and the director of the Serotoly Department, Trooper Ted Smith, instructed lab personnel to not automatically accept Zain’s work and only testify as to what they felt was supportable, according to the suit.

Gardner claims that his wrongful conviction in 1990 and subsequent incarceration was no inadvertent mistake and that it was caused by the conduct, patterns and practices of the defendant and the intentional, bad faith or, alternatively, reckless acts of the defendants’ employees and agents.

In 1987, three women were assaulted and it was determined that the same person committed the assaults. The Charleston Police Department interviewed and fingerprinted more than 100 local African American men, including many members of the Charleston Wheelers minor league baseball team.

At the time, Garner was the starting pitcher for the team and he and his teammates cooperated with the investigation and documented their alibis.

Police officers compared Gardner’s fingerprint to the prints recovered from the crime scenes and determined they did not match. Gardner also did not match the description of the perpetrator of the crimes and he had an alibi for the time of each incident.

Two years later, police officers changed their position and then argued that Gardner’s fingerprint matched one they claimed they recovered from a vase. Gardner was indicted in May 1989 on nine counts stemming from the assaults.

Gardner claims Zain’s testimony at his trial was materially incorrect because it falsely included him within a population of potential suspects and falsely excluded the key alternate suspect from that population.

“Zain inconsistently claimed in his sworn testimony that due to the small sample size, the biological matter he analyzed could not be sourced to either the victim or the perpetrator, thus preventing Mr. Gardner from being excluded as a suspect, even though the same sample was supposedly sufficient to exclude the alternate suspect, and even though Zain’s purported laboratory reports had concluded that the biological matter came from the perpetrator,” the complaint states.

Based on the information in their possession at the time, the County Prosecuting Attorney’s Office—including Forbes, Whitmyer and Frail—knew or should have known about the discrepancies and falsehoods in Zain’s testimony, yet they allowed that false testimony to remain uncorrected, if not actively suborned, and they emphasized the importance of that testimony in closing arguments, according to the suit.

Gardner claimed later, in 1995, Smith presented newly discovered documentation to Gardner’s attorney. Significantly, the new documentation included raw data sheets compiled by three other West Virginia State Police serologists—T.A. Smith, J.A. Bowles, and H.B. Myers—that conclusively excluded Gardner based on his blood type alone.

“Throughout his trial and to this day, Mr. Gardner has steadfastly maintained his innocent,” the complaint states. “Mr. Gardner had alibis for the time of both attacks. Mr. Gardner did not match the description provided by the victims. Mr. Gardner also was not identified by the victims either before or at trial.”

Gardner claims he was wrongfully convicted of sexual assault, aggravated robbery, felony assault and breaking & entering in connection with one assault. He was acquitted of charges stemming from the separate assault that the county prosecuting attorney’s office maintained was committed by the same perpetrator. He was sentenced to serve up to 110 years of incarceration.

Gardner is seeking damages in the amount of $25 million. He is being represented by Robert P. Dunlap II.

Earlier this month, the West Virginia Supreme Court of Appeals agreed to hear arguments regarding another case that Zain had testified in.

A jury convicted Phillip Anthony Ward in 1988 for the murder of Carol Carter, a Wendy’s night manager who lived in Milton. He was sentenced to life in prison without parole. Zain had testified to forensic evidence at the scene of the crime.

In 1993, Zain’s work was discredited, after an investigation found that he had lied on several reports and in court testimony. Since then, more than 100 convicted defendants have filed for new trials.

In Ward’s case, the jury ruled that Carter was beaten with a concrete block in Wendy’s after her last co-worker had left. A large sum of money was also missing from the safe at the restaurant.

Last September, Ferguson ruled that Ward was entitled to a new trial after his attorney argued the previous year against the Zain’s trustworthiness.

Cabell County Prosecuting Attorney Sean “Corky” Hammers appealed the ruling to the state Supreme Court. The state Supreme Court will hear oral arguments on Oct. 19.

U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-03934

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West Virginia Supreme Court
1900 Kanawha Blvd E
Charleston, WV - 25305

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