Pattern will play key role in Yates' trial

Karen Hucks; The Tacoma News Tribune
August 12, 2002

Some of the state's best "witnesses" in the murder trial of Robert Lee Yates Jr. will be 10 women who had a telling history with him: He killed them.

Jurors in Yates' death penalty trial will learn how Yates picked up the Spokane-area women, probably while they were working as prostitutes, shot them in the head and dumped their bodies in remote areas. They'll also hear from a woman who survived after Yates shot her in the head.

And in opening statements expected today, jurors will hear Pierce County prosecutors say Yates in 1997 and 1998 killed 24-year-old Melinda Mercer of Seattle and 35-year-old Connie Lynn LaFontaine Ellis of Tacoma in the same way as the Spokane victims.

Prosecutors hope that when jurors see the similarities between the 10 late-1990s killings Yates confessed to in Spokane and the murders he's on trial for in Tacoma, they'll be convinced he murdered all the women - with one plan.

And he should die for his crimes, prosecutors say.

Unlike most murder trials, this one likely will be less about whether Yates killed Ellis and Mercer and more about whether prosecutors can prove the killings were part of a more complex crime.

Yates has been willing to plead guilty in Mercer's and Ellis' deaths - both in dealings with Spokane County and Pierce County prosecutors - if they would back away from the death penalty.

But Pierce County refused, saying Yates' crimes were the worst imaginable and he deserves the staunchest punishment possible. Yates already is serving 408 years in prison for 13 murders, so his death is the only additional punishment left.

To seek the death penalty, prosecutors must prove a murder included certain legally defined "aggravating factors" that made it worse than most homicides.

In Yates' case, senior deputy prosecutors Jerry Costello and Barbara Corey-Boulet will present three such factors: that he also robbed the women, that he killed them to cover up another crime and, most critically, that he murdered more than one person as part of a "common scheme."

The concept of common scheme is rarely used in trials, because most killers slay only one person. Corey-Boulet said it most often comes up concerning mass murders, where several people are killed at the same time.

To build the case for common scheme in the Yates' trial, prosecutors will bring in one and possibly two profilers to try to prove that the commonalities between the 10 Spokane murders he admitted and the two Pierce County murders aren't just random.

One person committed all of them, the profilers say.

Defense attorneys Roger Hunko and Mary Kay High say the profilers are guessing about what happened and why. Their "evidence" is assumption, their database faulty, they say.

The 12 slayings are similar, and not typical murders, contend the profilers, FBI supervisory special agent Mark Safarik of Quantico, Va., and Robert Keppel, a former King County deputy who worked for the state attorney general and now heads the Institute for Forensics in Seattle.

As evidence, they cite that:

All the victims' lifestyles involved prostitution and usually drugs.

All were shot in the head with small caliber guns, and many with the same gun. Safarik and Keppel say most sexually oriented killings are stabbings, strangulations or beatings, and not the "hands off" work of a gunman.

Many of the women had plastic shopping bags over their heads - one of investigators' first clues that the same man was pursuing women on both sides of the state.

All were killed in one place and moved to another, where their bodies were at least partially concealed. As often as it might happen on television crime dramas, one profiler said, most killers don't try to hide their victims.

Prosecutors contend all of that shows Yates' common scheme.

A rare comparison

Jurors usually don't find out about a defendant's criminal past, let alone hear experts testify about how it affects the present.

State law bans talking about a defendant's previous "bad acts" because it might prejudice jurors and lead them to convict a person based on information other than the evidence presented in court. However, court rules allow some exceptions, one of which is to prove that previous and current crimes were part of a pattern.

In Yates' case, Superior Court Judge John McCarthy last year ruled that prosecutors can present evidence of 10 murders he pleaded guilty to in Spokane in 2000.

Yates also pleaded guilty to killing three other people (two in 1975 and one in 1988), but prosecutors didn't include them because they said they didn't fit his later pattern.

High and Hunko tried to keep jurors from hearing about Yates' past crimes. Having lost that battle, they now will focus on the single goal of winning his life.

The defense attorneys say prosecutors don't have the evidence to prove Mercer's and Ellis' deaths were aggravated murders.

"One of the aggravators was that he committed these crimes to cover up a robbery," High said. "The evidence there is really slim to none. And the theory to cover up the crime that he was patronizing prostitutes is thin as well."

She said prosecutors' case hinges on whether they can prove the third aggravator - the common scheme or plan.

Defining just what is a "common scheme" was one of the biggest legal questions McCarthy settled during early skirmishes before the trial.

Hunko and High said previous legal decisions indicated the scheme must be part of one overarching plan. It's not just killing people in a similar way, they said.

If Yates had such a plan, his attorneys said, he would have killed every prostitute he encountered - and that didn't happen.

"There are prostitutes out there (who Yates patronized) who aren't dead," said High, who will call some of the women to testify.

But McCarthy agreed with prosecutors that a common scheme was either a crime committed in preparation for another or one plan used to commit separate crimes.

That's what he'll tell the jury the law is.

If Yates is sentenced to die, McCarthy's instruction will be an issue for appeal, Hunko said.

Similar murders?

Defense attorneys say the similarities between the victims and their deaths aren't as clear-cut as prosecutors and their experts contend in alleging a common scheme in the deaths.

The defense's expert, Brent Turvey of Sitka, Alaska, says the evidence doesn't support the conclusions of Safarik and Keppel.

He said Keppel's report is based on an unreliable database, that includes unverified data and has an unknown error rate.

Turvey said Safarik used a criticized profiling method to link the cases. He also contends the profiler calls differences similarities. For instance, Turvey says, Safarik believes the killer putting bags, towels or nothing over the women's heads is part of an evolving pattern.

Prosecutors say they have substantial evidence that the deaths are linked.

Safarik and Keppel say that, in addition to working as prostitutes and usually using drugs, the 12 victims were white or light-skinned women, mostly in their late 20s to late 30s.

Seven women, including Mercer and Ellis, had two to four plastic grocery bags over their heads, tied with simple knots, court documents say. Investigators found a plastic bag with another woman's body. Two had towels on their heads, which Safarik said the killer probably used before he chose plastic bags because they would better contain blood.

Prosecutors plan to argue Yates had sex with many of the women after their deaths. They say there was semen in the bodies of seven women, including Mercer, that matched Yates' DNA profile.

Ellis' body was too decomposed to recover semen, but prosecutors say her blood was found in Yates' van.

Prosecutors note that most people who die of gunshot wounds are shot in the chest, rather than in the head, as were Yates' victims. And most female homicide victims die as a result of domestic violence - not at the hand of strangers - and aren't sexually assaulted, prosecutors say.

Safarik said he would have expected slain prostitutes - who depend on sometimes violent men - to have been beaten, but none was.

Prosecutors hope to have Keppel testify that in March, a statewide database of 1,541 women killed between 1981 and 2002 revealed how rare the characteristics of Yates' Spokane killings were.

For example, Keppel checked the database for prostitutes who were shot in the head with a .25-caliber gun and whose bodies were left outside with plastic bags over their heads. In that and two other searches, Keppel found only the cases of Mercer, Ellis and Yates' Spokane victims, court papers say.

High and Hunko said the victims don't look as much alike as prosecutors say. Some were older or younger than the age range profilers give, the attorneys say.

The way the victims were found was different, as well. Mercer was a young woman found naked in an industrial area. Ellis was 11 years older, was dressed and found near an apartment building. Some victims were partially dressed and some had no evidence of sexual assault, High said.

"The hard data tell you it's a coin toss whether somebody had a bag over her head," High said. "It's a coin toss whether somebody had clothes on."

The prosecutors' profilers sometimes even disagree with each other, Hunko said.

"They don't know what happened any more than the jurors will know what happened," he said. "It's something for the jurors to decide."

Karen Hucks: 253-597-8660
karen.hucks@mail.tribnet.com


Yates investigation, prosecution timeline

1995 to 1998: Bodies of more than a dozen slain women, many of them prostitutes, are found in Spokane and Pierce counties. The Spokane Serial Killer Task Force is formed.

April 18, 2000: Robert Lee Yates, 47, is taken into custody as he drives to his job as a replacement worker at Kaiser Aluminum Corp's metal smelter.

May 18, 2000: Spokane prosecutors charge Yates with eight counts of aggravated first-degree murder and one count of attempted murder.

July 17, 2000: Pierce County prosecutors charge Yates with aggravated first-degree murder in the deaths of Melinda Mercer in 1997 and Connie LaFontaine Ellis in 1998.

Oct. 19, 2000: Yates pleads guilty in Spokane to 13 murders, including two in 1975 and one in 1988. He also pleads guilty to one count of attempted murder. Spokane prosecutors hold back charges in one killing, in case Yates backs out of the agreement.

Oct. 27, 2000: Yates sentenced to 408 years in prison.

Oct. 31, 2000: Yates arraigned in Pierce County Superior Court and pleads not guilty to Mercer's and Ellis' deaths.

Jan. 12, 2001: Pierce County Prosecutor Gerry Horne announces he will seek the death penalty against Yates.

March 8, 2002: A visiting Superior Court judges rules Pierce County can seek the death penalty against Yates, despite the fact that Yates' attorneys said Spokane prosecutors made them believe he was bargaining for all the cases when Yates cooperated in Spokane.

June 20, 2002: Jury selection begins in Yates' Pierce County trial.

Aug. 12, 2002: Opening statements expected.

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