JURY TRIALS
SPRINGSTEEN
An opening statement, Lynch explained to the jury, was opinion, not evidence. It represented a kind of table of contents for what each side thought the evidence would show. Jurors should remember that the system was adversarial, one story versus another, and he asked the defendant to rise so the trial could commence.
Asked to read the indictment, Smith stood. The case against the defendant was based on the grand jury’s opinion that “on or about the sixth day of December, 1991, Robert Springsteen IV did intentionally cause the death of an individual, namely Amy Ayers, by shooting her with a firearm, a deadly weapon, and by strangling her with a ligature, a deadly weapon, while in the course of committing or attempting to commit the offense of burglary. Against the peace and dignity of the state.”
And how did the defendant plead? “Not guilty, Your Honor.”
Lynch again spoke to the jury: Because the state bore the burden of proving every element of its case beyond a reasonable doubt, it had both the right and the duty to speak first.
The Stiletto rose once more to continue.
“On Friday night, December 6th, 1991, two high school senior girls were working at the I Can’t Believe It’s Yogurt shop on West Anderson Lane here in Austin, Travis County, Texas. That Friday night it was scheduled to be closed by Jennifer Harbison and Eliza Thomas. They worked there after school and they were supposed to close that shop that night at eleven o’clock.”
Prosecutors don’t beat around the bush; they present their story without maybes or perhapses. After placing Eliza, Jennifer, Sarah and Amy at the ICBY shop, Smith then piled Springsteen, Pierce, Scott and Welborn in Pierce’s car, first to assess the prospects at the shop and later that night, after it had closed, to enter it through the back door “for the purpose of robbing it.” Because the DA had asked for a death sentence, this was important. According to the Texas Penal Code, a capital crime is one in which an act of intentional murder has been committed in the course of other felonies, including sexual assault and robbery.
Smith described the boys’ surprise at finding four girls in the shop instead of two, then moved on to the crime itself. “The evidence will show you, ladies and gentlemen, that these four girls were herded to the back of the shop and they were robbed at gunpoint. And in the small, small confines of that back room, they were forced to take off all their clothes. Then they were bound with their hands behind their backs and then they were gagged with their own socks. And three of these girls, Sarah, Jennifer and Eliza, were killed. Shot execution-style—contact wound to the back of the head with a .22-caliber revolver.” He then went on to describe the struggles and murder of Amy Ayers. After about an hour of this, he ended with a boilerplate prediction: “There is going to be no question, when you hear all of this evidence, that you are sitting in the courtroom with the man that killed Amy Ayers.”
If Springsteen’s lawyers were clear about anything, it was that if they were to elicit any sympathy at all for their client, they had to underscore their unqualified sympathy for the families of the murdered girls. And so Sawyer’s opening also led off with the girls. “Your Honor, may it please the Court, counsel. I will not say good morning to you. That would be obscene. There is nothing good about morning when we begin the process of discussing the deaths of four young girls in the presence of the family and loved ones. And maybe the only thing to say in regard to that is”—quoting the New Testament—“ ‘sufficient unto the day is the evil of the day.’ ”
He then addressed the overriding question from the defense point of view: “What went wrong? How is it that Robert Springsteen sits here having confessed to crimes that I believe he did not commit?” He criticized the lack of protocol and accepted standards in the preservation of the crime scene, spent a long time talking about the importance of fire as evidence and finished up with a flourish, telling the jury that in the end he could offer only one absolute regarding this case, which was that “there is not one shred of physical evidence to connect Mr. Springsteen to the commission of this crime and there was not before he was interviewed….We have to let the evidence tell the story,” he insisted, “not tell the evidence what happened.”
Sawyer didn’t use notes and he didn’t put on his reading glasses. He, too, spoke for about an hour.
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The state opened its case by calling Bob Ayers, who described his daughter, her cowgirl dreams and FFA activities and provided details of her plans for the evening of December 6. He recalled the last moment he and his wife saw her alive, and confirmed that the photograph Smith showed him was indeed of Amy. Smith handed it to the jurors, who passed it around. He then asked what Amy was wearing that night, what kind of underpants, jeans, boots and jacket. And what about the heart-shaped buckle from the missing belt, and did Ayers recognize the Jiminy Cricket tote bag? When Smith passed his witness, Sawyer declined the opportunity to cross-examine. He would ask no questions of the girls’ families.
The prosecution was following standard procedure in a murder case, establishing chronology and “humanizing the victims.” When Barbara Ayres-Wilson was called to the stand by Darla Davis, she spoke of her daughters’ love of animals, sports and country music, then described her after-school meeting with Sarah, Jennifer’s arrival, the call to Amy and the two sisters heading off together in the S-10. Davis then presented photographs: Jennifer in her graduation gown, smiling radiantly; Sarah in a sweater, a cross around her neck, shrimp earrings, those big, wide-set, skeptical eyes. Maria Thomas, in turn, described Eliza’s love for her pig and her beat-up green VW, their visit to the barn and hers to the yogurt shop that night. The photograph Davis showed the jury was of a lustrous, smiling Eliza in a friend’s Texas A&M dorm room, wearing a fuzzy white sweater, her dark hair falling in deep swirls around her face. Smith then returned to question James Thomas, after which de la Fuente questioned the Harbison girls’ boyfriends—Sammy Buchanan and Mike McCathern—as well as former security guard Dearl Croft. Prompted by Davis, Lusella Jones told the court that, in the APD’s photo lineup, Maurice Pierce “most resembled” the scary young man she’d seen that night.
And so, before moving to the closing of the shop and the discovery of the bodies, the prosecutors set the stage, establishing the innocent, hopeful nature of the four girls and their activities before turning to the crime itself, beginning with the testimony of Troy Gay, who explained DWI patrols and then how he had driven toward Anderson Lane and seen the smoke, then the flames, then Jorge Barney, and then called the fire department. Urged on by Smith’s quiet questions, he covered his every move and thought, eventually arriving at the moment when a firefighter came outside and said there were naked dead girls lying inside, in the muck. When Robert Smith asked for permission to project color photos of the crime scene onto a large video screen, he apologized for the graphic horror of what jurors and spectators were about to see. As Sawyer says, it was time to wave the bloody flag.
When asked which girl they had seen first, Gay replied, “The one body that was by itself, Amy Ayers.” And as Smith projected photos of Amy—head resting on the flowered blouse, right arm torqued oddly under her body, as if she were reaching beyond her left shoulder, head turned, chin almost resting on her upper arm, then a close-up of her face—Gay pointed out the cash drawer, the loose coins, her swollen bottom lip, the exit wound in her cheek, the red marks on her neck.
One juror crossed her arms over her chest as if in protection. The girls’ families dropped their heads and sobbed. Barbara Ayres-Wilson, who had gone to the DA’s office before the trial to study the photos, had told the other parents and grandparents to look down and close their eyes. Just don’t look.
The state called firefighter Rene Hector Garza, who re-created how the AFD had entered, sprayed some five hundred gallons of water on the flames and discovered first Amy’s body, then those of the others. The last photos Garza identified were of the shop’s front door with the cardboard sign in the window flipped to CLOSED and pict
ures of the service area taken from the front doorway: the upside-down chairs, clean tables, everything still neat and carefully tended, despite the smoke and the chaos. During cross, Sawyer asked Gay and then Garza if by chance they’d moved the bodies, even accidentally. They couldn’t answer absolutely, of course, but didn’t think so. When Garza’s testimony ended and Lynch called for an early recess, nobody minded.
Efrain de la Fuente was the prosecution’s fire expert, and by noon the next day he and Smith had presented testimony from two other firefighters and the three police officers who’d arrived before the bodies were found. But they didn’t summon John Jones, who, after all, was the first homicide detective on the scene and the investigation’s original case agent. When asked why not, Jones just shrugs. “They didn’t know what I’d say.”
Instead, they depended on others, like Joe Pennington, whose diagrams established the positions of the bodies, and Irma Rios, whom Smith walked carefully through the crime scene, asking her what she was seeing now…and now…as they continued together from the dining area into the storage room, past the melted telephone, the bucket, the mop, the sink, the door to the walk-in cooler, past the body of Amy and the table where the girls often counted up the day’s receipts.
Irma Rios did not make life easy for Smith. When asked if she’d noticed any special marks on Amy, she said she hadn’t, except for a “stain” on her cheek that, no, she hadn’t recognized as an exit wound from a .380 cartridge; gunshot evidence was not her department. And no, she hadn’t known the girls had been shot. She hadn’t looked.
One photograph shows her in the storage room in white tennis shoes and a little red sweater, holding a flashlight and looking for all the world like a woman who has no idea what she’s doing but is improvising nonetheless. Responding to a question about the debris, she said:
The big items, we were just putting them up onto the shelves. So we removed those so we could find the bigger items. The other one was just going right through onto the ground. Again, it was like mush or ashes. Basically, that’s all it was. It was not anything large, because we have sifters, it’s almost like a chicken-type wire on there….And we’re just putting debris in and we’re sifting it and using the hose. The reason we’re using the hose is because it’s wet, and it’s mush, so we can’t sift it anymore. It’s not dry.
Within two years of this trial, Irma Rios would be hired by the Houston Police Department to run its discredited crime lab when thousands of pieces of forensic evidence—including swabs for DNA tests, rape kits and articles of clothing—had been discovered on its shelves, untested and in many instances gone stale and useless. After shutting down the lab and firing its director, HPD had farmed out that work for a while and then hired Rios. But within five years of her arrival, another inspection revealed some four thousand untested rape kits. The city had to close the lab again, though Rios managed to hold on to her job.
On cross, Sawyer went to town on her. Had she kept a log of who came and went? No. Was there a manual of protocols? Not really. Had they examined the contents of the dumpsters in the alley? They’d looked at what was on top. Sawyer reserved the right to re-call her on direct.
Reese Price provided Brice’s rules regarding the closing of the shop and the handling of the night’s take. A dependably strong witness for the state, when asked to describe the back-door lock, she stuck to her original response. She couldn’t remember.
The next day, a well-rehearsed Melvin Stahl described his arrival at the scene and acknowledged that, yes, he and Mike Huckabay and Chuck Meyer had all agreed that the fire originated on one of the melted storage shelves near the back doors; however, he said, after recently examining photographs taken that night, he’d revised his opinion. Again, Jones wasn’t mentioned, nor was the fact that Stahl himself had taken the photographs. But when questioned by Sawyer on cross, he had to concede that, yes, his change of mind about the fire’s origin came after the four boys’ arrest, after Mike Scott’s confession and after Marshall Littleton had come up with a theory that agreed with it. Littleton himself then took several hours to explain how he’d come by the new analysis. Under cross, he admitted that, yes, he had fed the wrong ceiling height into his computer, but that all he’d had to do was go to the shop and count the cement blocks to correct it. He’d then gone back to his office and rebooted his software. By the next day, using a higher estimate for the ceiling, he’d made his theory work.
Outside the presence of the jury, Sawyer took a last-ditch stand against the use of the enhanced videotape of his client’s confession. “I think,” he said, “we have increasingly become a culture that ascribes greater reality to broadcast video images than things we hear or read,” and that because a transcription had been added to what was already enhanced, it delivered a more immediate suggestion of “trustworthiness” than freestanding images alone would convey and therefore stacked the deck in the state’s favor. And he wondered why, in a courtroom setting when a man’s life was at stake, the printout—in essence, a version of the Springsteen interrogation that the cops had transcribed as best they could remember—should be admissible.
The plea was interesting and not entirely fruitless. Lynch agreed to instruct the jury that while the videotape was evidence, the transcript—having been prepared by the state of Texas for its own use—was not. If jurors noted any variance between the two, they should trust the videotape. At the end of each day, they would return the transcriptions the court had given them and would not be allowed to review them during final deliberations.
So the jury would listen to a sometimes undecipherable audio recording superimposed on a murky videotape, accompanied by a guesswork transcription that was possibly biased. Appropriation artists and folklorists call this kind of media stew “a recontextualization,” while musicians and computer techies prefer either the term mixtape or mashup. In any case, the DA’s gamble was that jurors tend to trust policemen’s memories more than those of indicted suspects.
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During a criminal trial, the defendant sits with his back to the spectators, and unless he turns toward them, they don’t see much beyond the occasional glimpse of his profile. Lynch sometimes allowed an officially appointed press photographer to snap a few photos before the jury came in. Entering the courtroom, Springsteen carried himself high, swinging his arms in a wide, confident arc, his chin lifted and cocked to one side. Most defendants dress for the occasion as if for an office job—dress shirt, tie, sport coat—but Rob wore either a long-sleeved button-down shirt or a dark short-sleeved one, along with khaki pants. Still ashen and slightly heavy, he’d had his hair cut in a defiant buzz that emphasized the deep V’s of his widow’s peak, his bad skin and receding hairline, those wispy sideburns and lifted, know-it-all eyebrows. Except when whispering to his attorneys, he’d been silent as a rock since entering his plea.
Once the videotape had been loaded, the state called Robert Merrill, and Smith opened his direct examination with some standard setup questions. Had he worn a gun in the interview room? No, left it in his fanny pack in an office somewhere. Why hadn’t he immediately issued a Miranda warning? The suspect was not in custody. Had the billboard photos of the four girls been shown to the defendant when he was questioned back in 1991? Yes. After Lynch reminded the jury that statements by officers conducting the interrogation were not to be considered the truth but were admitted to provide possible context for the defendant’s statements, the bailiff handed out the transcripts and had the lights dimmed.
The videotape opened with the white room, then Lara and, in no time, Merrill and Rob, who stood loose-limbed and polite in front of his chair, looking around, saying “Yes, sir” and “Thank you,” and when Lara reentered, he offered him his hand. Then came the moment with the cigarette and the “no smoking” conversation, and Springsteen saying, “Hey, no problem,” and taking his seat. During the early, gum-chewing portion of the interview, he would place his right ankle on his left knee and swing his knees back and forth, not n
ervously, just out of habit.
Sawyer’s earlier statement about the power of film and video made a valid point. When we see people on television or in a movie, we think we know them. On May 15, 2001, while the actual defendant remained mute and all but faceless to jurors and spectators, the unsuspecting Robby of nineteen months ago was about to appear before them as a virtual presence: alive, speaking, moving, animated, real. Years from now, onlookers might well remember the tape with more clarity than the sight of Springsteen himself. They might run the tape in their minds and, hearing his voice, wonder what it was like to sit at the defense table watching a younger version of himself dig his own grave.
While the videos ran, Lynch consulted his laptop, checking relevant laws and court decisions. Keeping an eye on his jury, he was careful to interrupt the proceedings regularly to give them long breaks. By the time Rob uttered the line about putting his dick in Amy Ayers’s pussy, the Nagra tape had run out, and so his words were extremely difficult to make out, despite the enhancement, especially if you didn’t know what was coming. But the jury had it spelled out right there on their laps. Minutes later, when he got it wrong about the guns, Merrill read him his rights and Rob finally left.
Lights up. Court adjourned. Families were hopeful, the prosecution pleased. When confronted by the press, Sawyer assured them that during cross, he would question the tape line by line. Springsteen returned to county jail thinking his goose was probably cooked.
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But the state wasn’t finished with Merrill or the taped confession, and the next day Smith re-called the detective and asked why interrogated suspects sometimes gave answers that minimized their participation and blamed others. Merrill said he didn’t know why; it’s just what happens. Often? Yes. Was this suspect under arrest? No, sir. Did the detectives tell him he was free to go? Yes, sir. Did any officer bring a gun into the interview room? No, sir. The prosecution then began playing repeated three- to ten-minute clips of the questioning, afterward asking Merrill to explain their significance. Here is an example:
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