To prove another point—that executing juveniles (under eighteen) was a violation of the Eighth Amendment, which outlaws cruel and unusual punishment—the defense also called a neuropsychologist to describe the development of the brain and to suggest that Judge Lynch should order a directed verdict of life in prison (an argument with which the Supreme Court will agree in 2005, when Springsteen’s death sentence is overturned).
Studying Mike’s school records going back to prekindergarten, the neuropsychologist found that Mike had skipped so many days of the fourth grade, he’d had to repeat it. One of his teachers categorized him as emotionally unstable and “immature, immature, immature”; a really bright boy who never lived up to his potential. After he was diagnosed as having off-the-chart ADHD, it became clear why he was unable to “prune” reality. To a boy like Mike, the neuropsychologist explained, every sound and experience carried the same weight.
So? Efrain de la Fuente would shrug. Immaturity justifies murder?
After the jury went home for the night, the defense presented its last expert witness, Jordan Steiker, a former Supreme Court clerk now teaching law at the University of Texas. A death-penalty antagonist, Steiker is extremely knowledgeable about both the Eighth and Fourteenth Amendments. By allowing him to speak at length about the issue of proportionality in other Supreme Court rulings, Lynch revealed his inherent interest in capital punishment. But he would not extend it far enough to sustain the request of the defense to order a directed verdict.
As for closing speeches the next day, de la Fuente once again took the hothead role, carping and making evidence personal, sharpening his tongue for spiky attacks. Gilford emphasized the difficulty of the jury’s job. Garcia asked jurors to choose life over death and reminded them that if Martin Luther King Jr., Gandhi, Mother Teresa or Jesus Christ were alive, any one of them would have chosen life. And he told the story of Saul of Tarsus on the road to Damascus, who, after being forgiven by Jesus for hundreds of killings, went on to become an apostle.
Robert Smith finished up by calling the murders of the four girls sufficiently brutal to indicate future dangerousness, and by asking the jury to revisit the crime itself and the events of that night minute by minute, flavoring his rundown with quotes from Mike Scott, the last of which described the pistol shots to the back of the girls’ heads: “Quick easy kill.”
The jury was out for less than three hours.
When it returned, Lynch read the first question aloud: From the evidence presented by the prosecution, did the jurors consider it probable beyond a reasonable doubt that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?
Scott’s jury voted no.
So as the law mandates, Lynch didn’t pose the second two questions and pronounced Scott’s sentence, life imprisonment and a minimum of thirty-five actual years, which, considering time served, came to about thirty-two.
It took a minute for Carlos Garcia to take it in, but the response in the courtroom brought him around. “Oh,” he said. “We won.”
Mike Scott hugged his attorneys. After he was cuffed and hustled away, defense lawyers shook hands and hugged one another.
Ronnie Earle hung his head. Smith, Davis and de la Fuente gathered up their papers and left without commenting. Bob Ayers bolted without a word for the waiting press corps. When asked if she had anything to say to the jurors, Barbara Ayres-Wilson said, “Nothing nice.”
Jeannine Scott and Mike’s family rejoiced. “All we have to do now,” she told reporters, “is bring him home.”
So, what was it? Did Springsteen’s lifted chin and his unfortunate eyebrows or his arrogant stride into the courtroom convince jurors of his future dangerousness? Did he simply look like a killer and when Sawyer didn’t present evidence that he wasn’t, the jury ended up trusting appearances? In one of the 48 Hours interviews, Barbara Ayres-Wilson offered a simple explanation. Springsteen, she declared, should not have taken the stand. “He was not received well,” she told Erin Moriarty in 2010. “He was the evil person in front of us.” Sitting beside her, Maria Thomas energetically agreed. “Cocky,” she said. “Arrogant.”
“Slimy,” Ayres-Wilson added.
Mike Lynch says the jury gave Scott life mainly because when the prosecution presented their argument that Mike Scott was irremediably violent, they didn’t come up with much. He also thinks the videotape of his long, painful interrogation might actually have helped him.
—
Three months later, Lynch received a letter from Juanita Tijerina, who’d served on the Scott jury and, during the twenty-two-hour deliberations, had been the lone holdout for a not-guilty verdict. She was writing him, she said, because of the many things that bothered her about “the evidence, confessions and testimonies” presented at the trial, especially the potentially coercive actions of the detectives conducting the interrogation. It was Tijerina who—despite the impatience and anger of her fellow jurors—asked for the videotapes to be brought to the jury room for review. In the end, she told Lynch, having concluded that Scott’s confession had been made “under high pressure tactics and not coercion,” she changed her vote. By then the jurors were so wrung out, they all wept openly. But the main reason she wrote was to express her fear that sloppy APD investigative strategies might send an innocent person to prison or to death row or, by tainting the evidence, might even compromise the jury system and provide a technicality that could set a guilty person free. As a prescriptive measure, she recommended the creation of a special department to oversee police investigations, then thanked the judge for his impartiality and fairness.
Garcia thought Tijerina’s letter was a sad testament to the jury’s disinclination to “determine whether the substance of the ‘confession’ matched the evidence.” Which, he insisted, it didn’t. In truth, he admitted, blaming jurors was unfair, and in this particular instance they were hamstrung by his and Dexter’s inability to “simplify the information/interrogation into manageable chunks.” But the case was unwieldy at best: “information overload at a scale I had never nor have ever seen before and since.”
Judge Lynch did not respond to this letter.
ALWAYS PIERCE
On September 25, 2002—with Scott in a holding cell awaiting transfer and Springsteen on death row—the DA’s office went to work. Maurice Pierce was next, and, in December, Lynch announced his trial date as April 21, 2003. But the state had little to go on and Pierce still wasn’t talking. A few weeks later, Springsteen returned to Austin for a two-day psychological workup, ordered by his appellate attorneys, Mary Kay Sicola and Robert Ford, who had already filed a brief citing the violation of their client’s Sixth Amendment rights. By then, Garcia had arranged for Ariel Payan to file Michael Scott’s appeal, and because of his life sentence, this would be directed to the Texas Third Court of Appeals.
In November, Christopher Ochoa and the family of Richard Danziger filed separate lawsuits in federal court, accusing former APD homicide investigators Hector Polanco, Bruce Boardman and Jamie Balaiga of illegal acts, including threatening violence, fabricating a confession and hiding and destroying exculpatory evidence. They also cited the negligence of Police Chief Jim Everett. City councilman and future mayor Will Wynn called Danziger’s case the most troubling thing he’d had to deal with in his two and a half years on the job. “Ultimately,” he said, “the justice system broke down.”
Guillermo Gonzalez and the other members of Pierce’s team began preparing for a trial, as did the girls’ families, Judge Lynch and the DA’s office. Finally, everybody on the prosecution side thought it was time to bring the ringleader to justice.
—
But this wasn’t to be. Within four months of Scott’s conviction, on January 9, 2003, Ronnie Earle held a surprise press conference. Looking grimly hangdog, he wasted no time getting to the point: “It is without pleasure that I announce today that the Yogurt Shop capital murder cases against Maurice Pierce have been dismissed.”<
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Nobody knew it was coming. Neither Guillermo Gonzalez nor Pierce and his family. Nor the Statesman.
“The primary witnesses against Maurice Pierce,” Earle continued, “are Robert Springsteen and Michael Scott. Juries have convicted both of them of capital murder for what they did,” but they had a Fifth Amendment right not to testify and had made statements that couldn’t be used without violating the “constitutional right of Maurice Pierce to confront the witnesses against him.” Although the case remained open and the investigation active—murder having no statute of limitations—the evidence they’d hoped would prove guilt beyond a reasonable doubt had not developed, so the state was “unable to proceed at this time.”
After calling Yogurt Shop the most difficult case in Austin’s history, the DA made a special point of praising the APD’s investigative work, calling the teamwork of police officers and prosecutors “close to miraculous.” And while he still believed Pierce had participated in the murders, if they put him on trial and he was found not guilty, they would forever be barred from holding him to account for “what the evidence shows that he did.”
As for the convicted murderers: “We had hoped they would come forward and tell the truth.” Earle shrugged. “Hope springs eternal” and “life is long.” This crime, he said, had left a “scar on Austin’s soul” that had partly been healed by the convictions of Scott and Springsteen, but “we’re not through and we won’t rest until justice is done in full measure.” He urged people who had information to come forward.
What the DA didn’t say was that, in fact, he had nothing to offer. Convictions weren’t final until the last appeal had been filed, so why would either man make a deal now? And as Mary Kay Sicola pointed out, if Springsteen had been willing to perjure himself and testify against the others, he wouldn’t be on death row.
Although Pierce had been imprisoned for more than three years, Earle said nothing about his constitutional right to a speedy trial, which had kicked in the minute he was indicted. Local lawyers and legal scholars also wondered why it took so long to release him if Earle had known all along that Scott and Springsteen wouldn’t testify. “There is,” a UT law professor said, “an ethical obligation to drop charges, to seek dismissal when there is no longer a reasonable possibility that there will be a trial that will result in conviction.”
Others also noted the irony inherent in Earle’s mention of Pierce’s constitutional—Sixth Amendment—rights when Springsteen and Scott had been denied theirs. And as for Earle’s reference to “the evidence” that showed what Pierce did, what evidence? If proof existed, why couldn’t they try him? Clearly, somebody had convinced the DA that solid proof leading to a conviction was forthcoming. Safe to say, that person had to have been Paul Johnson, whom Earle trusted utterly.
Even more obvious was the DA’s exhaustion with his job. There’s a moment when you can tell that an elected official’s finished, his energy depleted, his zest for the game gone flat. Ronnie Earle had probably reached that point long before now.
—
Released from the Travis County Correctional Complex, Pierce made his first appearance as a free man in a clean white T-shirt hanging outside his jeans. Incarceration hadn’t visibly changed him. He looked scrubbed and energetic. Bombarded by the press, he had only one thing to say: “Happy.”
The next day, with his lawyer and his family in attendance, he read a prepared statement. His three-and-a-half-year imprisonment had been, he said, “a very difficult time,” especially since “when I was detained and arrested I proclaimed my innocence of all the charges that [were] filed against me, and I am standing here today with that same proclamation. I am innocent of any and all charges pertaining to the Yogurt Shop case.” He would now go home with his wife and daughter and try to pursue the many aspirations he had prior to his incarceration. He had no plans to sue the city or the district attorney. He, Kimberli and Marisa wanted to move on with their lives.
Without taking questions, he wrapped up with a winning statement: “I thank you very much and Godspeed to you all.” And he shook a few hands and then was gone.
But easy times didn’t follow his release as Maurice had hoped. Within eleven months, he had received three moving traffic violations—for not having insurance, for failing to control his speed and for driving on a highway shoulder—all issued in tough-on-crime counties close to Dallas. When Pierce paid none of the tickets, a warrant was issued for his arrest.
—
In May 2003, Mary Kay Sicola argued before the Texas Court of Criminal Appeals that the inclusion of Scott’s confession in Springsteen’s trial violated her client’s Sixth Amendment rights, reminding the justices that the Supreme Court had ruled a number of times that the testimony of a nontestifying witness could not be used without the defendant’s having an opportunity to confront, or cross-examine, him. Robert Smith presented the opposing argument, claiming that since Michael Scott confessed voluntarily, his testimony could be considered reliable and therefore admissible under the kind of “firmly rooted hearsay exception” the Supreme Court had judged acceptable in 1980.
Yogurt Shop also remained newsworthy in other respects. In October of that same year, the Statesman reported, Scott’s friend Patrick Davidson was arrested on a four-count indictment handed down by a federal grand jury, claiming that Davidson had received, concealed and disposed of a firearm used in the murder of Amy Ayers, namely the missing .380 semiautomatic. Charged with being an accessory after the fact, failing to report a felony, making false statements to law officers and obstructing justice, he pleaded guilty five months later of conspiring to mislead officers by concocting stories about getting rid of a gun. He made stuff up, he testified, out of loyalty to his friend. He was then sentenced to a year in federal prison by District Judge Sam Sparks, who said Davidson’s stories had authorities “shimmying up flagpoles when there’s no flag.”
SCALIA
In March 2004, while the Springsteen appeal awaited an opinion and Scott’s appellate attorney prepared for his scheduled appearance before the Texas Third Court of Appeals, Michael D. Crawford v. Washington came before the Supreme Court; at issue, interpretation of the Confrontation Clause.
During Crawford’s trial for the murder of a man he thought was about to rape his wife, prosecutors had used a statement his wife had made to police to help convict him. But because she couldn’t be compelled to testify against her husband, her testimony had been read to the jury by a police officer, arguably robbing the defendant of his right to cross-examine his accuser. When the Washington State Court of Appeals agreed, Crawford’s conviction was overturned. But when the prosecution appealed, the state supreme court reversed the decision, declaring his wife’s testimony admissible under the 1980 Ohio v. Roberts ruling. This held that the Confrontation Clause did not bar the admission of out-of-court statements of witnesses unavailable for cross-examination, as long as they bore “adequate indicia of reliability,” which could be “inferred” by what the court called “firmly rooted hearsay exception”—in other words, the same tactic Smith had used against Sicola the previous May.
Since Roberts, case law had allowed trial judges some leeway in deciding when a nontestimonial statement could be considered reliable, either because it fell within the hearsay exception or contained “particularized guarantees of trustworthiness.” But in its March 2004 Crawford ruling, the Supreme Court overturned twenty-three years of case law in a unanimous decision reasserting the original limitations of the Confrontation Clause.
Judge Antonin Scalia wrote the majority opinion.
“Where testimonial statements are at issue,” he wrote, “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation….Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”
Crawford overturned convi
ctions all over the country. To gauge Scalia’s passion about this issue, it’s instructive to read the blistering dissent he would write in 2011’s Michigan v. Bryant, a case in which police officers had been allowed to take the stand to recall the words of a crime victim who’d identified his assailant only minutes before dying. The vote was 6–2 against the petitioner, Elena Kagan abstaining, and Scalia began, “Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose not of obtaining and preserving his testimony regarding his killer but of protecting him, them and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution….Today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort….”
Mary Kay Sicola was confident that Crawford rendered Lynch’s decision in Springsteen wrong. Scott’s statement “is testimonial hearsay under Crawford,” she said, “and requires a finding of error. There is no way around it.”
Equally optimistic, Jim Sawyer said the ruling would finally put an end to a practice that had been “standing the Constitution on its ear.”
Carlos Garcia remained cautious. The state, he said, was likely to argue that the Yogurt Shop cases were different.
Bryan Case, head of the appellate division of the DA’s office, said that because his office redacted the statements so they reflected only the declarant’s guilt, they represented a different kind of “firmly rooted hearsay.” Crawford, he blithely maintained, would not apply.
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