|When Experts Lie||
|Are you going
out after the truth,
or are you going out after something you believe?
~ Richard D. Rosen
|Study after study shows that juries put a
great deal of faith in the testimony of expert witnesses. A good expert
witness can often swing a verdict one way or another. But what happens
when the expert lies? What happens when the expert thinks his job
is to support the case theory espoused by the side that employs him, regardless
of the results of the tests conducted?
Fred Zain was a West Virginia State Police forensics expert who testified in hundreds of criminal cases. He presented himself well. He appeared to know his subject so well that judges, prosecutors, and defense attorneys didn't question the laboratory results Zain said he obtained. Juries believed him. They convicted the defendants when Zain testified that his laboratory conjuring showed they were guilty, even when other evidence conflicted with his testimony, and especially when no other incriminating evidence existed. Fred Zain became something of a forensics "star," sought after by prosecutors who wanted to win convictions in difficult cases. His stature in West Virginia led to a better job offer, chief of physical evidence for the medical examiner in Bexar County, Texas, and he did for Texas what he had done for West Virginia. He lied.
From all appearances, Fred Zain didn't set out to repeatedly, almost routinely, commit perjury, and thereby send innocent people to prison for crimes they didn't commit. In his own defense, Zain has pointed to inadequate facilities, conflicting duties and an overwhelming caseload. All those factors were present. What Zain doesn't mention is the fact that he was never qualified to be doing forensic lab work in the first place. His college transcripts reveal that Zain was a mediocre scholar who had failed organic chemistry. Apparently no one reviewed Zain's transcripts before putting him on the job, or before qualifying him as an expert witness. No one looked at his transcripts until the house of cards he had built came tumbling down.
Fred Zain is the victim of his own success. Over the years, Zain rose to the position of Chief of Serology at the West Virginia Department of Public Safety (crime laboratory). What he couldn't establish in the laboratory was arrived at through a unique form of logic called "backwards reasoning." If the defendant is guilty, it is likely that ... is the predicate for such reasoning. It presumes the defendant's guilt, and bases its findings on that presumption. But when you add to that presumptive base inadequate facilities, conflicting duties, an overwhelming caseload, and put them in the hands of an unqualified "expert," you have the prescription for disaster.
The disaster came in the form of Glen Woodall, convicted in 1987 of multiple felonies, including two counts of sexual assault, and sentenced to a prison term of 203 to 335 years. At Woodall's trial, Zain testified that, based upon his scientific analysis of semen recovered from the victims, "[t]he assailant's blood types ... were identical to Mr. Woodall's." Woodall's conviction was affirmed on appeal, but DNA testing done in a subsequent habeas corpus proceeding established that Woodall could not have been the perpetrator. His conviction was overturned in 1992 and Woodall was freed. Woodall sued the State of West Virginia for false imprisonment, and received $1 million in settlement. This ultimately led to an extraordinary investigation of the entire body of Zain's work ordered by the West Virginia Supreme Court. The report concluded that the actual guilt of 134 people was substantively in doubt because the convictions were based on inculpatory reports and/or testimony by Zain. Nine men have been freed because the remaining evidence offered against them was insufficient for conviction ~ the expert testimony of Fred Zain alone had put them in prison. [Click HERE to read the investigative report and its recommendations.]
The other key players, the people who facilitated Zain's fraud, didn't get it. "I really have no idea why he did what he did," said Jack Buckalew, a former superintendent of the West Virginia State Police. Kenneth Blake, then-director of the state police's Criminal Identification Bureau, said he never questioned Zain's academic background when recommending him for the state police job. Ray Barber, lab chief at the time, said he felt no need to check Zain's credentials because Zain had a "lab background" as a chemist with the state Department of Natural Resources. In 1985, two fellow lab workers told superiors they had seen Zain record results from blank test plates. Blake looked into the allegations and dismissed them as an office squabble. "They didn't like Zain, and Zain didn't like them," Blake said of that time. "But we never had any complaints from prosecutors, defense attorneys or investigators."
In 1998, Zain was charged in Hondo, Texas with aggravated perjury, evidence tampering and fabrication connected to the 1990 rape conviction of Gilbert Alejandro. He was acquitted. West Virginia took a kick at the cat with charges that Zain had defrauded the state by accepting his salary and benefits while falsifying evidence and committing perjury. The charges were dismissed in January 1999 by Judge Andrew MacQueen, who found the indictment too vague and ~ appropriately ~ expressed concern about how the law was being applied.
Fred Zain's actions didn't take place in a vacuum. The conditions that gave rise to his abuses remain in place in other crime labs and courtrooms across the country. There are no complaints from prosecutors, defense attorneys or investigators, so there isn't a problem.
~ Sheila Martin Berry