8127/frame/fm

The Fred Zain Story — Crossing 
the Line
The unfortunate poster child for unethical conduct in forensic science is Fred Zain. However, it is
important to realize that Mr. Zain, and others like him, do not exist in a vacuum. It took a whole
system, from laboratory co-workers through the supervisors, to attorneys and the courts, to support,
or at least ignore, the blatant and continued abuse that was perpetrated by Fred Zain over his decade
and a half tenure as a forensic serologist in two public laboratories.
The story begins in about 1979, just after Zain was first hired by the West Virginia State Police
as a serologist. It is impossible to say how it might have started — Zain himself could probably not
say — but at some point during the 10 years he was to work for that agency, the means became only
a barrier to the end. In the end, hundreds of cases worked by Zain would show an undeniable trend
toward interpreting marginal or even nonexistent results so as to implicate a suspect.
The clues were there for any who chose to look. In the mid-1980s, two of Zain’s co-workers
allegedly filed a formal letter of complaint stating that they had routinely observed him reporting
results from apparently blank enzyme plates. Nothing was done. They claim to have shown the blank
plates and completed worksheets to Zain’s supervisors. They were ignored. One employee would later
testify that the fabricated result recorded on the worksheets always seemed to include the victim or
suspect, in the correct pattern to inculpate the suspect. This pattern in Zain’s work would later be
confirmed by an independent investigatory group.
In 1989, Zain left West Virginia to become chief of physical evidence for the medical examiner
in Bexar County, Texas. Interestingly, he continued to receive cases to analyze from prosecuting
agencies in West Virginia. In several cases, items from which serologists at the West Virginia laboratory
were unable to obtain results were sent to Zain in Texas. The prosecutors apparently preferred the
results and interpretations that Zain was able to given them.
Suspicions about Zain’s work finally came to the fore in 1992, when the rape conviction of Glen
Woodall was overturned by DNA testing. In the original 1987 trial, Zain had testified that “the
assailant’s blood types … were identical to Mr. Woodall’s.” An independent expert would later say
that Zain misrepresented and overstated the true significance of the results, but ironically, the serology
results themselves were apparently not fabricated in this particular instance. Woodall’s conviction was
affirmed on appeal, but DNA testing done in a subsequent
 
 habeas corpus
proceeding excluded Woodall
from having contributed the semen evidence, simply because of its inherently better discrimination.
The review of the non-DNA evidence was probably more instrumental in first focusing suspicion
on Zain. According to reports, Zain testified “he had no reason to believe” that a hair found in one
rape victim’s borrowed car “could not have originated from Mr. Woodall.” Apparently, Zain initially
described the sample as a pubic hair and only later testified that it was a beard hair. In addition, he
reportedly never bothered to compare it with a hair sample from the man who owned the car. An
independent expert later excluded Woodall as a possible source of the hair.
Following his release, Woodall sued the State of West Virginia for false imprisonment, thus
initiating a chain of events that would culminate in criminal indictments of Fred Zain for perjury in
both West Virginia and Texas. It began with an internal audit in 1992 that identified certain impro-
prieties with respect to Zain’s work, but, interestingly, concluded that “no material inclusion or
exclusion errors were made,” and culminated in an extraordinary investigation of the entire body of
Zain’s work as ordered by the West Virginia Supreme Court. In 1993, as part of that investigation,
Barry Fisher, chairman of ASCLAD/LAB, was asked to organize a review of Zain’s work by an inde-
pendent group of forensic scientists. The two forensic serologists assigned to this task, James McNamara,
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Ethics and Accountability — The Profession of Forensic Science
319
Laboratory Director of the Florida Department of Law Enforcement, and Ronald Linhart, Supervisor
of Serology in the Crime Laboratory for the Los Angeles County Sheriff ’s Department, would even-
tually review hundreds of analyses. They would eventually find material problems in all 36 cases that
they reviewed.
Holliday’s investigative report listed 11 findings specifically regarding Zain’s work:
The acts of misconduct on the part of Zain included (1) overstating the strength of results;
(2) overstating the frequency of genetic matches on individual pieces of evidence;
(3) misreporting the frequency of genetic matches on multiple pieces of evidence; (4) reporting
that multiple items had been tested, when only a single item had been tested; (5) reporting
inconclusive results as conclusive; (6) repeatedly altering laboratory records; (7) grouping results
to create the erroneous impression that genetic markers had been obtained from all samples
tested; (8) failing to report conflicting results; (9) failing to conduct or to report conducting
additional testing to resolve conflicting results; (10) implying a match with a suspect when testing
supported only a match with the victim; and (11) reporting scientifically impossible or improb-
able results.
The reviewers also noted systematic deficiencies of a more general nature that allowed Zain to
practice in the way that he did with no apparent checks or balances:
(1) No written documentation of testing methodology; (2) no written quality assurance program;
(3) no written internal or external auditing procedures; (4) no routine proficiency testing of
laboratory technicians; (5) no technical review of work product; (6) no written documentation
of instrument maintenance and calibration; (7) no written testing procedures manual; (8) failure
to follow generally-accepted scientific testing standards with respect to certain tests;
(9) inadequate record-keeping; and (10) failure to conduct collateral testing.
They concluded that:
Irregularities were found in most of the cases reviewed in this investigation….
The 1993 West Virginia Investigative report concluded that:
The overwhelming evidence of a pattern and practice of misconduct by Zain completely under-
mines the validity and reliability of any forensic work he performed or reported during his tenure
in the serology department of the state police crime laboratory. If the information which is now
available concerning the pattern and practice of misconduct by Zain had been available during
the prosecution of cases in which he was involved, the evidence regarding the results of serological
testing would have been deemed inadmissible.
So far, neither state has been successful in obtaining a conviction against Zain, due in part to
statutes of limitations. West Virginia tried again in 1998 with charges that Zain had defrauded the
state by accepting his salary and benefits while falsifying evidence and committing perjury. The charges
were dismissed in January 1999, only to be resurrected by the State Supreme Court in November of
the same year. The outcome is still pending. West Virginia has also launched a renewed investigation
into the work of other serologists working contemporaneously with Zain who are also alleged to have
fabricated test results.
At least nine men have been freed based on a postconviction review of evidence provided by
Fred Zain, and many more are working their way through the system. Between West Virginia and
Texas, over $5 million has already been paid to individuals suing the states for wrongful imprisonment.
While it is easy to criticize Fred Zain, an individual who was clearly led astray by motives at
which we can only guess, we must also question the system that allowed Zain to exist for so long, in
not only one, but two public laboratories, before he was finally exposed. Was it fear, ignorance, or
apathy that prevented those in authority from taking action sooner? How can we foster a climate in
which a Fred Zain would stick out like a sore thumb rather than blend seamlessly into the background?
Identifying errant individuals can be accomplished with a reasonable amount of due diligence and
vigilance. Changing the climate that produces and nurtures such individuals is the greater challenge.
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320
Principles and Practice of Criminalistics
the general public that they hold to the highest possible standard. DNA
testing, with its potential not only to exclude, but to individualize, has focused
an enormous amount of scrutiny on forensic science in general. Recent
events, including the homicide trial of O. J. Simpson, allegations of miscon-
duct at the FBI laboratory, and the ever-increasing media and public attention
to forensic science, bring into sharp relief issues of quality assurance, labo-
ratory and analyst qualifications, ethical standards, and the continuing evo-
lution of the state of the practice.
Forensic scientists are human beings; the question is not “Will an error
occur?” but “When an error occurs, how can it be detected and corrected?”
A series of checks and balances must be in place to ensure a reliable work
product. Valid, proven, analytical techniques and thoughtful interpretation
are obviously essential to a competent examination; the proper education,
training, and certification of forensic analysts and independent reviewers,
accreditation of laboratories, implementation of proper quality control and
quality assurance protocols, and internal and external review procedures are
no less critical to the output of a high-quality forensic work product.
Although certification and accreditation programs exist to assess the general
quality of a forensic work product, case review or evidence reanalysis by a
qualified scientist remain the best methods of catching and correcting honest
mistakes, as well as intentional falsification of results, before permanent
Oversight comes in three different guises, and each functions at a different level in the process.
Laboratory accreditation formalizes outside review of both procedures and case files; it can address
the issue of institutional blindness. Analyst certification demonstrates minimal competence. More to
the point, however, the organization in charge of administering certification examinations and pro-
ficiency testing, currently maintains the most specific and comprehensive ethical code of any national
forensic organization, along with enforcement guidelines; individuals are required to agree to the code
before they are allowed to take a certification examination. The most effective method of discouraging
overinterpretation of borderline data, or even blatant falsification, however, remains review. A rigorous
and objective internal review, with appropriate consideration of alternative hypothesis, and further
review by an independent expert as the case demands, remains the best way of discouraging “inter-
pretational drift” and identifying patent unethical conduct.
Zain, who was eventually fired from the Texas laboratory, now lives in Florida, and is no longer
involved in crime laboratory work. He maintains his innocence.