Gardner v. Kanawha Cnty.

JIMMIE C. GARDNER, Plaintiff, v. KANAWHA COUNTY, WEST VIRGINIA; KANAWHA COUNTY COMMISSION;KANAWHA COUNTY PROSECUTING ATTORNEY, in his official capacity;WILLIAM C. FORBES; REAGAN E. WHITMYER; JOHN J. FRAIL; and CHARLESTON POLICE DEPARTMENT, Defendants.

Civil Action No. 2:17-cv-03934

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

August 28, 2019

MEMORANDUM OPINION AND ORDER

Pending are two motions to dismiss, one by defendant William C. Forbes filed on December 22, 2017; and one by defendants Kanawha County, West Virginia, Kanawha County Commission ("the County Commission"), Kanawha County Office of Prosecuting Attorney ("Prosecuting Attorney" or "Prosecuting Attorney's Office"), Reagan E. Whitmyer, and John J. Frail (collectively, "Kanawha County Defendants") filed on January 2, 2018.¹

Although listed as separate defendants, the court notes that Kanawha County, West Virginia is not a separate suable entity from the County Commission. Rather, the County Commission is the entity through which the County acts and may be sued. See W. Va. Code Ann. § 7-1-1 ("The county commission . . . of every county within the State of West Virginia shall be a corporation by the name of "The County Commission of .......... County", . . . by which name it may sue and be sued, plead and be impleaded and contract and be contracted with.") Moreover, there are no allegations in the complaint which differentiate between the two parties, nor is the issue presented by any of the parties. The court accordingly refers to both parties as "the County Commission," and Kanawha County, West Virginia is not deemed a separate party, but is rather dismissed as a duplicative party.

I. Background

Jimmie C. Gardner is a citizen of the State of Georgia. (Compl. ¶ 2.) Each of the defendants is either a citizen or entity of the State of West Virginia. (See id. ¶¶ 3-9.) Particularly, Forbes served as the prosecuting attorney for Kanawha County and Whitmyer and Frail served as assistant prosecuting attorneys in Kanawha County. (Id. ¶¶ 6-8.)

A. Procedural History

In 1987, three women were attacked in their homes, two in one instance on May 16, and the third on July 24, in the Kanawha City area of Charleston, West Virginia. Gardner v. Ballard, 172 F. Supp. 3d 925, 930 (S.D. W. Va. 2016), see Compl. ¶ 76. Police investigated "over one hundred suspects" including Gardner who was a pitcher for the Charleston Wheelers baseball team at the time. Id. "In May 1989, Gardner was indicted and subsequently tried in connection with attacks on two [of the] women." Id. at 929.

The salient evidence adduced at trial in the Circuit Court of Kanawha County included the expert testimony of Fred Zain, a serologist and a nonparty to this action who is deceased, and a fingerprint comparison. See id. at 931. The fingerprint evidence had remained uncovered for nearly two years before Gardner's indictment: Gardner provided his fingerprints in August 1987, and investigators did not match Gardner's fingerprints to a print lifted from one of the crime scenes until May 1989. See id. at 931-32. Evidently, investigators had simply "missed [Gardner's] fingerprints" in 1987. Id. at 931 n.7. At any rate, West Virginia State Police Lieutenant David Shumate "testified [at trial that] 'the latent fingerprint from the vase is a print of the left middle finger of Jimmie Gardner.'" Id. at 932.

As to one of the May 16th victims, Zain testified that his comparison of Gardner's blood sample with semen recovered from the victim revealed "that [Zain] could neither include nor exclude Gardner as the semen depositor[.]" Id. at 933. As to the victim of the July 24th attack, Zain testified that a comparison showed "that Gardner was included in the 0.18 percent of the population that could have been responsible for the semen[.]" Id. at 935. Zain further testified that a separate suspect -- identified by one of the victims as her attacker -- "was totally excluded as a possible semen donor in both cases." Id.

On February 1, 1990, the jury convicted Gardner of sexual assault, robbery, felony assault, and breaking and entering stemming from the May 16th attack, but acquitted Gardner of the charges stemming from the July 24th attack. Id. at 929. On March 5, 1990, "Gardner was sentenced to an aggregate indeterminate term of 33 to 110 years in prison, of which he [ultimately] served more than 25 years." Id. Gardner appealed his conviction, which the Supreme Court of Appeals of West Virginia summarily denied. Id. at 929 n.4. Then, in December 1993, the Supreme Court granted Gardner habeas relief and remanded to the Circuit Court of Kanawha County following the state high court's adoption of an investigative report into the practices of Zain, explained in further detail below. Id. at 929. Gardner's case languished in the circuit court for about twenty-three years despite the Supreme Court, on three occasions, directing that court to grant Gardner a hearing. Id.

On November 12, 2013, this court excused Gardner's requirement to exhaust state remedies before pursuing federal habeas relief. Gardner v. Plumley, No. 2:12-cv-03386, 2013 U.S. Dist. LEXIS 160870, at *18 (S.D. W. Va. Nov. 12, 2013), see Compl. ¶ 75. Finally, on March 25, 2016, this court granted Gardner's habeas petition, vacated his convictions, and ordered the State of West Virginia either to retry or release Gardner within sixty days, as a result of which he was released. Ballard, 172 F. Supp. 3d at 940-41, Compl. ¶¶ 80-84. Now, Gardner brings this action against the defendants.

B. Allegations of the Complaint

Zain was employed by the West Virginia State Police ("State Police"), a nonparty to this action, as a serologist until July 1989 when he moved to Texas to continue working in serology. See Compl. ¶¶ 15, 23. "For many years and across dozens of cases, the Kanawha County Prosecuting Attorney's Office used . . . Zain as an expert witness on their cases, as a matter of pattern and practice, despite knowing or recklessly disregarding information that Zain was not properly vetted, lacked appropriate qualifications, and was regularly presenting false testimony in criminal cases[.]" Id. ¶ 15.

"The West Virginia State Police knew as early as 1985 or earlier that Zain did not have appropriate academic credentials to serve as a serology expert based on correspondence received from the FBI." Id. ¶ 19. Similarly, since sometime between 1985 and 1989, the Prosecuting Attorney "knew or should have known that Zain did not have appropriate credentials to serve as a serology expert in cases prosecuted by th[e office." Id. ¶ 20. Gardner alleges that "[a]t all relevant times, Kanawha County employees and County-sponsored witnesses were not reasonably or adequately hired, retained, trained and/or supervised, including" in all matters pertaining to evidence. See id. ¶ 36.

Some state troopers lodged complaints against Zain between 1985 and 1989, telling the State Police that Zain "was making improper and unjustified findings in the laboratory." Id. ¶ 21. In fact, "Zain became the subject of a 'magic wand' joke -- Troopers would say Zain waved a magic wand because that was the only way he could get the results he obtained." Id. During that same time period, the Prosecuting Attorney's Office, including Forbes, Whitmyer, and Frail, "knew or should have known that Zain's findings and testimony were not reliable and that he should not be used as a serology expert in cases prosecuted by th[e office." Id. ¶ 22.

After Zain left the State Police in July 1989, "laboratory personnel refused to stand by the results of work Zain had done while with the State Police," and Trooper Ted Smith, the Director of the Serology Division, "instructed lab personnel to not automatically accept Zain's work and only testify as to what they felt was supportable." Id. ¶ 25. Trooper Smith informed his superiors at the State Police of this situation, and he also told "at least one member" of the "Prosecuting Attorney's Office that the State Police were not standing behind Zain's work." Id. ¶¶ 26, 66.

Nevertheless, under the direction of the Prosecuting Attorney's Office, Forbes, Whitmyer, and Frail, the Prosecuting Attorney's Office used Zain as an expert witness in criminal cases for many years both before and after Zain had moved to Texas and despite the clear warning signs that Zain was at least unreliable. Id. ¶¶ 6-8, 15-16, 18, 27. After Zain left the State Police, individuals within the Prosecuting Attorney's Office "began complaining that the results from the State Police laboratory were not as good -- i.e., not as incriminating -- as when Zain was there." Id. ¶ 24.

Despite the availability of qualified State Police laboratory personnel, the Prosecuting Attorney's Office "pull[ed] evidence from the State Police laboratory and sen[t] it to Zain in Texas for testing," even if Zain was otherwise totally disconnected from the case. Id. ¶ 28. More than once, Zain produced "results more favorable for the prosecution" than the State Police laboratory based upon the same evidence. Id. When "[State Police] laboratory personnel refused to testify to Zain's results, . . . [the] Prosecuting Attorney's Office, including Defendants Forbes, Whitmyer and Frail, flew Zain from Texas to West Virginia to testify in certain cases." Id. ¶ 29.

The Prosecuting Attorney "is the policymaker and final decision-maker regarding the use of contracted expert witnesses and the policies and procedures for vetting and approving said experts." Id. ¶ 32. "[W]ith the assistance or knowledge of . . . Forbes, Whitmyer and Frail," the Prosecuting Attorney's Office repeatedly engaged Zain as a paid "contractor and vendor" to provide expert witness testimony. Id. ¶¶ 30-31. "By having Zain as an approved contractor, prosecutors were able to repeatedly call upon his services for various cases," including in Gardner's case, discussed below. Id. ¶ 30. The Prosecuting Attorney's Office "endorsed"...