The Never-Ending (Crime) Story
Although their case has hit a dead end, prosecutors of the yogurt shop murders say they're determined to find the 'unknown suspect' – and to retry Michael Scott and Robert Springsteen
On Wednesday, June 24, Michael Scott and Robert Springsteen walked out of jail after spending nearly 10 years behind bars for the 1991 murders of four girls at a North Austin yogurt shop – a crime both insist they took no part in.
The discovery last spring of male DNA in the body of one of the victims, Amy Ayers, marked a seismic shift in the case. The DNA does not belong to any of the original suspects – nor does it belong to any of the more than 100 men the Travis County District Attorney's Office has subsequently tested. In the wake of that futile search, late last month prosecutors told District Judge Mike Lynch that they were not ready to go to trial – in fact retrials, on convictions that were later reversed – and Lynch, in turn, freed Springsteen and Scott on personal bonds.
The experience has been "a little bit overwhelming," Springsteen told the Chronicle last week. In a post-release interview, Springsteen said he is happy to be out of jail but wants "a trial so we can have the 'not guilty,'" he said. "I want to be vindicated because there has been so much nonsense going on in Austin [with this case] for the last ... 10 years or so. I know there is always going to be that contingent of people who say, 'I don't care what DNA says; they're guilty,'" he said. "But ... in the last year ... everybody [else] has been like – OK, before [my guilt] was questionable. It's not questionable anymore."
Indeed, defense lawyers argue that the new DNA evidence proves not only that the cops arrested the wrong suspects but also that the "confessions" the men made to police were false. Now, more than 17 years after the murders – and with the current status and potential outcome of the case entirely unclear – it seems that the central question has once again become, who killed these four girls?
Just before midnight on Friday, Dec. 6, 1991, a police officer on patrol near Northcross Mall noticed smoke coming from the rear of the I Can't Believe It's Yogurt! shop in a strip mall on Anderson Lane. After first going to the wrong address, the Austin Fire Department arrived six minutes later. Eventually, nearly 50 firefighters responded to the call, and it wasn't until they'd extinguished the flames that they made the gruesome discovery: Four teen girls lay dead inside the back room of the shop. Each had been stripped, bound, gagged, and shot in the head, with three of them stacked like wood, their bodies charred nearly to the bone. "Wholesale carnage," now-retired Austin Police Detective John Jones, the first to respond to the scene that night, later told reporters. "I looked in there and, 'Oh my God.'"
From the beginning, the investigation into the murder of the four girls – Amy Ayers, 13; sisters Sarah and Jennifer Harbison, 15 and 17; and Eliza Thomas, 17 – was plagued by misfortune, mistakes, and missteps. Physical evidence was lost in the water used to put out the fire, for example, and police were unable to keep particular details about the crime scene – withheld facts that would help them find the killer or killers – from leaking out of the department. They questioned more than 50 teens who hung around the mall and identified a contingent of goth kids from the West Campus area as "persons of interest." They amassed more than 2,000 tips and eventually cataloged more than 50 confessions from individuals who swore to police they were guilty of the slayings. A billboard asking "Who Killed These Girls?" went up on I-35, and a reward-for-information fund eventually reached $125,000.
Eight years later, police and prosecutors finally announced that Robert Springsteen, Michael Scott, and Maurice Pierce had been indicted and charged with the murders. (Charges against a fourth man, Forrest Welborn, were dropped after two grand juries failed to indict him.) Although Springsteen and Scott initially confessed involvement to the police, they soon recanted, saying the statements had been coerced and made under duress. Springsteen and Scott were both tried (in 2001 and 2002), and both were found guilty. In 2003, prosecutors dismissed the charges against Pierce, saying they did not have enough evidence to prosecute.
Eventually, however, both convictions were overturned and returned to Travis County for retrial. Although prosecutors have insisted not only that they have the right perpetrators but that they will retry each case, it now seems absolutely unclear when – or if – that will happen.
Finding Somebody to Blame
Police might never have considered Springsteen and Scott as suspects if their friend Pierce, then 16, hadn't shown up at Northcross Mall eight days after the murder with a .22-caliber gun and 16 bullets tucked into his pants. Police knew a .22 and a .380 pistol had been used in the crime; they hauled Pierce in for an interview. He denied that he'd done anything, but after questioning by the Austin Police Department's most notorious interrogator, Detective Hector Polanco – responsible for coercing a false confession that sent Christopher Ochoa and Robert Danziger to prison for the 1988 murder of Nancy DePriest in a North Austin Pizza Hut, a crime that they did not commit (DNA ultimately cleared the two in 2000; Polanco retired in 2001) – Pierce said that his friend Welborn had used the gun to commit the grisly quadruple murder. Police pulled in Welborn, then 15, but he also denied any involvement in the crime. He had been hanging out with Springsteen and Scott (both then 17) the weekend of the murders, he told the cops, and the four had taken a stolen SUV for a ride down to San Antonio. The police then brought in Springsteen and Scott for a chat with homicide detectives.
Springsteen said police were mostly interested in learning about other kids he knew – including Pierce, Scott, and Welborn – and the names of other teens who hung around the mall. Springsteen said that he wasn't at all concerned about that meeting with police. "I didn't really think it was a big deal because they weren't asking about me," he said. He wrote a statement, he recalls, "and I thought it was all copacetic." Indeed, investigators concluded that Pierce might be mentally challenged and relegated the Pierce tip to the back burner.
The case went cold until the late Nineties, when investigators reorganized their efforts. Heading up the investigation was APD Detective Paul Johnson, who reopened the Pierce file. Police had seized the .22 Pierce was carrying at the mall that day in 1991, and Johnson had it tested – it did not match the weapon used in the crime. Nonetheless, in September 1999 Johnson's team sought to talk once more with Pierce, Springsteen, and Scott. Pierce again denied any involvement in the crime. But after marathon interview sessions with police interrogators, both Springsteen and Scott confessed. By the end of the year, all three men were arrested and indicted.
When investigators arrived in Charleston, W.Va., where Springsteen was living, it was at least the third time police had approached him to talk about the murders. On Sept. 15, 1999, after five hours of interrogation, he confessed to killing Amy Ayers. "I had finally given up and been like, 'OK, I'll say whatever you want me to say, and the DNA will clear me,'" Springsteen said of that meeting, during which police insisted they knew he was guilty because he'd left his DNA at the scene. (They had no such evidence.) The pressure to confess was intense, says Springsteen, so he quickly sought to clear himself. "I went and took a lie detector test, and I passed it. So I thought: 'OK, they have that, and they have the DNA. ... It'll prove I didn't have anything to do with it.'"
At the same time Springsteen was being questioned, police were also in the middle of days of interrogation of Scott in Austin, ultimately a total of nearly 20 hours. Eventually, Scott also confessed.
Notably, there is no physical evidence linking either man to the scene. Although water and fire destroyed much of the crime scene, six fingerprints were found on the cash register drawer – two were linked to an employee, but four have never been matched to anyone – not the girls, the boys, or any known employee. Moreover, several hairs, from more than one individual, were recovered from the bodies, but none has ever been matched to anyone. (Whether they have been tested against the DNA of the unknown male donor found last year, or are even sufficient for that purpose, is not clear.)
Those confessions formed the foundation of the state's case against the two men.
Each man offered some details about the crime that police said only the perpetrators would know – for example, that two guns were used. But the details are few in number, and whether they were truly withheld details is a matter of debate. For example, among the 50 confessions police ultimately received were others in which the subject mentioned using two weapons – hardly convincing evidence that the detail had been effectively withheld. Ultimately, prosecutors compensated for the dearth of detail by convincing Judge Mike Lynch, over the vociferous objections of the defense, that they should be allowed to enter into evidence both confessions at each trial. Yet by entering portions of a nontestifying defendant's confession at another man's trial, prosecutors ran afoul of the Sixth Amendment, which grants a defendant the right to confront and cross-examine witnesses against him.
Springsteen said last week that the decision to allow portions of Scott's confession into evidence at his trial – portions in which Scott detailed his own culpability – seemed to change the jury's attitude. "We knew things had gone really, really bad when the judge allowed that detective to get on the stand and read [Michael Scott's] statement," he said. "We felt some sort of fundamental shift in the atmosphere of the jury, the courtroom, and everything else after they allowed that to come in." Indeed, at the conclusion of Springsteen's trial, one juror told the Austin American-Statesman that the jury found Scott's confession the "key" piece of evidence against Springsteen; "That really struck a chord," he said.
In 2001, Springsteen was found guilty and sentenced to death, and the following year Scott was found guilty and sentenced to life in prison, but the courts of appeals ruled that the use of the confessions did indeed violate constitutional protections, and any retrial could not employ that strategy. Publicly, at least, this problem doesn't seem to concern recently elected Travis County District Attorney Rosemary Lehmberg. Although the convictions were overturned, she told reporters last month, "Their statements to law enforcement were found to be voluntarily given."
The appellate decision makes these cases much trickier to prosecute, while strengthening the defense's ability to argue that the confessions were coerced. "Things have changed considerably," says Carlos Garcia, one of Scott's attorneys. In the almost 10 years since police conducted those interrogations, the science of false confessions has advanced considerably. In 2001, Springsteen's attorney, Joe James Sawyer, brought in Richard Ofshe, an expert in false confessions from the University of California at Berkeley, to testify about Springsteen's five-hour interrogation and why it was not a reliable indicator of guilt. Ofshe's testimony was curtailed, however, at the request of the state. Outside the courtroom, Ofshe did not mince words. "Tactics were used that put him in a place of being considered the principal target," of the investigation, Ofshe said, "or, it was communicated to him that [if he cooperated with police] that he'd be considered a victim. So, Springsteen was put in a position where he had to choose."
Similarly, for the retrial of Scott's case, attorneys have retained expert Richard Leo, a lawyer, sociologist, and professor at the University of San Francisco. Leo did not testify at Scott's first trial, but during a presentation in January to members of the state's Criminal Justice Integrity Unit – which includes state lawmakers, judges, and other stakeholders – Leo explained not only that false confessions happen, typically as a result of aggressive police tactics, but also that he is certain Scott's statement is false. Scott was interviewed for nearly 20 hours total and, Leo said, fell victim to a so-called "persuaded false confession," whereby a person is led to believe he committed a crime even if he doesn't remember it. In fact, Scott knew so little about the crime, police argued perhaps he had amnesia and that's why he couldn't remember the details of what supposedly happened inside the yogurt shop in December 1991. "I know this sounds crazy," Leo told the Criminal Justice Integrity Unit in January, "but there are many documented DNA cases where this has happened."
To date, according to the New York-based Innocence Project, based on the 240 DNA exonerations nationwide, approximately 25% of wrongful convictions are due to false confession. "What really strikes me is that [statistic], and I really do pray to God that the general public is seeing now the myriad cases where DNA exonerates people that have 'confessed' and begins to come to understand that confessions are not the lodestar. ... You damn well better look past the confession and ask what truly tells you that the confession is accurate," says Sawyer. "What set of facts truly supports the so-called 'admissions' – instead of stopping short with the confession and needing nothing else."
As it happens, notes Springsteen's attorney Alexandra Gauthier, on June 11, almost two weeks before Springsteen and Scott were released from jail, a trial judge in North Carolina overturned a death sentence in part because the defense attorney had failed to call as a witness an expert in false confession. In that case, a man had confessed to murder, but there was no corroborating evidence. "The likelihood of a different result if trial counsel had investigated the circumstances of the confession and obtained the assistance of an expert in police interrogations is sufficient to undermine confidence in the outcome of [the] trial," the judge wrote. The North Carolina case is significant, argues Gauthier, because it denotes the "beginning of the end of that notion" that evidence of false confessions isn't scientific enough to be allowed before a jury. Confessions "are no longer the gold standard against defendants. ... False confessions do occur due to [coercive] interrogation techniques."
The Accumulating DNA
Not only has social science undermined the prosecution's case, but so has hard science – DNA science – rendering even more unlikely the state's unwavering assurance that Springsteen and Scott are guilty of the notorious 1991 crime. The discovery of unknown male DNA inside Ayers, the youngest victim, was a surprise to everyone. "If you'd asked me in April of 2008 if I'd have thought that in March we'd have [discovered] a new donor," Lehmberg said recently, "I'd have said, 'I think not.'" The discovery came after prosecutors submitted DNA from a vaginal swab last spring for contemporary testing with the most current and precise methods. What they found was a complete male profile that does not belong to any of the original four suspects. At first, prosecutors said that they likely already knew the source of the DNA – implying that Ayers had perhaps been sexually active or that somehow, someone at the crime scene or in the county's medical examiner's office had contaminated the swab. That theory was systematically dismissed: After testing more than 100 men, including acquaintances of the suspects and emergency workers at the crime scene and at the medical examiner's office, the D.A.'s Office has failed to identify the donor, leaving him still entirely unknown.
The negative results prompted defense attorneys to seek additional testing on additional pieces of physical evidence, including vaginal swabs from the Harbison sisters and samples from a ligature used to bind Thomas. That evidence revealed even more complicating results – including that the same male donor found inside Ayers was also found inside Jennifer Harbison. While the state's DNA expert, academician Mitchell Holland, from Penn State University, disagreed with some of the results obtained by the defense's experts, he did agree that the unknown male DNA in Ayers was also found inside Jennifer Harbison.
Importantly, also found inside Sarah Harbison were traces of her sister's boyfriend, Sam Buchanan, with whom Jennifer Harbison had recently had consensual sex. Buchanan was never, and is not, a suspect in the crime, but the fact that his DNA was found in Sarah is also significant, argues attorney Sawyer: It demonstrates that the unknown male is likely also to be found inside Jennifer*. Moreover, he said, it suggests that at least three of the victims (beginning with Ayers) were sexually assaulted by an unknown male. "It even tells you the sequence of assaults," he said. More importantly, argue Sawyer and Garcia (Scott's attorney), the results, which do not match Springsteen or Scott, demonstrate conclusively that their clients are innocent. "The DNA," says Garcia, "tells you the confessions are false."
That evidence provides a key to Springsteen's case, says Sawyer, because after pressure from the police, Springsteen confessed that in the course of the crime he had raped Ayers. But there is no trace of him there, and that proves at least that portion of the confession isn't true. It is the thread that unravels the entire case, he said. The police "brutally lean[ed] on Robert to get him to admit he had raped" Ayers, "and he denies, denies, denies – and finally concedes, 'All right, man, I raped her,'" says Sawyer. "[I]n a very ironic twist, it is that blind insistence on gilding the lily that will exonerate him."
The 'Fifth Man'
Lehmberg agrees that the new DNA evidence is significant – but not that it exonerates. "I don't know who this individual is" to whom the DNA belongs, but "I do not necessarily equate that with exonerating the other two," she said. Nonetheless, the DNA evidence is strong – at least strong enough for Lehmberg to say that she will not go to trial without finding the identity of the donor. (Lehmberg said in a press conference that the DNA might belong to a "fifth man." Notably, the theory of a fifth, unnamed man involved in the crime has never before been raised.)
Lehmberg says that the state continues to search for the unknown male – and to test additional items of evidence. "You have to believe that whatever we can safely test, without [completely depleting] the samples, we are testing," she said. "We're testing everything, looking for new evidence, looking to replicate evidence." Lehmberg says she still believes Springsteen and Scott are guilty but essentially admits that going to court now would not be the way to ensure they're convicted. "I know with what I have now it is not worth" going to trial, she said.
Given that the D.A.'s Office has apparently laid all its cards on the table, it seems that the state is unlikely to retry either case unless that unknown male is found (or, perhaps, some other corroborating evidence strong enough to overcome the presence of an unknown male turns up – however unlikely that seems). If that is the case, perhaps part of looking for the truth is considering the possibility that police and prosecutors are wrong about the yogurt shop case. "I've asked myself that a million times over the years," Lehmberg said. "I'm not cavalier, and it's not as though I don't care. And I've been through exonerations – it only takes one to bring your feet flat on the earth."
Michael Scott is scheduled to return to court Aug. 12, when prosecutors are expected to update Judge Lynch on their progress toward finding the unknown man.*[Editor's Note: In the print version of this story, in the passage about Sam Buchanan, the names of Sarah and Jennifer Harbison were inadvertently switched, reporting that Sarah had been dating Buchanan when in fact it was Jennifer who was dating him at the time of her death.]