Within days of the appointments, Meurer granted the attorneys’ request for a bail-reduction hearing, at which Ron Lara argued against lowering the amount because the defendants were flight risks. In rebuttal, Welborn’s mother described her son’s attachment to home and his job, his plan to buy a house for himself and his child and his family’s desire to raise the one million dollars to bond him out. Kimberli Pierce then spoke of Maurice’s strong family ties and pointed out that even after the police warned him he would be arrested, he stayed put. “Innocent people don’t run,” she insisted. In closing, defense attorneys cited two other capital cases with bail set at $250,000.
After a brief break, the judge agreed to reduce Pierce’s bond to $750,000 and Welborn’s to $375,000. The cert hearing itself would begin within thirty to sixty days and would last between ten days and three weeks. Sessions would not be held on the anniversary of the murders or the day after. In a bold move, Meurer ordered the state to make available to both defense teams the thirty-three boxes of evidentiary material the APD had gathered over the past eight years, a decision the DA’s office ardently opposed. Prosecutors everywhere fight like crazy to hold on to whatever they can, dishing out to the defense only what they must. But they can’t keep everything. The Supreme Court’s 1963 Brady v. Maryland decision ruled that to satisfy the Fourteenth Amendment due-process mandate, the state was required to hand over to the defense any evidence that might prove exculpatory to its client. And a year later, in 2000, federal courts authorized a pretrial period of what’s called “discovery,” in which prosecution and defense exchange raw evidence, including witness lists, crime-scene evidence, autopsies, DNA and ballistics reports.
Once the judge banged her gavel, bailiffs escorted Pierce and Welborn back to jail.
Five weeks later, Judge Meurer called the cert hearing to order and stated its purpose: to decide if she should waive her jurisdiction and allow the case to be reassigned to the adult system for trial. Since both defendants were minors at the time of the murders and hadn’t been indicted by the time they turned eighteen, Texas law limited her to two options: certify them as adults or set them free. This was not a trial. Meurer’s job was to respond to a single question: Is it more likely than not that the young men committed the crime they were accused of?
Buddy Meyer opened the state’s case, citing the confessions by Michael Scott and Robert Springsteen, in which Pierce and Welborn had been named as coconspirators. The families of the girls sat side by side across the front row on the prosecution side, often holding hands, sometimes linking arms. 48 Hours had sent a cameraman and reporter. During a break, Bob Ayers told the press he didn’t think victims’ families should have to go through a certification hearing at all. “If you’re grown-up enough to pull the trigger,” he said, “you’re grown-up enough to stand trial.”
The Ayerses liked to dress in costume: Bob in cowboy gear, complete with aviator sunglasses, large hat, tight jeans, boots, wide western belt and pearl-snap shirt. Pam often went western as well, but for opening day she’d chosen a cropped, wide-shouldered red jacket with braided gold frogs across the front that wrapped around shiny brass buttons, drum major–style. Now that arrests had been made, the Ayerses were moving closer to Austin from their place near Blanco. The trials would be lengthy, and they intended to miss nothing.
Barbara Ayres-Wilson looked snazzy as ever, meticulously coiffed and made-up. She says she’s a little embarrassed about her behavior back then, dressing for the camera and rehearsing sound bites before leaving the house. But the girls needed a spokesperson, and if she was going to take on that responsibility, she wanted to be ready.
Maria Thomas’s wildly shorn hair looked barely combed, and behind dark-rimmed granny glasses her expression was clamped and tight, giving her a madwoman aspect, furious on the one hand, fragile and crumbling on the other. Eliza’s little sister, Sonora, previously always in the background, had accompanied her from Oregon.
On the opposite side of the aisle, the Welborn and Pierce families sat apart.
In their opening statements, Gonzalez and Icenhauer-Ramirez accused the APD of conducting a witch hunt in pursuit of Mike Scott and Rob Springsteen and then linking the statements they’d wrung from them to their clients. Aside from that, the state’s case depended on testimony from “undependable sources,” with no forensic evidence. Icenhauer-Ramirez said that, as a result of poor police work, sitting next to him was an innocent man who risked having his very life and liberty stolen away.
The downside for the state was that in order to get what it wanted, it had to reveal a healthy chunk of its case to the defense, the families, the city and the media. Pieces of the videotaped confessions would be shown to the public for the first time. Hold-back information would become common knowledge. If the APD didn’t, in fact, have the right guys, the prosecution was obviously cooked.
Hoping to seal the fate of all four men, Detective Paul Johnson resubmitted Pierce’s .22 to the ATF ballistics lab without telling the DA.
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As his first witness, Meyer called Manuel Fuentes to read Mike Scott’s written statement, after which Gonzalez—on cross-examination—asked why the witness had failed to ask Scott about the discrepancies between this and his videotaped confession. He actually hadn’t seen the tapes, Fuentes had to admit, and knew little about what the accused had said other than what Johnson and Lara had told him.
Other witnesses for the prosecution—Merrill, Lara, Hardesty, Johnson—provided narration for the tapes, which a technician played in stop-and-start fashion. Between the clips, each one lasting ten or fifteen minutes, a cop would testify. Merrill—who sat in the box like a bull about to charge, all readiness and forward motion, his white shirt strained against his thick belly—proved to be a good witness. Calm, patient, he didn’t fluster or turn snarky. If as tetchy as most cops, he knew how to hide it. When asked why Scott’s first statements conflicted with ones he gave later, Merrill simply said the early ones weren’t the truth and that to get the real story they’d had to prod him to dig deeper inside himself. For instance, Scott said he’d seen Robert Springsteen raping a girl in the ICBY office, though everybody knew firefighters had found the office locked and undisturbed, the keys in place on the cash register. Leading Mike to the truth took time. But what he and the other cops were sure of was that both Scott and Springsteen knew what happened, knew they were there, knew what they’d done. They’d buried the memories, which sometimes happened. A suspect comes up with inaccuracies and maybe isn’t exactly lying, but definitely isn’t telling the truth. When Gonzalez asked if Maurice Pierce was the main target of their investigation even though he’d confessed to nothing, Merrill simply said, “Correct.” From the get-go? Yes.
After watching the first run of video clips, Bob Ayers told a television reporter, “I thought I had prepared for the worst. I didn’t come close.” Barbara Ayres-Wilson called the experience a kind of persecution. At the end of the first day, she thought, “My God, it’s only day one and we’re not even in trial yet.” Ayers also spoke of the years they’d waited: “We’ve put this out of our minds for so long. Now we need to get through the certification and get some indictments. We’re ready to go to trial.”
On cross, Icenhauer-Ramirez grilled Hardesty for hours, ripping into the APD’s willingness to accept only the admissions that fit its conjectures. Paul Johnson testified about reopening the Maurice Pierce tips file. When asked by the state about Maurice’s .22, he neglected to mention the ballistics tests he’d just run, which had come back from the lab with the same findings: probably not the murder weapon.
On December 1, the state rested its case.
Defense re-called Hardesty and then Merrill. During a long, sometimes tedious direct examination, they dismantled the prosecutorial theory of the boys’ Friday-night rape and murder spree, capped off with a Saturday-morning theft of a Pathfinder and a victory-lap ride to San Antonio, producing evidence that the car had been stolen sometime after Town No
rth Nissan closed at eight o’clock on Saturday night, almost twenty-four hours after the murders. When faced with this mistake, the intransigent Hardesty refused to back down.
In one significant moment, when the defense played undecipherable clips from the Springsteen video and Merrill started to read from the transcript they’d put together, Meurer stopped him to say she was “deeply concerned with having a transcript based on somebody typing out what they think they heard.” She also scolded the state for continually withholding exculpatory material from the defense, violating rules of discovery. Her opinions on these matters varied considerably from District Court Judge Mike Lynch’s.
On December 8, when the state was asked to present its closing argument, Buddy Meyer reminded the judge that evidence from the crime scene indicated that the gun found on Maurice Pierce at Northcross Mall was “the .22-caliber weapon that had been used in the offenses.” This, of course, had never been confirmed by any firearms analysis, and there had been quite a few, but even ADA Meyer hadn’t been told about the most recent one.
On December 9, as the families of the murdered girls stood holding hands across the front row, Judge Meurer announced that she had found probable cause to believe that Maurice Pierce and Forrest Welborn had committed the offenses alleged by the state. She would therefore remand them to the adult system, where the charges against them—four counts of capital murder—would be sent to the grand jury for possible indictment. Because they were minors at the time of the crime, they would not be eligible for the death penalty. With a 10 percent deposit of the total bail amount, she would allow the defendants to be released into the custody of their families.
Maurice Pierce’s eyes rolled up, Welborn hung his head and wept. Court was adjourned.
“We’ve crossed one hurdle,” said a beaming Pam Ayers. “Now we’re getting ready to step over another one.” Her husband, who alone among the victims’ families occasionally entertained the possibility of doubt, said he just hoped the system worked. Sonora Thomas talked about the eight years they’d waited. In her mind, she said, it was almost like it hadn’t happened. “I mean, if there’s no criminal then there’s no crime, right?”
Forrest Welborn’s mother said if this was all the evidence the APD had, she couldn’t imagine her son would be convicted. The next day, Welborn’s aunt emptied out her pension fund to come up with the $37,500 required to bond him out. Escorted by his father and his sister, India, a tearful Forrest left the jail. “It was hard for him,” India told the press, “being in there and being innocent.” But she was glad he was certified as an adult so he could now clear his name. Gonzalez—who in his closing statement said he had no doubt that Springsteen and Scott were guilty and had sought to help themselves by fingering his client as the ringleader—had an unpleasant task ahead: If Pierce was indicted along with the other two, he’d have to make some apologies to their attorneys for casting blame on their clients.
The DA’s office wasn’t happy with Meurer about the 10 percent allowance, and ADA Rosemary Lehmberg said they preferred that both young men remain in jail.
Judge Meurer had the file boxes of evidence shipped from her jury room to Judge Lynch. Because his chambers were small and somewhat accessible, he then had the files sent to his court reporter Jim King’s office, where thirty-three brown cardboard boxes marked “YSM” in black Sharpie were stacked against a wall.
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On November 24, Rob Springsteen’s appointed attorney, Berkley “Berk” Bettis, had asked for an “examining trial” for his client on December 1, but ADA Robert Smith quickly requested a thirty-day postponement due to his schedule. In an examining trial, a jailed but unindicted suspect comes before a magistrate, who, after hearing accusatory evidence, decides whether or not to release the suspect pending the grand jury’s decision. Bettis’s move was strategic: If his request was granted, the DA’s office would be forced to reveal much more of its case than it wanted to. The county official compromised, setting the procedure for December 15. In the meantime, Bettis told the press, “Mr. Springsteen is not guilty and you may quote me on that. The sooner we get this case into court and ready for trial, the better.”
On December 14—remembering the 1966 Supreme Court decision in Sam Sheppard v. Maxwell, which temporarily set aside Sheppard’s conviction for the murder of his wife because of the “carnival atmosphere of the trial”—Mike Lynch signed a gag order prohibiting comment on Yogurt Shop by anyone associated with the case or the trial. A few hours later, Ronnie Earle, flanked by the victims’ families, announced the grand jury indictment of Robert Burns Springsteen IV for capital murder, thus jumping the examining trial by one day. Two weeks later, the same grand jury indicted Michael James Scott and Maurice Earl Pierce on the same charge but refused to indict Forrest Brook Welborn. Determined to reel in his youngest suspect, Earle received permission to extend the grand jury term by another ninety days so it could reconsider this decision. In response, Robert Icenhauer-Ramirez invited prosecutors to his office to question Welborn. After three hours they left, apparently having learned nothing useful. Erin Moriarty was also given permission to interview Welborn. Shackled, wearing a dark blue prison jumpsuit, his dark hair streaming around his face and reaching well below his shoulders, he looked straight into the camera and protested his innocence. He wasn’t there, he said, he knew nothing about those murders, and as for his friends, “I can’t see them doing anything like that.”
When Mike Scott’s family learned the identity of the attorney Lynch had appointed, they protested. So the judge came up with another name, and when that one didn’t meet with their approval, yet another. In the end, the family put some money together and called a lawyer they’d heard about—Pedro Antonio “Tony” Diaz from South Texas, who, having been suspended from the bar, was extremely available. The family couldn’t pay much, but Diaz was known primarily as a civil rights litigator and Yogurt Shop was his shot at big-time redemption and fame, so he quickly signed on.
Separated in county jail, each living in holding tanks that housed four to eight inmates, Springsteen, Pierce and Scott made friends, ate bad food, shooed off rats. The DA’s office had planted audio-recording devices in case they said anything incriminating. Pierce, for instance, would stand in line many times a day to make phone calls home, all of which were duly taped. Meanwhile, Welborn—now the father of two small children—went back to fixing cars. Awaiting the grand jury’s decision, he got a tattoo, and then another. In the coming years he would become a ready canvas for the skin artist’s needle.
Indicted first, Springsteen would be tried first, which makes sense. But the defense lawyers had other ideas. Garcia and Diaz think that because Scott’s confession was problematic, Robert Smith thought Springsteen would be easier to prosecute and that once they’d gotten the verdict they were after, the next jury would be more likely to cave as well. Sawyer, on the other hand, thinks Smith knew from the beginning he’d offer a sweet deal to the first defendant to come to trial and that Springsteen’s lawyers were more likely than Scott’s to convince him to take it. In any case, Garcia was surprised by the decision, Diaz was disappointed, Sawyer liked the idea and Robert Smith isn’t saying. Although the codefendants would be tried separately, defense attorneys for the three young men began working together immediately, discussing expert witnesses and preparing to push for speedy trials.
In late December, when Jim Sawyer asked to be on the Springsteen team, Berk Bettis welcomed the help. He knew Sawyer well and he couldn’t really afford to devote the kind of time a capital case demanded, especially this one. In addition, the Texas criminal code required that in a capital case, an indigent defendant should receive counsel from two attorneys; Lynch authorized the funds and approved the appointment.
As for Tony Diaz, it didn’t take him long to realize how unqualified he was to run a death-sentence defense, so within a year he would convince the Scott family to dig up enough money to hire Dexter Gilford, a respected criminal defense attorney, as coco
unsel.
Christmas came and went. The families of the murdered girls made plans, as did the arrested boys’ families. None of them could have predicted how many tedious and painful months would pass before Judge Lynch gaveled the court to order in the first of many pretrials. The Statesman and the Austin Chronicle often commented on the thinness of the state’s case, the lack of evidence, the bungled investigation, while the general consensus among citizens remained constant: They confessed, so let’s get on with it.
As the twentieth century came to an end and the world awaited apocalyptic technological snafus, Austin defense lawyers and prosecutors readied themselves for what was about to happen. And in the jury trials, four men will play leading roles: the judge, the lead defense attorneys and the lead prosecutor. Many others participated, but these extravagantly dissimilar men worked the main controls, called the shots and created the inevitable theater at the heart of every criminal trial, often as powerful an influence on a jury as the evidence itself. As Jim Sawyer once commented, “A trial is stagecraft, pure and simple.”
THE JUDGE
During Scott, for the first time in his nine years on the bench, Mike Lynch kept a journal. “I am sitting in court in the trial of State v. Michael Scott,” he began, “a capital murder case where the state is seeking the death penalty….This makes the fifth death penalty case I’ve been involved in over the last five years….” And he chronicled the prior four, ending with Saldana, which had commenced four months after he was asked to sign arrest warrants for Pierce, Springsteen and Scott. After detailing the crime in a few lines, calling it “one of Austin’s most infamous and heinous crimes,” he mentioned the all-out press coverage and some of the reasons the case had remained unsolved for so many years. Then he jumped to the arrests. “The three suspects,” he wrote, “were indicted in late December of 1999, officially beginning an arduous and painful, not to mention lengthy, trip through the criminal justice system for everyone involved. Over 2½ years into the process, we are in trial on the second suspect, and there is no end in sight when remaining trials and appeals, etc. are considered.” He ended that paragraph with a blunt statement: “No physical evidence has ever connected these defendants to the crime.”
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