From the March 2006 Idaho Observer:

A milion dollar error

by Hal Parfait

The United States government and several of its states (legally) kills its citizens and non-citizens using capital crime statutes. Right or wrong, it is up to you as an individual to decide if you are for or against legal murder.

For example, let’s say we are pro-capital punishment and, for the sake of argument, let’s construct and extreme case to support our belief: Our hypothetical person person is arrested for the sexual assault and multiple stabbing murder of a child. Is he guilty or not? Twelve persons must rely on the testimony of a variety of experts such as forensic scientists, police, detectives, doctors and psychologists. What if one or two experts lie (perjuring themselves) or misrepresent the evidence? The conviction of the innocent will occur. Does this happen? More often than most people realize.

In an article written by Steve McVickor of The Houston Chronicle on Wednesday, August 17, 2005, he stated: "Houston police have discovered approximately 150 pieces of evidence – including items from three capital murder cases – that have never been brought to the attention of defense attorneys…"

Incredibly enough, the capital murder cases continued despite the fact of shoddy science and poorly trained analysts. This fact shut down the United State’s fourth largest city’s crime lab, DNA division, in December 2002. In the case of Ponchai Wilkerson, a car seat that had blood on it was never taken to an accredited lab for DNA testing. Despite the missing evidence, Wilkerson was executed on March 14, 2000.

"Through the use of DNA evidence, prosecutors can conclusively establish the guilt of a defendant. DNA will also exonerate the innocent," Janet Reno stated.

Even with forensic labs that have the best diagnostic equipment, the experts can and do err. Sometimes they lie. Sometimes the state hires an overzealous person that does a "dry-run" (a false-positive report) in order to convict.

The Philadelphia Inquirer and The Cleveland Plain Dealer reported that Fred Zain, a police officer and serologist for the state of West Virginia, was such a hired liar. Upon Zain’s "expert" testimony, Glen Woodall was convicted and sentenced to serve 203 and 335 years in prison by a West Virginia judge. The serologist used blood analysis, hair analysis, victim identification and similarity of clothing as evidence. Zain told the court that the DNA was exclusively that of the defendant. As a result, only a conviction could follow. Fortunately for Mr. Woodall, he was able to obtain samples and sent these DNA samples to England. He also sent samples of his own DNA as well. The British laboratories reported that the DNA samples did not come close to matching Mr. Woodall’s own DNA.

Approximately 130 criminal cases fell under the microscopic review of Zain. Incredibly enough, the original analysis of Woodall’s DNA from Zain’s files matched the analysis from the British labs—Zain had provided the court with an erroneous sample. The West Virginia Supreme Court, in a special report on Zain’s misconduct, said that his behavior "overstated the results … reported inconclusive reports as conclusive … repeatedly altered test results…"

Once the 130 cases were reviewed by private labs using Restrictive Fragment Length Polymorphism (RFLP) DNA testing or Polymerase Chain Reaction (PCR) testing, or both tests, all convictions were overturned.

Mistaken eyewitness identification, coerced confession, unreliable forensic lab work (a.k.a. Zain’s specialty), law enforcement misconduct (Zain, again), and ineffective assistance of counsel remain the leading cause of wrongful conviction – which can lead to a life sentence or DEATH.

Zain’s career was over—or was it? Zain moved to Texas and presented his serologist and police credentials to Bexar County. He was hired as chief of physical evidence for the medical examiner in Bexar County, Texas. Zain continued to "protect and serve" the public in Texas by testifying and falsifying his DNA analysis reports in court.

A man named Tuffish was convicted and sentenced in Texas based upon more perjured testimony from Zain. See Tuffish v. State, 878 S.W. 2d 197 (Tex. App. 1994).

Thet costs of overturning convictions with DNA evidence in terms of lost years and public expense are huge, but necessary for justice to prevail. For this reason prosecutors argue that exculpatory DNA evidence should not be used in post conviction relief proceedings.

Gary Dotson of Chicago had his own girlfriend lie about him. She said he raped her. He spent eight long years in an Illinois prison before he got a DNA retest. His girlfriend recanted the story. This case involved semen samples that were falsified in order to convict the accused.

In another case involving Zain, Gilbert Alejandro of Uralde County, Texas was picked up for sexual assault of a 50-year-old woman. The Uralde police canvassed the area until a "fit-to-suit" Mexican was found. Zane was borrowed from another counnty as an expert to conduct a DNA sample test. The DNA "could only have originated from Alejandro," stated Zain.

Later, after Alejandro’s trial, two jurors stated that they based their guilty verdict solely on Zain’s testimony. Alejandro would have been acquitted otherwise. Instead, he served four years before a private lab stated that the DNA sample could not have originated from Alejandro. On September 21, 1994, Alejandro’s charges were dismissed. Bexar County, Texas awarded the man $250,000. Once again it was discovered that Zain’s original results as found on his report stated that Alejandro, in fact, was not the person, but he had chosen to tell the court otherwise.

Did not the prosecutors or the defense counsels ever examine the serologist’s reports? It was in a court brief that a layperson would have discovered that Zain’s own findings contradicted what he testified to in court.

In every case cited below, the prosecutors fought hard to keep exculpatory DNA evidence out of an appeals court. If an original conviction was valid beyond a shadow of a doubt, why would prosecutors attempt to block new evidence?

Uvalde, Texas – 12 year sentence

Baltimore, Maryland – Death

Los Angeles, Calif. – 8 years

Chicago, Illinois – Death; Death; 60 years

Burlington, North Carolina – Life

San Diego, Calif. – Life

Topeka, Kansas – Life + 10-25 years

Allegheny Cty, Penn. – Life

Indianapolis, Indiana – 40 years

Huntington, West Virginia – Life; Life; 203 + 335 yr.

All the above cases were exonerated using DNA analysis. Forensic DNA typing continues to exclude persons as the suspected and convicted murderers and rapists at 25 percent. Woodall, Harris, Alejandro and other unknowns were all convicted by false testimony by A million dollar error.

References for further research:

Commonwealth v. Brison, 618A.2d 420; (PA. Super. 1992)

People v. Buxon, 593 N.Y.S. 2d 87 (App. 1993)

The New York Times, Nov. 28, 1995: 28

Webb, Cathleen Crowell and Chapian, Marie. Forgive Me. New York: Berkeley Books, 1986, 220 pages.

"Court Invalidates a Decade of Blood Tests in Criminal Cases", The New York Times, November 12, 1993: A20

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