WHEN A TRIAL ENDS, THE LEGAL MANEUVERING BEGINS .  .  .  .


Here is presented the now twenty-seven (27) year history of the legal proceedings surounding the 1981 capital murder of Gary, Indiana Police Lt. George Yaros.  Interspersed in this chronology and the published legal opinions you will find my comments and remarks .  The rulings of the courts with respect to Averhart's legal maneuverings are made available in full.   Be forewarned, the court decisions are lengthy, and best captured and viewed off line.

Post-trial appellate efforts raise many legal issues; some substantial, most spurious or picayune, particularly where the convict is personally making the filing with the reviewing court.  The one certain effect is, all these efforts are intended to, and do, delay the swift administration of justice.

[I wrote in 1998 -]   One would think here, seventeen (17) years after the fact, the matter has finally, and thankfully, been put to rest.   George Yaros' two grandsons, each named after a man they never knew, are now approaching adulthood.  Despite the passage of more than a decade and a half the hard truth is, not only is the matter not resolved, maneuvering will continue on, probably into the next century.

Round #1 was completed in 1982, when the court imposed a sentence of death by electrocution on Averhart; now a 2x murderer.   The trial proceedings consisted of 2 days to question jurors and seat a jury (19 and 20 Apr 1982).  5 days were consumed in the trial to determine guilt or innocence (21, 22, 23, 24 and 26 Apr 1982).  The death penalty trial lasted 1 day (27 Apr 1982).  Sentence was imposed on 25 May 1982.

[Comment - GDY]  What is important/significant to note here is that Averhart did not stand trial alone.  2 cohorts, David North and Ralph Hutson, were also charged with the same offense.  After assessing all the evidence and the roles of each defendant, the jurors determined that only Averhart deserved the death penalty.  The other defendants each received sentences of 60 years.  In 2008, they both are now eligible for parole.

Round #2 began immediately thereafter and came to an end in 1984.  In that year the Indiana Supreme Court upheld the jury verdict of guilty and affirmed the imposition of the death sentence.

== >   GO TO ROUND #2 DECISION

Averhart did attempt, unsuccessfully, to have the U. S. Supreme Court review his case.  It declined to do so in 1985. 

The refusal by the U. S. Supreme Court to review the case meant not the end, but rather the start of a series of lengthy collateral appeals in the state court system.  Collateral appeals do not question/challenge guilt or innocence directly (on the merits).  Rather, they attack specific actions taken or not taken by the trial attorneys and judge.  Collateral appeals are known as post-conviction relief proceedings.  They are initiated in the trial court, and ultimately are reviewed by the state supreme court.  Where federal constitutional rights are brought into play, post-conviction relief proceedings could wind their way through the federal court system to the U. S. Supreme Court.

Round #3 consisted of a petition for post-conviction relief.  Again the Indiana Supreme Court rendered a decision in the Averhart matter.  Again, it decided a fair trial was conducted; at least as to determination of Averhart's guilt.  However, it also ruled the proceeding to determine the appropriate sentence was flawed, due to the ineffective assistance of counsel in the sentencing phase.  In 1993 the Indiana Supreme Court granted Averhart a new trial; only as to what sentence he should receive.

== >   GO TO ROUND #3 DECISION

Round #4 concluded in 1996.  The judge, prosecutors and defense attorneys reconvened, with a new jury , to go through the rituals.  As before, and as any sane person would do on hearing the circumstances of Averhart's background and the horrendous facts surrounding this offense, the jurors unanimously determined the death penalty was more than appropriate.  On March 18, 1996 the trial judge decided to follow the jury recommendation and ruled Averhart should be executed.

Round #5 , appealing the 1996 trial court decision as far as possible, is now in progress ... .

[Comment - GDY]  [ In 1997] Averhart, now approaching 44, has been a resident of death row for the last sixteen (16) years.  (Over half of his entire life has been spent within the confines of the walls of the Indiana State Prison where he is clothed, fed 3-squares a day and housed at taxpayer expense.)  In 1996 Averhart's execution was ordered to be inflicted by means of lethal injection, instead of electrocution.  Such a manner of departing this life, should it ever actually come to pass, is far more humane and gentle than the one Averhart accorded to Lt. Yaros on that fateful 11th day of August in 1981.

Round #5 concluded in 2000, when the Indiana Supreme Court affirmed the imposition, for the second time, of the death penalty upon Rufus Averhart. 

== >   GO TO ROUND #5 DECISION   

Round #6.   After losing Round #5, Averhart next sought to attack his 2d death penalty imposition on the grounds of inneffective assistance of counsel [one just can't find good attorneys anymore!] and on the claim the process used to determine the potential pool of jurors from which his jury was selected was defective.  The Indiana Supreme Court treated his ineffective assistance of counsel claim as bunk, but did decide he could proceed with his challenge to the jury selection process.

== >   GO TO ROUND #6 DECISION

Round #7  involved Averhart's challenge to the jury selection process.  It is complicated, involves mathematical computations, the rounding off of numbers and computers.  The gist of the claim is that calculation errors resulted in the exculusion of black jurors from the jury pool.  This exclusion is claimed to amount to denial of a fair trial by a jury of one's peers.  The Indiana Supreme Court bought this claim, vacated the death penalty and ordered a third trial on the penalty 2x murderer Rufus Averhart should recieve for killing Gary Police Lt. George Yaros in cold blood.

[Comment - GDY]  In so ruling, the court obviouly invoked the ire of the chief justice.  His angst and frustation are apparent in the explicit wording of his dissenting opinion.

== >   GO TO ROUND #7 DECISION   

Round #8 was initiated by the trial court.  It seems they could not find a judge in Allen County (Ft. Wayne), Indiana who wanted to take on death penalty trial #3?  [Comment - GDY]  Evidently, no one with a sane mind wanted to field this hot potato?  The trial court formally petitioned the Indiana Supreme Court for appointment of a Special Judge. 

[Comment - GDY]  At the same time, Averhart never out of items to pull from his trick bag, asked the court to send the case back to Lake County (Gary), Indiana for his 3rd death penalty trial.  This is the same guy who in 1981, demanded the case be moved out of Lake County due to prejudicial publicity!   Of course, with the passage of 2+ score years a lot had changed in Gary, Indiana, and Averhart found its environment more to his liking now.

In 2004, the Indiana Supreme Court did appoint a Special Judge from Boone County (Lebanon).  It also told Averhart he had made his bed, and now must lie in it.  The case would stay in Allen County for death penalty trial #3.

== >   GO TO ROUND #8 DECISION  

Round #9.   Well, the new judge certainly mucked up the works, to say the least!  In ruling on a motion from Averhart, this judge held that the State of Indiana was prohibited from seeking the death penalty!  His rationale was one of too much time had passed since the incident to permit a fair trial.

[Comment - GDY]  Great, just delay the carrying out of a sentence long enough, and one can avoid it altogether!  Is that not the message this judge sent?  Also, how could one overlook who instigated, nay, downright plotted, the lengthy delay, Averhart himself.  Each day presented him another opportunity to see the sun rise and set, and partake of the everyday joys of life.  

Needless to say, the prosecuting attorney was not pleased.  Nor was he inclined to accept such a bizzare ruling.  The only way to try and correct it was, you guessed it, an appeal to the Indiana Supreme Court.  Appeal he did.

The Indiana Supreme Court, presumably more than tired of Averhart and his ever continuing legal shenanigans, ruled in May of 2007, that the state indeed had a right to go to trial a 3rd time and ask a jury to sentence Averhart to death.  [Do be advised, this opinion is L O N G, some 34 typewritten pages. -GDY]

== >   GO TO ROUND #9 DECISION

Round #10.  Alas, it appears that nothing about this sad set of circumstances is simple.  Ok, the Indiana Supreme Court rules, definitively that the state may convene a 3rd jury panel to determine if 2 x murderer Averhart may get the death penalty.  Seems simple enough, does it not?  The prosecuting attorney did not think so.  Recognizing the weakness of his case after passage of more than a quarter of a century, he saw a real need to have the supreme cout define what it meant in ruling a 3rd  death penalty jury could be convened to determine the appropriate sentence.  Why would he do that?

The request was necessary, precisely because in 1993 the State of Indiana had changed the death penalty law from what it was in 1981, when Gary Police Lt. George Yaros was murdered while responding to an armed robbery of a bank.

Under the 1981 law the jury options were to recommend either execution or life in prison.  The word "recommend" is important, as the trial judge was not obligated to impose the sentence the jurors recommened.  Life in prison, in 1981, meant a term of years, equal to no more than 55 years, plus another 10 for aggravating circumstances (such as killing a police officer).  So you see, 'life' does not really mean life, as you and I think of it.

In 1993 the state legislature revised the ldeath penalty law.  The effect of the revision was to give jurors a 3rd option when determining the appropriate sentence.  The new option permitted a jury to impose a sentence of life without parole.  Theoretically, under a sentence of life without parole, a prisoner would be spared his life, but never, ever, taste freedom again.  Also, under the new law, the juror's decision is no longer a recommendation.  Whatever it is, the trial judge has to enter it.

[Comment - GDY]  I have to think, without knowing for certain, the prosecutor was worried about being able to recreate in the 21st century the magnitude of  the horror that was the crime Averhart committed in 1981.  His witnesses, whose memories were fresh, and testimony compelling in 1982, were now dead.  The prosecutor did not want to be in the position of a) not being able to present an extremely strong case, and as a result b) have the jury find Averhart should not receive the death penalty, but instead a life sentence.  Under that scenario, which he was trying to avoid, Averhart would immediately be eligible for parole in 2011, after having served 30 years.  The prosecutor wanted the jury to have the option, available under the new law, to impose a sentence of life without parole in the event it did not feel death was appropriate.  He also wanted the option, available under theold law, of letting the judge enter a sentence contrary to the jury finding if it was too lenient.  Either alternative would be better than facing the possibility of double murderer Averhart being released in 2011.

The problem became one of how to bring about a sentencing option that would permit the lesser of two evils; life without parole.  A decision was made to ask the Indiana Supreme Court for clarification.  Yes, another appeal.  Yes, more delay.  Only now, the length of time required for the supreme court to furnish an answer via a formal ruling was getting smaller and smaller.

The prosecutor got his answer on 7 Nov 2007.  It was not the answer he wanted.  The Indiana Supreme Court, in a split decision, held that Averhart Death Penalty Jury #3 was not to have the option to recommend a sentence of life without parole.  It was bound to make its decision on the basis of the law in existence in 1981; execution or straight life (making him eligible for parole in 2011).  That decision is made available for your perusal.

== >   GO TO ROUND #10 DECISION

Round #11.  (16 May 2008 - Indianapolis)  CHANGE OF VENUE DENIED, AGAIN

Marion Superior Court Judge Robert Altice, now presiding by way of special appointment of the Indiana Supreme Court, and replacing the previous specially appointed judge, today denied Rufus Averhart's second request for a change of venue (see Round 8, above) of the upcoming 3rd penalty phase trial for the 11 Aug 1981 murder of Gary Police Lt. George Yaros.  Averhart again sought to have the penalty phase trial removed to (Gary) Lake County, Indiana from (Ft. Wayne) Allen County.  The judge ruled the trial shall take place in Ft. Wayne, Allen County, Indiana, starting on October 20, 2008.  [Comment - GDY]  We shall see how firm this trial date is?  Check back on 20 Oct 2008 for an update!

[Comment - GDY]  27 years ago Averhart successfully argued that it would be unfair for him to be required to stand trial in Lake County.  The argument, then, went that pre-trial publicity had so enraged the citizenry of Gary that it would not be possible to pick a fair and impartial jury.  Averhart got his wish; the case was moved to the Allen County court in Ft. Wayne.

Evidently, Rufus' thinking on this point has now changed?  Afterall, more than a quarter of a century later who in Gary remembers Lt. George Yaros?  Could Rufus possibly think a jury of his peers (defined as being unemployed people of color residing in the "Murder Capital of the World") would be more sympathetic to him and his claims of being victimized by the establishment?

If that is his thought process, I submit it is flawed.  Even his own would look at him and see nothing but scum.  My long experience as a criminal defense lawyer has taught me that black jurors are harsher on black defendants than their white counterparts.  Blacks hold their own to a higher standard, which standard Rufus could never meet.

Round #12.    If and when it ever happens, Round #12 should consist of the third death penalty trial.  As of 16 May 2008, an October trial date has been set.  Who knows what further legal machinations could delay it from taking place?  What I do know is, no matter what the result of that trial, it shall be challenged by way of more appeals.

Alas, no end to this nightmare is in sight.   I am also painfully aware that, in 2008, having myself already been on this earth for more than three score years, I may not be fortunate to live long enough to report the ending of this saga.  Should that situation come about, it is my fervent hope someone will make the effort to keep the memory of George Yaros alive and pick up where I have left off ... .

Photo-Yaros 
Brothers 

Lt. George Yaros is the one on the right

The Yaros Brothers

Pictured Left-to-Right:  Steve Yaros, John Yaros, Paul Yaros (my father),  and Lt. George Yaros
Not Picutred:  Mike Yaros
This photo is circa mid-1960's


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2008, G. David Yaros.  All rights reserved.