DNA raises questions in '89 murder verdict
by PETE SHELLEM, Of The Patriot-News Sunday April 20, 2008, 10
With H-A-T-E tattooed across one set of knuckles and L-O-V-E across the other, Emerson McCauley hardly casts a sympathetic figure. Bald, hulking and mostly toothless, the convicted thief and forger freely admits he told police he watched two men rape a woman and throw her off a 44-foot-high Juniata County bridge in 1977.
Chief Deputy Attorney General Frank Fina said he remains convinced of McCauley's guilt and said the new evidence might have no bearing on the case.
William C. Costopoulos, who was appointed to defend McCauley, disagrees and says he'll use that evidence to ask for a new trial.
Earlier this month, McCauley turned down an offer that could have freed him from prison in exchange for his cooperation. McCauley said he cannot cooperate because he knows nothing about the murder.
Senior Judge Keith B. Quigley, who presided over the original trial, said the DNA tests have thrown the case into "fairytale land."
"DNA evidence can work in various ways," Quigley said. "It can work to convict. It can work to obfuscate. It can work to acquit."
It was early June 26, 1977, when Clifford Leister was driving his girlfriend home after an early-summer thunderstorm had knocked out power at a drive-in theater near Lewistown.
Through the mist and fog that followed the storm, they noticed something pale in the road as they drove down Route 333 (formerly Route 275) under the twin-span bridges of U.S. Route 322 at the Thompsontown exit about 1:30 a.m.
It wasn't until Leister turned around and pulled up to the object that his headlights illuminated the body of a young woman lying face down on the road. She was nude from the waist down. Her hands were tied behind her back with her pantyhose, and a bandanna was stuffed in her mouth.
Leister flagged down a truck, told the driver to get help, and they covered the body with an old Army blanket until police arrived.
An autopsy showed the woman had been beaten, raped and choked but had been alive when she was tossed or pushed off the four-story-high overpass.
The woman was wearing a red-and-white waitress uniform with a white blazer and had tattoos of a butterfly and a flower on her buttocks. The single curly hair was found on her calf.
She was later identified as Devera Frink, who had left her job as a waitress at Brothers Restaurant in the Nittany Mall near State College around 10 p.m. Originally from Detroit, she had moved to the State College area a year earlier to be with her boyfriend, whom she met in the Navy. She had been working at the restaurant about three months.
Her boyfriend usually drove her home but was at a bachelor party that night. Frink turned down an offer to stay at a co-worker's apartment. Instead, she decided to thumb a ride back to her apartment in Boalsburg.
Frink was seen by her boyfriend's co-worker, a cabdriver, as she hitchhiked on Atherton Street in State College around 11 p.m. She was paid about $65 that night but decided not to hire the cab.
She was last seen alive in Boalsburg, a short distance from her apartment, about 15 minutes later, according to police reports. It was more than 50 miles from where her body was found about three hours later.
Although police denied it at trial, explicit details of the crime scene were published in local newspapers in the following days.
The state police immediately assigned 34 troopers to handle one of the largest investigations Juniata County had ever seen.
Two days after the murder, police received an anonymous call from someone who said Frink was picked up by a van. Later that week, Robert Swanger told police he heard a vehicle skid to a stop in front of Frink's apartment.
Swanger said he heard the sliding door on the side of the dark-colored van open and heard a male voice say "get the hell out of here," before the door slammed and the van sped off down U.S. 322.
Police began running checks on vans registered to people in the surrounding four counties.
At the same time, other investigators were focusing on Frink's boyfriend, Rick Houtz, and the two men who shared the three-bedroom apartment with the couple. The police eventually were satisfied that those men were not involved.
The Cumberland County coroner, Dr. Robert McConaghie, performed the autopsy and made microscopic comparisons of the sperm on Frink's body with the sperm of other suspects, but he was unable to form any conclusions.
Although DNA testing was not available at the time, the state police could determine blood type in some semen samples. But McConaghie, who died in 1990, did not turn the evidence over for testing. The slides could not be located after his death.
A suspect kills himself
On July 3, 1977, police investigated Robert E. Brown, based on a tip from a barmaid who thought he was acting strangely.
Brown, who had just separated from his wife, had a gold 1975 Chevy van with a desert scene painted on the side, similar to Swanger's description.
Brown's wife said in police reports that she had left the home two weeks earlier because of his erratic behavior, which she attributed to drinking and drugs.
When police went to Brown's home, where he ran a junkyard, he was unhooking the van from a U-Haul truck.
He said he was watching races in Port Royal on the night of Frink's murder and then went to a bar. He had loaned the van to his girlfriend to take to Harrisburg, he said, but the motor blew and he towed it back. He allowed police to search it.
Police checked his alibi and found there were no races that night. Brown then changed his story to say he spent that night looking for a truck he had loaned to a friend and ended up at the Pleasant Gap American Legion. That story was initially supported by a couple at the Legion, who testified later they couldn't be sure of the date.
In May 1978, state Trooper Miles Houseknecht picked up Brown on $3,000 in outstanding fines.
Houseknecht confronted Brown with the suspicions surrounding him in the Frink murder.
Houseknecht testified Brown "bolted back on me, squared off like he wanted to fight, became very nervous and began shouting that he knew nothing of it."
Brown, 41, hanged himself three days later. He left no note, authorities said.
Prisoner tip led to McCauley
A tip from a Center County Prison inmate led authorities to McCauley.
Gary Prisk told Trooper Fred Miller that he believed McCauley was involved in the murder.
Prisk was dating McCauley's sister and claimed he overheard an argument between McCauley's mother and stepfather. The stepfather accused McCauley of involvement in the murder, Prisk said.
Miller visited McCauley at the State Correctional Institution at Camp Hill in February 1980, where he was serving a 2Â½-to-7-year term for theft and receiving stolen property.
McCauley told the trooper he knew Robert Brown and described his van. He told him Brown was friends with a man named Jesse Taylor and a woman named Catherine Crossley.
He told Miller he knew nothing about the murder, but at the end of the interview, McCauley, posed a question: "What would happen to someone if they were just along for the ride?"
He said he asked because he was concerned about a friend, the trooper testified.
Catherine Crossley, who was 17 years McCauley's senior, was his girlfriend. She initially told police she knew nothing about the murder but later said McCauley admitted that he, Brown and Jesse Taylor had raped and killed Frink.
Police interviewed Taylor on Sept. 11, 1980, and he denied any knowledge of the crime. He knew McCauley but said he didn't know Brown.
He had been arrested on marijuana charges, and police questioned him with the help of a local "psychic," Peggy Townsend Beddoes.
The psychic held Taylor's watch throughout the interview and kept saying he wasn't telling the truth. She even suggested he might have participated in the murder and had forgotten about it.
Taylor, who agreed to turn over his fingerprints and to take a polygraph test, insisted he knew nothing.
"I want to get it over with as soon as I can because I have nothing in it, and I want to get this cleared up," Taylor told police, according to a transcript of the interview. "I'm certainly going to dig into this and find out where I was."
Prisk later elaborated on his story and told them McCauley had confessed that he was involved in the murder and rape and had later cleaned out the van for Brown. He said they had driven Frink to a remote area near a ski resort and raped her and decided to kill her because "dead people don't talk."
McCauley talks to troopers
The investigation languished for three more years, until Aug. 4, 1983, when McCauley failed to return from a July 29 furlough from state prison.
Two troopers based in Dunmore tracked him down to an apartment in Scranton, where they found him hiding behind a closet door. He was looking at more jail time for what was then considered an escape.
That's when McCauley told them he could provide information about a murder in Juniata County.
During a four-hour interview, McCauley described being in the back of Brown's van when he and Jesse Taylor, who was 22 at the time of the murder, picked up Frink. He said Taylor was a drug dealer who offered McCauley, then 17, money to help him collect a drug debt.
He said Brown was driving and Taylor was in the passenger seat when they picked up Frink in the parking lot of the Nittany Mall.
He said they drove her around drinking and smoking pot for several hours. He said he was passing out when Taylor became violent and started raping Frink. Brown held her down, he said.
He said they later took her out of the van and threw her off a bridge as McCauley peered out the back window of the van.
Those troopers knew nothing about the Frink murder, but they contacted Trooper Fred Miller, who reinterviewed McCauley and got the same story. In both interviews, McCauley could not describe Frink or her distinctive red-and-white outfit.
Plea agreement discussed
In criminal law, there is an axiom that "mere presence" at the scene of a crime does not amount to guilt. However, in murder cases, if an accomplice participates in a felony that leads to murder, that person can be found guilty of second-degree murder.
Authorities sat on McCauley's statement for three more years, apparently believing it wasn't enough to make an arrest.
In August 1986, Juniata County District Attorney Daniel F. Clark asked the state attorney general's office to take over the case, saying that the only way to solve it was to pressure McCauley into testifying against Jesse Taylor.
"My predecessor in office discussed with McCauley a possible plea agreement in exchange for his testimony with Taylor but did not receive a response that was acceptable to him," Clark wrote. "Jesse Taylor was interviewed, and he also did not take the Commonwealth seriously. A trial of McCauley would certainly allow Jesse Taylor to go free."
Crossley was forced to testify before a state investigating grand jury. She said McCauley admitted participation in the crime.
At McCauley's 1989 trial, she tried to recant the statement, but prosecutor Michael Kane confronted her with her grand jury testimony and had it read into the record.
Crossley was recently admitted to a nursing home with Alzheimer's disease, her daughter Patty Walk said. Walk said her mother has difficulty communicating, but over the years has repeatedly said she believes McCauley is innocent.
Prisk, who had a record dating to 1972 for numerous robberies, burglaries and escapes, told the jury he was cooperating because "I have feelings."
"I'm the same guy I've been even if I've been in trouble most of my life," he testified. "I still have emotions. I still get watery eyes from even watching 'Little House on the Prairie.'"
Prisk said he was promised a letter to the parole board that wouldn't help him until he was eligible for parole in two years. However, records show that he was out of prison within a year of his testimony. A month after the trial, he was paroled from the escape sentence he was serving at the time to start serving a 3 to 10 year term on burglary charges.
On Feb. 26, 1990, he was placed in a halfway house in Johnstown and was released from there on May 21, 1990.
The state attorney general's office refused a request from The Patriot-News for correspondence between their office and to the parole board regarding Prisk.
Jurors focused on hair strand
ÂJanice Roadcap, the state police chemist, said she had matched the hair found on the victim's leg to McCauley's chest hair.
Before DNA testing, police labs would analyze hairs for similarities. It wasn't an exact science, but they would be able to say that hairs were either consistent or inconsistent with each other.
However, Roadcap, whose work in other cases has come under scrutiny, went a step further in McCauley's case. She said McCauley's chest hairs had bulb-like structures on them, something she labeled an "accidental characteristic."
Although she didn't note it in her reports when she examined the hair on Frink's leg in 1977, she testified that, too, had the same characteristic, something she said she had only seen in a few of the more than 2,000 hair examinations she had performed.
"And when I was observing this hair found on the victim's leg, I did not note this back in 1977," she testified. "I don't know why. It probably was there, but I just did not note it. Maybe I didn't know it had any significance."
Several jurors interviewed by The Patriot-News, without prompting, cited the hair as the most compelling piece of evidence against McCauley.
"It was the hair off of him that was found on her," said one juror, who asked not to be named. "There was something unusual about that hair. I was thinking that DNA has really come a long way. It's possible that he wasn't the perpetrator. We believed he was an actor because of the hair."
"The hair was certainly, probably, the biggest thing," said another juror, who also asked not to be named. "I thought if this matches, it must be him."
Roadcap could not be reached for comment and hasn't returned calls from The Patriot-News for five years.
McCauley's attorney presented a single witness, a young man who lived near the site where Frink's body was found who said he saw a van owned by someone else driving on old U.S. 322 around the time of the murder.
The jury deliberated about four hours before finding McCauley guilty of second-degree murder, which carries a mandatory life term.
DNA tests find no hair matchÂ
For the past 19 years, McCauley has been filing appeals protesting his innocence.
In 2002, McCauley's court-appointed attorney, Daniel McGuire, who is now a district judge, filed a petition saying that Prisk had recanted and said he had been coerced by police. The appeal went nowhere, and Prisk did not respond to letters from The Patriot-News. McGuire declined to comment.
In 2005, Judge Quigley granted his motion to have DNA testing on the hair, even though Quigley thought it might be irrelevant. He said the jury could have found that McCauley participated in one of the felonies that occurred that night in reaching its second-degree murder verdict.
Although the prosecution argued that Frink was kidnapped, raped and robbed before being murdered, those charges were not before the jury because the statute of limitations had expired by the time McCauley was brought to trial.
This June, the DNA tests showed the hair is not McCauley's. McCauley filed a petition on his own, citing newly discovered evidence and asking for a new trial.
At a hearing in October, his court-appointed attorney, John H. McCullough, said he waited longer than the 60-day period to raise the new evidence because the state police informed him there was more testing being conducted.
At that hearing, Deputy Attorney General William Stoycos asked that McCauley's petition be thrown out and tried to force McCullough to file a letter saying the appeal had no merit.
What Stoycos didn't tell the court was that other DNA testing had been performed by state police and that the results had been available since late June. Semen stains on Frink's clothing showed DNA from two males, neither of which was McCauley.
At the hearing, Quigley assigned the case to Costopoulos. Stoycos revealed the existence of the other DNA in December after Costopoulos filed a petition charging that the prosecution was not responding to requests for documents.
"It is believed ... that the Office of Attorney General failed to make known this report to the Court at the Oct. 4, 2007, hearing although Attorney McCullough made express reference to items being tested by the State Police and the fact that he had not yet received any report," Costpoulos said in his petition to Quigley after receiving the lab results.
Quigley has scheduled a hearing for June 25.
In November, in an apparent attempt to confirm the theory of the case, state police obtained a DNA sample from Jesse Taylor. Authorities will not say whether the sample matched, but Taylor has not been charged.
"I was more than willing to do it," Taylor said. "I wish they would have done it 10 years ago. They've been messing with my life for the last 30 years."
Taylor said he testified at the grand jury proceedings and told them he knew nothing. He said at one point he told police "bring the phone book here, and I'll pick someone out."
"I know it's not my DNA, but they're not going to be decent, I'm sure. They're not even going to tell me," he said.
Trooper David Clemens, who is in charge of the investigation, would not say whether they have made a DNA match. He said they did not try to match it to Brown either by testing his family or exhuming his body.
When asked if there were any other suspects, he said, "Not anyone we're focusing on right now."
State police have run the DNA through a national database and have not received a match.
"It's an open investigation," Clemens said. "There's still a lot of work to be done. We're not intending to close it any time soon at this point."
Pete Shellem: 717-255-8156 or firstname.lastname@example.org