Fred Zain, former W.Va., state chemist whose discredited work resulted in wrongful convictions, dies
By the Associated Press, Dec. 3, 2002
CHARLESTON, W.Va. — An uneasy chapter for West Virginia’s system of justice ended Monday with the death of Fred Zain.
Zain, 52, died at his home in Ormond Beach, Fla. Eight months earlier, a diagnosis of colon cancer postponed his retrial on fraud charges stemming from his 16-year career as a West Virginia State Police crime lab analyst.
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“Was what he did intentional misconduct? Was this simply negligence? That was the whole issue of the criminal case,” said Jim Lees, a Charleston lawyer and one of the special prosecuters in the case. “Without Fred speaking up, those are unresolved questions.
“Who, if anyone, else in the crime lab was either involved in what was going on or knew about it? That will also remain unresolved,” Lees added.
Six men, five in West Virginia and one in Texas, were freed from prison in the 1990s after reviews contradicted Zain’s work in their cases. The two states paid at least $7.3 million to settle the resulting lawsuits.
Zain’s legacy may extend beyond his acts of alleged misconduct. “I think he probably has had some impact on some people’s view of the death penalty,” Lees said.
To the end, Zain maintained he did nothing wrong. “I am the victim. My life has been destroyed,” he told a San Antonio newspaper in 1997. “In both Texas and West Virginia, politics and a need to protect the big guys made me the scapegoat.”
Zain never detailed this allegation, and he did not testify under oath in the various criminal and civil cases brought against him over his crime lab work.
Before he died, Zain’s defense lawyers asked that the pending charges be dismissed. Lees said he and fellow special prosecutor Steve Jory required one condition.
“He at least needed to sit down and meet with us and answer some questions,” Lees said. “He declined to do so.”
Zain worked for the West Virginia State Police from 1979 until 1989, when he took a similar job in Bexar County, Texas. He was assigned mostly to identify blood traits in evidence from rape and murder cases.
His work in West Virginia was discredited in 1993 by the state Supreme Court, which said Zain may have lied or fabricated evidence in dozens of cases. Fired from the Texas lab that year, he moved to Florida, where he worked for a state-run environmental laboratory.
A lawyer for one of the wrongfully convicted men called Zain “a vigilante stamping out crime, hell bent on helping the prosecution get convictions.” In rare, 1997 interviews, Zain said his blood analysis was being unfairly judged by the far more exact science of genetic testing.
“All you can do is use what you’ve got,” he told the Charleston Gazette. “Nothing will meet the standards of DNA testing compared to routine serology.”
Zain was charged with perjury in Texas. The case was dismissed in 1997 because the statute of limitations had expired. West Virginia’s statute of limitations barred perjury charges for all but the most recent case Zain had handled in the state. Indicted on three counts in 1994, Zain was acquitted of one count in 1995. The others were ultimately dismissed.
Lees and Jory landed indictments against Zain alleging he lied on the witness stand and faked test results, and thus accepted his fees and salary under false pretenses. Last year, a jury was unable to reach a verdict on the four counts. Three of the charges dealt with expert witness payments Zain received after he left the state in 1989.
After Zain left, West Virginia’s State Police lab continued to suffer from credibility problems. Misconduct in its drug testing section led to the firing of a sergeant and the conviction of a civilian analyst on fraud charges. In 2000, the state crime lab was briefly taken over and investigated by the federal government.
Lees believes the grand jury investigations of Zain showed that West Virginia’s sole testing lab for criminal evidence should be independent, and not part of a law enforcement agency.
“The State Police continues to be wedded to the idea that this is an area they should be involved in,” Lees said. “It will take policy-makers outside the State Police to make any changes.”