As an April court date approaches, advocates are increasing their efforts to free a man who has served almost 10 years for a crime many say he didn’t commit. At the April 21 hearing, a judge will consider evidence not previously seen in the trial of David Yarde, who is serving a life sentence for a 2012 murder. That evidence may give Yarde the new trial he desperately wants.
Criminal Justice Reformer Advocates for Yarde
Bobby Constantino is an attorney licensed in Massachusetts. In 2003, he became an assistant district attorney in Boston’s Roxbury District. But after two years of witnessing what he calls a “cruel and counterproductive” justice system, he quit.Sixteen years later, Suffolk County District Attorney Rachael Rollins hired Constantino as the county’s chief of innovation and strategy. One of his ancillary roles was to go through “a massive pile of cases” that defense attorneys wanted reexamined. That’s when he learned about David Yarde.
Today, the criminal justice reformer and adjunct criminal law professor at Harvard Kennedy Law School is advocating for a re-trial for the 34-year-old Yarde. Constantino is working to raise public awareness of the case, which he says should never have resulted in Yarde’s conviction.
The Shooting
The first motion for a new trial, filed Feb. 1, 2019 (pdf), describes Yarde’s attendance at a Halloween party at the Tremont Street apartment complex where Russ was later killed. Yarde, an acquaintance named John Collins, and several others were at the party. Russ was also there. During the course of the party, Russ began asking others where they were from. This caused tension, which inspired Yarde, Collins, and several others to leave. Russ followed. In the elevator, Russ continued “asking members of the group where they were from,” according to the motion.As the group exited the building, Russ continued confronting Yarde, gesturing that he had a gun by grabbing at his waist.
The apartment building had 16 cameras. The elevators also had cameras. Six cameras captured the courtyard area where the shooting occurred.
Delando Hawthorne, the only person who actually claimed to have seen the shooting, lived across the street and was walking his dog at the time. He claimed he saw the muzzle blast and heard four or five shots in rapid succession. He also said he saw the shooter, a slim, brown-skinned, 5-foot-8-inch man wearing dark clothing and a dark baseball cap.
The Surveillance Footage
Surveillance footage that captured moments surrounding the murder was also obtained by The Epoch Times.
A third person passes from behind Yarde on the right. Moving toward Russ, he disappears behind a concrete pillar. Just as he emerges into view to the left of the pillar, Yarde suddenly ducks right.
The camera angle changes, but audio footage picks up the sound of gunfire.
A separate camera, in color, captures Russ as his body falls to the ground.
Everyone else scatters.
When the black-and-white camera sequences back to the area, the body of Russ is seen lying motionless on the ground.
The Autopsy
Russ was pronounced “brain dead” at 9:02 a.m. on Oct. 29, 2012. An autopsy showed that Russ received three penetrating wounds, one to the head and one to each leg. The fatal gunshot wound to the head entered on the left side of Russ’s forehead and exited the back right side of his skull.
With fouling, gun residue is left in dust-like grains of burnt powder that can be wiped off. Stippling, also known as tattooing, is caused when unburnt gunpowder strikes the skin and causes a superficial injury that resembles a cluster of pinpoint abrasions.
The materials Arden examined included the death certificate and autopsy reports and autopsy and crime scene photos.
In Arden’s opinion, the location of the entrance wound, the bullet trajectory, the presence of stippling on the left side of Russ’s face, and the location of the spent casings indicate that the shooter approached Russ from the left—not from the front—and that the shooter fired from much closer range than where Yarde was standing when the shots were fired.
A concurring opinion was made by Dr. Elizabeth Laposata, also board-certified in anatomic and forensic pathology.
A third analysis, presented as Exhibit B, was provided by Michael R. Garneau, a moving media and audio/visual forensic expert.
After analyzing the footage from multiple cameras and the positions of each person, Garneau determined that “given the less-than-one second window of time that the fatal shot had to be fired in,” the individual labeled in the footage screenshots as the “Third Person” would have been “in better position and have had more time to fire the fatal shot(s) than Mr. Yarde.”
That third person was John Collins.
In the original trial, Collins implicated Yarde as being the shooter. However, Constantino noted that Collins had “an obvious conflict of interest because he was also a suspect in Russ’ murder.”
More troubling is the fact that shell casings found at the crime scene matched ammunition found in Collins’s bedroom drawer. Further, Constantino said Collins initially told detectives during his recorded interrogation that he didn’t know who murdered Russ.
However, Constantino said, “After the recording abruptly stops and restarts, Collins inexplicably recalled that Yarde was the shooter.”
Yarde’s Story
In an exclusive interview by phone from prison, Yarde shared his story with The Epoch Times.
“I am not going to be silent,” Yarde said. “I have nothing to hide.”
Yarde recalled seeing Russ at the party, asking everyone where they were from.
“It’s a ‘hood’ thing,” Yarde explained. “People ask you that to determine if you’re their ‘beef,’ or if you’re a cool individual.”
As time passed, Yarde said he became increasingly more uncomfortable as tension mounted in the room. Then a friend told him he had had a verbal altercation with someone who had just arrived. After Yarde attempted to diffuse the situation, the individual left the party. Moments later, he saw Russ on his cellphone. He was looking around the room.
“I saw Russ go to his friend in the corner and he grabbed a gun,” Yarde said.
He saw Russ cock the gun and tuck it into the waist of his pants. Russ then approached Yarde and asked two questions: “Where are you from?” and “Did you have something to do with my man leaving the party?”
“He was basically being a bully the whole night,” Yarde said.
Sensing danger, Yarde decided to leave. Six others, including Collins, joined him. Russ followed.
In the elevator, Russ again started asking everyone where they were from. Russ wanted trouble.
As they left the building, Yarde began calculating his escape.
His options were to run to the street where he would be in the open, or to turn right, to where the concrete pillars would offer cover. He turned right. Russ followed.
When Yarde got to the second pillar, he positioned himself so he could use the slab for cover. Russ stood in front of him. Yarde knew Russ had a gun.
Yarde lifted his shirt to show he was unarmed. He warned Russ about the surveillance cameras. Russ didn’t care.
Out of the corner of his eye, Yarde saw someone approach from behind him. The individual slipped behind the pillar.
“It happened really quickly,” Yarde said. “The shots went off and everyone scattered.”
He was arrested 21 days later.
‘He Didn’t Fire the Shots’: Litigation Advocate
Osagie Okoruwa, founder of The Innocent Convicts, is also convinced Yarde wasn’t the shooter. The national litigation advocacy and education organization represents victims of wrongful convictions.“For the past 10 years, Mr. Yarde has been fighting to clear his name and have his conviction overturned because he was not the individual who committed this crime,” Okoruwa told The Epoch Times. “He was present, but he didn’t fire the shots.”
Constantino noted that four forensics experts concurred with his conclusion that it was impossible for Yarde to have shot Russ.
Additionally, while the First Motion document states Yarde was charged with “unlawful possession of a firearm,” it also says “the gun that fired” the shots that killed Russ “was never recovered.”
