He's free, after 22 years on death row

SMH.com.au

January 18, 2004

THE NICK YARRIS STORY: An Innocent Lost in the Quagmire

By Caz Dawson, Lisa Berg, and Nicholas Yarris

Editor: Kay Ryder-Echols

The story of Nicholas Yarris is as unique as he is, yet his story is all too familiar for a number of men and women incarcerated around the globe. Yarris' situation echoes that of many folk wrongly accused and wrongly convicted. Nicholas Yarris is an innocent man on death row in Pennsylvania and he has been caught up in the quagmire of the legal system that is American justice for 19 of his 39 years of life. What you read below is but a quick summary of his case:

The Murder of Linda Craig

The story begins, as all such stories should and do, with a brief focus on the victim of the crime. On December 15, 1981, Mrs. Linda May Craig was kidnapped from the parking lot of the Tri State Mall in Delaware, near the border of Pennsylvania. During the week prior to her abduction and murder, the 37-year old Craig told her husband and co-workers about a man she believed had been watching her. She said she was afraid of him.

On December 15, at the end of her shift as a sales clerk for a kiosk selling blown-glass artifacts, Mrs. Craig was abducted in her own vehicle from the mall's parking lot. By 5:40 p.m., her husband had called police and reported her overdue to arrive home from what was normally a ten minute drive.

Approximately 7:00 p.m. that evening, Mrs. Craig's 1977 Chrysler Cordoba was found abandoned about one and one-half miles from a church in Chichester Township, Delaware County, Pennsylvania, two hours after she had left her job. Her shoes were found in the parking lot of the Tri-State Mall.

Mrs. Craig's body was found the next morning in a parking lot behind a church, less than two miles from her home; she had been raped and murdered. No one knows exactly where the murder took place. The investigation into the murder of Linda May Craig had begun.

Nicholas Yarris Becomes Entangled in the Murder Investigation

On December 20, 1981, in Chester, Pennsylvania, miles from the crime scene, Patrolman Benjamin Wright stopped 20-year old Nicholas Yarris for a traffic violation. Yarris was high on methamphetamine at the time. An altercation ensued between the two during which Wright's pistol was discharged into the ground. Yarris was charged with attempted murder and kidnapping, two of many other counts, and was held in the Delaware County jail in lieu of $100,000 bail.

Yarris' Desperation

Yarris, a drug-user, was placed in solitary confinement in the maximum-security wing of the jail. High on methamphetamine and forced to go through withdrawal "cold turkey," Yarris was desperate to get out. While in the intake unit, he became aware of the murder of Craig from reading a newspaper left in his cell.

His desperation had taken him over the edge. He decided to concoct a scheme to be released. He thought if he told the police that he knew who the murderer was and was willing to cooperate in the investigation, they would release him.

He told the police that a drug-buddy, an acquaintance he believed had recently died of a drug overdose, had committed the murder. His story backfired when it turned out his drug-buddy was still very much alive and had an airtight alibi (it had been the buddy's brother who died of an overdose). Once again, Yarris was placed in solitary confinement.

Police then "leaked" to known motorcycle gang members housed in the same unit as Yarris, that he was a snitch. The act was designed to break Yarris, or worse. After less than a week of constant attacks, Yarris tried to hang himself, but failed. He was sent to the hospital in restraints for a short while, until Sergeant Gerald Murphy had him returned to maximum security.

Wearing only boxer shorts, Yarris was placed in a cell with a bare mattress. It was January, freezing cold, and he was again subjected to verbal, urine and water attacks from the outlaw gang members. After three days of such torture, Yarris asked to speak with Murphy, hoping for at least some clothes and a blanket. Murphy encouraged Yarris to "tell the truth" about the crime, to get himself out of the mess. Beaten down and weak, Yarris posed a hypothetical question to the sergeant: "What if"he was a participant in the crime, but not in the murder? Would this be good enough? Murphy took the statement to the investigators and the next day Nicholas Yarris was arrested, based on Murphy's statement.

The attacks from the motorcycle gang members stopped once they learned that Yarris was charged with murder. At that point, he was also given clothes and a blanket.

From Bad to Worse

Charles Cataleno, serving time for burglary of the home of William Ryan (then prosecuting district attorney handling the Yarris case) went to Ryan and cut a deal. He would solicit conversation from Yarris in exchange for a dismissal of the expected 20-year sentence for his conviction.

Cataleno was moved into the cell beside Yarris and during this time, he was given conjugal visits with his girlfriend, specially arranged by the DA's office as he gave reports of his "progress" with Yarris.

Meanwhile, Yarris was acquitted of all charges stemming from his altercation with Officer Wright. On April 17, 1982 the case went to trial and after an hour of deliberation, the jury acquitted Yarris. When the verdict was read, Officer Wright had to be restrained. District Attorney Barry Gross, after a violent outburst in court, yelled, "M_______, you'll never leave this county alive." (Find it hard to believe that an attorney would behave this way in public? He did so again, after losing another case in 1987; see the Philadelphia Inquirer, 12/13/87.) County deputies had to restrain the district attorney when he spat in Yarris' face.

On June 5, 1982, at the suppression hearing for the murder charges, Yarris learned that his case had been taken over by District Attorney Barry Gross. He also learned that, although the facts of the case had not changed, the prosecution was now seeking the death penalty instead of second-degree murder. Yarris then began his rapid descent into the judicial quagmire from which he would not escape.

The Case and Conviction

The prosecution's only physical evidence was the semen left by the killer in and on the victim. Tests were run for blood grouping, sub-grouping and secretor status. The tests showed that the secretor was a B+ blood group member who was also a B+ secretor (one whose blood antigens will be secreted in his biological fluids). About 15% of the male population are B+ secretors. The prosecution did not do other testing on the semen, such as paternity identification tests, which would more accurately establish or eliminate suspects in the case.

This lack of testing was significant because the victim's husband's blood type was also B+. During the investigation, he stated that he and his wife had sexual intercourse the night before her murder. When it became clear that Yarris was a suspect in the case, Mr. Craig then claimed to have worn a condom that night, even though the couple was incapable of having children.

On June 27, 1982, the jury was selected and the trial began under Judge Robert F. Kelly. Immediately, the prosecution refused to hand over more than twenty pages of the homicide file. In addition, some fifty paragraphs had been deleted from the pages given to Defense Counsel Samuel Stretton. Stretton tried and failed to get the homicide files; the judge refused to order the prosecution to comply with the rules of evidence regarding discovery.

These "missing" files contained evidence of conflicting witness accounts; some of the witnesses' earlier statements and suspect identifications conflicted with later accounts. Not known to the defense at this time was that the withheld files also contained slide evidence of gloves that the killer had worn during the murder and had left in Mrs. Craig's car.

When Stretton became aware of this, he sought a sidebar conference with Judge Kelly and District Attorney Gross. During this conference, he told the Judge that allowing these slides would only serve to inflame the jury. Gross countered that the slides showed a pair of gloves worn by the killer and implied that the jury would surmise the reason the investigators didn't have Yarris' prints was because he wore them during the crime. The prosecution had not presented this during the trial as required by law.

Charles Cataleno then testified against Yarris, sharing what he had "heard" from Yarris in the Chester County jail. He perjured himself several times with the leading help of the prosecution. Cataleno said he had not made a deal with the prosecution for his testimony. It was later revealed that he had called Gross the night before his testimony, demanding and receiving a written promise from the prosecutor. Cataleno would receive a sentence concurrent with the one he was presently serving and the new sentence would not exceed the 4 to 10 years he had yet to serve.

Five days after his trial began (which was, in itself, a three day trial), Nicholas Yarris was found guilty of the murder of Linda May Craig. On January 24, 1983, he was sentenced to death and received an additional 30 to 60 years.

The Appeals

After receiving the death sentence, Yarris fired Stretton and the case was assigned to defenders Joseph Bullen and Spiros Angelos. The case was remanded to trial for hearings on the destruction of evidence and withheld files. Mr. Bullen tried to convince Yarris to waive his appeals and have the state convert the sentence to life imprisonment. Yarris refused. Ironically, given the usual parole guidelines of the state of Pennsylvania, it is quite likely that Nicholas Yarris would have been released on parole by now, had he taken such a deal.

In February of 1985, while en route to his hearing on the destruction of evidence, Yarris escaped from custody of the deputies transporting him. The prosecutor sought and was granted a dismissal of the hearing for the destruction of case files. When Yarris was captured in Florida, the appeal in Pennsylvania Supreme Court was heard and in October the sentence and conviction were affirmed. In doing so, the Court reversed eight of its own rulings regarding procedure in capital cases.

Yarris Requests DNA Testing to Prove His Innocence

Yarris had read about DNA testing in an article in the Philadelphia Inquirer and on March 20, 1988, became the first inmate in US history to ask to be allowed to use DNA testing to prove his innocence. Yarris discussed the possibility with his defense lawyer, Bullen. Bullen felt there would be no problem in having the evidence of the case tested. However, when investigating the possibility, Bullen discovered that instead of the evidence being available for testing, all the evidence of the case had somehow been "discarded" and that none of the autopsy material was left, except for two stained slides that were unsuitable for testing.

To confirm that the slides were useless, the court allowed them to be sent to Cellmark Diagnostics in Maryland. On August 20, 1988, Cellmark confirmed that they could not use the slides.

Not wanting to accept that the case evidence had been discarded, Yarris reexamined the trial transcripts. He discovered that several slides of evidence had been sent to National Medical Associates in Willow Grove, Pennsylvania. He wrote to the lab's director, Dr. Vincent Cordova, to ask about the evidence. Dr. Cordova responded personally, stating that the coroner had not requested the samples be returned and that they did indeed have two slides similar to the ones sent to Cellmark.

Yarris had misgivings about informing his lawyer of this new development, but he did and asked Bullen not to tell the prosecution about them until he was able to obtain approval from the courts for the use of a new, improved DNA testing technique called PCR. Bullen disregarded Yarris' request and informed the prosecution about the two slides Cordova had.

The prosecutor sent two detectives; under no court supervision or court order to retrieve[d] the slides from Cordova. They took the slides under the pretence that they were transporting them to Cellmark.

The Evidence Does a Disappearing Act

The slides never made it to Cellmark. Nor did they arrive at the coroner's office. They were left in the personal possession of Detective John Davidson, of the CID. Davidson kept them in his possession for the next two years while Yarris fought to have a court order to turn them over to the coroner (the official custodian and handler of all biological evidence). The detective had no forensic qualifications to hold biological evidence; such evidence needs to be stored in a climate-controlled vault, but the court refused to order Davidson to hand over the evidence slides to the coroner's office.

Stung by this betrayal and the ensuing carnage, Yarris fired Bullen. The court then appointed Scott Galloway to the case. Galloway was court ordered to present documentation and expert testimony if he wanted the court to allow PCR-enhanced testing, and the funds to pay for it.

More Appeals, More Denials

In June of 1989, Yarris filed a motion for a new trial based on his discovery of the gloves as evidence, withholding information regarding said gloves and for the improper introduction of the evidence into the trial. Yarris initially filed the motion himself and it went unheard. Yarris then asked Galloway to file the motion. Galloway refused, citing he did not want to alienate the judge who had assigned him to the case.

Yarris eventually filed the motion to the Pennsylvania Supreme Court, forcing the judge to hear the motion for a new trial. The Delaware County district attorney convinced the Supreme Court to dismiss the attempt, saying Yarris was attempting to represent himself while being represented by a court-appointed attorney.

Yarris filed a complaint about the judge (Justice Toal) with the judicial review board. The board contacted Galloway, who told the board that Toal was doing everything he could to hear the motion and, in fact, had scheduled a hearing. Toal never scheduled any such hearing.

Yarris filed a Writ of Habeas Corpus in the US District Court seeking the federal court to intercede on his behalf in the state court, to hear the issues relating to the motion for a new trial. Yarris filed this himself as Galloway had again refused to participate.

In the interlude between 1989 and 1991 Justice Toal "entertained" Galloway's attempts to file the super-qualifications that he had originally demanded before allowing the PCR-enhanced testing. Toal was trying to establish in exhaustive detail the lab's expertise in testing evidence in such condition.

The final condition: The lab director had to promise to come across the country and testify at his own expense, in the hopes that then he might be able to do the testing.

This requirement of the court, concocted by the prosecution, did exactly what it was designed to do -- stop the testing and put up a barrier that could only be overcome by incredible luck.

The federal court dismissed Yarris' writ. He appealed. This time, the Delaware County district attorney's office wrote to the federal judge overseeing the case and assured him that he would grant Yarris the appeal he sought by granting his demand for the DNA testing. They argued that the federal court should relinquish the jurisdiction back to the state court. The federal court was convinced and dismissed the Writ of Habeas Corpus of Nicholas Yarris.

However, what the federal judge didn't know was that the "redress" was another sham. The prosecution decided it had Yarris in a position where he could no longer argue, as they were granting the PCR-enhanced testing. They forced Yarris to accept the use of a state police laboratory in Alabama. This lab had no experience with testing of such nature. Suddenly, the district attorney's need for "super-qualifications" was gone, as long as they picked the lab for the defense testing. All without regard for qualifications of expertise. The federal judge also did not know that the prosecution did not plan to abide by any test result that would clear Yarris.

It was no surprise when the Alabama State police lab said they had inconclusive results from their testing. The lab never issued a report, so no one knows, a. What efforts were made to get a result. b. What steps were taken to overcome the "staining" of the slides. c. What sort of testing was done. d. What results were obtained. e. Were the results certain, could they be interpreted, and were they open to interpretation.

No such report was ever written. The lab's actions, whatever they were, remain completely unexplained.

Yarris Goes Before Justice Toal

On May 6, 1994, Yarris was brought before Justice Toal to argue his motion for a new trial. Yarris laid forth the supporting facts regarding the discovered gloves in the case. The prosecution's only attempt to mitigate the arguments was to suggest that the gloves, unlike the DNA prints taken from the semen recovered, could hardly be definitive proof.

This was a departure from the "we have no idea whose gloves they are," used in the Federal court of appeals argument. This argument had absolutely no regard for the fact that throughout the five years Yarris sought to have all [of] the evidence tested, the prosecution withheld the gloves and only the gloves from this effort. For them to now suggest that the gloves had no value in identification was ludicrous.

At this hearing, the prosecution brought into court what they claimed was the complete collection of evidence from the case. They wanted Yarris to examine the evidence; apparently feeling that this would make up for the evidentiary withholding from the past. When Yarris saw that the evidence seal on the envelope had been broken, he asked who was responsible. The prosecution belligerently stated to Yarris, "Look, do you want to see the evidence or not?" Yarris decided to forego any further charade about the evidence being made available and moved on.

Justice Toal, without any contemplation of the presented facts, denied Yarris' request for relief. No statement as to why or reason the request was denied. He just said, "Denied."

Less than a week later, Toal issued a written opinion of his rationale for denying relief to Mr. Yarris. In the opinion, the judge exposited no rationale for his denial and cited no law to support any findings being supported by law. In fact, except for the briefest mention in passing at the end of the opinion, Toal did not discuss the gloves or the facts presented by Yarris in terms of legality or propriety.

The Latest and Greatest

For seven years now, Nicholas Yarris has fought to get the federal courts to investigate the abuses of the state court regarding his case. The Supreme Court of the State of Pennsylvania denied his post-conviction appeals without a fair hearing to present any witnesses, evidence or experts.

The petition for appeal was denied on May 21, 1999, on the basis of "timeliness," to comply with a new law that took effect a month after the appeal was denied. Yarris was appealing to the federal court system during the time frame in question and the State of Pennsylvania did not consider that action as a part of a pursuit of relief.

Yet there remains a sliver of hope. Dr. Tahir (of the famed Sam Sheppard case) will join Dr. Edward Blake in his lab at Forensic Science Associates in California to assist with the DNA testing of any remaining evidence. It is hoped that there is enough remaining evidence to have a conclusive PCR-enhanced test result.

This summary concludes with a few words from Nicholas himself:

"To those of you who believe that the appeals courts weed out convictions that are flawed badly according to the Constitution, and/or look for instances where someone is saying, "Hey, I can prove my innocence," you wrongly believe.

"The state courts are interested in protecting convictions. The federal court is left to weed through the morass of deceit made by either side as appeals proceed. Period. The galling thing is this: since 1988, I have fought to get a court, any court, to listen to me about how I (meaning myself and my attorneys) uncovered the facts that show I could not have committed this crime. Not a day, not a single day went by that I wasn't pushing and pushing to get my case heard. I even filed a federal lawsuit trying to force the state court to hear my claims.

"Now, you hear that guys on death row try to delay their appeals as a "ploy." But here I am, a man who has fought and clawed to be heard, and in the end, this justice speaking on behalf of the Supreme Court of Pennsylvania said I should have tried earlier to file my claims, even though this same court invited me to file it later. I could see if I had nothing filed for 11 years straight, from 1988 to 1999, but to tell me that I basically hadn't filed in time is plainly vicious.

"So now, I have to go finally and properly into the federal courts to show all these claims put forth. With the witnesses, evidence and the record to support me, I will finally have a fair chance. Unless, in some convoluted way, the law does not really matter and the facts mean little."

This account has not revealed Yarris' alibi. Yet, he did have one. He holds in his possession a bank receipt that places him elsewhere, as well as an eyewitness account. While the crime against Linda Craig was being committed, Yarris was more than 20 miles away in one of his neighborhood's stores. The storeowner, Ms. Mary Taraboelli, saw him in her store at approximately 5:30 p.m. that fateful night, at the time when the crime was being committed.

It should also be noted that Yarris did not know the victim or her family. Why is this crucial information not weighted in and noted? It's one of the many questions that remain unanswered in his case.

This is the story of Nicholas Yarris -- an innocent man caught up in the quagmire of the justice system. A nightmare at best.

JusticeDenied.com

Nick's Story

NickYarris.com

Although my life's story holds so much, the relevant parts for this site are as follows: