Court asked to review Zain report
Special prosecutor wants state high court to look at grand jury findings, revive fraud charges
June 2, 1999

By Lawrence Messina
STAFF WRITER

A secret grand jury report may reveal more evidence of wrongful convictions wrought by Fred Zain, the discredited former State Police expert witness, the state Supreme Court heard Tuesday.

A special prosecutor appointed to investigate Zain cited the report while asking the Supreme Court to revive a five-count fraud indictment against Zain, which a Kanawha Circuit judge dismissed in December.

The 1998 special grand jury that indicted Zain issued the report, which contains "arguably what could be considered exculpatory evidence for a series of criminal defendants," said the special prosecutor, Jim Lees.

"How many defendants do you estimate are involved?" Justice Warren McGraw asked Lees. "Are any still in prison?"

Lees replied that the defendants would be from between 30 and 60 cases which involved evidence tests, lab reports or trial testimony by Zain, 48. Some of those defendants would still be in prison.

Between 1977 and 1993, Zain tested and testified about blood and semen evidence in criminal cases across the country. He began his expert witness career in West Virginia, where he worked and later headed part of the State Police crime lab.

The state Supreme Court discredited his entire body of work following a 1993 investigation. He has been blamed for at least six wrongful convictions.

The fraud indictment accused Zain of knowingly providing inaccurate or false testimony in exchange for raises, promotions and pay. Three of the counts focus on Zain's work in two Kanawha County criminal cases.

The judge who tossed the indictment also ordered the report sealed. Judge Andrew MacQueen cited court rules which normally make grand jury evidence secret.

MacQueen's order limits what Lees and his co-special prosecutor, Steve Jory, can disclose about the report, Lees said. But Lees did suggest that the report contains evidence which prosecutors in other counties may want to see.

"This is a very serious matter," Justice Elliot "Spike" Maynard said.

MacQueen had also questioned why the grand jury opted to issue a report. Maynard echoed MacQueen during Tuesday's hearing, asking Lees what law or court case gives a grand jury the legal authority to issue such a report.

"I thought that grand juries either indict people or they don't indict people," Maynard said.

Lees asked the Supreme Court to review the grand jury's findings behind closed doors. Justice Margaret Workman noted that the appeal from Lees and Jory focuses on the indictment's dismissal, not the report. She questioned why Lees brought it up, and why he did not file a separate petition over the report.

Chief Justice Larry Starcher indicated that the Supreme Court may already be scrutinizing some aspect of the Zain matter.

"We may have another piece of this pie before us," Starcher said without elaborating.

The Supreme Court has yet to decide whether to accept the petition from Lees and Jory and review the indictment's dismissal.

Zain now lives in Florida, and has not been convicted of any crime.

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