As if he’d been there. But then, Smith was just doing his job, and to trump reasonable doubt he had to convince the jury that the truth was simple and he knew what it was. This is what happened and then this and then that.
ACCORDING TO THE APD
In December 2011, the twentieth anniversary of the murders, the local NBC affiliate KXAN-TV ran a three-part series on Yogurt Shop, and one episode featured a visit to the APD Homicide Cold Case Unit, created by Rosemary Lehmberg in 2000 and supervised by Sgt. Ron Lara, with assistance from four homicide detectives. Housed in the same towers where Manuel Fuentes had taken Mike Scott’s statement, the offices were lined with file cabinets and photographs of the victims of unsolved crimes, including the billboard shots of the Yogurt Shop girls.
Lara was still certain they’d arrested the right guys, and when the newscaster called for a show of hands from his team, the vote was unanimous. They had, Lara claimed, information they weren’t sharing with the public. Paul Johnson made a brief appearance. Although retired, he still visited the unit once a week, specifically to discuss Yogurt Shop. His confidence, he said, had never wavered. Every time he and the others revisited the files, it seemed, they confirmed the truth of what they already knew.
ACCORDING TO THE CRIME RECONSTRUCTIONIST
Ross Martin Gardner might have been the only witness who proved objective, not on who committed the murders but what happened, based exclusively on evidence. There was physical evidence, he said, that store operations had ceased and the yogurt machines were being taken down when the incident began, though there was no video camera to show us when the intruders entered or the incident exactly began. The telephone was either knocked off the hook as the girls struggled or a call was disrupted. The latter was a good possibility, but there was no proof. First, the criminals had to bring the girls under control. Only once they were no longer able to act on their own could what followed be set in motion, using guns, threats and the surprise of the perpetrators’ very presence.
Based on material from the APD evidence room, photographs and forensic analyses, Gardner’s account lacks voice, eyewitness immediacy, characterization of the victims and literary references. While certainly unsettling—especially to the girls’ families—this intentional coolness lends authority to his testimony and makes it worthy of our patient attention.
“We see evidence that the girls have been forced to undress….There is no evidence of forcible undressing—tearing of clothes, jeans inside out….The clothes are folded and neatly stacked. Several of the items have cuts in them, not to help disrobe a girl but as a kind of aggressive penetration, another measure of terror and control. And since all of the girls’ clothes and shoes were found in the far west area close to the back doors and not elsewhere, we can see that they were brought under control in that part of the back room.”
We also know, he said, that Sarah, Jennifer and Eliza were gagged with items of their own clothing, that the gags were knotted at the backs of their heads and “because three are gagged and only two are bound…it looks like the gagging started first.”
Gardner’s analysis follows the direction of blood flow as determined by gravity and the size, shape and placement of drops, spray, swipes and spatter. Evidence from the medical examiner’s report shows that the rounds from the .22 that killed Sarah, Eliza and Jennifer came from back to front and low to high, indicating that these three girls were facedown on the floor when they were shot. The only other way that particular path of the projectile might have occurred was if the girls were on their hands and knees, and “we know that Sarah and Eliza could not have been in that position because their hands were tied.” The placement of those two girls as they were shot is also denoted by two separate “blood-spatter events” on the northwest back door, directly across the room from the top of the girls’ heads, after a “blood source [vein or artery] received some kind of force or energy [gunshot wound],” which then broke the source into droplets that projected out onto whatever surface was closest.
There were bloodstains on one of Jennifer’s shoes, stains that looked like possible spatter on two articles of the girls’ clothing and numerous stains and droplets on the door, but because the Department of Public Safety didn’t sample the stains or test them for DNA, there was no way of knowing whose blood it was or even if they were of blood. Sarah’s injuries on her labia and vulva indicate with some certainty that she was alive when she was vaginally assaulted. And because DNA from Eliza was found in the anal cavity of Sarah, “this leads us to think that Eliza was assaulted prior to the assault of Sarah.”
And then?
“After Sarah was shot, she had to have been repositioned.” Because blood follows gravity and there is evidence of blood on the back of her gag but none along her neck or in her ears or on the floor, it follows that she was quickly moved onto her back, while blood was still flowing. And subsequent to that, Eliza was also repositioned, to lie on her back across Sarah, which we know because in photographs of the two girls as they were discovered by the firefighters, both lie with hands tied behind their backs and their heads toward the back doors. Gardner said the placement of the ice scoop between Sarah’s thighs didn’t just happen. It was placed between her legs after she was repositioned.
He seemed a little hesitant to talk about Jennifer, except to say that she did not die as she was found, with her left leg in the air. He didn’t know where she was when the fire started or if the three girls were lined up in a row, but her eventual position was unnatural, an indirect result of her proximity to the shelves as ceiling tiles, girders and shelving burned and fell on top of her.
Unlike other witnesses, who assumed Jennifer’s wrists had been bound with a ligature that had burned away, Gardner didn’t believe Jennifer’s hands had been tied. If we look carefully, he said, apologizing for having to show the awful photograph, we can see that her hands are far apart, one curled against her spine, close to the thoracic area of her back, while the other one was lower down her back. And he placed his own hands against his spine to demonstrate. Also, he pointed out, if she’d been tied, there would be some remnant of the ligature, if only a tiny scrap.
He didn’t say much about the order of the murders, except to note that since blood matching Jennifer’s DNA was found under Amy’s fingernails, Jennifer must have still been alive when the transfer occurred, perhaps as Amy grabbed for support or help. And although he couldn’t state this as an outright certainty, he thought there was reason to believe Amy was the last one killed. Since her clothing was found in the same area as the other girls’, and because she was exposed to the same or similar process as they were, Gardner felt confident, however, that the four girls were together when the incident began.
Like Jennifer’s, Amy’s wrists were not bound, but a ligature was tied with a loose half hitch at the back of her neck, so slack that it seemed to have been used more for control than silence, a speculation further borne out by the abrasions on the front of her neck. The best possibility—by no means a certainty—is that having been forewarned of her fate by the other girls’ murders, Amy somehow managed to avoid a fatal injury when she was shot with the .22, perhaps by jerking her head away; and subsequent to that, she was more than likely taken, or forced, into the middle area of the storage room. There were swipes and stains of her blood on both the office wall and on a trash bucket beside it, indicating that she had already been shot and might have stumbled or fallen in that direction, possibly to her knees as she was being moved by someone pulling her by the sock around her neck. There were also light smears of her blood on the wall, perhaps from her hand.
The shot from the .380 was then administered to the side of her head and—although Amy was found lying on her right arm—at the moment of receiving the fatal shot she fell onto her left side and stayed there for at least a few moments. This was evident from the blood flow saturating that side of her ligature and her face and scalp. There was also blood on the floor beneath where she lay, but not on the right
side of her face or under her body in the position in which she was discovered.
If Gardner was certain about anything, it was that Amy did not fall into that odd position while running and she didn’t fall with her right arm fully extended beneath her. “The easiest way to explain what we are seeing in terms of Amy’s final position is that as she lay left-side down…someone grabs her right arm. They then pulled it and extended it, dragging her out into this area and she was rolled up onto her right side.”
When questioned about “pulled” and “rolled,” Gardner modified his description: “She was repositioned.” Since the first shot didn’t kill her, they wanted to make sure she was dead after they fired the second one.
Carlos Garcia conducted the direct examination of Ross Gardner. It’s hard to know what effect such an unemotional rundown might have had on the jury, but from this far out—so many years later—his seems the most likely account of what happened.
REGARDING THE RAPES, ACCORDING TO THE DEFENSE
In the June 2009 bail-reduction hearing, after reading the Orchid Cellmark DNA report, Jim Sawyer said, “From the Y-STR findings I can tell you exactly in what order the girls were raped. First Amy, perhaps from behind, the sock-ligature used as a kind of steadying device, like a rope around a horse’s neck. The first man left a full DNA profile inside her. The other guy did Jennifer, leaving a partial profile along with Sammy Buchanan’s full profile inside of her. Then to Sarah, leaving both partials inside of her. Eliza probably last; her lower body was too horribly burned to capture any biological evidence.”
Two different guys. But not Rob, Mike, Maurice or Forrest.
FROM CARLOS GARCIA AND AMBER FARRELLY, A NEW THEORY
In Jordan Smith’s December 16, 2011, cover story in the Austin Chronicle, marking the twentieth anniversary of the murders, Garcia and Farrelly proposed a hypothesis based principally on crime-scene photographs and the eyewitness accounts of late-night customers Margaret Sheehan and Tim Stryker. This theory has received general support from the other Yogurt Shop defense attorneys and—to a lesser extent—from John Jones.
When Garcia began reworking his defense for Mike Scott’s retrial, he organized the crime-scene photographs in a sequence that made sense to him. He then coordinated the pictures with statements by police, firefighters and eyewitnesses, noting the changes made in those statements before and after the arrests. He gave all this to Farrelly, who created an illustrated time line across an accordion-like foldout of white cardboard poster boards, using photographs from various magazines to represent the customers who’d come in during Eliza and Jennifer’s shift. She then drew arrows connecting customers whose paths might have crossed, and at the bottom of the board inserted their testimony. The two lawyers visited the ICBY’s back room again and afterward paid more attention to customers who hadn’t noticed anything unusual but were nonetheless there. Within a few weeks, after paying particular attention to the Sheehan and Stryker accounts, they came up with some ideas.
The Chronicle’s cover featured a full-page photograph taken from inside the front doors just after the girls’ bodies had been discovered. The original photo, used as a prosecution exhibit in both trials, shows three wooden tables lined up in the middle of the room, each with two chairs pulled up to it and two placed upside down on top. The paper napkin holder in the middle of each table is full, having been replenished for the next day’s business, as Brice rules required. Each of the booths along the north wall has one chair upside down on its built-in table, and the napkin holders are full. The first four booths on the other side of the room look the same.
The fifth booth, however, the one closest to the cash register, has no chair on it, and by zooming in, you can see the napkin holder is empty. The clear implication—that this booth hadn’t been cleaned, even though Jennifer had taken care of all the rest and had moved on to other jobs behind the counter—had not been mentioned by either side during the trials.
To illustrate the story’s premise, the Chronicle’s art director, Jason Stout, superimposed a ghostly white drawing on the photograph: a pencil-like sketch of two figures in hooded jackets, caps, jeans and heavy-soled, lace-up work boots. They are grown men, not teenage boys, and they float there sitting across from each other, outlined but not fleshed out. The man closest to the cash register is large, bald, thick-necked and hulking. Wearing a kind of Michelin Man jacket he sits hunched over, elbows on the table, head down, so that while we see only a slice of his face, his bulk and obvious boredom make him seem dumb and scary.
His partner, a thinner man, lounges royally on the other bench, his right arm on the seat back, the left one placed casually on the table. From beneath his ball cap, his shaggy and straight hair drifts to his jacket collar, and he’s wearing glasses of some kind, maybe with darkened lenses. He seems as relaxed as if he owned the shop and could do whatever he pleased. The legs of his jeans reach to the shoelaces of his thick-soled work shoes, and he’s hiked up his right knee so he can rest that foot flat on the seat. The figures have the quick-sketch look of people who are both there and not, as if done with swipes of Wite-Out.
Inside the tabloid, Garcia and Farrelly delivered a theory derived from specific bits of evidence: the unopened Coke can by the cash register; the sweating Styrofoam cup; the booth with the empty napkin holder and no chair on top; and the credible testimony of Tim Stryker and Margaret Sheehan. In their version of what happened, once Sheehan and Stryker had taken their yogurt sundaes and gone home, Jennifer locked the front door, flipped over the OPEN sign and continued with her cleaning routine. The two men were still sitting there. The girls were chatting. They would unlock the front door when their last two customers were ready to leave.
The rest is speculation: A few minutes later, at about 11:00 p.m., one of the men went to the cash register and ordered a Coke. Eliza (cashier 13) took the can from the refrigerator, placed it on the counter and, after selecting a large Styrofoam cup, turned away from the customer and bent toward the small, low freezer to her right. When she’d filled the cup with ice, she turned back to find a gun pointed at her. She set the cup down beside the can of Coke.
The first time Carlos showed me blowups of this photograph, I couldn’t believe what I was seeing. “They were already there,” I said, more to myself than to him. “They didn’t have to open the back door.”
After Eliza rang up “No Sale,” she gave the man whatever cash there was and then handed him the till. By this time, Jennifer would have stepped down from the stool beside the vanilla dispenser can. And maybe the other guy had already gone into the back room, where he pulled the second gun on the younger girls. Once all four of them were in the storage area, the men did everything they could to further humiliate and terrorize them. Since the .22 bullets traveled in an upward pattern from the base of their skulls through the brain and into the bone of their foreheads, Garcia and Farrelly speculated that the killer forced them to their knees, then bent their heads forward before pulling the trigger, and that everything happened quickly: Jennifer, then Sarah, then Eliza, 1-2-3. Perhaps because Amy was last and had time to react, she jerked her head to the side, as Ross Gardner had suggested, causing the bullet to go sideways, wounding but not killing her.
And so the rest happened and Amy was shot again, this time with the .380. After the cartridge went through and she fell down, they grabbed her right hand and flipped her over to make sure she was dead. And there she lay, half on her stomach, with her arm under her body in that odd, torqued posture. Although Eliza’s wrists were still bound, her body lay at a slant, her right elbow pulled sharply away from her body. Sarah’s arms mirrored Eliza’s, her left elbow angled out, her right tucked behind her back. Did they pull Sarah into position by her elbow, splay her legs and place the ice scoop between her thighs, then drag Eliza by her right elbow and stack her on top of Sarah?
And then they set fire to the shelves where the flammable products were. And once it flared up, they had to escape through the back door. Were th
e scratches on the door plate from their efforts to pry it open? Carlos thinks so.
And finally the men vanished into the night, perhaps even passing Troy Gay as he drove east from MoPac looking for drunk drivers.
Amber Farrelly doesn’t doubt this is how it all went down, and she scoffs at the notion of stoned high school boys putting these particular girls under their control. She says those girls would’ve laughed in their faces. Jim Sawyer’s willing to go further, that they “would’ve kicked their asses.” This was, he insists, “a man’s crime.”
Still, the proof Farrelly and Garcia presented is like unearthed bones placed in a skeleton shape without any connective tissue. When I asked John Jones what he thought, he said their scenario had flow, which was a good thing. But there was no way to know how the scene might have been affected by the water or the firemen—who testified they’d stumbled over the bodies—and minus a weapon, any theory remained speculation.
Of the pictures accompanying the Chronicle story, two yearbook photos are particularly interesting. One is the 1992 picture of Robert Springsteen looking soft and young, quite alert and sparky. The other is of Mike Scott, who’s even wearing a tie for the occasion; he’s smiling widely, his hair’s in a high crew cut and he looks altogether okay, maybe even hopeful. It’s easy to think of how they looked when they were arrested, but these are the hapless boys that Paul Johnson’s task force built a case against, the ones they claimed overpowered four girls they then gagged, raped, murdered and burned.
Who Killed These Girls? Page 35