Scott Appeals Conviction in Yogurt Shop Case

Austin's infamous yogurt shop murder case was back in court last week, when an attorney for Michael Scott (the second of two men convicted of the crime) argued before Texas' 3rd Court of Appeals that his client's conviction should be overturned. At issue (not for the first time) was the trial court decision allowing prosecutors to introduce into evidence portions of a "confession" made by nontestifying co-defendant Robert Springsteen. Scott's appellate attorney Ariel Payan told a three-judge panel of the 3rd Court that the decision violated Scott's Sixth Amendment right to confront the witnesses against him – a fundamental right reaffirmed earlier this year by the U.S. Supreme Court in an unrelated case.

In that case, styled Crawford v. Washington, a unanimous court ruled that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." So Justice Antonin Scalia wrote in the March 8 opinion, wiping away more than 20 years of case law that defined various legal exceptions to direct confrontation and allowed trial judges to determine whether a given piece of evidence was "reliable" enough to stand on its own. In light of the high court's strong and plain ruling on the Sixth Amendment's application, Payan is optimistic about Scott's chances for a new trial. "I feel pretty good with Crawford out there," he said.

On Dec. 6, 1991, four teenage girls – Amy Ayres, Jennifer and Sarah Harbison, and Eliza Thomas – were found dead inside the I Can't Believe It's Yogurt shop on Anderson Lane, stripped, bound, gagged, shot, and horribly burned in a fire that police and prosecutors said was started to cover the crime. Indictments were not brought until eight years later, after the state announced it had hard evidence against four men (also teenagers at the time of the crime). Springsteen was tried, convicted, and sentenced to death in 2001; Scott was convicted in 2002 and sentenced to life in prison. A third defendant, Maurice Pierce (who the state contended was the "mastermind") was indicted by a grand jury, but last year Travis Co. District Attorney Ronnie Earle dismissed all charges against Pierce, claiming the state had insufficient evidence to secure a conviction. The case against the fourth defendant, Forrest Welborn – who prosecutors said acted as a lookout for the other three – was dropped in 1999 after two grand juries failed to indict him.

The state's case against the four men was almost entirely circumstantial – none of the physical evidence found at the scene matches the four defendants, the four victims, or any other employees of the yogurt shop. As a result, prosecutors relied heavily on "confession" statements Springsteen and Scott each made to Austin police during separate interview sessions in September 1999. During those interviews, each defendant incriminated himself and the other as actors in the crime. Although Springsteen and Scott were tried separately, prosecutors used a similar strategy during each trial, offering each jury salient portions of the other defendant's confession, in an effort to corroborate the state's theory of the crime. However, neither Springsteen nor Scott could be compelled to testify, and thus face cross-examination, at the other's trial, since that would have violated their Fifth Amendment rights against self-incrimination.

In the end – and in each case, over the vociferous objections of the defense – District Judge Mike Lynch tried to strike a balance, allowing prosecutors to introduce only portions of the statements in which the nontestifying defendant incriminated himself (as opposed to the other defendant). That decision satisfied prosecutors, who continue to argue that the arrangement legally circumvents the Sixth Amendment's Confrontation Clause. Still, whether the state stomped on the constitutional rights of both Springsteen and Scott is at the heart of each of their appeals.

In May 2003, Springsteen's appellate attorney Mary Kay Sicola argued before the Texas Court of Criminal Appeals that even though the state redacted portions of Scott's confession to omit any reference to Springsteen, prosecutors still violated the Sixth Amendment by hobbling Springsteen's ability to test the veracity of Scott's statement. More than a year later, Springsteen's appeal is still pending before the CCA; meanwhile, Payan made a similar argument before the 3rd Court last week. (Because Scott was not sentenced to death, his appeal begins at the intermediate 3rd Court and not the CCA.) But unlike Sicola, Payan was armed with Crawford.

According to Travis Co. prosecutors, Crawford does not apply to Scott's (or Springsteen's) case since the redacted portions do not make mention of the defendant on trial. According to Bryan Case, head of the DA's appellate division, the introduction of Springsteen's confession during Scott's trial did not trigger the Confrontation Clause because it was not used "against" Scott per se. But the Sixth Amendment does not hinge on who or what a "witness" mentions, Payan argues. "The ability to cross-examine a statement and the person who is making the statement" is all that matters, he says, because it is through confrontation that "you uncover and examine inconsistencies, or the underlying motivations" for making the statement. If the state's position is valid, he said, then the doors are open for prosecutors to conjure a plethora of innovative ways to introduce evidence "that won't trigger the 'against' language" of the Constitution.

Payan later told the Chronicle it was obvious that Chief Justice Kenneth Law and Justices Jan Patterson and David Puryear had carefully reviewed the Crawford decision (and the voluminous Scott case file). "They asked smart and probative questions." Indeed, the court allowed each side extra time to argue the case – an hour of the court's time, as opposed to the standard 40 minutes – which is a clear indication that the court is taking the case seriously, sources say. Even if the court determines that the state violated the Constitution in allowing the redacted confession into evidence, the justices still must determine whether that action actually harmed Scott – whether that error alone was egregious enough that it likely affected the outcome of the trial. The court's decision is expected later this year.