Q: Detective Merrill, we watched a clip here where you tell him that he is just as much a victim as anybody else. Do you recall that?
A: Yes, I do.
Q: In fact he indicates that Maurice went something like ape shit. Do you recall that?
A: Yes, sir.
Q: And at the end there, you say to him, “If you haven’t figured it out, Maurice blames you.” Do you recall that?
A: Yes, sir.
Q: Can you tell us what you’re doing there during that portion of the interview?
A: I’m trying to make Maurice the bad guy, the real bad guy, and him as the victim. Let him be the victim here. Let him think we believe that, and start getting to what actually happened.
Q: Earlier in that clip he had said, when he was talking about being out in the parking lot, Maurice and Forrest ran in to get something and “something, something, something.” Do you recall that phrase?
A: Yes, I do.
Q: And you saw him use that throughout the interview, this little “something, something, something” phrase?
A: That’s correct.
Q: Is that significant to you?
A: We find that in an interview if they are using “something, something, something,” you know, “yada, yada, yada,” they know what they want to say or what’s there; they just don’t want to say it yet.
Q: Thank you. Next clip.
After two hours of this, Sawyer had had enough. If the prosecution wanted to replay the entire tape, they should do so, because at present “all we are doing is reemphasizing the state’s greatest hits.” Lynch overruled. If Sawyer wanted the jury to see the whole tape again, he could run it himself. Later that morning, in his cross-examination of Merrill, Sawyer touched on Reid and the deceptive practices of the APD. But as usual, the officer faced hostile questions head-on without trying to second-guess subtext or figure out what he should say. His answers were blunt and unapologetic, even when Sawyer called him a liar.
“Yes, sir,” Merrill will say, he did do that. He lied. And yes, sir, Lara and Chuck Meyer also lied. “That is correct.”
But when Sawyer asked why he’d ended the interview before getting everything they wanted, Merrill lost some of his usual composure. “It was time” was all he’d say, even though it clearly wasn’t. When asked about the cop’s slipup, other defense lawyers say they have no idea why it happened and neither, more than likely, did Merrill.
In preparation for a favorable decision allowing them to present Mike Scott’s redacted statement, prosecutors spent the better part of two days placing the codefendants—along with Pierce and Welborn—together at McCallum, the bowling alley, Northcross and in the stolen Pathfinder. To accomplish this, they brought in friends of the boys, including the one Rob was supposed to have met up with at the Rocky Show and, later on, their star witness, Chandra Morgan, thirteen at the time, who acknowledged to Darla Davis that, yes, she’d dropped acid that night but nevertheless remembered the boys riding around in Maurice’s “beat-up, dirty two-door gray Honda” and him doing acid in the parking lot and a gun poking from the waistband of Springsteen’s jeans and…Her testimony went on and on, but, in Sawyer’s words, her manner was that of a woman underwater and she got so many things wrong, her usefulness to the state was negligible.
—
Robert Smith next called Rob’s father, who didn’t remember making a call to report his missing son, even after the Teleserve officer took the stand to read her account aloud. And in the end, so what if he had reported his son missing or Maurice Pierce and his pals had gone to Northcross? And maybe they had been all messed up with drugs and beer and had taken a Pathfinder on a joyride to San Antonio and Maurice had packed a .22 revolver. So? The state had presented a story that might play. After the verdict, Springsteen jurors will say they were still on the fence at this time, even after watching the interrogation video.
Lynch was meeting regularly with Bettis, Sawyer and Smith in chambers, hacking out a decision on the Scott statement. When the state first told him it intended to offer a redacted version, the judge’s immediate response was, “No way.” But Smith kept pushing, and at one session, an incredulous defense lawyer has sworn to me, he told Lynch, “Dude. I need it.” Dude? Really? We call the judge Dude? And was I need it enough to convince a sitting judge to yield?
In any case, Lynch began to soften. He reread relevant Supreme Court cases from 1895 to 1998, as well as rulings from the Texas Court of Criminal Appeals. And little by little, this seasoned, intelligent judge convinced himself that a statement that was “truly self-inculpatory to the declarant and not directly implicating the accused on trial, could be…admitted as an exception to the hearsay rule and not run afoul of the Sixth Amendment.”
The night before delivering his ruling, he took to his thinking couch, a long, low sofa in his chambers.
Lynch’s blue eyes turn slightly wistful when he remembers making the decision. “I thought it had a chance to go to the Supreme Court,” he says now. “If Crawford hadn’t come down when it did, it might have…” And later, with some regret, “I always said, if Scalia ever got in the majority…”
Lawyers in town simply say he shouldn’t have done it. And when offered a “Yes, but…” explanation, they shake their heads. “Shouldn’t have anyway.”
After reading the state’s edits, he made further cuts, omitting all first-person pronouns, changing “I believe that she was working in the back room when we entered” to the oddly impersonal “Believe that she was working in the back room.” Early Friday morning, May 18, he gave the final draft to his assistant, who—because the Supreme Court had ruled that blacked-out names and phrases only made obvious what had been omitted—typed it up as if nothing had been left out. Lynch then met with the relevant lawyers to relay his decision, and after lunch he gave the jury a thirty-minute break and, in a rambling statement for the record, explained why he was overruling the defense’s motion to suppress Scott’s statement. He then took on the objections one by one: hearsay overruled because of a court-defined exception allowing for the admission of a statement that was entirely self-inculpatory and against penal interest (legalese for “against one’s interest in staying out of prison”), with no mention of a codefendant as a participant—an omission that gave it the “necessary indicia” of reliability and trustworthiness. And if it acknowledged only Scott’s participation in the murders without accusing Robert Springsteen, the Confrontation Clause would be satisfied. As for voluntariness, he noted Scott’s willingness to meet with detectives time and again, even helping out with their recording equipment. Regarding relevance, when the judge placed Springsteen’s statement side by side with Scott’s, he found sixteen points of consistency and eight of actual evidence, satisfying that question as well.
Thus, objection overruled. State’s Exhibit 377 allowed.
Sawyer, regarding Lynch’s decision: “My heart sank.”
Rob: “That was it for me.”
John Jones: “I was shocked. I thought you couldn’t do that.”
Sawyer: “I told Lynch it would be overturned. Even without Crawford.”
Garcia: “No way it was going to stand.”
Other attorneys called it a ballsy move, but wrong. Ill-timed, even shocking. Mike Lynch’s unfathomable mistake.
When the jury returned, Manuel Fuentes was called to read the edited version aloud.
—
After the verdict, a juror will call Scott’s confession the key piece of evidence, the one that “struck a chord” with the jury. Another will say, “We knew things had gone really, really bad when the judge allowed that detective to get on the stand and read the statement. We felt some sort of fundamental shift in the atmosphere of the jury, the courtroom and everything else after they allowed that to come in.”
They weren’t aware, of course, that Judge Lynch had just taken the first step toward the reversal of The State of Texas v. Robert Burns Springsteen IV, or that in 2002, when he allowed a paraphrased versi
on of Springsteen’s taped confession to be read to the jury in the Michael Scott trial, he would set himself up to be overturned again. (See Appendix 2 for Michael Scott redacted statement.)
—
Fifteen years later, Sawyer’s memory of that day remains vivid. “It was a Friday. After the Scott statement was read, Lynch excused the jury early and then asked to see Robert Smith and myself in his chambers. Nobody else.”
He says that when he and the prosecutor arrived, Lynch was sitting with his feet up on his desk, smiling. “ ‘Gentlemen,’ ” he quotes the judge as having said, “ ‘this trial is about to be over.’ ”
Smith then offered Robert Springsteen a very tasty deal: If he’d agree to a plea of guilty and then give testimony against the others, they’d take the death penalty off the table and offer him a life sentence of no more than fourteen years, which, with time served and a state-supported early parole, meant about eight more years of imprisonment.
Sawyer was impressed. It was, indeed, a fine offer. He said he’d consult with his client. The next morning, he and Berk Bettis went to the county jail and presented the deal to Springsteen: He would, they told him, still be in his thirties when he got out, his whole life ahead of him. “The boss”—Sawyer often refers to his client that way, after the rock ’n’ roll singer—“looked at me and said, ‘Would I have to testify against the other guys?’ ”
Reliving the scene, Sawyer turns up the volume. “I said of course you will. What do you think?”
But Springsteen refused. Those guys, he said, didn’t do anything wrong and he didn’t, either, but he got himself into this mess, so he’ll have to get himself out. And when Sawyer warned him that he thought the jury would likely find him guilty and send him to death row, Robert said, “Fine. Let them kill me. I won’t do it.”
If Sawyer and Bettis had lingering doubts about their client’s innocence, they vanished that morning.
That’s how Sawyer remembers it, and he thinks this was the state’s plan all along, to use the reading of Scott’s statement as leverage in order to end the trial. That way, they wouldn’t have to argue in favor of executing a man without a sliver of evidence linking him to the crime.
Mike Lynch confirms some of Sawyer’s account. Yes, he says, he did confer with the lawyers in chambers on occasion to discuss “non-substantive issues like logistics”; on the other hand, he doesn’t specifically remember this particular meeting or making the comment about the trial coming to an end. And while he has a “vague memory” of an offer made by the state and says Sawyer could be right about how it came about, he’s pretty sure he had no advance knowledge of it. But he certainly would have supported efforts to settle the case and, yes, would have had his feet up on the desk.
If Earle and Smith did pursue this plan to end Springsteen, they gave up on it. Michael Scott was not offered a deal after a paraphrased version of Rob Springsteen’s confession was read during his trial.
Monday morning, Sawyer informed the judge and the prosecutor of Springsteen’s decision. And the trial continued.
On the tenth day, after putting on a few more witnesses, the state rested its case.
—
Sawyer began his defense by calling Hector Polanco. Why?
“Because,” Sawyer declared without hesitation, “he’s the most effective cop witness I’ve ever seen in a courtroom.” He was handsome, dangerous, with black eyes, a fine mustache and a roguish burglar’s charm, and he talked directly to the jury. Everything he did to convince a suspect to confess to a crime he hadn’t committed could work just as persuasively—whether for the defense or the prosecution—on the witness stand.
After establishing the detective’s credentials, Sawyer led him through a summary of his career that included such questions as: “You have never used coercion, threats, duress of any kind to achieve any of the hundreds of confessions you have developed during the time you were in Homicide, did you, ever?” Polanco: “I have been accused of it, but no.” Sawyer then asked him to talk about contamination of a crime scene and what happened when too much information reached the streets. Sometimes innocent people who heard things actually confessed, didn’t they? Polanco said it might seem incredible, but yes, it happened.
To drive the point home, Sawyer described an investigation some years ago when the husband of a woman who’d been reported missing was brought in for questioning. With the suspect’s family present, Polanco shamed the man until he confessed to his wife’s murder and agreed to lead APD officers with shovels and dogs to a field where he’d buried her. But before they started to dig, the wife called her husband’s mobile number to ask why he’d said he’d killed her.
It’s a fine story, and Polanco confirmed it. But Darla Davis objected on grounds of relevance, and after Lynch sustained the objection, he cautioned Sawyer not to bring any more dead fish into his courtroom. After agreeing to stay within the dead-fish limit, Sawyer asked Polanco what he thought about allowing television cameras to roam at will around the perimeter of the ICBY crime scene and, later, the decision to give 48 Hours full access to an open investigation. Polanco said that personally he thought both decisions were inappropriate. And when Sawyer asked if John Jones had made them, Polanco said yes.
Since Lynch had ruled that the defense could bring in two additional Yogurt Shop confessions, Sawyer called on Mike Huckabay to describe the interrogation of Alex Briones and read his statement. Then he called on John Jones, who—though still enraged by Sawyer’s implication that he’d botched the crime scene—did the same with regard to his questioning of Shawn “Buddha” Smith. When asked, he also agreed with Polanco that hold-back information had quickly begun “coming back at us at such a frequency to where we had to cross [things] off the list”—for instance, Amy having been shot twice and the other girls once; the ice scoop between Sarah’s legs; front door locked, back door ajar; the dead girls bound and gagged, two of them stacked on top of each other. People knew.
Described by Lynch as an “explosive witness,” Jones quickly exited the courtroom, still flaming. When I asked him to talk to Sawyer in 2014, he refused. “I’d rather talk to Hector,” he said. “And you know how I feel about Hector.”
Sawyer then moved on to Irma Rios.
Did she know that Rachel Riffe had not dusted either of the customer bathrooms for fingerprints and that DPS photographs showed that both of those doors were closed during the fire? No. Had she ordered an inventory of materials within the yogurt shop so that, for instance, if someone said he’d taken a knife from the shop, they would know if a knife was missing? No. Had anyone created a log that anybody who entered the shop had to sign? No. Could she tell the jury what had happened to the steel shelves against the wall? No. The aluminum ladder? No. The mop, the wooden ladder, the mop bucket, the melted telephone—had any of those items been gathered and stored as evidence? No. Had she laid out a grid, as she’d testified earlier, so she could use its coordinates as a reference? No. Did her handbook suggest that she do so? She wasn’t sure. Had DPS examined the contents of the dumpster in the alley? They’d looked at what was on top.
The judge released the jury early. Having decided not to re-call Merrill, Sawyer promised to finish within forty-eight hours, by noon, Friday, May 25.
Expert witness Gerald Hurst might have been the most intriguing Springsteen witness to take the stand. Scientist, chemist, inventor, born and reared in Oklahoma, he’d been awarded a fellowship to study chemistry at Cambridge, where he’d gotten his Ph.D. Back in the United States, he focused on high-energy chemistry—explosives, incendiaries, propellants, napalm. Having begun his professional life as a rocket scientist, after the first successful moon landing he moved into corporate warfare. During the Vietnam War, his job was to show U.S. troops how to destroy infrastructure behind enemy lines—“legal arson,” he calls it—by setting fires and making them look accidental. After founding his own company in Dallas, he turned out new kinds of explosives, created a second-generation version o
f Liquid Paper and invented the Mylar balloon, then moved on, selling his company and the rights to his inventions.
Eccentric and polite, Hurst lived with his wife in a many-windowed house built high in the rocky West Austin hills. Fourteen years after a liver transplant, he was ailing. But his mind still sliced through scientific data with alacrity and his eyes were alive with knowledge and opinions. Tall, thin, with pale skin and long white hair and beard, his appearance suggests a modern Merlin, a wizard of fire and a mesmerizing presence, though it’s somewhat suspect in a courtroom setting. Why didn’t he have a job? Why didn’t he do fire investigations for ATF or some other agency? Did pure science even belong in the courtroom?
Hurst had begun testifying in criminal cases in the late seventies, when he realized how often what he calls “witchcraft” or “the black arts” were still being applied to arson investigations. It didn’t take him long to become the go-to defense witness on fire science, receiving many more requests than he could handle. Fire investigators, he makes clear, are trained to search not for the possibility of accident but for indications of arson. “I could take almost any fire,” he has said, “and, if I were so inclined, convince a jury it was arson. It’s frighteningly simple.” When Sawyer asked how much he charged for his services, Dr. Hurst said if he liked the case, nothing; if he didn’t, he wouldn’t take it.
For the Yogurt Shop jury—and anyone else who’d seen photos of the crime—fire was important not just for the horrendous injuries to the girls’ bodies but also because of its emotional and imaginative weight. And with no forensic evidence to tie the defendants to this especially hideous aspect of the killings, the state needed to corroborate Mike Scott’s version of how it had happened: those cups and napkins.
Hurst destroyed Marshall Littleton’s analysis of fire dynamics. Not only had the ATF agent based his calculations on an incorrect ceiling height, but he’d used an inappropriate equation to support his revised conclusion. With scientific aplomb and sharp wit, Hurst spoke eloquently of plumes and the percentage of flame taken up by the “flicker range.” Unlike Littleton, he’d actually visited the ICBY shop and, after taking measurements and photographs, agreed with Melvin Stahl’s original theory, that the fire was set on the stainless-steel shelves and had burst into flames when the combustibles exploded, then quickly spread across the ceiling, growing hot enough to reach 1,200 degrees Fahrenheit and melt the top steps of the aluminum ladder and send a blast of hot gases down on the girls’ bodies. Their burns were the result of radiant heat. And yes, certainly, radiation was capable of causing that much damage.
Who Killed These Girls? Page 27