Defense Cries Foul on Yogurt Shop DNA

Prosecutors' yogurt shop murder case appears to be in trouble

In a new motion filed Tuesday, July 15, lawyers for the two defendants in the yogurt shop murder case say the Travis County District Attorney's Office violated a court order by dragging its feet on providing defense attorneys the results of additional DNA testing.

Earlier this year, unbeknownst to defense attorneys, prosecutors sought to have retested several pieces of evidence gathered from the notorious 1991 murders – including two vaginal swabs collected from the youngest of the four female victims, 13-year-old Amy Ayers (one taken at the crime scene, the other at the medical examiner's office). Each swab reflected a previously undetected male DNA profile that does not match any of the yogurt shop defendants. The revelation prompted Joe James Sawyer, attorney for defendant Robert Springsteen, to file a writ with the court arguing that the DNA evidence exonerated his client (see "Yogurt Shop Murder," April 18).

Prosecutors dismissed the notion that the newly revealed male DNA would actually exonerate Springsteen or his co-defendant Michael Scott, even though no physical evidence ties either man to the crime. Instead, prosecutors Efrain De La Fuente and Gail Van Winkle told the Chronicle that they suspect a match to the DNA profile would come from "someone known to Amy Ayers" – implying, contrary to all previously disclosed information, either that the young victim was sexually active at the time of her death or that the profile was somehow the product of collection contamination. In May, District Judge Mike Lynch ordered the state to provide the results of that testing to the defense as soon as it was obtained. During a June pretrial hearing, the state did not respond when asked directly by Lynch whether it had yet obtained any results, leaving the impression that no new information had been obtained, and Lynch did not follow up. Yet spokespersons for two national DNA laboratories contacted by the Chronicle – Dallas-based Orchid Cellmark and Salt Lake City-based Sorenson Forensics – say the standard backlog for private labs is no more than 60 days from receipt of DNA material through the conclusion of testing and the submission of a written report, and rush jobs can be completed within 15 days.

On Tuesday, defense lawyers challenged the D.A.'s implication that they'd received no further results, claiming that the state has had at least some additional results since April 11 – information that was not disclosed to the defense but was apparently in hand before Sawyer ever filed his previous writ. In a redacted copy of the motion, the defense says that it is "clear" from evidentiary documents that De La Fuente and Van Winkle already knew the results of "at least two" retests, "excluding" the tested DNA as matching the submitted male DNA sample. In other words, it would appear that the state does not know to whom the unknown male DNA belongs – despite earlier assurances that prosecutors already knew the donor. Indeed, according to courthouse sources, nearly 40 DNA tests have already been conducted, but prosecutors have not filed the results with the court.

On July 11, Lynch signed a new, more restrictive gag order that bars attorneys connected to the case from discussing any evidence – including DNA results – and the judge declined to hear defense arguments challenging the order. The previous order covered only the murder of Ayers; the amended order, which the court considered only corrective, added the other three victims – Eliza Thomas, 17, and sisters Jennifer and Sarah Harbison, 17 and 15. The effect is a further restriction on public access to the court files associated with the case – meaning there is no meaningful way to assess whether there is any real substance left to the state's case or to justify their assertions that the crime has been solved.

Another pretrial hearing is scheduled for Aug. 5.

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KEYWORDS FOR THIS STORY

yogurt shop, Robert Springsteen, Michael Scott, Mike Lynch, Effrain De La Fuente, Gail Van Winkle, Joe James Sawyer, Amy Ayers

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