A trial to determine whether the Kanawha Prosecutor’s Office violated the due process of a former minor league baseball player who spent 26 years in prison is set to begin next summer.
This week, Senior Status U.S. District Judge John Copenhaver scheduled the trial for Jimmie Gardner against the Kanawha County Prosecuting Attorney’s Office and the Kanawha County Commission to begin June 16, 2020.
Copenhaver set the trial date this week as he dismissed the individual current and former prosecutors as defendants in the case, citing absolute prosecutorial immunity.
The portion of the lawsuit that will go to trial will be Gardner’s claim against the Prosecuting Attorney’s Office and the Kanawha County Commission.
Gardner says his right to due process was violated when prosecutors presented evidence in his 1990 criminal trial from former West Virginia State Police serologist Fred Zain despite knowing, or ignoring information indicating, Zain was presenting false testimony in other criminal cases.
Gardner originally sued the prosecutor’s office, the county commission, Kanawha County, the Charleston Police Department, former Kanawha Prosecuting Attorney William Forbes, former Assistant Prosecuting Attorney John Frail and current Assistant Prosecuting Attorney Reagan Whitmyer.
Gardner claimed malicious prosecution and wrongful conviction, and he asked for unspecified damages.
In March, the insurance company for the City of Charleston settled with Gardner for $175,000 on behalf of the Charleston Police Department.
Last week, Copenhaver dismissed Forbes, Frail and Whitmyer as defendants under absolute prosecutorial immunity, a concept established by the United States Supreme Court in 1976. Under prosecutorial immunity, state prosecuting attorneys are immune from claims from defendants in criminal cases who say their constitutional rights were violated by the prosecutors, as long as the prosecutors are acting within the scope of their jobs.
Copenhaver also dismissed Kanawha County as a defendant, saying it was redundant to the Kanawha County Commission.
Gardner case history
Gardner was convicted in 1990 of robbing and sexually assaulting a woman and physically assaulting her mother at a home in Kanawha City in 1987 while he was a member of the Charleston Wheelers minor league baseball team.
He also was charged in another sexual assault in Kanawha City that happened in 1987, but the same jury that convicted him in the first case acquitted him in the second one.
Former Kanawha Circuit Judge Paul Zakaib sentenced Gardner to spend 78 years in prison.
The evidence against Gardner included testimony by discredited former State Police serologist Fred Zain.
A West Virginia State Police investigation identified as many as 182 cases that might have been affected by Zain’s now discredited work, according to a Gazette-Mail report from 2002.
Zain died in 2002 while cases against him were pending, although he was cleared on one perjury charge during a 1995 trial and the jury deadlocked on other charges in circuit court, according to the 2002 report.
The West Virginia Supreme Court ordered evidentiary hearings for Gardner in 1995, 2002 and 2005, but those hearings never happened in Kanawha Circuit Court. In 1996, Zakaib granted a motion for a new DNA test for Gardner.
Zakaib retired in 2014, and Judge Joanna Tabit was appointed to replace him and took steps to facilitate a new trial in 2016 after U.S. District Judge Joseph Goodwin handed down an order saying Gardner should get a new trial.
Gardner was released from jail on April 1, 2016 after his family posted bond on the renewed charges.
In September 2016, Kanawha prosecutors said their case against Gardner wasn’t strong enough to present to a jury because former police officers and witnesses couldn’t recall important details.
The two victims in the case in which Gardner was convicted died in 1988 and 2012.
Based on prosecutors’ arguments, Tabit dismissed the charges against Gardner on Sept. 7, 2016.