A pretrial conference in Washington County Court for John D. Yocolano II is scheduled for later this month now that a judge has declined to dismiss charges of rape and kidnap that were filed in 2012.
Yocolano’s attorney, Noah Geary, claimed the conduct of the prosecution was so egregious that the case which resulted in a conviction in 2015 should not be retried.
State Superior Court in August 2017 ordered a new trial for Yocolano, now 39, of Monongahela, in connection with an episode involving his ex-girlfriend that occurred Dec. 6, 2012.
The appellate court vacated Yocolano’s 18- to 36-year prison sentence, citing several errors by Judge John DiSalle and finding “the prejudicial effect of these erroneous evidentiary rulings were significant and deprived (Yocolano) of a fair trial.”
If the parties are unable to resolve the charges at the Feb. 25 conference, “the court will set a date for jury selection for a March trial term,” Judge Gary Gilman wrote, the first day of which is March 9.
The judge discounted Geary’s contention that the prosecution intentionally committed misconduct by withholding photographs of the victim’s bruises taken by Assistant District Attorney Kristin Clingerman and Monongahela police Officer Alyssa Brown Haines.
Neither woman is still employed by those agencies, and each testified in December that they never photographed the victim. Pictures of her injuries were, however, taken at Mon Valley Hospital.
Yocolano claims “that the hospital photos were not clear, but that clear photographs would provide exculpatory evidence. Specifically, (Yocolano) averred that cords used by the defendant to strangle or bind (the victim) would have left certain markings on her body, but the hospital pictures were not clear enough to note such impression,” the judge wrote.
Clingerman, a prosecutor for 15 years, explained in court that she never photographed victims, for if she did, “she would become a potential material witness and unable to prosecute.”
The police officer said when the victim appeared at the police station to report sexual assault, she instructed her to go to the hospital and seek treatment from a sexual assault nurse examiner.
Haines testified that because a nurse so designated treated the victim and photographed her, she did not need to take additional photos.
Attorney Neil J. Marcus, who represented Yocolano at the 2015 trial, intended to call Dr. Cyril Wecht as an expert witness to raise doubts about the ligature wounds. But Marcus said Wecht was unable to make a determination because photos were blurred.
In dismissing Yocolano’s motion regarding intentional prosecutorial misconduct, Gilman found that both Clingerman and Haines “testified credibly.”
At the request of District Attorney Gene Vittone last June, the state attorney general’s office has taken over the prosecution of Yocolano, a task to which Deputy District Attorney Evan Lowry has been assigned.
Geary also argued in December that too much time has elapsed between the Superior Court decision and a hearing in early December, so the charges against Yocolano should be thrown out because the prosecution failed to exercise due diligence in retrying the case.
Much of Gilman’s 7½-page order dealt with calculating elapsed days and to whom the delays could be attributed, determining that only 300 days have passed since Superior Court remanded the case.
Geary did not immediately return a call for comment on Monday.
Yocolano is free on $1 bond.