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Reports yesterday in The Charleston Gazette regarding cover-up of the
Fred Zain case and troopers upset about cruiser policy:
McGraw Sues Steptoe & Johnson
Over Zain Case
Law Firm Considers Allegations 'Meritless'
Wednesday February 20, 2002
By Lawrence Messina, Staff Writer
Attorney General Darrell V. McGraw filed a
long-threatened lawsuit Tuesday that alleges
a Clarksburg law firm conspired to conceal
misconduct by disgraced former State Police
crime analyst Fred Zain.
Steptoe & Johnson kept wrongfully
convicted men imprisoned and betrayed an
ethical duty to West Virginia after
discovering evidence of Zain's misdeeds in
July 1992, the Marshall Circuit Court suit
alleges.
"The defendants' misconduct proximately
caused the state to pay considerably more
money in settlement of those claims than
would have been necessary but for the
defendants' actions," a draft of the suit said.
The suit focuses on Steptoe & Johnson
lawyer Steve McGowan, who had been hired by the state's insurer
to review a Zain-related case on behalf of the State Police.
McGowan has not returned a series of phone messages requesting
comment. Steptoe has hired a high-profile Washington, D.C. firm
and taken other steps to fend off allegations that McGowan
mishandled the Zain revelations.
McGraw's office warned Steptoe that it planned to sue the firm
last year. A lawyer for the D.C. firm responded in August that the
proposed suit was "substantively meritless and legally barred."
The Washington lawyer, Brendan V. Sullivan, also helped Steptoe
write a recent state Supreme Court brief in an unrelated case. The
brief praises McGowan's role in the Zain scandal. It further alleges
that the office of McGraw's predecessor, Mario Palumbo, "knew
of problems with Fred Zain in 1992, prior to any involvement by
Steven McGowan in the Zain matter."
The state's insurer, CNA, retained McGowan to review a
threatened lawsuit from Glen Dale Woodall.
The Cabell County man was the first of several found to have
been wrongly convicted because of Zain.
McGowan wrote CNA in July 1992 that Zain had "apparently
perjured himself" in Woodall's case, by falsely claiming to have
performed a specific lab test.
McGowan further warned that a review of Zain's lab work
suggests he "has done so in other cases on other occasions and
may have testified to those false results as well." McGowan
advised that a "quiet, pre-suit settlement of the Woodall case
would preclude a media circus and allow for some form of
damage control."
McGraw alleges that McGowan should have shared his findings
and the letter with state officials, but did not. The letter was not
made public until after a 1997 grand jury probe.
The truth about Zain was not revealed until a November 1993
state Supreme Court investigation discredited his entire body of
work.
Zain's fake test results and false testimony have been blamed in at
least six wrongful convictions. Two of those wrongly imprisoned
sued Steptoe & Johnson, alleging they spent extra years in prison
because of McGowan's silence.
Steptoe has settled those suits confidentially and out of court. The
Gazette has obtained deposition, or testimony, transcripts from
both suits largely through Freedom of Information Act requests.
In the August 2001 letter and in the Supreme Court brief, lawyers
for Steptoe argue that McGowan told the State Police to audit
Zain's work. "Certainly, if the matter had been left to the attorney
general's office in 1992, no audit of Zain's work would have
occurred," both allege.
The depositions obtained by the Gazette include the Jan. 23,
2001, testimony of Senior Deputy Attorney General Silas Taylor,
who served under Palumbo in 1992. Taylor testified that Palumbo
was told by then-State Police Superintendent Jack Buckalew that
no audit of Zain's work was needed.
"He had received a communication from Buckalew, a telephone
call assuring him," Taylor said. "[Palumbo said] 'He personally
assured me that there were no other such cases.' That was, I
think, important to the attorney general."
Palumbo, 68, has been disabled by severe illness and cannot
respond to the Zain-related allegations. Neither Sullivan's letter nor
the Supreme Court brief specifically name Palumbo. Both instead
refer to "the attorney general's office in 1992."
"Steptoe & Johnson and Steve McGowan are not looking to create
new controversies or to cast public blame on each other," Sullivan
wrote in his letter. "But they will do what they have to do to
defend against your proposed claims on behalf of the state."
Lawyer Sought To 'Bury This thing,' Trooper Testified
Wednesday February 20, 2002
By Lawrence Messina, Staff Writer
When shown an early sign of wrongdoing by State Police crime lab analyst Fred Zain,
a lawyer with the
Clarksburg firm of Steptoe & Johnson vowed to "bury this thing so deep that no one
could find it," a
trooper has testified.
"I specifically remember the words 'bury' and 'deep,'" Trooper Ted Smith said of his
July 1992 meeting
with Steve McGowan. "It was going to disappear."
Smith also testified that the following month he performed an audit of Zain's work
that he showed to
both McGowan and then-State Police Superintendent Jack Buckalew. The audit
found that Zain had
faked lab tests and testified falsely about lab results. But Buckalew did nothing with
the report, Smith
testified. The public would not learn about Zain until a Supreme Court report 15
months later.
"I just remember [Buckalew] saying, 'Okay, thanks,' and that's it," Smith said.
"Actually, he was pretty
stoic about the whole thing."
McGowan and Buckalew, meanwhile, misrepresented the audit in a November 1992
letter to former
Kanawha prosecutor Bill Forbes, according to Smith's testimony. "There is no need to
take any further
action with respect to any of Fred Zain's cases," the letter said. It was signed by
Buckalew, but written
by McGowan.
Smith testified in 1999 and 2000 in a series of lawsuits filed by men wrongfully
convicted because of
Zain. They sued the Steptoe firm, alleging they languished in prison while McGowan
concealed his
knowledge of Zain's misdeeds.
Steptoe has settled the Zain-related lawsuits, and required that the parties keep the
case files secret as
part of those settlements. The Gazette obtained the testimony, called depositions,
largely through
Freedom of Information Act requests.
Weeklong attempts to reach McGowan for a response to the trooper's testimony were
unsuccessful.
McGowan, a former trooper, had been hired by the state's private insurer to review
Zain's work in July
1992. A Cabell County man, Glen Dale Woodall, had threatened to sue the State Police
after a judge
freed him from a rape sentence blamed on Zain.
Smith said he met with McGowan outside Buckalew's office after reviewing Zain's
work.
"He told me that he was representing us and that everything that I said to him was
protected under
client-attorney privilege, and that I was to speak freely to him, and I did," Smith
testified. "I figured that
everything I told him would be between he and I, and I told him every conceivable
concern that I may
have."
Smith testified that he detailed Zain's misconduct in the Woodall case, and how such
misconduct may
extend to other cases.
"At some point in our meeting he seemed to get excited and he jumped up and went
in to speak to the
superintendent," Smith said of McGowan. "When he came back, he communicated to
me that he had
spoken to Superintendent Buckalew and that he had a message from Superintendent
Buckalew to me."
That message? "I was told not to discuss it," Smith testified. "I took it to mean that
the chain of
command was invoked and that I was not to discuss anything without direct
permission from my
superiors."
Lawyers for McGowan and Steptoe argue that McGowan sought to settle Woodall's
case when he said
he would "bury this thing." Smith was asked about that during his depositions.
"We discussed the fact we were getting pounded in the media, and there was a lot of
negative publicity
going on," Smith testified. "My whole position was, is that 'we need to manage this
well.' But managing
something well is something completely different than keeping it quiet."
After the meeting with McGowan, Smith said Buckalew ordered him to audit Zain's
work. Buckalew
testified about the audit during a 1997 grand jury probe into Zain. The superintendent
said under oath:
"My main concern was, was anyone in jail illegally as a result of his lab work. We had
the audit done by
our own people that said, 'no there wasn't.'"
But that's not what the audit told Buckalew, Smith maintains. At a 1999 deposition,
Smith was asked,
"Did you tell Col. Buckalew at this meeting ... that there was no reason to take any
further action?"
"No, sir," Smith replied. "We requested an outside audit be done to verify our
results."
Three months after Smith presented his audit, Forbes asked Buckalew if Zain had
tainted any of his
cases.
Buckalew signed the November 1992 reply. "We have audited files worked by Fred
Zain," the letter
said. "We concluded that there is no need to take any further action with respect to
any of Fred Zain's
cases."
Smith was asked at the 1999 deposition, "Do you believe that this letter is
contradicted by your audit
report?"
"Yes, sir, I do," Smith testified.
McGowan has since admitted to writing the letter. Smith testified that he and
McGowan later met with
Forbes, in May 1993, and he showed Forbes his audit report for the first time.
Smith said Forbes asked how the letter could have been written, in light of the audit's
findings.
"Do you recall ... McGowan making any comment in that discussion?" Smith was
asked.
"No, sir," Smith testified.
Smith said that during that May 1993 meeting, McGowan told Forbes that "it was like
looking down in a
barrel and seeing, I guess, the worst thing that he can imagine in regard to the State
Police, and then
putting the lid back on the barrel."
Troopers Upset About Cruiser Policy
Wednesday February 20, 2002
By The Associated Press
Troopers are upset over a policy that prohibits some of them from
taking their cruisers home, even though its effect has really not
been felt.
State Police Superintendent Howard Hill said the new commuting
policy, instituted to save money, is part of balancing priorities with
limited resources.
The policy allows troopers to take their cruisers home only if they
live within 20 miles of their detachment.
Hill "grandfathered'' all troopers who now live more than 20 miles
from the detachment, meaning the policy will not apply to them.
David Moye, executive director of the Troopers Association, said,
"One of the questions I'm getting in from a lot of the troopers is,
'If this was to save money, why did everyone get grandfathered
in?'''
Hill said the new policy didn't go into effect until the most recent
round of promotions, which took effect Tuesday.
State Police spokesman Trooper Jay Powers said there is a
six-month grace period, so even troopers who may have been
promoted to a detachment more than 20 miles from home won't
immediately lose the use of their cruisers for commuting. They
will have six months to move if they choose to, he said.
Hill said the policy encourages troopers to live closer to their
detachments, which should facilitate bonding between the troopers
and the community. Plus, troopers who don't commute long
distances can spend more time with their families.
Moye said troopers going to and from work in their own cars
would not be able to make traffic stops.
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