But lead prosecutor Smith had come up with a risky strategy that, if allowed, would enable him and his team to skirt the ruling. If they edited a codefendant’s statement so it corroborated the defendant’s confession without accusing him of anything, couldn’t the jury then compare the two versions and determine on its own whether there were enough points of similarity to warrant a conviction? To accomplish this, they would omit—redact, in legal terminology—the defendant’s name and all significant pronouns from the statement.
Again, Lynch postponed his decision.
Next up, murder weapons. As would soon become apparent, since early 1999, Paul Johnson had subjected Maurice Pierce’s gun to ballistics testing at least three times—once that January, then in early November and again in May 2000. While DPS test results deemed the projectiles too damaged to be compared, ATF agents offered a more conclusive report: When fired into a telephone book, the bullets from Pierce’s pistol retained impressions distinctly different from those recovered from the girls’ bodies. In other words, this .22 was almost certainly not the murder weapon. Because of the difficulty of correctly analyzing the spiral grooves inside the barrel of a particular gun, “almost certainly not” is the most positive statement a ballistics expert will make. Other weaponry gurus would simply say it just ain’t the right gun.
After Johnson acknowledged his mistake in failing to inform the DA’s office of the most recent tests, Gonzalez went before Lynch to demand bail reduction for Maurice Pierce on the grounds that when Meurer set his bail, she didn’t know about those tests; further, in his closing statement Buddy Meyer had unconditionally claimed evidence had proved that Maurice’s gun was used on the girls. When asked on cross-examination why he hadn’t shared the test results with the DA, Johnson again admitted his mistake and said he guessed he somehow forgot to mention it.
“Forgot?” Gonzalez repeated. But wasn’t he known as an especially meticulous investigator?
“Honest mistake,” said Buddy Meyer, stepping in.
Lynch cut Pierce’s bail by less than 10 percent, to $700,000. The next day, on May 11, 2000, a local television station cited the DPS and ATF ballistics reports on its six o’clock and late-night broadcasts. Three days later, the same story ran in the Statesman with a direct quote from the federal agent who’d conducted the tests. How did the press get the information? Obviously, the prosecution hotly charged, Lynch’s gag order had been violated, and they promptly studied how to turn this allegation to their advantage.
Meanwhile, to draw attention from Johnson’s gaffe, the DA’s office asked for and received permission from the city to hire, at taxpayers’ expense, speedboats equipped with side-scan sonar so the DPS Dive Recovery Team could search under the Loop 360 bridge over Lake Austin for the missing second gun, which Mike Scott thought Rob Springsteen might have tossed into a lake from one high bridge or another. Of course, Mike thought the gun was a .38, not a .380, and even if somebody definitively identified which bridge, the chance of actually finding the weapon ran from slim to none. During the 1991 Christmas Flood, five sluices had been opened three times a day, moving enough silty water through Lake Austin to make it flow like the Mississippi. Since then, five more storms had flushed it out as well.
After hauling up bed frames, grocery carts, shoes and car parts, the boats were trailered back to Florida, where they’d come from, and all ballistics reports were handed over to the defense.
Those lawyers also requested recordings or transcripts of all other Yogurt Shop confessions, as well as audiotapes of their clients’ jailhouse conversations. For this, they needed money for an investigator and for expert witnesses on fire, false confessions and memory, not to mention a ballistics guy and a crime-scene reconstructor. They wanted to submit the state’s DNA findings to their own lab. Arguing for a change of venue, Mike Scott’s attorneys exhibited the video clip of Robert Merrill holding the muzzle of a gun to the back of their client’s head. This request was denied, but the next day the Statesman ran a story headlined VIDEO COULD DAMAGE YOGURT SHOP CASE.
By the middle of May, Texans had begun steeling themselves for a blistering summer, yet for most of the state, June was unusually cool and a cold front had brought five inches of rain, which made for a bountiful crop of tomatoes and peaches. By then the prosecution had figured out how to benefit from the ballistics fiasco.
“You,” a steaming Darla Davis told Lynch on May 21, “put us on our honor not to disclose information to reporters or anybody else.” But the defense, she claimed, had clearly ignored his order and leaked the “non-results” to the TV station and the newspaper. And since there was no way of knowing which lawyers were responsible, they all should pay. The state then requested limited access to the thirty-three boxes, and no xeroxing; the files should remain in the DA’s office. Defense attorneys or their officially registered representatives could ask for a particular box and then sit and take notes, page by page. There were carrels in the lobby of the office where they could work, so what was wrong with that?
Lynch doesn’t like to talk about loneliness on the bench; there’s no use in it. Occasionally, after handing down a ruling, he’ll lean forward and ask, “Anything else you want me to decide?” Access to the boxes was a big one. After a long pause, he told Davis he’d issue his decision…soon.
The prosecution lurched ahead. Paul Johnson ordered another test of Maurice Pierce’s gun, with the same results. The DPS issued a lab report concluding once again that no DNA left at the crime scene matched any of these four men. When the grand jury finally and definitively refused to indict him, Forrest Welborn was freed of all charges. One of those jurors, Diana Castaneda, requested a meeting with Lynch to talk about the conduct of the DA’s office, especially during the Yogurt Shop proceedings. They were stingy with evidence, she claimed, and didn’t provide the items they’d asked for. There was a rush to judgment. After thanking her, the judge ushered her from his chambers.
In late August, Lynch issued his ruling on Sawyer’s motion to suppress Springsteen’s videotaped confession: denied. He saw no evidence of coercion, given that the defendant had gone willingly to the Charleston Police Department’s offices and remained there after being given several opportunities to leave. As for his interrogators’ duplicity, the Supreme Court had sanctioned the use of “reasonable deception” to pry the truth from a suspect and had also ruled that police officers were not legally bound to allow a lawyer hired by a third party access to the suspect, even if the third party was family—decisions that the Statesman called major victories for the prosecution, after many setbacks. Lynch would issue the same ruling during Scott, citing the suspect’s willingness to travel to the police station day after day, as well as his lack of interest in hiring an attorney.
Unquestionably, the prosecution was scoring points, but those gains didn’t mean much if they couldn’t nail Pierce. Ronnie Earle visited the other three defense teams to offer a deal to any codefendant who would testify against him. But the young men all said pretty much the same thing: They wouldn’t admit to doing something they didn’t do and, furthermore, had no intention of implicating a friend.
Welborn, when asked if he’d considered confessing to get the cops off his back: “No. I’d never lie about something like that.”
Springsteen: “I got myself into this mess. I’ll have to get myself out.”
Scott: “How stupid do they think I am, not to take a deal if it was true?”
Garcia: “We told them, ‘Look. There is no deal on the table.’ ”
—
Near the end of October, more than a year after the arrests, Lynch issued his decision on those thirty-three boxes and once again sided with the prosecution. No xeroxing. He had arranged to pay a maximum of $7,200 a month—$20 an hour for up to 360 hours—for representatives of all three defense teams to sit in the DA’s office and make notes by hand. Once the two sides started bickering about details, Lynch asked a member of the sheriff’s department to lock them all in a room unt
il they hashed out a workable plan; after several hours they emerged with a schedule of discovery that was mutually acceptable.
But the defense had lost a big one. Attorney Alexandra Gauthier would soon begin her long relationship with Yogurt Shop as a researcher and intern. She would spend many hours in a cramped carrel in the DA’s lobby, sitting in a stiff chair, going through material line by line and page by page, copying quotes, reports and diagrams. Before long, she’d develop carpal tunnel syndrome, her wrists simply worn-out.
In November, Ronnie Earle was reelected to his seventh term as Travis County DA, despite an unusual all-out Republican push, including billboards showing a mock Monopoly board with his face on a “Get Out of Jail Free” card. As the year ended, the coldest weather in years swept the state. Sleet, rain and even a little snow made for a dark and forbidding Christmas.
Every year, Barbara Ayres-Wilson buys artificial poinsettias to put on the girls’ graves. She takes rags and a spray bottle of liquid cleanser to shine up the stones and the bench behind them. As 2000 neared its end, she and the other parents felt cautiously hopeful, even about Forrest. Surely the APD and the DA’s office would figure out how to bring him back in.
FIRE
While lawyers split hairs, Paul Johnson kept busy trying to solve some nagging problems, starting with the discrepancy between Mike Scott’s description of how the fire started—those cups and napkins thrown on the girls’ bodies, sprayed with lighter fluid and lit with a Zippo—and the general agreement among arson experts that no accelerant had been used and that the fire had been set by igniting combustibles stored on the stainless-steel shelves.
Once again, he called on Marshall Littleton. But his old friend still declined to get involved. In the first place, he didn’t feel altogether qualified; there were more experienced BATF experts in D.C. In addition, the modeling software didn’t work in every situation. You fed the program with specifics—burn marks, size of room, height of ceiling, presence of windows or doors, heat of flames, duration and patterns of fire, whatever input you had—and it came up with what it considered appropriate data concerning the origin and cause. But if the model contradicted the prosecution’s position, then where would they be?
When Johnson insisted that his help was essential, Littleton soon relented and, after a few tries, found a model that worked. Johnson then called Melvin Stahl and asked him to meet with them. Initially, Stahl wouldn’t budge from his original analysis, but after hearing Littleton out, he either changed his mind or simply agreed to go along. In court he would testify that after recently examining the crime-scene photos for the first time—even though he’d taken most of them—he’d decided he’d been wrong. Clearly, he said, the fire had originated not on the shelves, as he’d once thought, but on the girls’ bodies, as Mike Scott had claimed.
Nobody can say who persuaded Stahl to reverse himself, though the most likely candidates are Paul Johnson and Robert Smith. Most favor the cop. At any rate, this solved the DA’s fire problem. Even Barbara Ayres-Wilson, who knew Stahl, felt bad for him. His testimony from the witness box, she said, destroyed him. You could see his face crumbling.
JURY SELECTION
SPRINGSTEEN
Lynch’s plan was to call three hundred panelists from which to select a jury, yet on this issue both prosecution and defense agreed: The case was so notorious locally that they wanted him to call twice that many. Lynch concurred but made a bet with the lawyers that his estimate would suffice. After saying he hated to take the judge’s money, Bettis shook on it—and eventually had to pay up.
To each group of panelists, Lynch made a general statement explaining reasonable doubt, the Fifth Amendment, our adversarial judicial system and the rules governing issuance of the death penalty. Then, after both sides made their opening remarks, each took turns conducting interviews. Among those in the courtroom that day—April 16, 2001—was Springsteen’s wife, Robin, who told the Statesman her husband felt isolated in jail and had gained weight. He was, she said, “gentle and good” and had confessed only because he’d been drinking the night before and hadn’t slept. But she didn’t stick around for the trial; after a day or so, she went back to West Virginia, never to return, Sawyer says because Rob didn’t want his family to make the trip.
Within fifteen days, after some two-hundred-odd panelists had been screened, a jury of seven men—including two alternates—and seven women had been seated. Ranging in age from late teens to middle age, two were African-American, three were Latino, the rest white.
Afterward in Lynch’s chambers, Sawyer again pressed him to allow other Yogurt Shop confessions into evidence, especially since many of them offered accurate details about the crime scene, including APD hold-back evidence, and the judge grudgingly promised to come up with a decision soon. But he warned Sawyer that every Tom, Dick and Harry who’d seen little green men at the yogurt shop would not be filing into his courtroom.
Sawyer agreed. No little green men.
The next day, Springsteen moved into its final pretrial phase. Called in limine, or “at the threshold,” it offers attorneys a final opportunity to present motions. Once again the defense argued for suppression of Mike Scott’s statement on the twofold grounds of hearsay and Sixth Amendment guarantees, though Lynch refused to rule on it until he’d heard the evidence and arguments, after “context” had been established. In postponing, the judge hampered both sides’ ability to create a case, especially the defense’s. But since this would be one of the biggest decisions of his career, and because he had the right to wait, he did.
On May 8, 2001, before a packed courtroom, Lynch swore in the Springsteen jury and issued his standard instructions. Jurors were not to talk to anybody about anything that happened in the courtroom or to mingle with people connected to Yogurt Shop. They shouldn’t consult articles about it or read up on any laws or rules they didn’t understand. Until they were discharged, everything they knew about this case should come solely from evidence presented in the courtroom. He also banned note-taking in the jury box.
SCOTT
Fourteen months later, on the day voir dire was set to begin in the second Yogurt Shop trial, Dexter Gilford filed an objection. The “racial array” of the panel, he charged, did not represent a fair cross section of the community as the law required. Mike Scott, of course, is white, but his defense team comprised two Mexican-Americans—Garcia and Diaz—and one African-American—Gilford—and this might have encouraged them to argue the point. More than likely, however, they were simply stalling for time, and when Lynch found no basis for the complaint, the defense dropped the objection, and two and a half weeks later, on August 8, 2002, a jury was seated: nine women and five men, two of them alternates. In his journal, Lynch called the Scott jury perhaps the most intelligent he’d ever had in his courtroom.
But Tony Diaz’s unproductive tenure as Scott’s lead attorney had forced Garcia and Gilford to start from scratch, so they had to scramble by working together every night and well into the morning, and the toll on their personal lives included health and marital issues. When Lynch denied their motion to suppress a summarized printout of Springsteen’s videotaped statement, defense and prosecution cooperated to create a mutually acceptable redaction. By then Garcia had uttered the words not ready at least nine times, and when the judge asked if anyone objected to a day’s postponement, Gilford weighed in as well to say their only concern was that it came up short by 119 days.
When he talks about Yogurt Shop today, Garcia still gets angry. “I hate this fucking case,” he’ll growl. “I hate talking about it.” I don’t think his anger will ever diminish, for one reason because he feels he and the other two lawyers did no better than an adequate job for Mike Scott and, for another, if there had been a retrial, he thinks they could’ve gotten him off. But mostly his anger stems from his unflinching belief that in order to win the case, the DA’s office, especially Robert Smith, threw justice out the window.
In the courtroom, frustration so
metimes got the best of him. During one of Scott’s final pretrials, when he requested transcripts of the grand jury hearings and Lynch turned snarky, lecturing him on protocol, Garcia’s response was equally caustic and imprudent: “This is your courtroom, and you know what you’re doing.” To which the judge replied, “There’s been some doubt cast on that today.” And when Garcia made yet another motion for continuance, Lynch grew even more impatient. “This case,” he curtly explained, as if to an outsider, “was indicted December of 1999. Shortly thereafter we started joint pretrial hearings. We have covered squabbles that sounded more like a bunch of chickens in a chicken yard than it did lawyers in a courtroom arguing back and forth….We’ve had three lawyers now on the case, some combination thereof, or four if you count the discovery lawyer, for over two years. There comes a time when you just have to try the case.”
Garcia countered with a request for a standing motion for continuance, to run through the entire trial. And after Lynch’s instructions to the jury, Garcia objected to the note-taking ban, which necessitated yet another lengthy explanation from the judge. Higher courts had ruled that jurors’ written notes must be collected by the bailiff before every break and at the end of each day and could not be shared among themselves or used during final deliberations. As Lynch saw it, note-taking didn’t fulfill its intended purpose, so the jury should instead listen carefully, take mental notes and remember what had happened and what they thought about it.
But by then, Garcia had come up with another reason for delay, mistrial or, even better, dismissal.
Who Killed These Girls? Page 25