A Cabell County judge on Thursday overturned the murder conviction of a man serving life in prison for a 1987 killing, finding that testimony given by discredited former West Virginia State Police serologist Fred Zain tainted his trial.
Phillip A. Ward, 51, is entitled to a new trial as "a matter of fundamental fairness," Cabell Circuit Judge Alfred Ferguson wrote.
Ward has served 29 years in prison for the killing of his co-worker, Carol Carter. She was robbed and brutally beaten inside a Wendy's restaurant in Huntington, where she was a night manager.
Ward was convicted of Carter's murder in 1987. Zain testified during Ward's trial that blood found on money in Ward's possession had genetic material from Carter - and no one else - on it.
Ward "has sufficiently demonstrated the falsity of Fred Zain's testimony at trial with regard to the forensic evidence presented to the jury," Ferguson wrote in his order Thursday.
Zain's body of work was discredited in 1993 by the West Virginia Supreme Court, which found that the former head of the State Police serology lab gave invalid or false testimony or reports about evidence like blood, skin, hair, fingernails and semen found at crime scenes for more than 10 years.
Zain's work has 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.
Ward's lawyer, Connor Robertson, asked Ferguson during a hearing in October 2015 to throw out his client's murder conviction and grant him a new trial because of Zain's testimony. Robertson and his law partner, Rich Weston, have worked on Ward's petition for a new trial since 2011.
"The most important right in the American criminal justice system is the right to a fair trial," Robertson said Thursday afternoon.
He was walking into the Mount Olive Correctional Complex, a maximum-security state prison in Fayette County, at 3:30 p.m. Thursday to tell Ward about the judge's order.
"After almost 30 years behind bars, Phil will finally be afforded that right, thanks to the courageous ruling by Judge Ferguson," Robertson said.
Prosecutors urged Ferguson during last year's hearing to let the conviction stand, arguing that there was plenty of other evidence linking Ward to the slaying. Cabell County Prosecuting Attorney Sean Hammers wasn't in the office Thursday for comment.
Before Carter was robbed and killed, Ward, who was a work-release inmate, didn't have enough money to pay his bills.
However the day of her death, Ward "not only paid his overdue bills," the judge wrote, but he purchased a new car stereo. Ward contended that 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.
Jurors in Ward's trial heard Zain testify that the blood that was on money found in Ward's possession had characteristics of Carter and no one else.
Zain testified that he was 100 percent certain of his findings. However, subsequent DNA testing at a different lab, requested by prosecutors several years after the trial, shows discrepancies in Zain's testimony that Ferguson said he couldn't ignore.
The subsequent testing shows there could have been multiple contributors to the blood stains on the bills, Thursday's order states.
Six years after Ward was sentenced to spend the rest of his life in prison without the chance of parole, state 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 if 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 or not.
Ward remained in prison. He filed appeals on other grounds that never amounted to anything. In 2006, though, 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 already had done so.
Ward filed several new petitions under the 2006 order. O'Hanlon denied them all.
O'Hanlon retired in 2010. His replacement, 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 County office during Ward's original trial.
Earlier this month, a nearly 30-year-old case against a former Charleston Wheelers baseball player, Jimmie Gardner, was dismissed by prosecutors. A federal judge had ordered Kanawha County prosecutors to either release or retry Gardner, who had been convicted of sexual assault and robbery in 1990 and sentenced to spend up to 110 years in prison, with the help of Zain's testimony.
Prosecutors initially said they would retry Gardner but, during a hearing on the eve of the new trial, they told Kanawha Circuit Judge Joanna Tabit that police officers' memories of a 30-year-old case wouldn't be sufficient to support another trial.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.