After being convicted of sexual assault and serving 25 years in prison based on false testimony from former West Virginia State Police serologist Fred Zain, a former Charleston Wheelers baseball player will be released or given a new trial as a result of a "complete miscarriage of justice," a federal judge ruled Friday.
The state has 60 days to either retry Jimmie C. Gardner or release him from prison, U.S. District Court Judge Joseph Goodwin wrote in an order Friday.
Gardner, 49, was convicted in 1990 of sexually assaulting a Kanawha City woman and beating her mother in the summer of 1987. He was sentenced by Kanawha Circuit Judge Paul Zakaib to spend up to 110 years in prison.
Gardner's trial was tainted by false testimony provided by Zain, whose discredited work resulted in millions of dollars paid to wrongfully convicted defendants. Zain was awaiting trial on fraud charges when he died of cancer in 2002 at age 52. Those charges stemmed from testimony he provided during criminal trials while he was head of the State Police chemistry lab from 1986 to 1989.
"Jimmie C. Gardner - an inmate at Mount Olive Correction Complex whose trial was tainted by Zain's false testimony - was one of many denied a fair trial during Zain's tenure," Goodwin wrote. "Unfortunately for Gardner, the mockery of justice has endured: the state circuit court has failed to rule on the merits of Gardner's habeas corpus petition to this day, delivering a complete miscarriage of justice."
In 1993, a team of scientists called in by the West Virginia Supreme Court to review Zain's work found that his testimony in Gardner's case, like the testimony he gave in dozens of other cases, was bogus. They said Zain should have reported that the test results ruled out Gardner as the rapist.
Based on those results, the high court ruled in 1994 that all prisoners whose cases Zain testified in during his 12 years as a State Police serologist could ask for new trials - if they first submitted to new DNA tests.
But Zakaib found that Gardner would have been convicted regardless of Zain's testimony. He ruled that Gardner couldn't have a new DNA test and turned down his request for a new trial.
Since then, the Supreme Court ordered multiple times that Gardner be granted a hearing in Kanawha County Circuit Court, to review whether Zain had tainted his case. But Zakaib, who retired in 2014, never ruled on Gardner's arguments about Zain.
"The Circuit Court of Kanawha County has avoided a final ruling on the merits, despite being ordered to conduct a full evidentiary hearing multiple times by the [Supreme Court]," Goodwin wrote. "Gardner has been in legal purgatory: the state courts have deprived him of the relief he seeks, but because they have not officially denied his petitions on the merits, he has been unable to turn to the federal courts for relief."
Goodwin excused Gardner from having to exhaust appeals through the state before proceeding in federal court.
Jurors in Kanawha convicted Gardner, of Tampa, Florida, of first-degree sexual assault, aggravated robbery, assault during the commission of a felony and breaking and entering in connection with the assault on the woman and her 82-year-old mother.
The assault occurred at about 7 a.m. on May 16, 1987, as the two women were preparing to have coffee on their patio. The mother was beaten, the daughter was sexually assaulted. About $90 and a cassette player were taken.
The jury acquitted Gardner of charges related to a second sexual assault, on July 24, 1987. At the time, he was a pitcher for the Wheelers, then the name of Charleston's minor league baseball team.
None of the victims could identify Gardner as their assailant in court. The victim from the July attack told police someone else assaulted her, according to previous Gazette-Mail reports.
Zain was a critical prosecution witness at Gardner's trial and provided expert testimony that, based on his serology analysis, Gardner could not be excluded as the perpetrator, Goodwin wrote Friday. Attorneys for the state and Gardner now stipulate, however, that Zain's lab reports did exclude Gardner as the perpetrator.
Gardner was blood type A, yet the seminal fluid identified on a vaginal swab from the woman was type O, Friday's order states.
Apart from Zain's forensic testimony, the evidence linking Gardner to the attack was testimony that a fingerprint lifted from a vase at the women's home matched Gardner. At trial, the woman couldn't identify Gardner as her assailant, although she testified that she had clearly seen her attacker.
"The issue before the court is the constitutionality of holding a man in prison for more than twenty-five years after the state convicted him using false testimony and the state circuit court inexplicably allowed his habeas petition to languish for over two decades," Goodwin wrote.
Zakaib couldn't be reached Friday for comment.
Kanawha Prosecuting Attorney Charles Miller had not yet seen Goodwin's order on Friday afternoon and said he wouldn't comment about whether he plans to retry Gardner until he reads it.
Gardner is represented by attorneys with the federal Public Defender's Office. Christopher Dodrill and Shannon Frederick Kiser, with the West Virginia Attorney General's Office, represented the state.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.