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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