A wary Lynch fervently hoped not to be overturned.
In June, Ariel Payan argued before the Third Court of Appeals, citing Crawford, and Bryan Case appeared for the prosecution.
EVERYTHING HAPPENS IN THE SPRING
Things kept happening. On March 1, 2005, a year less a week after Crawford, the U.S. Supreme Court made another landmark decision when it ruled 5–4 that execution of offenders under eighteen years old at the time of the crime constituted cruel and unusual punishment, violating the Eighth and Fourteenth Amendments. The decision on Roper v. Simmons—written by Anthony Kennedy, joined by Souter, Ginsburg, Stevens and Breyer—stated, “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity….”
Retribution, Kennedy declared, echoing the opinion of Jordan Steiker, was not proportional if the law’s most severe penalty was imposed on one whose culpability or blameworthiness was diminished to a substantial degree by reason of youth and immaturity. The decision also noted the need to consider “evolving standards of decency that mark the progress of society” and, further, that since 1990 the United States stood alone in allowing the execution of juvenile offenders and that only one other country—Somalia—had not ratified Article 37 of the United Nations Convention on the Rights of the Child, which expressly prohibited the practice.
Roper canceled the death sentences of seventy-two inmates, including Robert Burns Springsteen IV. Once his sentence had been officially commuted by Governor Rick Perry, Springsteen was transferred from the death row section of the Allan B. Polunsky Unit in East Texas to a maximum-security unit closer to Austin.
Three weeks later, the Third Court of Appeals upheld Mike Scott’s conviction, ruling that while his Sixth Amendment right to cross-examine witnesses had been violated, the error did not contribute to his conviction; therefore, admission of the redacted Springsteen testimony constituted “harmless” error.
Ariel Payan refiled the appeal, this time with the Texas Court of Criminal Appeals.
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On May 25, 2006, the TCCA reversed Robert Springsteen’s conviction and remanded the case to Travis County District Court 167 for possible retrial. The ruling, written by Judge Paul Womack, stated, “Based on U.S. Supreme Court case law decided after defendant’s trial, the admission [of Mike Scott’s statement] violated the Confrontation Clause. A statement taken by police officers in the course of interrogation was exactly the kind of testimonial statement prohibited under a Crawford analysis. The error was not harmless because there was no physical or forensic evidence connecting defendant to the crime, there was no witness that tied him to the crime, and defendant had repudiated his videotaped confession.” In conclusion, “introduction of Scott’s statement was…vital to the State’s case.”
Presiding Judge Sharon Keller wrote the dissenting opinion, in which she concluded that trial testimony revealed beyond a reasonable doubt that the admission of Scott’s written statement “did not contribute to the jury’s conclusion that Robert Springsteen murdered Amy Ayers.”
Mary Kay Sicola: “It’s been an exceptionally long wait to get a ruling. For all the reasons, for the sake of the integrity of our justice system, the sake of our community, I’m so happy the court has finally issued a ruling.”
John Jones: “Here we go again. This is going to be tough on the parents to have to live through all of this again.”
Ronnie Earle: “We are reviewing the opinion and the issues it presents.”
In a press release, the APD restated its belief in Springsteen’s guilt and vowed to work closely with the DA’s office to ensure that he “continues to be held accountable for these horrific murders.”
According to Bryan Case, prosecutors now had three choices: ask the court for a new hearing, appeal the case to the U.S. Supreme Court or retry it in the same courtroom with the same judge.
In fact, there were two other options. Earle could offer Springsteen another deal and hope for better results this time. Or he could dismiss the charges and hope to try him again at a later date. But in order to get an indictment, they’d have to go before a new grand jury with a case that didn’t depend on Scott’s statement, and they didn’t have one.
Earle requested a TCCA rehearing, but when the court refused to review its decision he was down to retry, dismiss or deal.
Sensing a decisive shift in the weather, Springsteen’s attorneys were in no mood to accept any offer Ronnie Earle came up with, leaving him with only the dismiss or retry options.
SCIENCE
In the early spring of 2007, in a last-ditch effort to come up with biological evidence linking all four arrested men to the crime, the DA’s office hired the Fairfax Identity Laboratories of Richmond, Virginia, to conduct DNA tests on six items recovered from the body of Amy Ayers, some taken at the scene, others at the morgue. This time around, the lab would test for “Short Tandem Repeat (STR) loci specific to the Male Y Chromosome, or Y-STR.” This kind of male-specific DNA testing had not been available in 1991 or even in 2001–2 during the trials. Put simply, the Y-STR test separates out male, or Y-chromosome, DNA from female and is therefore especially useful in situations in which the majority of the DNA is female—as would be the case in a vaginal swab. If the Y-STR tests revealed the presence of DNA from at least one of the four suspects, the prosecution would have the forensic evidence they were lacking.
In June, the TCCA also threw out Michael Scott’s conviction, reversing the decision of the Third Court and sending the case back to the 167th District Court.
Once again, Sharon Keller’s dissent proclaimed the admission of the statement harmless.
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Mike Lynch signed a bench warrant remanding Springsteen to the Travis County jail, where Scott arrived soon after. The judge then began scheduling pretrials. Barbara Ayres-Wilson said the reversals were due to a “loophole.” Her husband said anybody who’d sat in the courtroom knew those guys were guilty.
Lynch said he wouldn’t impose a gag order during the retrials, because he trusted the attorneys and, besides, they were dealing with a different set of circumstances. He didn’t explain further. Efrain de la Fuente—who had become lead prosecutor after the Smith-Davis team moved on—argued against the judge’s ruling, attributing the leak to the press in 2000. In response, the Statesman said it procured its information not from the defense team, but from official sources. In any case, Lynch didn’t change his mind.
As for the “mastermind,” Maurice Pierce had been arrested for those unpaid traffic tickets in Flower Mound, a prettified town not far from Lewisville, where he and his family lived. Police released him once he’d paid the fines, but within a year he’d been issued another citation: two hundred dollars for disorderly conduct after clobbering a motorist in a traffic dispute. Kimberli Pierce said the other guy threw the first punch.
DOWNHILL ROLL
In March 2008, both defense teams were told to report to Lynch’s chambers. When Sawyer, Bettis, Garcia and Gilford arrived, de la Fuente and Darla Davis were already there, waiting to tell them about the swabs they’d submitted to Fairfax labs. The results had been surprising: This up-to-date Y-STR testing had revealed a previously undetected full male DNA profile in Amy Ayers’s vaginal swab.
Defense took in the information, asked a few questions and waited for the other shoe to drop. After all, previously undetected was momentous and so was full profile. But the state’s wrap-up was even more significant: This full profile matched none of the defendants’. And so the state was now in search of an unknown fifth assailant who hadn’t been tested. As far as the prosecutors were concerned, nothing had changed. They were still planning for a Scott retrial in May.
The defense lawyers retired to a quiet place where they could fashion a new, more aggressive strategy.
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On April 15, after acknowledging receipt of the n
ew tests, Lynch honored a defense request for a hearing, in which Gilford would argue that they should have the right to hire their own lab to conduct Y-STR testing—not just on Amy but on all four girls. Despite objections from de la Fuente and Darla Davis’s replacement, ADA Gail Van Winkle, the judge agreed to turn over what he termed a laundry list of physical evidence to the defense, including the DNA tests.
The next day, Maurice Pierce reentered the fray when a police officer in Plano pulled over a Ford Mustang GT for going thirty miles over the posted speed limit. Plano’s in the Dallas suburbs, another province not known for softhearted law enforcement. When she asked the driver why he was so nervous about an ordinary speeding ticket, the jittery young man said that in the past he’d been accused of offenses he hadn’t committed and so police made him nervous. When a second officer arrived, he reviewed the driver’s record and, discovering an outstanding warrant issued by the Irving police, asked Pierce to step out of his car.
Instead, he threw the Mustang into reverse and peeled out, allegedly injuring one of the officers, and managed to get away. When officers arrived at his house, his wife said she hadn’t seen him all day. A new warrant charged Maurice Pierce with aggravated assault on a police officer, a felony. By then, everybody knew exactly who he was.
The APD was pretty sure where he’d gone and soon confirmed its suspicions that indeed he was staying with the same sister he’d baby-sat for on the afternoon and evening of the Yogurt Shop Murders. Renee Reyna had moved farther west out MoPac, not far from where Barbara and Frank Suraci used to live on Tamarack Lane. Within a couple of weeks, the APD had put together a task force that included local officers and federal marshals. Reyna later claimed that when she walked into her living room at midnight with a child in her arms, armed men in uniforms ordered her and her family out of the house. One unconfirmed report said Maurice was hiding in a closet and that when police opened the door he came out swinging a baseball bat and had to be subdued with a Taser. Cops from the Travis County Sheriff’s Office drove him, handcuffed, back to Collin County, where he’d been pulled over, to face charges and almost certainly to be given another chance to open up about Springsteen, Scott and Welborn.
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Less than twenty-four hours after Mike Lynch ordered prosecutors to turn over DNA evidence to the defense, Jim Sawyer submitted a petition that would require the Travis County sheriff to bring the applicant (Springsteen) before the court and show cause why he shouldn’t be released on a “reasonable bond.” Back in 1999, when his client was charged with capital murder, no bond was set because a judge was given the option of denying bail to a suspect who seemed more likely than not to be found guilty and sentenced to death. According to Sawyer’s petition, because new DNA tests excluded all four accused men, his client should be offered bail and released.
Lynch denied the request. But Yogurt Shop was back in the news. In the Austin Chronicle, Jordan Smith quoted “unnamed prosecutors” who said they already knew the identity of the newly discovered DNA contributor, and that he was more than likely “someone known to Amy Ayers,” suggesting that the thirteen-year-old girl might have been sexually active at the time of the murders. The Ayerses made no comment.
Sawyer argued that science had eclipsed the state’s theory and wondered, if Scott and Springsteen were guilty, where was the proof? If Springsteen’s statement about putting his dick in Amy Ayers’s pussy turned out to be a lie, given the absence of his DNA in her vaginal swab, what justified the prosecutors’ white-hot pursuit of him?
In late May, Lynch scheduled a Scott pretrial, during which Garcia requested whatever new evidence the prosecution had gathered. When de la Fuente said they shouldn’t have to give it up, the judge asked him why not—and clearly a chastened Mike Lynch had emerged. When the two sides continued to bicker about swabs, ligatures and other items of evidence, he said, “I am transfixed by this extraordinary difficulty you all have in working with each other on this case!” And he instructed them to “lock yourselves in a room and arm-wrestle.”
Next day’s headline in the Statesman: JUDGE TELLS YOGURT LAWYERS TO ARM WRESTLE.
By the middle of the summer, prosecutors were still insisting that testing was incomplete. And when Lynch signed a gag order barring attorneys connected to the case from publicly discussing evidence, Sawyer protested: “The state went out and told the public they knew whose DNA this was. They don’t. It’s a misimpression and we’re entitled to rebut it.”
August 20 Statesman headline: YOGURT SHOP DEFENSE GROWS MORE AGGRESSIVE.
Jordan Smith, Austin Chronicle, August 29: “It’s been more than four months since Travis County prosecutors said they expected to quickly find the donor of the unknown male DNA found in the body of Amy Ayers. No match has been found but apparently not because the state hasn’t been looking.” She quoted “courthouse sources” who said that as many as five dozen people had been tested, with no match, and yet prosecutors seemed “weirdly confident” despite the deep blow this delivered to their case.
Also in late August, ADA Van Winkle said the state’s investigation was nearly completed, and in September Lynch announced that he was ready to retry Scott and Springsteen back-to-back, probably just after the first of the year. Sawyer requested money for the defense to resubmit a host of DNA evidence using Y-STR testing, stood his ground when Lynch protested the cost, and the money came through. Sawyer sent the evidence to Orchid Cellmark, an internationally known DNA-testing firm.
In late September, after Jordan Smith reported that after “eliminating sixty-three males,” Travis County prosecutors still didn’t have a clue whose DNA they’d found, contrary to earlier claims, letters to the Chronicle began to turn against the APD and Ronnie Earle’s office.
At the end of October, Lynch set another date for the Scott retrial, December 10, but the date kept getting postponed.
By now, Sawyer said, “We all knew it wasn’t going to happen.”
The day after Christmas, Ronnie Earle abruptly announced his retirement at the end of the month, after thirty-two years in office, leaving First Assistant District Attorney Rosemary Lehmberg in charge until a special election could be held in March. He called the Yogurt Shop Murders a “hard slap at the laid-back image the city cultivates,” and said that the savage nature of the crimes still gnawed at Austin’s psyche. As for the suspects: “We thought we had the right guys.” And so he swapped a DA’s certainty—We remain convinced—for a regretful We thought we had…
Four days later, Orchid Cellmark informed the defense that, in addition to the full profile found in Amy Ayers’s vaginal swab, Y-STR testing revealed the discovery of two, possibly three, unknown partial male profiles in swabs taken from Jennifer and Sarah Harbison. Orchid sent test results to Lynch and the DA’s office.
Van Winkle argued that the results didn’t disprove the state’s case.
Sawyer saw it differently: “To a scientific certainty, we have excluded all four of these [men] and…we know that the DNA in these little girls’ vaginas has nothing to do with consensual sex.” And Garcia added that when DNA excludes a suspect, the prosecution must come up with a theory of the crime that explains the contradiction.
Lynch called for a meeting.
On that day, as Garcia, Sawyer and other defense lawyers stood waiting before an elevator in the Blackwell-Thurman Criminal Justice Center, the doors opened and out came members of the murdered girls’ families.
“I’ll never forget that moment,” Garcia told me. “They’d just learned that their daughters had all been raped. It was horrible. Horrible.”
Included in the Statesman’s list of the year’s ten biggest stories was “Yogurt Shop Prosecutions Fall Apart.”
ROSE
On January 1, 2009, Sawyer announced that because of the new DNA reports, he wanted his client out of jail. But Van Winkle wanted additional testing to be performed.
On January 7, Lynch set March 4 for a hearing to determine whether Springsteen and Scott should be
released and said he would probably allow two “New York lawyers” with specialized knowledge of forensics to assist the Scott defense team.
After winning a four-candidate Democratic primary with no Republican opponents, Rosemary Lehmberg was sworn in as Travis County’s first female DA. A native Texan, Rose is warm, straightforward and accessible and makes no bones about her long-term personal relationship with a woman. During her thirty-six years in the DA’s office, she had focused to a great extent on child abuse and helped establish a county unit to investigate those crimes and to care for mistreated children.
Two weeks after taking office, when asked about Yogurt Shop, she acknowledged the possibility that there could be more than one unknown DNA donor; there was still work to be done. If further testing didn’t dispel reasonable doubt, she’d “step up and suggest a bond.” But she denied the validity of Sawyer’s suggestion that science had passed her people by. Both her father and brother were doctors, and she cited the case of a local man who, after being convicted of rape, was cleared through DNA testing.
By the middle of May, the state seemed headed for a Scott retrial in July, and Garcia was eager to “vindicate our client with science.”
After the defense requested more time for their experts to prepare affidavits, Lynch finally set Springsteen’s bail-reduction hearing for June 19, the day Jim Sawyer donned glasses before reading the Orchid Cellmark report, which had been entered into the record:
1. DNA from an unknown male in Amy Ayers, a full Y-STR profile from a swab taken at the scene, as also reported by the DA’s results from Fairfax. All four suspects arrested for the murders were excluded.
Sawyer looked up at the judge, removed his glasses and said the prosecutorial side hadn’t tested vaginal swabs from the other girls, in his view because they were seeking only to prove Springsteen’s statement that he had raped Amy Ayers. And so they focused strictly on her. He then returned to the Orchid reports.
Who Killed These Girls? Page 33