The defense had two more expert witnesses to present on Thursday. Smith wanted to schedule closing arguments the following day, but Garcia asked that they wait until Monday, giving them the weekend to work on theirs. Lynch—his patience frayed—preferred Friday, but there was a potential problem. On Saturday, the University of Texas Longhorns were playing a home game and, football being the great Texas pastime, he wasn’t sure he could find motel space for the jurors that night. He’d have to check.
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Known as a bloodstain pattern analyst (BPA) and crime-scene reconstructionist (CSR)—job titles familiar to fans of The Closer and the CSI series—the defense’s next-to-last expert witness, Ross Martin Gardner, had worked in federal law enforcement for twenty-nine years before taking over a small metropolitan department in suburban Atlanta as chief of police. After that, instead of retiring, he got into forensics, studied at Scotland Yard, became active in the International Association of Bloodstain Pattern Analysts, took thousands of hours of technical training, wrote articles on crime-scene analysis and reconstruction and became, in time, a nationally recognized expert.
After establishing these credentials, Garcia asked Gardner to tell the jury what crime-scene reconstructionists did. The job, as he described it, was one of simple logic and deduction, using the scientific method. They gathered evidence, examined every available piece and explored the relationship between these items. For example, in Yogurt Shop, one piece of evidence was the phone receiver, found hanging from the melted body of the telephone. Why was it off the hook? Phone records revealed that no outgoing calls were made after the shop closed. A reasonable assumption would be an interrupted call, perhaps one of the girls attempting to call 911 when someone took control of the receiver or forced her to drop it.
“We take pieces of physical evidence, we put them in as much order as possible…and when we’re done what we have is a skeleton…pieces that fit in a certain order.”
In 1988, Gardner had taken a course from the defense’s next expert, Tom Bevel, the country’s leading blood-spatter analyst. Before long, they joined forces and developed a method of teaching what they’d learned to cops, private investigators, prosecutors, defense attorneys and whoever else wanted to know. In 1997, after coauthoring Bloodstain Pattern Analysis with an Introduction to Crime Scene Reconstruction, they expanded their teaching into a business. Operating out of Bevel’s home state of Oklahoma, Bevel, Gardner & Associates was soon scheduling seminars all over the country; in the next fifteen years, they hired many more consultants and teachers, most of them retirees from law enforcement.
Ironically enough, in December of 2000, during Yogurt Shop pretrials, when the state was working hard to match crime-scene evidence with details of the codefendants’ confessions, Tom Bevel had been hired by the Travis County DA’s office to—in his words—examine “documentation relative to Amy Ayers’s death, and to try to identify the most probable sequence of events relative to the physical evidence surrounding her body.” It was Efrain de la Fuente who had made contact with Bevel and subsequently sent photographs, diagrams and the autopsy report. The package included no photographs of the storage room, the doors, the front room or the other girls. Bevel studied the material and in April 2001, when Springsteen was getting under way, submitted his findings. The only response he got was a letter from de la Fuente saying he might be called as a witness. He’d heard nothing more. Those findings have never been made public.
As requested, Carlos had sent Gardner a notebook filled with the original incident reports, autopsy and private-lab DNA reports, crime-scene and autopsy photographs and the conflicting arson conclusions. What Gardner specifically did not want were statements, whether from suspects, witnesses or the victims’ families. It didn’t matter what the victims had done that afternoon or what people who’d been to the shop remembered. He wanted only physical evidence and firsthand official reports. He’d even made a trip to Austin to view and take his own pictures of items stored in the APD evidence room in order to follow a “basic process…of crime scene analysis and crime scene reconstruction.”
If this sounds at once sensible and somewhat oversimplified, it is both, though if the success of the Bevel-Gardner partnership points out anything it’s that there are gaping holes in the forensic capabilities of police departments all across the country. That cops aren’t scientists goes without saying, but it’s also important to understand that they’re local. Their job requires them to respond not just to their chief but also to the DA and the mayor, as well as—in a high-profile case like Yogurt Shop—to the families of the victims and a clamoring public. And then there are the inevitable skirmishes and power plays within any homicide department.
Ideally, an outsider can provide a more balanced response. Gardner might have gone on too long from time to time, but his was probably the most interesting and most nearly objective account of the Yogurt Shop crime scene that anybody had offered thus far. Having been prepped on Lynch’s attitudes, he described the reconstructionist’s methodology as scientific and objective.
“We’re not guessing,” he told the judge. “We’re not going, Well, I kind of have a gut feeling.” On the contrary, they looked for “defined events that occurred during…the incident,” each of which they listed as a specific “event segment.”
Because their arson expert had canceled his appearance, the defense also depended on Gardner to talk about fire origin and cause. Although he wasn’t an expert on software modeling, he’d studied fire science and was certain that the evidence showed that the girls’ bodies suffered direct burns from falling ceiling tiles. The records and photographs showed no evidence of napkins or cups on or around the bodies, nor the use of an accelerant.
Garcia also wanted Gardner to present a flowchart comparing the videotaped and written statements of Michael Scott, noting the consistencies and inconsistencies between them, but de la Fuente objected. An expert witness could not testify to the credibility of a witness, particularly the defendant on trial. To refute this objection, Gilford cited Texas Rule of Evidence 704, which allowed expert testimony on an “ultimate issue,” in this instance guilt or innocence. Objection overruled.
After warning the witness not to tell the jury how to perform its function, Lynch ruled that if Gardner stuck to specific statements by the defendant, compared them to specific findings he’d made and rendered an opinion only on whether or not that statement was consistent with his findings, he could be of assistance to the jury. He could not, however, make direct suggestions about the defendant’s credibility. Gardner agreed to comply.
The defense next called Tom Bevel. Aiming to show that the APD and the prosecution weren’t after the truth, but a confirmation of the case they’d built, Garcia asked immediately about the consultation Bevel had made in December 2000. When on cross de la Fuente accused him of claiming “scientific certainty” for his conclusions, Bevel didn’t bite. All scientists, he said, including himself, were wary of making claims of certainty.
Later that afternoon, when de la Fuente re-called Gardner, his questioning was sharp, but his dependence on sarcasm often led him to make charges he had to back away from. Gardner remained calm, answered his questions and certainly earned the fee he’d been paid. Though the jurors didn’t buy everything he said, he might well have planted seeds of doubt in their minds.
To emphasize once again that by early 1992 information about Yogurt Shop was floating freely throughout the city, especially among young people, the defense had hoped to bring in a man named Aaron Chadwick, who’d been interviewed then by both Hector Polanco and John Jones. But the pierced and tattooed Chadwick seemed to have vanished. All they had was an e-mail address, and he wasn’t answering. Maybe they could conduct an interview via e-mail? Maybe the judge would give them more time? Bitterness and exhaustion produced a vicious exchange over these last-minute motions and requests.
The final day of testimony was a jumble of repeat appearances and requests from the defense for t
ime and a reconsideration of Lynch’s previous rulings—all denied. The state called several people in black to ask what they’d heard and from whom; some said they’d gotten everything they knew from one woman, who’d claimed to have inside sources. They then brought in some of Shawn “Buddha” Smith’s gang to refute their leader’s allegations. The defense called Mike Scott’s Boy Scout leader to testify that he had indeed attended the craft meeting that Saturday, December 7, and no, he hadn’t acted strange or nervous, just normal Mike. Garcia asked again for continuance, so they could take the weekend to write a proper closing argument. No deal. The jury was told to bring a suitcase, toothbrush, regular medications and change of clothing in with them the next day. Lynch had booked motel rooms, and after closing arguments the case would be theirs.
SCOTT: CLOSINGS, VERDICT, PUNISHMENT
As in Springsteen, Lynch gave each side two hours, the state to open and close, the defense in the middle. Mike wore a light gray suit and had his hair combed back. His pale clothes matched his natural coloring, giving him the appearance of a man who wished to vanish.
To begin the closings, Efrain de la Fuente reviewed the two confessions and urged jurors to find them honest and credible. Everything else, he said, was invention. He imagined Scott saying, “Gee, it’s a false memory and they implanted this stuff in my mind and it never happened.”
Dexter Gilford began his final argument by striking a note of humility. “I don’t propose,” he said, “to understand all of the ways in the workings of a human heart and human mind. I can’t say and speak with as dogmatic conviction as my colleague Mr. de la Fuente does about when somebody is lying or when somebody is not, or when somebody had been frightened or when somebody has been deceived or tricked. I can’t do it. I don’t know how he is able to….But it is something that I have noticed that has been characteristic throughout this case. Detectives Merrill, Lara, Hardesty, Meyer, all of them that have testified [who] had any contact with Mike….They all propose the same sort of omniscience….I don’t know where they get it. I don’t know how they can decide on a hunch that somebody is lying to them. I don’t know if anybody can do that. I’m a God-fearing man. I believe in God. I don’t know if you all do. If you do, the idea of omniscience to me is something that it is hard for me to understand any of us taking for ourselves….”
His use of omniscience was purposeful and effective, giving the power of all-knowing to God, leaving humans to cope with relativity, possibility and doubt.
After refuting many of the state’s positions, Gilford pointed out inconsistencies between Mike’s statement and the crime-scene evidence—reminding the jurors more than once that the reason Mike had gotten so many things wrong on his written statement was that Lara and Hardesty and the rest hadn’t been with him to guide his answers. Wrapping up, Gilford reminded jurors that while the girls’ families and the city of Austin deserved to know what happened that night, “Mike Scott should not be our easy way out.”
And he again spoke of the unwavering omniscience of the interrogating officers, who had said no when asked if there was any possibility they were mistaken about Mike Scott killing those girls. And that’s where Gilford insisted the investigation itself had gone wrong, with the absence of even the possibility of a flawed theory.
It was an admirable speech, and Lynch calls it one of the best closing arguments he’d heard in his twenty years on the bench.
Carlos Garcia’s closing was equally impassioned, if somewhat less cohesive. While a Jim Sawyer or a Dexter Gilford can depend on an ingrained sense of order that enables them to speak in paragraphs, Garcia’s a man of heat, passion and virtue, who knows he needs to rein himself in to make better points, but in this case he simply didn’t have enough time to organize and edit. His final focus was on that worrisome lock on the back door, a photograph of which—the only one taken that night—he projected on the screen. It was a fuzzy photograph, and while Carlos saw an irrefutable key lock, not a thumb latch, to others the mechanism wasn’t so clear. It’s true you couldn’t see a lever or a latch, nor could you, with any certainty, make out a keyhole.
“That’s the acquittal right there,” Carlos told the jury, perhaps a little too adamantly. “If that doesn’t convince you, I don’t know what will.” And one last time, he presented the jury with the theory that the killers had gone in through the front door or hidden in the space above the ceiling and, when the killing was over and it was time to leave, they’d had to force open the back doors, leaving telltale scratches on the inside panel.
In her turn, Darla Davis asked jurors to return their attention to Michael Scott’s written statement and to read it carefully, word by word, and “you will know you are reading the words of a killer.” Robert Smith wrapped up by going back over details that both Scott and Springsteen had relayed to police officers, describing the crime as the prosecution envisioned its having happened and emphasizing the horrifying details, especially concerning Amy Ayers. He reminded jurors that both confessors had told police officers that somebody threw up over the side of a bridge just after the crime. And that their accounts were far too consistent for these to be coincidences.
During his final moments, Smith would make a significant mistake when he invited the jury to resolve whatever doubts it might have about the reliability of Scott’s confession by noting how closely it corresponded to Springsteen’s, both in the details of the offense itself and in other “neutral” aspects. He also urged them to consider that “unlike with [Scott], the interrogating officers had not suggested answers to Springsteen.” These statements will come to haunt Smith and the DA’s office when they are judged “harmful” and used in the eventual reversal of Scott’s conviction.
On Friday afternoon, September 20, with seven hundred pieces of evidence to consider, these men and women retired to the jury room to begin deliberations. A few hours later—when they requested the photograph of the lock on the back door and, soon afterward, Scott’s written statement—the defense took heart. Transported from the courthouse by shuttle bus, the jury spent that night and the next in motel rooms, where on Saturday night some might have listened to a radio broadcast of the sold-out football game. Wildly favored, the UT Longhorns won their fifteenth straight home game, beating the University of Houston Cougars 41–11.
The next afternoon, after deliberating for more than twenty-two hours, the nine women and three men reentered the courtroom, several of them wiping away tears, others red-faced. Not good for the defense. The foreperson handed the verdict to the bailiff, who handed it to the judge, who read it aloud: guilty of capital murder.
The defense requested a poll. One by one, each juror had to stand and answer Lynch’s question: “Is this your individual and personal verdict?” Once they’d all said yes, the judge declared the verdict formally received. Court in recess, to resume the next morning at nine for lawyers, ten for jurors. Mike Scott was taken back to his holding cell. Garcia was heartsick. Families of the murdered girls huddled together, throwing arms around one another, clasping shoulders warmly. On the other side of the courtroom, the Scott family broke down. When everybody else had left, they were still there.
Once she pulled herself together, an enraged Jeannine Scott went out to face the press. “The state of Texas,” she said, “has succeeded in putting another innocent man in prison. I only hope the jury has enough sense to realize it’s not worth his life.” Her husband was innocent and she would fight every day to bring him home. Later, when she’d calmed down, she told a reporter she wasn’t angry with the jurors. She thought they’d been duped, and that the real killer was a sick psychopath who was still out there.
Garcia, Gilford and Diaz met to discuss the next step. Whatever happened, there were many reasons that this verdict could be overturned. When it was, they’d be ready. In the meantime, saving Mike from execution would constitute a victory.
Arguing for the death penalty, the prosecution called friends from Mike’s past, including one who remembered Mike braggi
ng about being the “Mushroom King” of Austin, making big bucks—six figures—selling hallucinogenic fungi from his fanny pack. But under defense questioning, the witness admitted that he thought Scott was blowing smoke, especially about the money. The state also produced a county correctional officer who’d found contraband under Mike’s mattress, a pencil with a scrap of razor blade inserted into the eraser end and a couple of paper clips that might be used to pick a lock; the guard had confiscated the items but hadn’t bothered to report the incident. Others said sometimes Mike’s temper could get the best of him, that they’d seen him steal money from the cash register in the bookstore where he’d worked. A woman described having a “hollering match” with him in her store.
The last prosecution witness was Bob Ayers, and because in a death-penalty case Texas law limits testimony that compares the victim’s life to the defendant’s, his descriptions of his daughter had to be curtailed. Lynch ruled that of the thirty photographs the state had hoped to exhibit, it should choose three.
The prosecution had taken less than an hour to argue that Scott presented a future danger.
The Scott team made a strong case to mitigate the death sentence, after which a local television reporter would refer to them as a legal “dream team.” As witnesses, they called family, colleagues, former employees and friends to testify that Mike was a good son, a good father and husband, a good friend, a good Boy Scout, a hardworking employee. Jeannine Scott emphasized his patience and his respect for others, especially Jasmine, their daughter. Yes, he could be a little drifty from time to time, but he was her gentle giant, and she loved him for his sense of wonder, which counterbalanced her own natural cynicism. While in county jail, he had cut out and sent her articles from the newspaper every day: photographs, stories and recipes, perhaps using that pencil with the razor blade mentioned by the correctional officer. Several people testified about Mike’s involvement in the medieval reenactment society. Mike’s father talked about the care and precision required to create the traditional American Indian attire Mike made by hand. In the end, Lynch wrote, the defendant came off as goofy, eccentric and immature, perhaps by nature a follower, but not preternaturally violent or dangerous.
Who Killed These Girls? Page 31