Fifty-two when he signed those affidavits, Mike Lynch kept fiercely fit by playing racquetball, tennis, softball and basketball, and also by working out at a boxing gym. “I used to play racquetball with him,” one lawyer told me. “I’d look back when he was about to serve and he had this furious look on his face. We were friends, but for him winning was everything.”
When he could get away, Lynch traveled widely to hunt fowl not found in Texas, and like fellow Arkansan Bill Clinton, he preferred to go by the short version of his given name. Nobody had ever called him Michael until he went to the first grade and the teacher asked him to spell his proper name, but he got it wrong—an embarrassment he has never forgotten. When he ran for the judgeship, he used the name everybody knew. On the bench and off, he’s plain Mike.
His career had traveled a restless path. A National Merit Scholar, after graduating from Amherst, he taught high school history and government in East Texas for a year and then, to avoid military service, went to law school at UT Austin. By 1974, during the era longtime residents consider the city’s salad days, he was interning for a group of left-leaning defense lawyers. When his apprenticeship ended, he teamed up with four friends in a criminal law firm and stayed there off and on for nine years, until twitchiness hit him again and he sold his share of the partnership and zoomed off on his motorcycle for a solo cross-country trip. Returning to the law after a couple of years, Lynch switched his field of advocacy, working for the state in the attorney general’s office and then in the Travis County DA’s office, where he headed up a team investigating government corruption and white-collar crime. During those years, he became a colleague of Assistant DA Robert Smith, who would act as chief prosecutor in every capital case tried in his courtroom, including Springsteen and Scott. Lynch swears their connection was not close, though others think differently. Nobody has ever accused him of collusion, but some say their friendship—for God’s sake, they played on the same basketball team, a lawyer told me—might have clouded his judgment.
In a hand closer to print than cursive, Lynch wrote in his journal during breaks and the showing of interrogation videotapes—which he’d already seen—or at lunch and on weekends, filling most of every schoolboy-lined page with general observations about the law, his jurors, the death penalty and the challenges of judgeship. On the death penalty, which he upheld, as the law required, he wrote that once the state gets into the “killing business,” the decisions it has to make—execute minors but not mentally retarded defendants, or the other way around?—are of necessity arbitrary and sometimes even capricious and discriminatory. In the end, he wrote, capital punishment doesn’t work.
He’d never kept a journal before and isn’t sure why he did during Yogurt Shop. Maybe simply age, the need to reflect. There was also his longtime connection to the case: He had read about the murders on the very day he put the finishing touches on a speech announcing his candidacy for district judge. (When asked if, considering that coincidence, he believed in fate, he will only say, “I didn’t used to.”) And there was its size and thrilling complexity, and the long list of rulings he’d have to make, some of which had a shot at eventually reaching the U.S. Supreme Court. If that were to happen, he’d be glad he’d written things down. If anything becomes clear from reading these pages, it’s that he wasn’t keeping notes just for himself.
Describing the emotionally intense atmosphere that infected any death-penalty case and the stress that ran higher on both sides than “during your normal robbery, rape or even murder case,” he admitted that while trying to “maintain a calm, steady demeanor both on and off the bench,” he’d be lying if he said he didn’t feel pressure “fueled by the fear of a mistake, a gaffe or a forgotten requirement that might jeopardize the process.” This stress resulted in a “compulsive need to prepare, prepare, anticipate, anticipate…the need to constantly deal with the problems, real and imagined, of the trial lawyers as their intensity and animosity for each other grows as the trial nears; the difficult and time-consuming process of researching, analyzing and producing written or oral orders on a myriad of legal issues, from simple to extremely complex.”
Within courthouse circles, Lynch was considered by most insiders—not all—to be fair and compassionate. He was also known for his ability to move his docket along, one of many reasons the lengthiness of Yogurt Shop especially aggravated him. Taken at face value, the journal does much to rescue Lynch’s reputation from legal and journalistic criticism.
“Don’t get me wrong,” Carlos Garcia told me. “Lynch is a good judge. But he fucked up on Yogurt Shop. No question.”
SAWYER
Springsteen’s lead attorney, Joe James Sawyer, was born in England and is proud of his immigrant status—his father from Mexico, his mother a Brit. He grew up in San Antonio, the eldest of four boys. After serving in Vietnam as a Green Beret paratrooper, he thought he might like either to write for the movies or to go to law school, and though the movies lost out, he still thinks about writing screenplays.
When asked to describe himself, Jim Sawyer does so with a big smile, flashing his perfect teeth: arrogant, demanding, determined to win. Known as the kind of attorney who will resort to whatever courtroom theatrics he thinks might help his client, he attracted a good bit of notice when in a shaken-baby case he banged a doll’s head against the railing of the jury box to demonstrate how hard it is to dislodge a brain. Bettis, now his cocounsel, was better at preparation but less articulate on his feet and far less willing to engage in high jinks. “Berk doesn’t have the ego I do,” Sawyer proclaims with unabashed glee. As a courtroom performer, he’s a natural. Literate, nicely tanned, he reads poetry, has a sexy burr in his voice and a movie-star smile, can quote Shakespeare, the Bible or Thorstein Veblen at will. A female prosecutor describes him as likable in “a sleazy, gangsterish kind of way.” What you have to understand about Sawyer is that he knows exactly who he is and what he’s up to and how to construct a narrative and then play it out to the hilt. Self-knowledge, a visceral love for the game and an especially keen memory partially explain his courtroom success. Plus, he’s really smart, and so is his chief advisor, researcher and passionate life partner, lawyer Deirdre Darrouzet. When asked about his sources and strategy, Sawyer always gives Deirdre fulsome credit.
GARCIA
Carlos Garcia came late to Yogurt Shop. In early September 2001, after Springsteen had been convicted but before Lynch could get the next trial under way, the Texas legislature approved a statute requiring that in a capital case, one of the two attorneys assigned to represent an indigent defendant must be drawn from the short list of certified capital counsel—lawyers with substantial experience in defending clients who face a possible death sentence. Through no fault of the judge, Mike Scott was represented by Tony Diaz, a civil litigator with scant criminal experience, and Dexter Gilford, an attorney who was respected and articulate but hadn’t made that list. But because his family was paying them, Scott didn’t qualify as indigent, so the rule didn’t apply. On the other hand, allowing Diaz to lead the defense all but guaranteed an appeal on grounds of ineffective counsel, and a potential reversal. Despite objections from the prosecution, Lynch chose to honor the statute anyway. “I never understood why he did it,” Carlos Garcia told me many years later. “He didn’t have to.”
Forty-two at the time, a former prosecutor from a small town on the Texas-Mexico border, Garcia was so busy working on his third capital case that he hadn’t paid much attention to Yogurt Shop. And he wasn’t particularly interested in the job, given the stakes, the late start and his penchant for fastidious preparation. But he was a true believer when it came to the death penalty, and like all trial lawyers, he liked the hands-on tussle of adversarial law, so he agreed to take the case if the other two men yielded the lead position to him. To give him time to catch up, Lynch postponed the next hearing for two months; when they were used up and Carlos asked for more time, the judge postponed again. Not ready will become Carlos’s mantra duri
ng the entirety of Scott—a motion for a 120-day continuance his most insistently recurring request.
In his early career, Garcia had focused on the pursuit of child sexual offenders. A round man with short legs and curly, prematurely gray hair, full-blooming cheeks and sparkling eyes, he seems—and is—authentically warm and engaging, but on the job he’s all-out. “He may look like the Pillsbury Doughboy,” a cop told me, “but Carlos can be tough. He can rile people up.” When he took on Scott, he figured he’d be finished in no time. After all, his client had confessed; he’d plead him out, get a shorter sentence and dodge the death penalty. But after he talked to Gilford, read police reports, studied evidence photos, watched the videotapes and got hold of Johnson’s PowerPoint presentation, he turned a corner. “Those boys had nothing to do with it,” he says now, flipping his hand upward as if brushing an absurd idea away. “They were kids. Those girls would’ve laughed at them if they tried anything. Even if they did have a gun.”
Garcia’s an excellent attorney and a prodigious researcher, but if he’s brought to trial before he’s ready, his arguments can be diffuse and wordy. When Mike Lynch referred to Scott’s lawyers as “anal-retentive on the law,” he was mostly talking about Garcia, whose linguistic bypasses, intense attention to detail and curlicued style of questioning explain why the trial carried on for so long.
After the guilty verdict, Garcia kept working on Yogurt Shop. In 2009, after Scott’s conviction had been overturned, a colleague sat in the courtroom of the 167th District Court and listened to him practice a new opening statement. Perfect, she called it, moving and precise, organized and finely tuned; perhaps the best she’d ever heard. Too bad nobody else got to hear it. Scott was dismissed before he had a chance to present it.
THE STILETTO
In contrast to both defense attorneys, the tall, lean, camera- and interview-shy Robert Smith seems to have channeled the actor Jimmy Stewart as he appeared in Anatomy of a Murder: calm, quiet, low-key, with a cutthroat intelligence he keeps under wraps, preferring to come across as your everyday ordinary citizen, just like the jurors he’s addressing. In truth, insiders call him “the Stiletto” for his ability to anticipate defensive moves and quietly slice them to shreds. Outside the courtroom, he’s a different guy entirely. A man of contradictory pleasures, he likes to skydive from airplanes in his spare time, doing cartwheels in the air at 180 miles an hour. There’s also an unverified rumor that he has sometimes engaged in parkour, the practice of jumping from high places in free fall to the ground, using momentum and the redistribution of body weight to perform impossible body maneuvers and land unharmed. It’s hard to know which version of Smith is authentic, especially when one defense lawyer describes him as “emotional” while a female colleague sums him up as hypocritical and delusional. Wears sunglasses all the time, she snaps. “Struts around as if women were falling over all around him.” Mike Lynch calls his trial work “lethal.” His partner in both Yogurt Shop trials, Darla Davis, will be his favorite death-penalty teammate, the tall and attractive, dark-haired, sharp-tongued woman whom detractors call simply “the Darla.” Together, they are fierce. A third ADA, Efrain de la Fuente, will soon join them; when both cases are reversed, he will be the only one of the three to stay on.
—
From January through March of 2000, the lawyers continued to prepare. Trial dates would soon be set for Springsteen and Scott. Awaiting his turn, Pierce would spend the next three years in the county jail, despite his constitutional right to a speedy trial. Welborn kept busy at his shop.
Disappointment dogs us, however adamantly we demand answers. When a jury comes in with a guilty verdict, all we really know is that’s how twelve people voted. As for not guilty, this might mean a lack of evidence or simply, as the British put it, “not proven.” But for the families of murdered children, ambivalence is unacceptable. Once a guilty verdict has been reached, they inevitably speak of their relief, not just because a painful process has ended but also because the truth has been discovered, the perpetrator identified and justice finally served.
Trials matter, of course. Studying them gives us a better sense not necessarily of what happened but of what various intelligent, determined, passionate and committed men and women made of whatever evidence and relevant speculation they’d come up with. They don’t, however, always provide what we really want. Yogurt Shop jurors did their job; so did the lawyers and the judge. But in the end, nobody was satisfied with how things turned out. Nobody at all.
PRETRIAL
Pretrial is discovery time, when prosecutors and defense counsel exchange information and the judge decides which evidence he’ll allow to come before the jury and which he’ll exclude. Since it sets the stage for what’s to come, in many ways it’s the most important part of a criminal trial. Because everything’s on the line—strategy, tactics, overriding arguments and narrative line—the attorneys go for broke. To gain admittance of whatever evidence the police have gathered, a prosecutor will overload his stash to maximize his percentage and use any tricks he can think of to win the judge’s approval. Mike Lynch says he usually allows about half of the state’s grisly photographs into a murder trial. On their end, defense lawyers request witness lists, exculpatory material, raw evidence and money to call in expert witnesses; perhaps most important, they file motions to suppress at least some of the state’s evidence and even—if for no other reason than to get the request on the record—the case itself.
Between March 30, 2000, and January 11, 2001, thirteen Yogurt Shop pretrials were held jointly, with all three indicted defendants and their counsel present. Within days of the first one, at least five issues of dispute had been established: the defense’s access to evidentiary materials; forensics, including DNA testing, crime-scene processing and ballistics; the admission of confessions; alleged police and prosecutorial misconduct; the scientific analysis of fire. Rancorous arguments—“squabbles,” Lynch will call them—will continue long after two of the defendants have been convicted and carted off to prison. Most remain unresolved.
The first major obstacle had to do with the matter of the file boxes. When Guillermo Gonzalez reminded the court that Judge Meurer had ruled that all documents should be copied for discovery use by each defense team, Lynch seemed to agree, until prosecutor Darla Davis informed him that the boxes contained some 55,000 pages of records, of which by the state’s estimate only 12,000 were the “Brady” material—potentially exculpatory—they were required to hand over; everything else was their “case in chief”—the story they planned to sell to the jury—and not to be shared. Even the lower number gave Lynch pause, and he postponed his decision.
Springsteen’s attorneys then filed a motion to suppress the state’s only real evidence against their client: the audio- and videotapes of the “extended conversation” conducted by APD officers “within the bowels of the police department in Charleston, West Virginia.” In his motion, Sawyer cited underhandedness and lies, the poor quality of the audiotape and the actions of both Charleston and Austin police to deliberately thwart the attempts by Springsteen’s attorney to meet with him and advise him of his rights. David Bungard, the lawyer, and Eric Hodges, the policeman, were flown in from Charleston—the latter to testify that he’d said Rob had been given a Miranda warning when he hadn’t, the former to describe his travails in the police station. The prosecution did score a point on cross-examination when Bungard was forced to admit he didn’t know about the 1966 U.S. Supreme Court ruling that police weren’t constitutionally required to inform a suspect that his lawyer was trying to see him.
Citing the Texas Code of Criminal Procedures, which states that confessions should be “freely and voluntarily made, without compulsion or persuasion” and without the respondent’s will having become “overborne,” Mike Scott’s attorneys also filed a motion to suppress all statements made by their client, written, recorded or otherwise presented. Once he’s on the case in January 2001, Garcia will cite lies, coercion, impropriet
ies, misuse of the Reid Technique and wanton disregard for the truth. He will also display a prescription for Baclofen, a drug Mike was taking for back pain, which might have weakened his ability to effectively defend himself from their grilling.
Neither Sawyer nor Garcia expected their clients to be cut loose. They made these requests only to place them on the record as grounds for a future appeal and, possibly, outright dismissal. Judges get cranky when that happens, but lawyers do it anyway; they have to. As Sawyer explained, part of his job was “to remember that this record may be reviewed someday, beyond the scope and time of a jury trial.” Gonzalez also asked for dismissal of the case against Maurice Pierce, citing a total lack of admissible evidence—an argument he would eventually win.
Lynch postponed these decisions as well, knowing that once he allowed Springsteen’s and Scott’s statements into their own trials, their attorneys would then ask for suppression of accusatory testimony by any nontestifying codefendant, no matter how it had been recorded, whether on videotape, on audiotape or by transcription. A far trickier matter.
To avoid hearsay allegations from a nontestifying witness, the Sixth Amendment of the U.S. Constitution guarantees its citizens the right to confront—cross-examine—an accuser in court. In a 1999 ruling (Lilly v. Virginia), the Supreme Court showed its preference for a strict interpretation of this clause by ruling in favor of the petitioner, whose brother’s incriminating statement to the police had been read at his trial. The vote wasn’t unanimous, but the powerhouse justice Antonin Scalia—who’d turned this issue into a pet cause from which he would never back down—marshaled his troops and snagged the victory.
Who Killed These Girls? Page 24