New Trial Set for Tampa Native

Alejandra de la Fuente — June 7, 2016 @ 1:00 PM — Comments (0)

A new trial has been set for Jimmie Gardner, who has spent the last 27 years in prison for sexual assault and burglary in West Virginia that he claims he did not commit. One early May morning in 1987, two Kanawha City women were preparing to have coffee on their patio. The daughter was sexually assaulted and the elderly mother was beaten, along with roughly $90 and a cassette player that were taken. Gardner, who hails from Tampa, Florida and pitched for the Charleston Wheelers—the city’s minor league baseball team at the time, was convicted in 1990 of first-degree sexual assault, aggravated robbery, assault during the commission of a felony, and breaking and entering. Kanawha Circuit Judge Paul Zakaib sentenced him to 33 to 110 years in prison.

Gardner requested a new trial on the basis of a testimony that would later be discredited, but Zakaib ruled that he would have been convicted despite that testimony and rejected the request. Then in 1995, 2002, and again in 2005, the state Supreme Court ordered that Gardner be granted a full evidentiary hearing in Kanawha Circuit Court, but the hearing never occurred. After initially denying Gardner’s request for a new, post-conviction DNA test, Zakaib granted the motion in 1996.

The results of that test are included in the prosecution’s evidence against Gardner. They showed that the semen found inside the victim was Gardner’s, and that statistically, there is a 13,500,000 percent chance that the DNA profile of the semen could belong to someone else. In addition to the test results, a prosecutor stated that a bloody fingerprint matching Gardner was found on a vase at the crime scene. One of the women—both of whom have since passed away—also testified at trial, claiming that Gardner had never been to their home until the day of the attack.

Recently, however, U.S. District Judge Joseph Goodwin overturned Gardner’s conviction, ruling that his trial was tainted because of a former West Virginia State Police serologist’s false testimony. Fred Zain, who was a crucial expert witness for the prosecution, testified that Gardner could not be excluded as the perpetrator. According to Goodwin, Zain’s lab reports are now said to have excluded Gardner.

In 1994, the West Virginia Supreme Court ruled that if they submitted to new DNA tests first, all prisoners whose cases Zain testified in during his 12 years as a State Police serologist could ask for new trials. Many wrongfully convicted individuals have received millions of dollars in compensation thanks to the discredited work of Zain, who died of cancer in 2002 while awaiting trial on federal charges.

After tossing out Gardner’s conviction, Goodwin ordered that within 60 days, he either be retried or set free. Prosecutors stated that they would retry Gardner, claiming that even without Zain’s testimony, there is enough evidence to reconvict him. A Kanawha Circuit Judge originally set May 16 as the date for the new trial, but upon the request of Gardner’s lawyer for more time to prepare his client’s defense, the case will not return to court until July 11. The judge also set bail at $10,000, ten percent of which Gardner’s family was allowed to pay.

Gardner’s family, friends, and lawyers who have represented him over the years have been supportive, filling the courtroom on the day his conviction was overturned. Following the hearing, Gardner’s teary-eyed brother stood up and called him his hero, also thanking the judge for setting bail. His mother, who stated that she had not slept or eaten in the three days leading up to the hearing, had been continuously praying that her son would get to come home. Gardner will await his new trial at her home in Albany, Georgia.

Gardner himself remains optimistic, stating that he is prepared for the fight and that he knew this day would come. He told reporters that he has his mother’s support and has been fighting for this for so long, and that he holds no negative emotions and gives all praise to God, as this is all His doing. He plans to spend the next few weeks with his lawyers, preparing for trial. Gardner stated that because he kept his faith, the experience has not been as difficult on him as people might suspect. He went on to say that he has met so many good people in West Virginia and that he does not want people to think the state or its officials are bad—that it was just a bad situation but he came out of it and he is blessed.

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