Deseret Morning News, Sunday, November 23, 2003

No retrial in depot case

Ex-air-monitoring chief gets Jan. 13 sentencing date

By Angie Welling
Deseret Morning News

A former air-monitoring chief at the Deseret Chemical Depot will not receive a new trial on charges he falsified information concerning effectiveness of air quality monitors, after a Friday hearing failed to turn up proof of wrongdoing at the original trial.

Defense attorney Mick Harrison asked for the evidentiary hearing in October, promising U.S. District Judge Tena Campbell he would present evidence that one of the government's key witnesses unfairly influenced others by discussing her testimony outside the courtroom.

However, after hearing testimony from five original trial witnesses, Campbell promptly denied the motion for a new trial and scheduled a Jan. 13 sentencing date.

David James Yarbrough faces up to 35 years in prison — five years on each of the seven counts on which he was convicted.

"It's time to get this case resolved," Campbell said, cutting off a request from Harrison for additional arguments in the case.

Jurors convicted Yarbrough in August of manipulating data at the Army's Chemical Agent Munitions Disposal System near Stockton, Tooele County. The falsified data made it seem that air monitors to detect potentially lethal vapors were passing tests when they were not.

Among the witnesses who testified Friday was Patti King, the government witness at the heart of Harrison's motion. The defense attorney maintained that King was seen in the courthouse cafeteria reviewing a regulation book that was central to the trial with co-worker Kevin Draper.

Draper admitted bringing the book to the courthouse, saying he planned to review it so he would be prepared when testifying. However, both he and King said they did not discuss the book beyond King's question of why Draper had the material with him.

Others testified they saw the two together in the cafeteria, with the book lying on the table between them, but said they could not hear what they were saying, nor could they remember seeing them turn pages in the book or reading portions of it together.

King and Draper said prosecutors told them several times prior to the trial not to discuss their testimony with other witnesses, and Campbell said she believed they heeded the warnings.

Also on Friday, Campbell denied Harrison's allegation that prosecutors made inappropriate remarks throughout the trial — namely that Yarbrough's actions endangered those in and around the depot. The judge said those comments did not rise to the level of prosecutorial misconduct, as Harrison had alleged.