Naked City

On May 28, six of the nine justices on the Court of Criminal Appeals showed up in court to hear oral arguments in the case of Robert Springsteen, the first defendant tried and convicted for the December 1991 yogurt-shop murders. Springsteen's case is also the first to come back on appeal -- but likely won't be the last.

Springsteen was sentenced to death in 2001 for the grisly murders of four girls inside a North Austin yogurt shop. A second defendant, Michael Scott, was convicted in 2002 and sentenced to life in prison. (Travis Co. DA Ronnie Earle dismissed all charges against a third suspect, Maurice Pierce; charges against a fourth suspect, Forrest Welborn, were dropped in 1999 after two Travis Co. grand juries failed to indict him.)

On Wednesday, in front of a courtroom packed with the families of the four slain girls, Springsteen's appellate attorney Mary Kay Sicola argued that Springsteen's conviction should be overturned because allowing portions of Scott's confession into evidence was, in fact, unconstitutional. "Large portions of Michael Scott's [confession] were introduced against [Springsteen], who was separately tried and who did not get the opportunity to cross-examine Scott," she said. "It is trial by affidavit -- that has long been prohibited by the nonconfrontation clause."

At Springsteen's original trial, prosecutors sought to introduce not only his videotaped confession -- obtained by police in September 1999 after hours of interrogation -- but also large portions of a separate confession that Michael Scott made to investigators. Springsteen's trial attorneys objected at the time that including Scott's testimony was a violation of the Sixth Amendment, which ensures that defendants have the right to "confront" witnesses against them, the clause to which Sicola referred. District Judge Mike Lynch allowed into evidence redacted portions of the testimony in which Scott incriminated himself but did not directly implicate Springsteen in the yogurt-shop killings. However, one juror from Springsteen's trial later told the Statesman that it was Scott's confession that led them to convict Springsteen.

Sicola's argument to the state's highest criminal court was based largely on a 1999 U.S. Supreme Court ruling, in Lilly v. Virginia, that the confession of a nontestifying witness cannot be admitted against a defendant without violating the confrontation clause. In Lilly, the court notes that just because a co-defendant makes statements against his or her own "penal interest" does not mean that the substance of the confession is reliable or that it is permissible under the Sixth Amendment.

In his argument on behalf of the state, Assistant DA Robert Smith -- one of the original prosecutors -- argued that the protections of Lilly were not relevant in Springsteen's case, since Lynch had only allowed into evidence portions of the confession in which Scott incriminates himself. "We did not do this lightly," Smith told the court. "We limited it solely to the actions of Michael Scott." The testimony was introduced into Springsteen's trial, prosecutors have said, because details in Scott's confession corroborated Springsteen's version of events, making both statements more reliable. But a thorough reading of Lilly appears to contradict Smith's argument: "We have over the years spoken with one voice in declaring presumptively unreliable [any] accomplices' confessions that incriminate defendants," the court wrote, adding that the fact a statement is (like Scott's) self-incriminating "did not justify its use as evidence against another person."

Court observers are cautiously optimistic about Springsteen's chance on appeal -- without putting much faith in the CCA. Instead, courthouse sources expect the case to make it to the U.S. Supreme Court if the CCA fails to reverse. The same issues will resurface when Scott's case comes back on appeal, since prosecutors likewise used Springsteen's testimony to "corroborate" Scott's confession in his own 2002 trial. The CCA is expected to issue its ruling by early next year.