Twisted Truth

Part 2: Misstatements in court, questions about evidence

In a decade-old case, a man convicted of raping a child fights back. He says Tracey Cline, the Durham district attorney, misrepresented DNA tests and withheld evidence.

Staff WriterSeptember 5, 2011 

  • Part 1: Cline's courtroom actions lead to dismissals, appeals

    Part 2: Misstatements in court, questions about evidence

    Part 3: Withheld evidence fuels appeals

  • What Cline said

    Twice, in pretrial hearings, Tracey Cline described what David Yearwood told police at the time of his arrest. She argued to a judge that he was a danger, that he committed the crime and should be held in jail. On Nov. 4, 1999, Cline said, "He is appreciably impaired at the time, so drunk that officers can hardly get a statement from him." On Nov. 18, 1999, Cline again mentioned Yearwood's interaction with police as captured in a transcript. "The statements that are contained in this transcript are rambling. This defendant, the state contends, was appreciably impaired. It was just a rambling statement. He talks about he was previously arrested on another charge in '96. He talks about different things."

    What the record shows

    The transcript from investigator J.E. Preddy's interview with Yearwood is 26 pages. In it, Yearwood knows his Social Security number and his rights. He says where he was and why he was there. He describes whom he saw. He says he had two 22-ounce beers. He acknowledges using drugs in the past months, but not more recently. He tells the officer about buying his house from his grandparents. He complains about the police. He talks about his family, including that he has a baby on the way. And he denies the crime a dozen times. Three times, he asks for tests to show whether he had sexual contact with the girl.

    Samples from the exchange

    Preddy: She's saying that you had sexual intercourse with her.

    Yearwood: That I had sexual intercourse with her?

    Preddy: Yes.

    Yearwood: Well, y'all need to go on and do the testing because (laugh), straight up, I did not have sexual intercourse with that girl. Didn't try to.

    Preddy: Didn't try to?

    Yearwood: No, I didn't.

    ...

    Preddy: Did you touch her at all?

    Yearwood: No.

    Preddy: Well, that's what I'm trying to figure out is why would she say that you did?

    Yearwood: Damn if I know. But you can do any kind of test you want. ... You can test ... her. I have not, man, I'm very hurt. I'm very hurt. I'm very hurt, man. I got a baby on the way. I'm not out here trying to damn molest kids. I work for a living, man.

    Police testimony

    Investigator J.E. Preddy testified in a post-conviction hearing in 2004 in the Yearwood case. He was asked about whether Yearwood had sought testing.

    Q: Did he ask you to do any DNA testing on him?

    Preddy: No.

    Q: Or any testing on him?

    Preddy: No.

    What Cline says now

    Cline said in an interview that she still believes Yearwood was too drunk to provide a statement. She points out that his lawyer, Lawrence Campbell, said at a 2004 hearing challenging his work in the case that Yearwood didn't remember "an awful lot about what went on inside that house."

    "He was drunk," Cline said in an interview. "It sounds like a conversation - but it doesn't sound like a statement that's written out by hand. It sounds like a conversation between he and the officer."

Second of three parts

Tracey Cline fought hard to keep David Yearwood locked up.

Yearwood was accused of a horrific crime - the rape of a 12-year-old neighbor who, home alone, opened the door when Yearwood stopped to ask about mowing the lawn. Cline, then an assistant district attorney, would later tell a jury Yearwood was a "demented demon of destruction" who preyed on the girl.

Yearwood, who claims innocence, did not testify at his trial, did not present evidence and was convicted. He was sentenced to at least 25 years.

Now, a decade later, Yearwood's case is under review. He is pushing for a new trial while targeting Cline's conduct: She made several misstatements in court, and evidence was withheld from Yearwood and his lawyer, records and testimony show.

Cline's statements, at times with words beyond what records or later testimony would show, shed light on her certainty about the allegation. They helped keep Yearwood in jail as he awaited trial and helped shape how the trial unfolded.

Cline pressed the case with testimony from the girl's mother and an account from the child that alleged three types of sexual contact by Yearwood - oral, with fingers, and intercourse - over a 20-minute span.

State Bureau of Investigation forensic tests showed no fluids, no fingerprints and no DNA that connected Yearwood to the alleged crime. Cline downplayed the significance of those tests, saying at times that they were inconclusive or that they indicated that Yearwood didn't ejaculate.

In late July, Superior Court Judge Orlando Hudson granted a request by Yearwood's lawyer for new access to inspect and copy all files maintained by Cline, the police and the state crime lab. Yearwood's request, made under seal that keeps it from public view, was obtained by The News & Observer.

In it, lawyer Heather Rattelade wrote that Cline repeatedly made "misleading statements in open court" about the forensic evidence in Yearwood's case.

Rattelade also has sought to review the actual evidence from the case. Yearwood is seeking the latest DNA testing in hopes of proving he is innocent. According to court clerks and other documents, officials have not been able to find some of the evidence.

Cline is now Durham's elected district attorney, having come to power in 2009 after Mike Nifong was disbarred. The Yearwood prosecution is one of several in which her statements and handling of evidence are under attack. As reported Sunday, Cline's conduct has contributed to at least two dismissed cases and an overturned conviction.

A review by The N&O of testimony in Yearwood's trial and hearings as well as hundreds of pages of police and court documents, some not made public when he was prosecuted, raises questions about the case and about statements by Cline:

Cline told a judge that "contact was insufficient" to capture Yearwood's DNA. She said the tests couldn't determine whether saliva found in the child's vaginal area belonged to the girl or to Yearwood.

But the crime lab's work was clear about Yearwood: No forensic evidence, such as hair or fluids, connected him to the alleged crime, according to interviews and SBI records.

Cline told a judge that Yearwood, at his arrest, was "so drunk that the officers can hardly get a statement from him." She later told another judge that he gave "just a rambling statement."

The transcript of Yearwood's interview with police is 26 pages. Yearwood denies the crime a dozen times and says he never touched the girl. He tells police what he was doing at the house that day. Three times, he tells the police to conduct testing on him or the girl to see whether there had been sexual contact.

Cline said in one hearing that there was "medical evidence" of "tearing" on the girl's vagina.

Court records show the opposite. The forensic nurse who performed the exam testified the vaginal area was red on the outside at the bottom, and bumpy. "Just like irritated," the nurse testified. "I didn't see any other injury." One document in the file provided last month to Yearwood because of the judge's order notes the exam. "No tear," it says.

The nurse testified she did not conduct an internal exam because "she was somebody who had no intercourse. And we don't use a speculum (a medical instrument to help examine a patient) because we don't want to cause damage to somebody that young."

A doctor did not conduct an exam.

Cline said in several hearings before the trial that she had opened her complete files to Yearwood's lawyer.

But not everything was provided to Yearwood before his trial. A comparison of records provided to public defender Lawrence Campbell, who was his trial lawyer, and to Rattelade, working on this year's appeal, reveals documents that have only recently been made available.

Rules for lawyers say they should not engage in conduct involving "misrepresentation" or "dishonesty." And the courts have been firm that lawyers should not misstate facts in hearings, trials or other judicial settings, or allow others to testify incorrectly, without correcting the record.

Cline acknowledged in an interview that there is no wiggle room on the facts when a prosecutor talks to a judge. In interviews, multiple judges agreed that no matter the setting, a lawyer must state only the facts.

Cline said she believes that she spoke accurately but that she relied in some instances on information that was available to her but is not in any record.

While Cline said there was medical evidence of "tearing," she says now that was based on information she received later, after the hospital exam, that bleeding had occurred. That is not in any documents and was not brought up in any hearing or the trial. Yearwood's lawyer notes that the child was prescribed a pill that can cause bleeding.

"In Yearwood," she wrote in an email, "there were absolutely no misstatements at all."

A brutal assault

In late July 1999, the girl described a disturbing crime.

Yearwood fondled her, penetrated her with two of his fingers, performed oral sex on her and then forced her to have intercourse, she told authorities.

The girl testified that when Yearwood, then 30, first appeared at the house, she sat in a pair of stacked plastic chairs by the front door, and he started massaging her. She said he knelt in front of her.

Testimony about the chairs was that they were in the same place as where police photos showed them: facing a wall, with a small amount of room between the seat and the wall. A small grill is on the floor in front of them.

The girl said she fled into the mother's bedroom to use the phone and call for help.

In the bedroom, she said, Yearwood grabbed the phone from her and threw it. He used explicit language and ripped her dress, she said, causing her to fly up in the air. He tore her panties off, she said.

A nurse said that there were no marks or bruises on the girl.

The girl said the attack stopped when her mother arrived home for lunch and she yelled for help.

The N&O is not identifying the woman, now 24, as is its practice in an alleged sexual assault. She did not respond to three messages through email and Facebook.

The mother testified that when she came home that day, she saw Yearwood in her bedroom, apparently buttoning his pants. The mother used the phone to call 911 and reported a rape. She later said that she had not discussed the events with her daughter, but said common sense told her what had happened.

Police said the girl was crying uncontrollably when they arrived.

Authorities immediately took the girl to Duke Hospital for an exam. A torn dress, a pair of torn panties and some other items, including a sheet, were secured as evidence. The girl described an assault in a similar fashion to a nurse and to police.

The nurse, Winnie Walker, was licensed for evidence collection but not to make a diagnosis, according to her testimony and to standard practice for sexual-assault nurse examiners.

Walker testified that the redness and irritation meant that the girl "was assaulted in that area" recently.

Asked by Yearwood's lawyer what other things could cause the irritation or redness, Walker said she didn't know of any.

Yearwood's story differs

Records show that Yearwood had been drinking that day and that he was at the girl's house.

His live-in girlfriend, then pregnant, headed off to work after lunch and stopped at a pay phone to report him to police as intoxicated in the street outside his house - around the corner from where the alleged attack took place. Earlier that morning, Yearwood was listed as a suspect in a theft of beer at a grocery, though he was not charged and denies any involvement.

Yearwood, who grew up in Durham, owned a fix-it business and mowed lawns. He had bought his grandparents' home, repaired it, then moved in about six weeks before his arrest. In that short time, he became known in his neighborhood, near Durham's Ninth Street on the west side of town, for maintaining others' yards.

Yearwood said he took a walk that day as 1 p.m. approached, stopping to knock on a door a block away before circling back toward his home.

He told police that he stopped by the girl's home to ask the mother about mowing her tall grass, according to a transcript of his interview. The mom was typically home for lunch then, Yearwood said.

He said the girl opened the door, and he stepped inside because it was hot out. Yearwood said he never left the front-door area. He denied that he ever touched the girl.

The girl went toward a back room, Yearwood said in a prison interview in July. He thought the girl was going to get the mother, he said.

It was at that moment, he said, that the mom arrived home from work. She immediately questioned Yearwood about what he was doing there, he said.

According to testimony and police records, the mother called the house all morning, and the daughter did not answer the phone or return messages. Yearwood told police the mom and daughter argued, and he felt awkward standing there, so he left.

When he was arrested more than two hours later, groggy and possibly asleep in a chair on his porch, Yearwood woke up in a struggle with the police and tried to fight them off. He was belligerent at the jail and made threats when he was interviewed. He said he had drunk two 22-ounce beers.

Cline: No plea bargain

Cline began advancing the case in the courts in October 1999. Transcripts show that she was determined to prosecute Yearwood.

She said in the third of nine pretrial hearings that she had already informed Yearwood's lawyer there would be no plea bargaining.

"The State is not offering any plea offer in this case," Cline said. It was about three months after Yearwood's arrest - and almost five months before the trial.

"We will take this case to trial, and we will seek the maximum that we can possibly get," she said.

That statement was made three days after Cline received the crime lab report showing that no physical evidence tied Yearwood to the allegation.

Yearwood's lawyer said at the time that the state shouldn't rush to a judgment.

"Their case has taken a dramatic dive based on the scientific evidence," Campbell said. "And I don't think that I need to point out to the Court there have been some very notable cases throughout this country ... where there were a lot of allegations made that turned out not to be the case."

A question of DNA

Cline's view of the forensics evidence evolved over time as Yearwood's lawyer attacked it. The wording of a report from the State Bureau of Investigation gave her an opening.

Using a special lamp, the nurse at Duke had noted saliva in the area of the girl's crotch and thigh, consistent with the allegation of oral sex.

Analysts also identified possible evidence on the girl's underwear. The items were sent to the SBI crime lab.

There, an analyst found a "chemical indication" for the presence of saliva on both the swabs and the underwear. There is no scientific test available to confirm that a fluid is actually saliva, according to the SBI. Yearwood's lawyer, in a court filing, said the fluid could have been vaginal secretions. There were no other fluids detected, according to the SBI's lab report.

The substance was then tested for DNA, to see whose it was. According to that report and the notes from the testing, Yearwood's DNA was not there.

"No DNA profile different from that of (the girl) was detected," the SBI analyst, Brenda Bissette, wrote in a report.

That means there was no trace of Yearwood, and that the tests revealed a match only to the girl, SBI officials confirmed in interviews.

But in a January 2000 hearing, Cline characterized the lab work differently, telling a judge: "The contact was insufficient for them to get enough DNA material to determine whether it was his or this child's saliva."

Cline would later describe the test results as "inconclusive." She also says the absence of Yearwood's DNA does not mean there was no criminal act.

Bissette had added a second sentence to her lab report that added some confusion. The second sentence says: "Therefore, NO CONCLUSION can be reached regarding the donor of the saliva."

In the past year, the SBI has come under heavy criticism, in an audit and by the courts, for the wording of lab reports in criminal cases.

The special agent in charge of forensic biology at the crime lab, Mike Budzynski, said in an interview that the report in Yearwood's case would not be written today with the "no conclusion" wording. That second sentence would not be in a report, he said.

Bissette declined to comment. She was removed from casework through retirement in 2005 after problems with her handling of an unrelated case.

'No, sir, I did not'

At the trial, Cline presented the child's testimony, and her mother's, along with that of the emergency workers. She rested the state's presentation without calling the lead police investigator, who had interviewed Yearwood, or anyone to testify about the DNA.

Campbell was caught off guard. He had hired a DNA expert from UNC Charlotte, who wrote suggested questions that would rebut Cline's statements that the DNA tests weren't definitive.

But the expert wasn't in town. During other hearings, Cline had agreed to give Campbell a heads-up about when the SBI evidence would be presented. Campbell considered asking for a delay to wait for his expert.

In the end, like Cline, he did not ask anyone to testify about the forensics.

Campbell called no witnesses, deciding not to use the officer who had listened to Yearwood's denials. He did not introduce the SBI report into evidence, choosing instead to emphasize the lack of physical evidence in his closing argument to the jury.

The jury voted to convict.

One juror said in an interview that the jury was split when it first started discussing the case, voting 7-5 for acquittal or 6-6. Two jurors said that they would have paid attention to the DNA information but that with no witnesses or testimony from Yearwood, they could only reach a conclusion that he was guilty.

At a post-conviction hearing, Yearwood alleged he had an ineffective lawyer and sought a new trial. It was denied. At that hearing, in 2004, his lawyer said he had been worried Yearwood would not withstand questioning by Cline, saying he didn't recall "an awful lot" about what happened at the house.

Later in the hearing, Yearwood took the stand for the only time. His lawyer for that hearing asked Yearwood whether he committed the crime.

"No, sir, I did not," Yearwood said. "I've implicated that from day one, and there's mounds of evidence to prove that."

Cline declined to question Yearwood. Moments later, she told the judge, "There is not one iota of evidence that says he didn't do it."

Missing evidence

More than a decade after his conviction, Yearwood's effort to reopen his case rests on apparent gaps in information about the case and his efforts to review the actual evidence.

Long-settled law in the United States requires that defendants receive information the state gathers if it could be favorable to the defendant or if it would undermine, or impeach, a witness.

Cline said in hearings during the Yearwood case that she went beyond that, giving "open file" access. But records Yearwood's lawyers have not previously seen have recently emerged.

The SBI's lab report and notes, as provided to Yearwood for his trial, are 12 pages. The SBI says its file is 71 pages.

Investigators scraped Yearwood's fingernails, but he has no reports about testing on them.

In one hearing, Cline said the police had dusted for fingerprints in the home, mentioning as many as 20 prints. But she said they couldn't be evaluated because theyweren't "workable."

No reports about fingerprinting were provided to Yearwood.

And Yearwood's lawyer has just received notes from the police officers who worked on the case.

Rattelade cannot yet say how the new documents could affect Yearwood's appeal. She has not yet been able to look at everything that should be part of his case files, including all of the evidence itself.

Yearwood and his lawyer say in documents that they are concerned about missing information for a reason: Cline has withheld evidence in other cases.

acurliss@newsobserver.com or 919-829-4840

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