The Austin Chronicle

Yogurt Shop Defendants Ask for Bond

By Jordan Smith, January 12, 2009, 8:21am, Newsdesk

The two remaining yogurt shop murder defendants may get the chance to argue that they should be released from custody on bond while the state works toward retrying them for the 1991 quadruple slaying near Northcross Mall.

In court proceedings Jan. 7, District Judge Mike Lynch said he'll consider at another hearing in early March whether he'll entertain defense motions seeking the release of Robert Springsteen and Michael Scott on bond. Lynch's decision may come sooner, however, depending on when defense attorneys receive and pass on to the state final reports from their DNA experts who have found unknown male DNA in sisters Jennifer and Sarah Harbison, two of the four young victims who were murdered inside a North Austin yogurt shop. Lynch's attitude about the defense efforts seems to have shifted since last spring, when he declined to consider a similar action filed by Springsteen attorney Joe James Sawyer. The amount of DNA now available that does not match the defendants, or anyone else tested by the state, demonstrates that Springsteen and Scott are innocent, Springsteen attorney Alexandra Gauthier told reporters last week. That means "the killers are still out there," she said – and it is time for the state to start looking for them.

Last April, the defense learned that DNA testing requested by the state, and performed on a vaginal swab taken from the youngest victim, 13-year-old Amy Ayers, revealed a previously undetected male DNA profile that did not match any donor known to Travis Co. prosecutors -- including the four suspects that have been accused of the crime: Springsteen; Scott; Maurice Pierce (who prosecutors asserted was the "mastermind" behind the crime, before dismissing their case against him for a "lack of evidence"); and Forrest Welborn (who the state said acted as a lookout and getaway driver, but against whom charges were dropped after two grand juries failed to indict him). Sawyer argued that the new DNA evidence, performed with more precise testing methods not before available, proved his client's innocence and that Springsteen should be released from jail. At the time, prosecutors Gail Van Winkle and Efrain De La Fuente told the Chronicle that the new evidence did not exonerate either defendant and that they expected the state already knew to whom the DNA belonged. Since then, the state has tested the unknown DNA sample against dozens of people (including public safety personnel that responded to the crime scene in 1991), but apparently has not yet found any matches. The situation has become more complicated for prosecutors trying to cobble together a coherent case against Springsteen and Scott since Dec. 30, when defense attorneys learned that results of additional DNA testing (conducted at their request) revealed at least two additional unknown male DNA profiles, this time found inside the sisters Harbison. Whether either of those profiles match that found in Ayers remains unknown.

Prosecutors still seem to believe the latest DNA findings can be attributed to contamination in the lab or at the crime scene, or that the DNA belongs to known but as-yet-unidentified contributors not involved in the crime. But that story appears to be wearing thin – at least as far as it concerns Lynch's apparent willingness to consider setting bonds for Springsteen and Scott. (Prosecutors also said last week that if they receive an unknown DNA profile that is technically compatible with state and national DNA databases they will upload it for comparison. So far, none of the profiles meets the technical requirements. Still, the agreement to do so also seems to signal a shift in the state's stance on the evidence. For example, prosecutors previously said they would not upload fingerprint evidence found at the scene that does not match any of the suspects, into law enforcement's automated fingerprint database.)

The two men, teenagers at the time of the Dec. 6, 1991, grisly murder of four teen girls who were shot, bound, gagged and then set ablaze in a fire prosecutors say was set to cover up the crime, have now spent nearly a decade behind bars. Springsteen and Scott were tried separately and convicted in 2001 and 2002, respectively. The case against each man was circumstantial, however, with prosecutors relying heavily on two separate "confessions" each provided to police after lengthy, and arguably coercive, interviews, during which the two incriminated not only themselves, but also each other. Each man's conviction was eventually overturned by appeal courts that found the state had erred in allowing portions of each man's confession into evidence in the trial against the other, denying each their Sixth Amendment right to confront witnesses who testified against him. (Both men recanted the substance of their confessions and steadfastly maintain their innocence.)

Scott's wife Jeannine agrees that the new DNA evidence exonerates her husband and that the state should now be putting its resources toward looking for the donors of the unknown DNA. "This case needs to be put away properly," she said. But right now, the state is "looking in the wrong direction." Also in court Jan. 7, Lynch said he was "inclined to grant" a defense request to allow two new attorneys to join the legal team. Scott lawyer Dexter Gilford has asked that New York lawyers Robert Romano and Martha Stolley (a former assistant district attorney in Manhattan who handled sex crimes and gang cases) join the defense, pro bono, to offer their expertise in at least one forensic area – but the defense has declined to reveal specifics about their particular expertise. "The state, unlike us, has experts in every one of the forensic fields," Gilford told Lynch. The addition of the out-of-state counsel would level the playing field, he argued. A.D.A. De La Fuente said the state wouldn't object to the defense gaining two more lawyers, as long as it didn't cause a delay in bringing the case to trial (Lynch had already said he would not allow a delay). Ultimately, Lynch said he felt compelled to grant Gilford's request: "I believe the state has incredible resources at its beck and call," he said. "This is [a] reasonable way to equalize that."

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