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