The article also included a snappy quote from John Jones, who reminded readers that Hector Polanco had interviewed and cleared Maurice Pierce in 1991. “My story is, if Hector couldn’t get Pierce to confess, then he didn’t do it. Trust me.” As for Welborn, “Forrest couldn’t organize a two-car parade.”
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Other possibilities, still seriously discussed among players and various locals:
A crime of opportunity. Truckers or motorcyclists on MoPac, passing through.
The serial Ice Cream Killer on death row in Tennessee, who specialized in shops where frozen desserts were sold. No real proof. Also, serial killers generally work alone, and Yogurt Shop required at least two people.
Kenneth McDuff. Even though he told Chuck Meyer if he’d killed the yogurt girls he’d be proud to admit it, the conventional line on him is, he had it in him to do it. After all, he had mercilessly raped, tortured and killed at least thirteen young women, probably more.
If not him, then perhaps his disciples. Mightn’t they have operated on his orders, the way Manson’s people did?
A man who in 1992 took out regular classified ads aimed at girls who wanted to pose for glamour shots and was arrested for taking nude photographs of young girls between thirteen and fourteen in a house near the ICBY shop.
The Mexican nationals. Admitted criminals, drug dealers, rapists, they fit all the conventional assumptions. Just as Porfirio Saavedra had predicted.
The driver of the red Jeep Mike Scott claimed he saw. Driver of the white car. Driver of the van. A Satanist. And don’t forget Shawn “Buddha” Smith.
The four guys.
The three men whose DNA was found inside the girls.
PAUL JOHNSON AND THE DISEASE OF CERTAINTY
Since 2009, Austin has had a Public Safety Commission, an appointed seven-member board that acts as an advisory body to the city council on budgetary and policy matters related to the APD, AFD and EMS. In 2011, a week after Yogurt Shop’s twentieth anniversary, one commissioner, Dr. Kim Rossmo, asked his colleagues to consider establishing what he wanted to call the “External Review Board,” made up of experienced criminal investigators with no prior connection to Austin who would cast fresh eyes on unsolved murders stored in the Cold Case Unit files, beginning, of course, with what happened at the ICBY.
A native Canadian and naturalized citizen, Rossmo worked in Vancouver law enforcement for more than twenty years and is internationally regarded as an expert on cold-case work, having served as a consultant on many high-profile investigations, including the Green River Killer in Washington State and the sniper attacks in D.C. A professor of criminology at Texas State University in San Marcos, he’s also the author of several books, including one entitled Criminal Investigative Failures.
Having read the Chronicle article and seen the KXAN-TV broadcast, Rossmo described what he feared might be a possible lack of independent thinking concerning Yogurt Shop, reminding his fellow commissioners that “we have the same agency investigating a case and coming to the same conclusions they have in the past.” He talked about tunnel vision: when investigators lock in on an early suspect and consider only evidence that supports their scenario; “groupthink,” a reluctance to challenge the dominant theory once it gets going; and the “disease of certainty.” He also pointed out that in the UK, which has a 90 percent rate of homicide clearance, local departments are given one year to solve a crime, after which outside agencies are brought in, and compared this to the eight-year lag between the ICBY murders and the arrests and trials. One comment he found particularly disturbing was when District Attorney Lehmberg said, after Scott’s and Springsteen’s release, that she still believed the four men arrested were responsible for the crime, even though the DNA tests excluding them were far and away the most compelling evidence yet.
Rossmo also cited the America’s Most Wanted Web site, which had posted only two theories about the 2009 Y-STR DNA profiles: one, that the sample was tainted; and two, that there was a fifth man. The program had not mentioned even once the possibility that none of these four men had been involved. All of which had prompted Rossmo’s ongoing concern, especially since America’s Most Wanted worked exclusively with local police departments. The commissioners agreed to study Rossmo’s recommendation and vote on it later in the year.
Every meeting of the Public Safety Commission includes a slot for “Citizens Communications,” when Austin residents who have a beef are given three minutes to speak. People who wish to take advantage of this opportunity must sign up at least ten minutes before the meeting is called to order, and only the first five who do so are given the floor. In May, retired APD detective Paul Johnson signed up early enough to be that month’s second speaker. When his turn came, the chairman announced, “Our next speaker is Paul Johnson and his topic is Yogurt Shop.”
Johnson wore a slightly wrinkled long-sleeved white shirt, pens in the pocket, reading glasses halfway down his nose and his thinning hair smoothed back. After introducing himself, he said he had come to challenge two statements made by Co–Vice Chair Rossmo in support of getting new investigators to work on this case. Not that he was resistant to the idea of bringing in new people; he himself had asked for outside evaluations when working as case agent. “I just don’t want,” he said, reading from a sheet of paper, “people in positions of authority”—he paused for emphasis without looking up—“lying about the case.”
The next citizen waiting to speak sat directly behind Johnson, and when he said “lying,” her jaw dropped; then she placed her hand over her mouth. As one, the commissioners lifted their heads.
Johnson’s first complaint was Rossmo’s description of the evidence that brought Scott and Springsteen to trial as “quite weak.” In fact, Johnson contended, it was strong enough to convince twenty-four jurors of their guilt, and that proved it wasn’t weak. “For the Co-Vice-Chairman to declare that the evidence was weak after it had been determined not to be weak by twenty-four people is”—he looked up—“just a lie.”
His reasoning was reckless and his defensive bluster more than a little embarrassing, but he didn’t care. While the commissioners were used to outrageous statements during Citizens Communications, labeling a fellow commissioner a liar invited blowback.
The second thing Johnson wanted to challenge was Rossmo’s contention that said evidence was “basically two individuals pointing fingers at each other.” If the commissioner knew anything about these trials, it would be that not once in Michael Scott’s trial did Robert Springsteen mention Scott’s name at all, and vice versa. And so, Johnson concluded, when Rossmo said they were pointing fingers at each other, he was lying.
Johnson ended by saying that although Co-Vice Chair Rossmo believed that judges, juries and the police should base their beliefs only on evidence, he was asking the police department and this commission to make a decision based not on evidence, but on lies. Folding his paper, he said thank you and prepared to step down.
Rossmo was absent that day, but Commissioner Mike Levy—the former publisher of Texas Monthly—spoke in his stead. Sir, he said, he knew Professor Rossmo as an honorable man. He might certainly misinterpret, misunderstand or make a mistake. He might be misinformed. But lying involves intent, and he would not lie.
Johnson would have none of it. Rossmo knew the law and knew that it was juries who determined whether evidence was weak or convincing. “And for him to say anything different…is just a lie.”
Levy thanked him for coming out of retirement to keep working on the case, and Johnson once again prepared to leave. But the chairman had a final question: If Commissioner Rossmo so desired, would Johnson be willing to sit down and talk with him about his objections?
Johnson smiled. Since Rossmo had “made that suggestion,” he’d stopped working on the case, so it wouldn’t be proper for him to speak about it beyond the public statements he’d made today. Finally, he left. But like a spurned lover, he couldn’t let well enough alone. A week later, he sent an
e-mail to members of the Public Safety Commission. “Kim Rossmo,” he wrote, “did lie to the commission and public and he knew the statements he made were not true, which shows his intent to deceive. He was making public statements (that were not true) about my investigation that implied that the investigation was flawed, which was attacking my professional integrity and competency. Making those kind of false statements from his position of presumed authority effects not only me, but the victims’ families, the press and the entire public.”
The e-mail said it all. He was irked by what he saw as a personal attack on his investigation, integrity and competency.
At the June meeting, Rossmo gave his presentation. While his backup material came from newspapers, magazines and television, not trial transcripts or personal interviews, he did quote ADA Robert Smith as saying, “There never was a fifth man.”
After a short discussion, the commission voted. Wanting more time to study the resolution, the chairman abstained, but everybody else was in favor and it was passed to the city council.
Barbara Ayres-Wilson called Rossmo’s idea a “slap in the face,” and Bob Ayers phoned him to ask a few questions.
Some months later, the council rejected the proposal.
Rossmo remains hopeful. He thinks there’s about a 15 percent chance the guys who got arrested are guilty.
THE STORAGE ROOM
Pictures often make things look bigger than they are. To understand the true dimensions of the back room of the ICBY shop, you have to go there, which I did in 2012, the year after a Vietnamese family renovated the shuttered shop and turned it into a nail salon called Classy Nails and Spa.
The front part looks completely different now. No more Mexican tile or wood-paneled walls, and the counter where frozen-yogurt toppings were once displayed has been removed. Just inside the front door, a recycling waterfall makes a splashing sound as water travels up one side of a tall sheet of bubbled Plexiglas and down the other; beyond it are ten mani-pedi chairs and several nail stations. The walls have been painted a soft mint green and are decorated with photos of idyllic beach scenes and, between them, flat-screen TVs tuned to either C-SPAN or a muted sports channel. There are orchids and soft background music.
Toward the rear, the women’s bathroom—now unisex—is the same as it was in 1991, but the men’s room has become a place where employees either take breaks or do laundry. Across from it, where the sink was attached to the wall leading to the walk-in cooler, are two small massage rooms, one for individuals, the other for couples. The storage room itself, however, is eerily the same: dark, dank, the concrete floor painted gray, and along the south wall, steel storage shelves.
When firefighters and police officers speak of Amy’s being alone and speculate that perhaps the other three girls had already been killed and she was running away, they seem to indicate a flight from one room into another. In fact, there was no other room. Amy’s body lay only four feet from Sarah’s.
When I asked one of the Classy manicurists if she knew what the shop had been before they moved in, she replied quickly, “Cash ’n Advance.” And before that?
“Yogurt shop,” she said. Asked if she knew what had happened there, she removed a small ceramic pot from a nearby shelf and held it out for me to see. It was filled with incense sticks. They burn one on the memorial plaque every morning, she said, in memory of the girls. “We hope,” she said, “if we remember them, when we die someone will remember us.” When I left, I walked across the parking lot to the bronze plaque. A number of blackened incense sticks lay on it.
I once heard Barbara Ayres-Wilson say she wished somebody would burn the ICBY shop to the ground, but when I told her about the nail salon and the incense, she relented somewhat. “Well,” she said, “I guess that’s about as good as it could be.”
JONES AT THE EMBASSY SUITES
In the spring of 2014, when his old friend Howard Williams asked if he’d give a talk at the Texas Citizens Police Academy convention in San Marcos, John Jones said, “Talk about what?” Williams had been the San Marcos police chief for eleven years, but he’d begun his career in Austin and he and Jones had worked together.
Williams said Yogurt Shop, what else? As for the specific topic, it could be anything Jones wanted to talk about. Hour and a half, July 29. Embassy Suites Conference Center. I-35 South. Eight in the morning. Probably between sixty and eighty people in attendance. It didn’t take Jones long to figure out what he had to say that hadn’t already been talked to death, so he said yes.
The TCPA is a statewide organization of citizens who want to learn about and support police work. To become members, they attend a course that lasts anywhere from ten to thirteen weeks and covers what an officer has to know in order to do his job. The instruction is free and lectures include DWI procedures, the use of force, patrol tactics, the protocol and procedures used in drug enforcement, criminal investigations and evidence collection. How to be a cop, in other words. After graduating, members are sometimes asked to participate in neighborhood-watch activities and ride out with cops. Vigilantism is not encouraged, but keeping vigilant is.
When the convention schedule was released, Jones’s talk was announced as the feature presentation. His subject, “Police-Officer Stress in a High-Profile Investigation: A Case Study, the Yogurt Shop Murders of 1991.” He’d decided to take the conventioneers “behind the curtain” and talk about the toll taken not just on police officers but on their whole families. He’d initially convinced his ex-wife, Yolanda, to participate, but she pulled out two days before the meeting. Though their four daughters tried to persuade her to go, she refused. That time, she said, was too painful. She didn’t want to relive it.
Just as well. There must have been three hundred people sitting eight to a table in the ballroom, waiting for techies to set up Jones’s PowerPoint presentation. Jones said he’d gone to smaller rooms first, looking for where he was supposed to speak. He’d hoped to wander through the audience while images flashed by on the screen, then found himself onstage with little room to move—and all those people out there. I sat in a chair pushed against the wall, too far away from the lectern to see much, but I did notice he was wearing a bow tie and a black suit jacket with wide, satiny lapels. I knew he was a spiffy dresser—but a tux and patent-leather shoes at eight in the morning?
The computer guys got the software ready to go, but Jones didn’t use it much. He just talked, and mostly rambled. “My rambling,” he said, “may give you an idea of what goes on inside.” Yogurt Shop, he said, had had a profound, ineradicable effect on him. When his wife sued him for divorce on grounds of nonperformance as a husband, he agreed with her charges. Since the night he became case agent of the multiple murders at the ICBY shop, he had been obsessed, single-minded, snarly, socially incapacitated and a total loser as both husband and father. He’d converted to Catholicism in 1994, and his wife was a lifelong Catholic; even so, for the divorce he had to go to court and face the music. “Cops hate to admit they’re wrong. And they hate to fail.” He’d done both, and was here to tell us that the reason was Yogurt Shop. The pressures of living in a glass house that was more in a political spectrum than one of law enforcement, then coming home to a family in chaos, with two daughters in their teens and two who were three and four at the time of the murders, then in the early years of elementary school as the case dragged on. He’d never believed it when people said they stayed together because of the children, but that’s what he and Yolanda had done. Then, three of the victims’ parents had come to him to say he wasn’t looking so good, that maybe he should go see somebody, and he thought, Wait, they’re the victims’ parents, not me. So he’d taken their advice and been officially diagnosed as having PTSD and ADHD. He listed some of the symptoms: insomnia, inability to trust or show love, inwardness, tension. After he was taken off the case, he went into hiding. Stayed away from folks. Didn’t make friends. All of the symptoms he’d shown at the time of his diagnosis still affected his life and made him who he
was. And so, he said, “I ramble.”
Most of the members of his audience weren’t from Austin, and many who were didn’t know the details of Yogurt Shop, so people began squirming in their seats. But Jones recaptured their attention when he told the story of his first newsworthy case, which came in 1989, when a 180-year-old live oak—said to have been the site of an important treaty signing between Texas hero Stephen F. Austin and local Indian leaders—was poisoned and began to die, the culprit having used enough of the powerful herbicide Velpar to kill a hundred trees. Jones’s assignment was considered a joke by his supervisor, a kind of initiation when he moved from Assault and Family Violence to Robbery. They called the crime an “arborcide.” But the poisoning of the Treaty Oak went viral, and as the APD spokesperson, he found himself interviewed day and night. They solved the case pretty quickly after a woman called and said she thought her ex-boyfriend had done it. When they went to the guy’s apartment, he immediately confessed.
“He was a member of the Aryan Nation,” John said. “So me and him, we got along real good.” This—his only reference to his race—got a big laugh, and from then on, the audience was with him.
Calling himself a “supervisory nightmare,” he compared a stint in Homicide with an assembly-line job, but there, “you measure time by the number of bodies that roll by.” He had seen 150, he said, and the last four were the girls at the yogurt shop.
He told about that night and the television reporter who rode out with him and how the footage the videographer shot of him driving to the ICBY shop was later used on 48 Hours. And he described the “hideous green-and-white shirt” he had on when he got the calls saying a fire, a homicide, three girls…no, four…as he drove north up the interstate, and about Troy Gay getting to the yogurt shop within five minutes of a flashover, which would have destroyed whatever evidence they could manage to collect. He explained why he’d automatically been made case agent and quickly chose Mike “Huck” Huckabay as his partner and told of their mutual agreement that if you didn’t solve a crime in three days, you were going backward in a hurry. And also that because this was an unusual case requiring unusual methods, they would not file for an arrest warrant until they had a suspect or suspects they felt sure were guilty beyond a reasonable doubt, even though they didn’t need to be that certain. All they needed to arrest a suspect in a criminal investigation was probable cause, and in civil cases, a preponderance of evidence. Probable cause wasn’t that hard to come by, and the DA’s office expected cops to supply only that level of certainty. But he and Huck decided between themselves not to go that route. And that’s how they operated during their years on the case.
Who Killed These Girls? Page 36