Second Yogurt Shop Case Begins

The memorial (Photo By Jana Birchum)

Jury selection is set to begin July 29 for round two of the infamous yogurt shop murder trials. Michael Scott, 28, is the second of three defendants to face four counts of capital murder in the December 1991 deaths of Eliza Thomas, Amy Ayers, and sisters Jennifer and Sarah Harbison. The four teenage girls were found bound and shot inside a North Austin "I Can't Believe It's Yogurt!" shop, after a fire -- presumably set to cover the crime -- had been put out by the Austin Fire Department. Last summer, a Travis Co. jury found Scott's co-defendant Robert Springsteen Jr. guilty of capital murder, and sentenced him to death. A third defendant, Maurice Pierce, awaits trial.

The case has become a political time bomb, polarizing opinions about the defendants' guilt, the Austin Police Department's handling of the case, and the fairness of the justice system. Scott's trial could feature heated testimony regarding the importance of the defendant's "confession" and questions regarding APD's lengthy and seemingly bungled handling of the crime scene and nearly eight-year investigation. As in Springsteen's trial, the state's most compelling piece of evidence against Scott will likely be a videotaped interview in which the defendant admits that he, Springsteen, Pierce, and Forrest Welborn planned a robbery at the shop and then killed the girls. (Charges against Welborn were dismissed for a lack of evidence.) On the same day in September 1999 that Springsteen made his statements to APD detectives in West Virginia -- his home state, to which he returned just three weeks after the murders -- police simultaneously interviewed Scott in Austin. Police have testified that the interviews produced almost identical statements in which the young men provided details of the crime that had never been made public.

Critics of the state's case and of the APD's investigation say the confessions were coerced and therefore should not be allowed into evidence. Also controversial was District Judge Mike Lynch's decision to allow portions of Scott's confession to be played for jurors during Springsteen's trial. Defense attorneys cried foul, claiming the move violated Springsteen's constitutional right to cross-examine witnesses against him. Since Scott was awaiting trial on the same charges, neither the state nor the defense could compel him to testify at Springsteen's trial. Trial observers are likely to see the same volleying during Scott's trial, with prosecutors offering up Springsteen's confession to bolster Scott's. A potentially explosive element of Scott's confession is poised to take center stage: Did APD Detective Robert Merrill hold a gun to Scott's head while interrogating him?

Scott's supporters say grainy reproductions of the black-and-white interview video clearly show Merrill holding a gun to the rear of Scott's head while a detective asks him about details of the crime. Merrill has consistently denied this, asserting during pre-trial hearings that while he did take a gun into the interview room, and informed Scott of its presence, the video frames in question show him holding his finger to Scott's head. The gun was in his other hand, down by his side, he says. Scott's family and lawyers have questioned whether the distinction makes a real difference when Scott knew a gun was in the room and could feel pressure on the back of his head, but couldn't see Merrill's hands.

Aside from seemingly damning confessions, the state has the same dearth of physical evidence that marked Springsteen's trial. Although detectives found DNA at the crime scene, it couldn't be matched to any of the defendants. Furthermore, at least five hairs were found at the scene that have never been matched to any of the victims, other employees at the shop, or the defendants. In a pre-trial motion, Scott's lead attorney Carlos Garcia sought to postpone the trial by asking Judge Lynch to allow the defense more time (and, ultimately, money) to conduct DNA testing on each of the law enforcement officers, firefighters, and emergency crew members present at the crime scene -- to determine whether any of them contributed the mystery DNA. During Springsteen's trial, Garcia argues, the state downplayed the significance of the DNA by suggesting it was probably left by a customer who had visited the shop that night. Without access to the DNA data, Garcia wrote, the defense couldn't "rebut the state's speculation with probative evidence."

On June 26 Lynch denied the motion, which also sought, among other things, access to original police sketches of suspects seen near the yogurt shop that night and a list of all items of evidence recovered from the shop. In addition to their requests for information, Scott's attorneys argued that they needed more time to prepare for trial -- in part because the state had offered up a potential witness list that boasts nearly 6,800 names, most of unknown relationship to the case. Garcia argued that it would take two investigators working 60-hour weeks at least two years to contact each potential witness, even if it was their ownly job.

Jury selection could take up to two weeks, court sources speculate, with the trial expected to run an additional three weeks.