|
|
by Mary
Ruth Hammond
Staff Writer
David Yarbrough, a 53-year-old Stockton resident who was found guilty
last summer by a federal jury of seven counts of falsifying air-monitoring
tests, still vehemently maintains his innocence.
In an interview with the Tooele Transcript-Bulletin Thursday morning--the
day after U.S. District Judge Tena Campbell sentenced Yarbrough to six months
in prison and fined him $10,000 for the crimes--defense attorney Mick Harrison,
an environmental expert based in Kentucky, said Yarbrough's case will be
appealed to the U.S. 10th Circuit Court of Appeals in Denver.
"The appeal will be based on two major components," Harrison said. "One
is the court's finding of the commission of a crime, and the other is the
nature of the sentence. Both will be appealed. David is innocent and we believe
he deserves the new trial we asked for last year."
According to Harrison and Yarbrough, the jury that convicted the former
Deseret Chemical Depot (DCD) supervisor of providing false information on
tests conducted at the Tooele County site where a stockpile of chemical weapons
is being destroyed, did not have accurate information.
Harrison said a DCD employee who worked under Yarbrough misstated in court
testimony that she had seen Yarbrough reading a version of a Labor Quality
Assurance Plan (LQAP), which did not exist. Harrison said that testimony
caused the case to be very difficult to understand because the jury did not
have access to correct information.
The defense attorney explained that prior to 2001, the Army used a LQAP
established in 1997 to burn chemicals at the Oquirrh Mountain Facility Plant
(formerly CAMDS). In 2001, Harrison explained, the LQAP was updated.
However, Yarbrough was essentially the only DCD employee who had read
and taken the time to understand the new rules of documenting destruction
of chemicals, Harrison said.
The 2001 LQAP, which consisted of a box full of files, had been issued
out of Aberdeen, Md. Harrison said those files had apparently been left on
a desk at DCD and no one read them but Yarbrough.
"Under the new 2001 LQAP guidelines," Harrison said, "second, third, or
even fourth readings from an air-monitoring test could be entered as data
if those numbers confirmed a safe level of chemical emission."
Under the 1997 LQAP guidelines, only the first reading of a baseline emissions
test was allowed to be considered when determining whether equipment was
safe or unsafe.
Harrison said that Yarbrough probably did not act wisely when he started
using the 2001 guidelines without first informing those working under him
of the new rules. So, when DCD employees noticed that numbers other than
first readings of the emission tests were being used, they complained that
something was wrong.
At that point, Harrison said, the Army called in a criminal investigator
from Phoenix, to look into the situation. Harrison said that at no time,
when Yarbrough talked to that investigator, was he told that he was personally
being investigated for wrong-doing. Nor was Yarbrough ever told, according
to Harrison, that he had the right to have an attorney present before talking
to the investigator.
David's understanding of a criminal investigation is that you cooperate
and tell the truth," Harrison stated. "David answered the questions asked
of him."
Harrison said another problem with the Army's investigation was that the
investigator talked only with DCD employees who were unaware that a new LQAP
directive had been issued. "So, when the investigator asked David if he changed
the numbers on his report, he replied 'yes.' David admitted that he had used
second or third readings," Harrison said.
What the investigator did not know, Harrison continued, is that the new
LQAP allowed numbers from a second or third reading to be used. Yarbrough
did not explain to the investigator--because he did not understand that the
investigator was unaware of the situation--that the rules had been changed.
To complicate matters even more, one of the employees working under Yarbrough
testified in court that she had seen Yarbrough reading a later version than
the new 2001 LQAP directive. Harrison said a later version of the LQAP never
existed. And according to Harrison, Assistant U.S. Attorney Mark Hirarta
knew that a later version did not exist, but did nothing to correct the CDC
employee's testimony.
Harrison did not represent Yarbrough during the trial. He said had he
been in the courtroom at that time, the mistake would have been rectified.
After hearing that testimony about a "later version of the LQAP" the jury
was confused, Harrison said.
The mistake was not pointed out in court until Harrison came on board
as Yarbrough's attorney and asked that the former DCD supervisor be granted
a new trial.
"By that time," Harrison said, "the jury had made their conviction."
Judge Campbell denied Harrison's request last summer that Yarbrough be
granted a new trial.
Harrison also claims that Yarbrough had been singled out by the Army as a
"problem employee" because he had earlier been a whistle-blower on what he
thought were unsafe Army procedures concerning the destruction of chemical
weapons. Therefore, Harrison said, the Army was anxious to get rid of Yarbrough.
After the Army investigator found that Yarbrough had used numbers on baseline
tests that had not been allowed before 2001, Yarbrough signed a statement
admitting he had done so.
But, according to Harrison, the investigator had taken Yarbrough's words
out of context.
Because Harrison was under stress--and because he is the type of person
who believes that others are as honest as he is--Yarbrough signed the statement
without carefully reading it, Harrison said.
When asked to respond to Harrison's and Yarbrough's allegations, Chuck
Sprague, DCD spokesman, issued the following statement this morning:
"This episode with Mr. Yarbrough has been an unfortunate violation of
worker trust. The verdict reinforces the Army's commitment to safety and
the protection of our workers and local communities.
"As workers began preparations for chemical agent operations during the
summer of 2002, at the Oquirrh Mountain Facility, formerly known as the Chemical
Agent Munitions Disposal System (CAMDS), base line testing of electronic
monitoring devices was performed.
"The results of these baseline tests were then reviewed.
"A review of the results, which are official documents, indicated data
was falsified.
"The commander of Deseret Chemical Depot ordered an official investigation
by the Fraud and Abuse Section of the Armyís Criminal Investigation
Division (CID) out of Phoenix, Arizona.
"The CID report was given to the U.S. Attorney for the state of Utah.
A Federal Grand Jury reviewed this evidence and determined that a trial was
warranted.
"A three-day trial began on July 28, 2003, and a jury of his peers found
Mr. Yarbrough 'guilty' on seven of eight counts of false official statements,
under US CODE 1001.
"The Army (DCD) has no comment on this judicial process."
e-mail: maryruth@tooeletranscript.com