2. The same DNA found in a scene-vaginal sample from Amy Ayers was also found in Jennifer Harbison’s sample from the Medical Examiner’s office, in addition to the DNA of [Jennifer’s boyfriend] Sammy Buchanan. All four suspects excluded.
3. DNA from Sammy Buchanan and another male found in Sarah Harbison.
4. A third male’s DNA found on clothing used to bind Eliza Thomas’s wrists.
5. DNA from Sammy Buchanan found in both Jennifer and Sarah Harbison, indicating the likelihood that the same man raped both sisters, transferring his own DNA as well as Buchanan’s to Sarah after raping Jennifer [italics added].
After Lynch asked the state for comment and Van Winkle said their tests were continuing, he said he’d probably decide early the next week whether to lower Springsteen’s bail; but on Monday he said the test results needed a fuller analysis, and anyway his number-one priority was to begin jury selection for Mike Scott’s retrial on July 6. When asked if her people were ready to go to trial, Rose Lehmberg confined her comments to the usual, rather hopeful assurances: that they had two of the individuals responsible for the murder in custody and would continue to investigate the identity of the unknown male donor or donors.
Lynch’s preference was to conduct a robust review of the test results at trial, not in a hearing. But he needed to hear from the prosecution that they were ready. And so on June 23, he curtly reminded them that, absent emergency conditions, a motion for continuance (postponement) would not be entertained. “As previously stated on the record,” he wrote, “any such motion by the state would, if granted, result in this Court granting both this defendant [Michael Scott] and Robert Springsteen release on personal recognizance bonds.”
The next day, when the state reluctantly acknowledged that it wasn’t prepared to go to trial as scheduled, Lynch briskly ordered that Springsteen and Scott be released immediately and set August 12 as the date when prosecutors would be asked to update their progress. He expected them to show up with “a more definite game plan,” and if they didn’t, the court would provide one.
Their release was front-page news, reported in banner headlines, along with photographs of Springsteen and Scott leaving the courthouse: Mike with Jeannine and his three lawyers, Rob with Sawyer and Bettis. Mike was wearing a light-colored suit and Rob a dark blue polo shirt and rimless glasses, his long hair tied back in a ponytail. TV stations issued special bulletins. Responding to the press, Rob thanked God, his lawyers and his family. Mike said nothing.
There were restrictions on their freedom—no alcohol, no guns, no associating with each other, no leaving Travis County—but they were out, wearing their own clothes and living their own lives.
Lehmberg gave a prepared statement. Because reliable scientific evidence presented an unknown male donor whom the state had not been able to identify, despite testing 130 people, she could not in good conscience allow the case to go to trial before the full truth was known, even though she remained fully confident, etc., etc. She called the Y-STR evidence powerful, and spoke of the search for the fifth man.
Police Chief Art Acevedo assured the public that his detectives would continue to work the case and that he, too, believed they had the right suspects in custody, and, echoing his boss, he referred to the possibility of a fifth man.
Jeannine Scott wanted a trial, not more delaying tactics. When asked if this was a big day for Mike and her, she said it would be a big day when twelve people declared her husband not guilty, so their family’s nightmare would end and “the state can start pursuing the actual perpetrators and give those girls’ families some peace and the truth.”
Sawyer, Gilford and Garcia agreed.
According to the Statesman: “It is unclear whether the men once convicted in the 1991 killings…will ever face retrials…considering the questions raised about the prosecution’s theories.”
Maria Thomas, in Oregon: “I can’t believe they let them go.”
In early August, Lynch granted a postponement; the DA’s office had until October 28 to decide if it was ready to proceed with a trial in January. But the court would entertain no further delays. In other words, if they didn’t have a case, there wouldn’t be a trial. In the meantime, 48 Hours (now called 48 Hours Mystery) was working up a third show on Yogurt Shop.
—
What Jim Sawyer left out of his Y-STR presentation was that, according to the lab report, further DNA testing might well produce additional results, especially from Eliza Thomas’s swabs. And while Tony Diaz wanted to pursue this possibility and then initiate a suit demanding that the state also submit DNA samples from all four girls for Y-STR testing—including a secondary process called “re-amplification” to lock in the results—the other lawyers disagreed and the vote went against him. “We’ve done our job,” Sawyer told the others. “Our clients have been freed.” Garcia agreed. “We decided to let these little girls and their families rest,” he says today.
ROSE’S CHOICE
Walking up to Blackwell-Thurman on October 28, 2009, when the DA’s office would make its announcement, I noted the TV trucks, the video cameras poised and ready on the sidewalks, cameramen in work clothes, newsmen and -women facing the doors from which lawyers and family members would exit, hoping to catch a quick clip and an interview.
Beyond the metal detectors, elevators were crammed with people heading to the eighth floor. In the hall outside District Court 167, those who’d come to know one another during the trials chatted and looked around to see who else was there.
I took my seat—this time on the defendants’ side of the room. Bob Ayers, the lone parent to attend, entered wearing full western regalia, boots and jeans, snap-button shirt, cowboy hat in his hands. Saying nothing, he sidled into a row on the prosecution’s side. Minutes later, Art Acevedo came in and sat beside him.
Sawyer was in an elegant black suit, a crisp white handkerchief in his breast pocket, gold cuff links shining. Knowing what was ahead, he gave us spectators his perfect smile.
No longer an incarcerated defendant, Michael Scott entered the courtroom through the main doors, with Jeannine beside him, her hand resting on his arm. He was wearing his usual ill-fitting sport coat, this time with dark trousers. He’d grown heavy and his hairline had receded even more. Jeannine stood erect and confident, hair streaming down her back.
Springsteen came in accompanied by attorney Alexandra Gauthier. He looked sharp, in a dark blue suit and white shirt and a satiny tie. His mullet had been transformed into a new hipster cut, his goatee trimmed, his glasses fashionably rimless. Once again, no one from his family attended.
Garcia rolled in, wearing a sport coat, tie and gray pants, everything rumpled and a little tight.
When the court reporter and judge’s aides filed in, the defendants and their attorneys took the table they’d been assigned to during their trials, Sawyer on the far left, then Springsteen, Tony Diaz and Mike Scott. Standing behind them, Garcia, Gilford, Gauthier and Bettis.
De la Fuente and Van Winkle came to the state’s table. Rose Lehmberg and First Assistant District Attorney John Neal sat down directly in front of Ayers and Acevedo. Once the entire cast had entered, the bailiff called “All rise!” and the judge swept in, trailed by his black robe. Once everyone was seated, he issued a quick greeting and then spoke formally and a little curtly to the prosecutors, reminding them that today was their deadline to bring in a good-faith determination of whether or not they’d be ready to begin a jury trial in January. He had been and remained clear on this point, that there would be no continuance. Were they ready?
De la Fuente stood. The state, he said, was doing a wide testing of the vaginal swabs but so far had nothing new to offer. Since the judge had made it clear in August that he would grant no further postponements, “we have no other option than to file for a dismissal of the charges against these two men.”
Lynch thanked the ADA and announced the court would therefore dismiss both indictments. This he accomplished straightaway by briskly s
igning each document, then banging his gavel and exiting the courtroom. He was planning to retire in January 2012, so unless he changed his mind about that, today’s ruling would likely be his final association with Yogurt Shop.
Scott hugged Garcia, bending his head toward the attorney’s shoulder. When the defendants shook hands, Scott smiled broadly, while Springsteen seemed reserved. Looking on, Gauthier smiled softly at them. Somebody snapped a picture of all three, which would appear on the front page of the next morning’s Statesman.
Jeannine pulled at her husband’s arm, and they walked out together.
In the hall outside, Sawyer praised the DA for the integrity of her decision. “This is no victory for anyone,” he told reporters. We should, he added, reserve our sympathy for the families of those girls, and “I hope someday we will find the ones who killed their daughters.”
Garcia commented that “this has been a long ten years for these guys.” And in conventional cop-speak he addressed whoever had left his DNA at the scene. “Because of you, four innocent young men who had nothing to do with this…were punished….We have your DNA….One day we’ll match a face to it.”
Scott told reporters he was glad to be where he now was. When asked what he’d been doing the past few months, he ducked his head and said, “Staying out of trouble.” He might have continued, but Jeannine nudged him and answered the question properly: “We’ve been a family again, the way we should have been for the past ten years.” She then spoke of the girls’ families. “I’m a mother. I can’t imagine what they’ve been through.”
Would Mike and Jeannine stay in the Austin area? At the time, they made no comment, but lawyers had already told them they’d never be safe in Texas. Somebody would always be hoping to make a score by taking Mike out. Cops would stop him for the least infraction, or none at all.
After the courtroom cleared, Rose Lehmberg held a press conference. Arrayed in a semicircle around her were Acevedo, de la Fuente, Van Winkle, Ron Lara and John Neal. An aide passed out printed copies of her statement, which began, “Today, I presented to Judge Mike Lynch motions to dismiss the cases against Robert Springsteen and Michael Scott.”
Speaking carefully, she reminded reporters that in June they had filed a motion for continuance in order to conduct more tests and investigations. Judge Lynch had granted that motion, but on August 11, he had delivered a written order “stating that he would not grant another delay in the case if we again requested more time based on the same grounds.” Therefore, “we have no choice but to announce that we are not ready to proceed to trial and ask for a dismissal of the cases pending further investigation. Make no mistake…”
Her voice broke. She took a deep breath, then looked up and completed her thought.
“This is a difficult decision for me and one I would rather not have to make. I believe it is the best legal and strategic course to take and is the one that leaves us in the best possible posture to ultimately retry both Springsteen and Scott.”
After a few more statements and an avowal of commitment by representatives from her office, Art Acevedo and then Ron Lara, now head of the Cold Case Unit, uttered a few confident words, and finally it was over.
“I can’t believe I lost my composure,” she told me a few days later. “Lehmbergs don’t lose their composure.”
But she knew why. The day before the hearing, she’d invited the four girls’ parents to her office to tell them what was about to happen. She’d set up a conference call with family members who couldn’t be there and got them on speakerphone before giving everyone the news. The dismissal didn’t mean that Springsteen, Scott and the other two men would never come to trial, or that the state thought they weren’t guilty. Her team and the police department would continue to pursue justice for their murdered children. She felt confident that in the end justice would prevail and that the four men who they all agreed had murdered their children would be brought to justice and punished for their crimes.
In the middle of her press conference, she’d thought again of the families seated around her desk, pledging their loyalty, assuring her of their trust in the work she and her staff had done. That was when her voice broke.
“They’re all so strong,” she said. “Each in a different way.”
Because Rob had no family in Austin, Jim Sawyer drove him to San Antonio, where he could stay with his brother before returning to West Virginia. He didn’t really want to go back there, though. His wife had divorced him and he would rather stay in Texas, maybe San Antonio. But his lawyer said he should get out of Texas and stay out.
Four days later—on Sunday, November 1—the Statesman ran an editorial entitled YOGURT CASE IS FAR FROM CLOSED, casting most of the blame for the lack of resolution on the police and the state, specifically citing “investigators who overzealously sought confessions and prosecutors who, to date, have been unable to successfully make the case.” Victims, it declared, included “everybody for whom the system has not worked…from the slain young girls to the defendants and suspects…and everybody who counts on a functional criminal justice system.”
In the months following the dismissal, Sawyer, Lehmberg, Springsteen and members of the girls’ families were interviewed by various reporters, including Erin Moriarty. Here are some of their responses:
Barbara Ayres-Wilson: “I do not want anyone in the community to feel like we have got the wrong guys because that was not the issue….They have confessed. They did the murders.”
Maria Thomas: “[When I heard the news] I felt like my head was gonna spin right out of my body. And it was because their rights were violated. Every time I hear those words, that their rights were violated, I feel like I’m gonna go insane. Pretty angry about that, you know….To live it on a daily basis is very difficult.”
Robert Springsteen: “I was berated and berated and berated by the police officers until they obtained what it was they wanted to hear. They basically broke me down.”
Rose Lehmberg: “Y-STR is an accurate test for determining male DNA and mixtures of male and female…but as for the profiles inside Amy and the others, it could have come from contamination. Or transfer.”
Jim Sawyer: “What does it take to make people say, ‘I was wrong’?”
Robert Springsteen: “I wish we were going to trial right now. I want my name cleared.”
Barbara Ayres-Wilson: “We can’t go to trial without that DNA. It would devastate what we have left of the case.”
Bob Ayers: “This thing is not near over. Believe me, it’s just starting. And if it takes a little more time to find the information we need, so be it.”
Barbara Ayres-Wilson: “You take a breath and you think, okay this is just one more thing to deal with.”
Maria Thomas: “When I heard they were let out I just wanted to hit something.”
—
In 2012, Springsteen would call Sawyer to ask about filing a claim for “actual innocence.” In Texas and twenty-six other states, wrongfully convicted inmates had received compensation when solid evidence such as DNA tests proved them innocent of the crimes they’d been found guilty of. Texas law states that a “wrongfully convicted person is entitled to $80,000 per year of wrongful incarceration, as well as $25,000 per year spent on parole or as a registered sex offender.” They also are eligible for child-support compensation, specific tuition payments and the opportunity to buy into the Texas State Employee Health Plan. But Springsteen’s conviction had been voided, and because he was neither incarcerated nor exonerated, “wrongful” didn’t precisely apply. On the other hand, as far as anybody knew, the state wasn’t pursuing new charges. So his case fell between the cracks, and Texas law provided no remedy for this particular situation.
Jim Sawyer convinced respected civil attorney Broadus Spivey to see what he could do. In his original petition—there have been three so far—Spivey outlined Springsteen’s eight-plus years in prison followed by the 2009 dismissal and described his current life as one in which the sword of Damocl
es hangs over him, with only a thread between him and another arrest. Lawyers dine often on that metaphorical sword, but in this instance it seems appropriate.
Mike Scott declined to participate in the suit.
As of this writing, Spivey’s still actively pursuing Rob’s case, but so far the thread still holds.
IV
UNANSWERED QUESTIONS
WHO KILLED THESE GIRLS?
How do we know what we know (or even remember) and when can we be, if not certain, at least reasonably persuaded that we’ve hit on the truthful version of what really happened? Maybe doubt is never reasonable and memories are closer to dreams than accurate recollections. Perhaps facts and solutions exist only in the science lab—and not always even then—and the best we can hope for is a perception that suits our individual temperament. In other words, what we’re prone to believe, given genes, upbringing, class, culture and all the rest. And perhaps there’s no such thing as closure, in which case nothing ever ends anyway.
Uncertainty, on the other hand, has its own kind of attraction, from the mysterious fifth (or sixth) man to countless other unknowns, from the Zodiac Killer to Jack the Ripper, from JonBenét Ramsey to Nicole Simpson, Tupac Shakur to Jimmy Hoffa. Some would add John F. Kennedy to the list. And will we ever, ever know?
“People talk about justice,” Barbara Ayres-Wilson said recently. “I just want to know the truth. That’s all I care about.”
Answers fly away like fruit flies. We clutch the air and close up a fist, but they’re already gone.
WHAT REALLY HAPPENED?
ACCORDING TO THE PROSECUTION
On the first day of Springsteen, Robert Smith began his opening statement with the assurance of a man into whose ear God was whispering the truth: “On Friday night, December 6, 1991, two high school senior girls were working…” And he went on from there, throughout the speech repeating the phrase “as the evidence will show you,” even though there wasn’t any. Seventeen months later, he made the same promise to the Scott jury, but this time he took a little longer and added a few new details. He wound up in fine fashion: “Something happened. And the ligature that was holding her hands together came loose and the gag that was on her mouth came loose and she fought and she tried to get away and they subdued her and this defendant used that sock, gag, as a ligature and choked her to death and this defendant, Michael James Scott, shot her in the top of the head with a .22 caliber revolver.”
Who Killed These Girls? Page 34