HUNTINGTON — The effects of former West Virginia State Police chemist Fred Zain — whose discredited work resulted in millions of dollars paid to wrongfully convicted defendants — continued to be felt more than two decades later in a Huntington courtroom Friday.
Zain’s work was discredited in 1993 by the state Supreme Court, which found Zain gave invalid or false testimony or reports for more than 10 years about evidence like blood, skin, hair, fingernails and semen found at crime scenes. A State Police investigation identified as many as 182 West Virginia cases that might have been affected by his work, and several prisoners convicted with his evidence were exonerated by DNA testing.
In 1987, Zain testified at the trial of Phillip A. Ward, who was convicted of murder in the death of Carol Carter, a night manager at a Wendy’s restaurant in Huntington. Carter was robbed of $1,348 and beaten to death.
Ward has been in prison for more than 26 years, and won’t ever be eligible for parole. He tried once before to have his conviction thrown out because of Zain’s testimony, and was denied. On Friday, his lawyer asked Cabell Circuit Judge Alfred Ferguson to consider new evidence and grant Ward a new trial.
Huntington attorney Connor Robertson, representing Ward, asked the judge to find that the serological tests that Zain testified to during Ward’s trial were false. Robertson also asked the judge to analyze new DNA evidence.
At Friday’s hearing, Robertson said jurors in Ward’s trial heard Zain testify that the blood that was found on money found in Ward’s possession had characteristics of Carter and no one else.
Zain testified, according to Robertson, that he was 100 percent certain of his findings. But subsequent DNA testing at a different lab, requested by prosecutors several years after the trial, shows discrepancies with Zain’s testimony, Robertson said Friday. Subsequent testing shows there could have been multiple contributors to the blood stains on the bills.
“Actually two people could’ve been involved with the murder,” Ferguson said, after listening to testimony about the DNA. The judge did not make a ruling at the hearing.
Friday wasn’t the first time Ward appeared in court after being sentenced in 1988 to life without mercy in prison.
Six years after his sentencing, Supreme Court justices told prisoners that — if Zain had testified or offered evidence against them — they could contest their convictions by filing a petition for habeas corpus relief.
Justices wrote then that all evidence tested by Zain should be considered false. But they instructed judges to decide whether, without that evidence, a defendant would have been found guilty anyway. Also, judges were to decide whether the false evidence had any effect on the jury.
Ward’s petition was assigned to Cabell Circuit Judge Dan O’Hanlon, who also presided over Ward’s 1987 trial.
O’Hanlon denied Ward’s petition, finding that the Zain ruling didn’t apply to the case. The judge found that it wasn’t Zain who had conducted the tests on the evidence used against Ward, but rather Ted Smith and Brent Myers, who worked as serologists under Zain.
O’Hanlon also said that even without the evidence tested in Zain’s lab, Ward would have been found guilty. He never answered the question about whether the evidence had an impact on jurors.
Ward remained in prison. He filed appeals on other grounds that never amounted to anything. But in 2006, Supreme Court justices said prisoners convicted between 1979 and 1999 who had a State Police crime lab serologist other than Zain perform tests in their case could bring a petition to overturn their convictions — even if they had already done so.
Ward filed several new petitions under the 2006 order. O’Hanlon denied them all.
O’Hanlon retired in 2010. His replacement as judge, Paul T. Farrell, granted Ward’s petition for a hearing the following year.
Ferguson was appointed to hear the case after Farrell was disqualified from hearing the petition because he was an assistant prosecutor in the Cabell office during Ward’s original trial.
Smith, the serologist who worked under Zain, testified at Friday’s hearing. He looked over old tests and reviewed the newer ones, and said there was “certainly cause for concern” if Zain testified that the blood on the money could have only come from Carter. He testified there is DNA from at least three parties on multiple bills that were tested.
Smith added that he stands by his initial work and that he isn’t surprised the more recent tests provide more information.
Cabell County Assistant Prosecutor Jara Howard also told the judge Friday that he shouldn’t be surprised that more information was present in the DNA tests conducted after Ward’s trial.
Those tests don’t prove that the initial serology testing is false, Howard said.
Jurors who convicted Ward also heard evidence that included information about Ward’s financial state. Before Carter was killed Ward was behind on bills. Carter paid his overdue bills and purchased a new car stereo the day after the slaying.
Ward, who was a work-release inmate, contended his uncle gave him $300 for odd jobs he had done.
That testimony, however, was kept from the jury because Ward’s uncle, despite instructions from the judge that witnesses were to leave the courtroom, remained and heard opening statements and testimony favorable to the defendant.