Yogurt Shop Case Cross-Examined

On Feb. 7, District Judge Mike Lynch is set to rule on the admissibility of a 1999 "confession" by yogurt shop homicide defendant Michael Scott, expected to be tried later this year. Whatever Lynch's decision, gritty issues in the notorious 1991 murder case are back on the table, as defense lawyers have apparently been given an additional legal weapon, via a recent ruling by the state's Court of Appeals for the Third District.

On Sept. 13, the court reversed the conviction of David Andrew Mendez, convicted in the October 1997 shooting deaths of Francisco Vasquez and George Rodriguez. At Mendez's trial, Travis County prosecutors introduced a statement made by his friend Saul Flores, who admitted taking part in the murders but insisted that Mendez instigated the crime. Flores had refused to testify in person, but over defense objections District Judge Bob Perkins ruled the Flores' statement admissible. The defense argued that the ruling violated Mendez's Sixth Amendment right to cross-examine witnesses against him. The appeals court agreed, saying while the evidence against Mendez was "legally sufficient" for a guilty verdict, the admission of the Flores confession was unconstitutional.

The Mendez decision could have a domino effect in the yogurt shop case -- although the Travis County District Attorney's office insists otherwise. Asked if Mendez will affect the DA's cases against the three defendants, assistant DA Bryan Case said, "No. That's my opinion. If you ask the defense lawyers, of course they say it will. But I don't think so." Yet much of the state's case is circumstantial, and Case is right about the defense position. "I certainly understand how the state absolutely does not want to see how Mendez applies," said Jim Sawyer, trial attorney for defendant Robert Springsteen. "Because if it does apply, then they'd have to admit that Springsteen was convicted in error."

Apparently, the strongest piece of state's evidence against Springsteen (convicted and sentenced to death last spring) and Scott are the separate confessions each made to APD detectives in September 1999, shortly before the two men (along with Maurice Pierce, the third defendant) were arrested. Prosecutors used Scott's statements against Springsteen, although Scott did not take the stand for cross-examination -- a circumstance the appeals court in Mendez ruled unconstitutional. Case argues that the prosecutors used only portions of Scott's statement, portions that did not directly mention Springsteen. "With Scott's statement we went back and took out all the references to Springsteen, so what Scott was saying was about what he did," Case said. "In Mendez we didn't do that."

But in an interview on death row in Livingston last week, Springsteen told me that in court, the implication of Scott's statement was clear. "My name was redacted," Springsteen said, "but then it says, '[Michael Scott] and blank and blank and blank,' and when it's being read it is fairly obvious who they're talking about. I mean, I am sitting there at the defense table." Sawyer says admitting only pieces of Scott's statement did nothing to protect Springsteen's constitutional rights. "They got to pick and choose what was introduced," he said. "Consider that the state is taking the position that by using selected statements ... they are safeguarding the Sixth Amendment rights of the defendant." Moreover, he adds -- and for Mendez at least, the appeals court agreed -- that allowing Scott's statement into evidence not only violated Springsteen's Sixth Amendment rights but also his Fifth Amendment right to remain silent. The justices wrote, "Without an opportunity to cross-examine Flores, appellant could rebut Flores' confession only by testifying." Springsteen was in the same predicament.

When Scott comes to trial, prosecutors may persuade the trial judge to admit Springsteen's incriminating statements -- thereby forcing the appellate system to eventually resolve the Mendez problem, while they use Springsteen's confession to corroborate Scott's. But unless the state can quickly find some additional evidence against the third defendant, Pierce, the Mendez decision may deal a deathblow to the prosecution's case.

Police questioned Pierce about the murders at least four times, and Pierce consistently asserted his innocence. "The last time [I was questioned, the police] kept telling me that they knew I did it; they said they had all these other people telling them that I did it," Pierce told me by phone from the Travis County jail last week. "And I said, the truth is I didn't do it, so they couldn't have people telling them that I did." According to the court record, the people saying Pierce did it were Scott and Springsteen, who said that Pierce was not only involved but was the "mastermind" behind the murders.

But DNA evidence from the scene excluded Pierce (as well as Springsteen and Scott), and ballistics analyses excluded Pierce's .22-caliber pistol as the murder weapon. It appears that the statements of Scott and Springsteen are the only remaining evidence incriminating Pierce. Pierce's attorney Guillermo Gonzalez declined to comment for this story, but Pierce said he isn't aware of any other evidence -- and that after Mendez, he doesn't understand how the state is able to keep him in jail. "That's the only thing they have on me," he said. "Everything else says I wasn't there." But Case said if Springsteen's and Scott's statements aren't admitted at trial, that wouldn't eliminate the state's case. "It just makes it a more difficult case to prove," he said.

But to Sawyer, the only way for the prosecution to continue the yogurt shop prosecutions on the basis of the existing evidence is to set aside the Constitution. "When you don't follow the law, or are wrong about the law, it's all for nothing," he said. "Assume for a moment that the Sixth Amendment means what it says. How, then, does the state approach these families and say, 'We have to do this all again'?"