CHARLESTON, W.Va. — A federal judge ordered a state prisoner either released or retried for a crime committed in Charleston in 1987.

WVDOC

Jimmie Gardner

Jimmie Gardner has been a state prison inmate 25 years after his conviction in 1989 on charges of burglary, robbery, and sexual assault in Kanawha City.

He was a player for the minor league baseball Charleston Wheelers when the crime occurred in 1987. Gardner is serving a 110-year prison sentence for sexually assaulting a woman and beating her elderly mother.

He was convicted almost entirely on the testimony of former State Police crime serologist Fred Zain who said Gardner could not be ruled out as a suspect citing lab test results. However, in 1993 an order from the Supreme Court discredited all of Zain’s work and more than 190 criminal cases were re-opened after Zain was found to have fabricated evidence or lied about his findings. Zain died in 2002.

His case re-examined, Gardner could have been ruled out as a suspect in the crime because his blood type didn’t match the assailant’s. Gardner filed a writ of habeus and the Supreme Court ordered a new hearing, but it has never been acted upon. Kanawha County Judge Paul Zakaib failed to take any action on the order and he retired in 2014.

In a strongly worded order issued by U.S. District Judge Joseph Goodwin on Friday, the judge ordered the state to either release Gardner from prison or give him a new trial in 60 days. Since all of the players in the case are no longer around and there is no new evidence, a trial for Gardner seems unlikely.

“Unfortunately for Gardner, the mockery of justice has endured; the state circuit court has failed to rule on the merits of Gardner’s habeus corpus petition to this day, delivering a complete miscarriage of justice,” wrote Goodwin. “Though Gardner diligently and persistently sought habeus relief … he waits for the court to act.”