After calling two other forensic scientists—a pathologist and a DNA lab technician—Sawyer turned to Richard Ofshe, a renowned social psychologist from UC Berkeley. Author of many scholarly books and articles—including seminal works on the recovered-memory scandals of the 1980s—and probably the country’s best-known expert on false confessions, he was there to explain how these happened. But Ofshe was a terrible witness—arrogant, preachy and long-winded—who clashed with Lynch almost immediately. Initially patient, the judge soon termed social psychology a “soft science” and warned him to be brief in his comments and answer only the questions asked of him. He also limited his testimony to a description of how police interrogations worked, without drawing conclusions. In Texas, Lynch said, conclusions were the responsibility of the jury. Barely concealing his disdain for the judge and how things were done in Texas, Ofshe agreed to comply.
An undergraduate psych major, Bettis conducted the direct, during which he repeatedly asked his witness for brevity. But like many academics, Ofshe couldn’t resist the chance to lecture. When he wandered far afield, Smith objected and Lynch sustained. Bettis struggled to rein him in, and Smith’s objection was again sustained. After an hour or so of this, Lynch sent the jury out and the two sides made a deal. Smith agreed to call off his cross-examination if the defense simply asked Ofshe to step down. The jury would go to lunch and return to find this aggravation gone. The defense had little choice but to agree, even though Ofshe had been expensive. “Disaster,” says Sawyer.
That night, the resentful expert gave television and newspaper interviews. In his opinion, he said, Springsteen had been coerced, and he couldn’t fathom why he was asked to step down. After all, he had testified in Texas trials before.
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Conventional wisdom decrees that, guilt or innocence regardless, you never put a defendant on the stand—thereby leaving him open to an aggressive cross-examination—except perhaps during the punishment phase of a trial, following a conviction. So when Rob told his lawyers he wanted to tell his story himself, Sawyer and his colleagues debated the wisdom of this, especially since it hadn’t gained him any positive traction in the past. But Rob insisted. This was his life, his mess. On Friday, May 25, against the advice of the others, Sawyer summoned his final witness: the defendant himself, Robert Burns Springsteen IV.
Lynch quickly called Sawyer to the bench. Surely he didn’t want this to happen in front of the jury? Leaving his client at the mercy of Robert Smith? Sawyer told the judge he had no choice, that Springsteen had insisted. The prosecutors were stunned. In a private conversation, one of them told a victim’s family member that they weren’t prepared. Smith had to rustle up a plan.
Lynch asked Springsteen if he was sure he wished to testify. Yes, sir, he said, so he was sworn in. Wearing khaki pants and a dark blue, long-sleeved dress shirt buttoned to the neck, he took the stand. He looked terrible, his skin blemished, pale and puffy, his goatee unkempt and skimpy. When Sawyer reminded him of his Fifth Amendment rights, he said, Yes, sir, they’d informed him about that.
Under Sawyer’s careful questioning, Rob did fairly well. When asked why he’d admitted having done something so terrible if he didn’t, he said he guessed he’d given up on himself. He was exhausted from lack of sleep and really thought he had asked for a lawyer. And when things went on and on, he started to make stuff up, thinking they’d let him go home if he gave them what they wanted. And once they did, he’d hire a lawyer and take a lie-detector test in West Virginia to clear himself. Then he’d be fine.
That was the easy part. When Robert Smith went to work on him, Springsteen tried holding his own, but when asked if it was just a lucky guess that he knew all those details about the murders, and how he and Mike Scott had come up with the same story, Springsteen said only, “I wouldn’t call it a lucky guess.”
No more questions.
The defense rested.
This being a Friday, everybody got the weekend off. Lynch would deliver his charge to the jury for the lawyers’ approval on Monday, May 28. On Tuesday, jurors should show up with a suitcase packed for an overnight stay and, after closing statements, would begin deliberations, which would probably extend into the next day.
Court adjourned.
Springsteen to Sawyer: “I’m a dead man, aren’t I?” Sawyer to Springsteen: “Yes, son. I’m afraid you are.”
Pretty much everybody thinks Sawyer did the wrong thing by failing to convince the defendant not to testify; some even point out that if a lawyer can’t talk a client out of doing something stupid, he’d better find a new profession.
Sawyer says he was convinced the whole thing would be overturned anyway.
And was Springsteen glad he’d taken the stand?
“Honestly, no, I’m not. Back then at the time I thought there was no other way to win because I didn’t want to go through the four- or five- or six- or whatever-year appeal process, so I was like, ‘All right, we got to do what we got to do now,’ and that was a bad decision. I mean it wasn’t horrible, but it wasn’t particularly in my favor, either.”
We were sitting on the screened-in back porch of his mother’s house in West Virginia. He was smoking a cigarette. My little dog, Walter, was curled at my feet. It was early spring and I’d arrived a little late, having driven from Baltimore to Cross Lanes through patches of dense mountain fog. The afternoon was gray, damp and misty, too cold to sit on the porch, but we had privacy there, and a big-screen television was on inside, with the sound up high. Somebody I wasn’t introduced to was watching Kill Bill.
This was one of six identical two-story houses built on a hillside cul-de-sac. Through the back screen we could see a very wet green landscape, bushes, grass and other backyards. A small tree stood by the screen door. Robert said it was a flowering peach, that he’d planted it for his mother.
When asked if it was his decision to testify, he said, “Well, it was. The way things came down, or at least the way I understood that things came down, there was some miscommunication between all the different attorneys working on the case and I misunderstood, had a misconception or whatever it is I had. I thought, ‘Okay look, this is the last chance we got, the ship’s sinking, these people [the jurors] are definitely going to be like, ‘Okay, you know what? Screw this guy unless we hear something from him’; and Robert [Smith] was smooth enough to make me look like a moron, honestly. And if it had been a different prosecuting attorney, maybe it would have been a different story. You know, I have a lot of respect for Robert Smith, he was a very good district-attorney officer and he was doing what he was ordered to do and everybody’s like, ‘Don’t you hate the situation and hate the people?’ Well, no. Some of them I don’t have particularly kind feelings for, but I don’t hate them, because they were doing what they thought was right or what they were ordered to do. It’s like being in the military. Follow orders or you lose your job or your position. I tried to speak with him one day in court. Me and Jim talked about that after the fact. I was like, ‘Good morning, Robert, how are you today?’ and he turned around and looked at me and said, ‘I’m not allowed to speak to you!’ Right on, man! Whatever. Okay. And Jim was like, ‘Yeah, he’s really not supposed to,’ but a non-anything ‘Good morning, how are you doing today’ kind of greeting? He reacted like that because he knows he’s doing you wrong, he’s screwing you over. It was his job. And he couldn’t see me as a person; all he could see was what he was presenting me as and what the media wanted to see and what the public wanted to see. So I guess I became the infamous bad guy.”
Just inside the front door of the house was a display of family photos, including one of Rob on his mother’s lap at about two years old. Blond and chubby, he looked happy and sweet. To use his term, a “normal” baby.
“Those people don’t know me,” Rob had said many times. “I’m not a bad person….I’m a normal guy….I wouldn’t do anything like that.”
He was utterly polite to me, but when I ask myself if well-mannered people
who characterize themselves as normal are capable of committing terrible acts of violence, I remind myself what Jones said about who could or would do such a thing: that, legally speaking, the question’s irrelevant, and as for the answer, isn’t it obvious, given the case of, say, Ted Bundy? And I know he’s right, even though the standards we use to determine guilt—probable and without reasonable doubt—are subjective, shifty and sometimes speculative.
SPRINGSTEEN: CLOSING ARGUMENTS, VERDICT, PUNISHMENT
Sometimes a story feels like it’s over long before the credits roll. Middle of the movie, halfway through a scene, we know.
On Tuesday, May 29, fourteen jurors showed up with suitcases and Lynch gave his charge. The state would make first and last closing arguments; defense, in between. Darla Davis would speak first, then Bettis and Sawyer. Robert Smith would have the last word.
If courtroom lawyers are in general agreement about any one thing, it’s that you don’t give your closing from notes and certainly not from a prepared text. You plan ahead, rehearse, revise, rehearse again and then extemporize, engaging jurors with your passionate certainty and moving a soulful gaze from one to the next. But this case broke the mold in many respects. Darla Davis read her statement, and Berk Bettis talked from notes for the first time in his twenty-five-year career. Sawyer, of course, spoke off the cuff, but when he strayed a few minutes over his time limit, Lynch cut him short—an unusual move when a man’s life was on the line. Never happened to him before, Sawyer says. He drew his statement to an abrupt close, wondering, as if to himself, if people really wanted to find someone guilty of a crime with no real evidence to support the decision. Robert Smith described Amy Ayers crawling across the storeroom floor, hoping to save herself, as a merciless Robert Springsteen fired the shot that ended her life. “Ladies and gentlemen,” he concluded, “you are sitting in the courtroom with the man who killed Amy Ayers…the man who will be sitting here when you return with your verdict.”
Nobody was brilliant; everybody was good. Everything had already been said.
At a little before one o’clock, Lynch sent the jury off to elect a foreman and commence deliberations. He informed the two alternate jurors of their status—which they hadn’t heard until that moment—then thanked them for their service and sent them home. At five, the jurors asked to review Chandra Morgan’s testimony. After the court reporter read it to them, they returned to the jury room and remained there until seven, when Lynch called an end to their day’s work. A shuttle van transported them to a local motel. The next morning, they gathered again. After a couple of hours, they asked for a read-back of Springsteen’s testimony. In the middle of the afternoon, they sent word they were ready.
At 3:55, the court reconvened without Sawyer. He says he hadn’t thought the jury would come in that day. Some think he had other reasons.
Before Rob entered the courtroom, Bettis paid him a visit. The jurors were crying, he told him, which wasn’t a good sign. Spectators, victims’ families and the press had gathered, but the row reserved for Springsteen remained empty except for his grandmother, Maryjane Roudebush, who had attended his trial regularly, always wearing a red or pink hairpiece. For the verdict, she’d switched to black.
At 4:05, Lynch read the verdict: guilty as charged. The foreman affirmed the unanimity of the vote. Relieved, families of the victims sobbed and held one another. Jurors wept. Springsteen looked straight ahead. Lynch adjourned the court until the next morning, when the punishment phase would begin. The bailiff escorted the inmate back to county jail as photos were snapped. Reporters rushed to file stories. Family members embraced detectives.
“One down,” Merrill commented.
The next day, Austin attorney Joe Turner told the Statesman that “this case appeared from all angles to be a defense case,” described Lynch’s decision to let the jury hear Scott’s confession as “pivotal” and said he thought that allowing Springsteen to take the stand was a desperate attempt to counter its admission. He attributed the outcome largely to the preparation and skills of Robert Smith.
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Under Texas law, when considering punishment in a capital case, a jury has to respond to three special issues. First, is there a probability that the defendant will commit future acts of violence that would constitute a continuing threat to society, including within a prison setting? Second, taking into consideration the circumstances of the offense and the defendant’s character and background, are there sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than the death penalty? Third, did the convicted person intentionally kill the victim of the offense?
A vote of yes/no/yes would send Rob Springsteen to death row. If jurors said no to the first question, they weren’t required to answer the second two.
At the time, the Texas Penal Code didn’t allow for a sentence of life without parole, so the prosecution and defense had agreed that, should the jury sentence Springsteen to life in prison, he would serve a mandatory thirty-five years, including time served, before being granted a parole hearing.
After explaining those options to the jury, Lynch called on the state to make its case for what it considered appropriate punishment.
To show that Yogurt Shop wasn’t an anomaly, but part of an ongoing pattern of antisocial and violent behavior, the prosecution called a number of young men from West Virginia to testify to Springsteen’s short fuse, his habitual drunkenness and the guns and knives they’d seen him carry and sometimes use to threaten people. One told of how Rob had kicked the bug shield of his pickup truck, scaring him so badly that he had to go after him with a nightstick. Another related a similar story of sudden and arbitrary violence. “I never did do nothing to him,” he testified. “I’d never seen him, never heard of him or nothing.”
Former McCallum High School principal Penny Miller spoke with some compassion and regret about Rob’s time at McCallum and how she had failed to reach him. “We didn’t succeed with all kids,” she admitted. “We didn’t with Rob.”
A West Virginia policeman testified to an incident in 1995 when, during a DUI arrest, Springsteen became violent, resisted arrest and tried to kick several officers. Another described an arrest for disorderly conduct, when Rob told the cops, “Fuck it. Take me to jail.” James Ramsbottom, from Charleston, described a night way back in 1990, when he was a doorman at a nightclub and Rob appeared, wearing a long dark coat, and asked Ramsbottom to hold a gun for him, a nine-millimeter that could be converted to a semiautomatic. He also remembered Rob with a .380 and other guns, bragging about crimes he’d committed. During cross, this witness admitted to Sawyer that he was still on probation from a felony charge.
The last witness for the prosecution was Bob Ayers, who once again told tender stories about his daughter, how talented she was at riding and training horses, how much she loved cats, dogs, horses, rabbits and her FFA animals—how happy she made her family, how much they missed her. Robert Smith had photographs of a smiling, cowboy-hatted Amy projected onto the video screen, then announced that the prosecution rested.
Now it was time for the defense to mitigate those troubling testimonies. They might have presented witnesses to testify to Springsteen’s basic strength of character and respect for life; his work ethic and his steadiness as a husband and stepfather—whatever they could come up with that might convince the jury that his life was worth sparing. They might have brought in a West Virginia psychologist to testify to the debilitating effects of his learning disabilities. His grandmother had gone home, saying she wouldn’t testify because she knew she’d cry and didn’t want to cry in front of those girls’ parents; but his mother had taken her place, and might have been asked to talk about Rob as a child, much as Bob Ayers had about Amy. The defense might have projected the photo I saw much later of a blond, smiling baby in his mother’s lap. Robert’s wife might have told the jury about the “good and gentle” man she married. Bettis might have taken the stand to speak of Rob’s honest desire to tell his st
ory on the stand, whatever the risks and despite his lawyers’ advice. The evidence the prosecution had presented to indicate future dangerous behavior was neither strong nor convincing; nonetheless, Sawyer had to find some way of convincing the jury not to kill his client.
It’s easy to speculate what would’ve helped. What didn’t was silence. But on punishment, the defense rested. Although this did not necessarily mean they’d given up on their client, a jury could easily assume they had. Even Lynch himself seemed taken aback, neglecting to ask the defendant if he agreed with this decision. In his journal, the judge would marvel at Sawyer’s choice, especially because his client was seventeen when the offense occurred and, in the eight years since, had married, held a job and stayed out of serious trouble.
But Sawyer had been predicting the inevitability of a death sentence all day. When interviewed afterward, he’d tell reporters he couldn’t imagine following up Bob Ayers’s moving remembrances with a “Yes, but…” testimonial to their client’s good character. At another time, he’d say Rob didn’t want to involve his family in the mess he’d gotten himself into, and that he and Bettis respected that. He’d also call it strategy. Once the trial was over, Rob could request new counsel and a new trial, charging his attorneys with ineffective assistance of counsel, citing as proof the absence of mitigating testimony and the mistake of calling him to the stand.
Who Killed These Girls? Page 28