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The Death Penalty - page 2 of 3
Lester S. Garrett

(Published in "Liberty" Magazine, March 1996)

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  • For 13 years Fred Zain was employed as a medical examiner and forensic expert by the West Virginia State Police. In 1989 he moved to San Antonio, Texas where he served for the next 3 years as its crime laboratory's chief serologist. Over the years Zain was involved in thousands of criminal cases. His expert testimony was responsible for sending hundreds of criminal defendants to prison.

    There's only one problem.  According to a report prepared for the West Virginia Supreme Court by the American Society of Crime Laboratory Directors and released by the court in November 1993, Fred Zain "fabricated or falsified evidence in just about every case he touched."  And that included at least 133 murder and rape cases.  His actions, stated the report, were the "result of systematic practice rather than an occasional inadvertent error."  As a result of that report the court ruled that, "Any testimony or documentary evidence offered by Zain, at any time, in any criminal prosecution, should be deemed invalid, unreliable and inadmissible."  But by then Fred Zain had moved on to a new state, Texas, and a new job, chief serologist for San Antonio.

    In 1989 Jack Davis was arrested for the sexual assault, murder and mutilation of Kathie Balonis, a New Braunfels, Texas woman.  At the time Davis had been employed as a maintenance man at the victim's apartment complex.  During Davis' trial, Fred Zain testified that blood specimens found under the victim's body belonged to Davis who'd cut his hand prior to the murder.  Zain's testimony was extremely influential as there were no witnesses to the crime.  Davis was convicted of murder and his jury came within a single vote of sentencing him to death. 

    Fortunately for Davis, he was sentenced to life in prison.  For in 1992 a hearing was convened to investigate prosecutorial misconduct in the Davis case.  According to Davis' defense attorney, Stanley Schneider, Zain had originally testified that "his testing had proven that blood found under the woman's body came from Davis.  Now it comes out that he [Zain] never did the testing.  So Davis was convicted on Zain's lies."

    Indeed, in a deposition taped about a year after the trial Zain reversed himself and stated that the blood samples in question actually belonged to the victim and not to Davis.  When subsequently questioned under oath about his conflicting statements, Zain refused to answer and invoked his 5th Amendment protection against self-incrimination.  Judge Charles Ramsey was outraged and said that Zain's conduct was "intentional and outrageous" adding that it "shocked the conscience of the court."  Today, after serving 4 years of his life sentence, Jack Davis is a free man.

    Zain was dismissed from his Texas job in June of 1993 when evidence vital to the prosecution of a San Antonio murder case suddenly went missing.  Subsequently, Bexar County Medical Examiner Vincent DiMaio hired Irving Stone of the Institute of Forensic Science in Dallas to conduct an extensive review of Zain's work during his period of employment with San Antonio. 

    Stone and his team of specialists conducted an in-depth examination of at least 180 cases in which Zain had been involved.  Quoting from an article in the San Francisco Examiner, Stone's team discovered "reports from tests that were never done, negative results that would have cleared a suspect reported as positive and inconclusive results described as conclusive".  Said Stone:  "Everything that Fred Zain did, whether it was in West Virginia or Texas, has to be suspect, and it worries me to the point that (the tests) ought to be repeated."  Estimates of the total number of cases in which Zain was involved vary from 1,200 to 4,500 (the latter is Stone's estimate).

  • You might want to talk to Clarence Brandley who was sentenced to death on the basis of deliberately suppressed evidence. He received his first stay 5 days from his scheduled execution. His second stay was granted 13 days from his final walk. Brandley was wrongly convicted in 1980 and spent 9 1/2 years in while appealing his conviction.

  • And then there's the case of Randall Dale Adams. Adams was found guilty beyond a reasonable doubt of killing a police officer. Sentenced to death, his appeals were rejected. Just seventy-two hours from execution, by a stroke of good fortune, it was established that the wrong man was about to be put to death.

  • Recently, a defense attorney I know was defending a man of a capital crime. During the trial he discovered, and was able to establish under cross examination, that the police officer testifying under oath against his client had falsified the evidence.

  • Finally, there are the two California black men who recently received a public apology from the judge when they were released. In an unusual move the Los Angeles DA joined with their defense attorney in the motion for their release; the Los Angeles District Attorney publicly stated that the two men had not received a fair trial and were wrongfully convicted. Benny Powell and Clarence Chance spent 17 years in prison for the murder of a Sheriff's Deputy -- a murder which they never committed. It took 17 years to release two innocent men. Yet there are all too many who want to shorten the appeals process.

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