Scene of the Crime
Revisiting the yogurt shop murders: A cold case reconsideration of the 1991 crime points away from the prosecution's assumptions and conclusions
By Jordan Smith, Fri., Dec. 16, 2011
On Oct. 28, 2009, Travis County District Attorney Rosemary Lehmberg stood solemnly behind a lectern choked with microphones. She had convened a press conference to deliver big news. Ten years after city and county officials gathered to announce that they'd found the four men responsible for the grisly 1991 yogurt shop murders, Lehmberg had decided to dismiss all charges against the only two men ever tried for the crime, Robert Springsteen and Michael Scott. "Make no mistake, this is a difficult decision for me, and one I would rather not have to make," she told a score of reporters. But it was the only real option. Although she still believed Springsteen and Scott were responsible for the crime, she said – despite a lack of any physical evidence connecting them to it – she had concluded that she must drop the charges because prosecutors had no explanation for explosive new evidence discovered in 2008: unknown male DNA found on a vaginal swab collected at the 1991 crime scene from the youngest victim, 13-year-old Amy Ayers, that does not match Springsteen or Scott, nor the other two men officials say also took part in the crime, Maurice Pierce and Forrest Welborn.
It wasn't for a lack of looking that they couldn't identify the male donor; since discovery of the DNA, prosecutors and police had tested more than 100 people without finding a match. Nonetheless, even as Lehmberg stood before reporters that day, she and her prosecutors were still publicly adamant that the unknown male DNA belonged to someone known to the four men originally charged with the crime – in other words, they were now operating on a "fifth man" theory of the crime.
Perversely, the prosecution's insistence that there is only one possible theory for the crime – and only one set of suspects – may be preventing them from finding the actual murderers. A review of the case material suggests that there are likelier suspects to be considered – and a more likely scenario than an impulse crime by four teenage boys.
A Dead End
As testing continued through 2008 and into 2009, the fifth-man theory became harder to defend. Indeed, in subsequent testing by Springsteen's and Scott's defense attorneys, DNA from a second male, also unknown, was found on additional items of evidence. In short, it was becoming more and more difficult to explain away mounting evidence suggesting that prosecutors and Austin police had been wrong all along about their theory of the crime – not that Lehmberg was willing to publicly admit the possibility on that fall afternoon in 2009. "Given that we now have unknown DNA evidence in the case, I believe it would be imprudent and, in fact, unfair to proceed to trial at this time. It would be unfair to the jury hearing the case, to our community, and most of all, unfair to the victims of these devastating crimes and their families, who have patiently endured all of these years," she read from a prepared statement. "While I remain confident that Springsteen and Scott are responsible for these murders, going to trial and risking a result that could forever prohibit future trials of these men is a risk I will not take."
Since then, the investigation of the horrifying murders of the four teenage friends – Ayers; Sarah and Jennifer Harbison, 15 and 17, respectively; and Eliza Thomas, 17 – has again gone cold. Springsteen and Scott, under intense questioning by police, had confessed and were convicted, but those convictions were ultimately overturned on appeal on a finding that prosecutors had violated basic constitutional due process. Pierce – whom prosecutors had dubbed the "mastermind" of the crime – spent more than three years in jail before prosecutors, citing a lack of evidence, dismissed the charges against him in 2003. After two grand juries declined to indict Welborn, no case was ever developed against him.
In retrospect, lawyers for two of the four men – along with at least one of the crime's original Austin Police Department investigators, retired Sgt. John Jones – say they believe that the investigation leading up to the arrests of the four men was hopelessly flawed. The crime could still be solved, they say, though they admit that would be very difficult now that so much time has passed. What it would take, they agree, is a commitment to starting over from the beginning and reconsidering evidence found in crime scene photos, in roughly 130,000 pages of investigative documents, and in the physical elements of the crime – including pieces of evidence still untested for DNA – retained in evidence bags. And, importantly, say several defense lawyers, investigators should return to the statements of the final customers at the neighborhood yogurt shop that evening, whom they believe were among the last to see the actual killers. "I think in order to truly solve this case, you need to start with the original materials," says Amber Farrelly, a criminal attorney who worked with Springsteen's and Scott's defense teams while still in law school. "Start at the very beginning. ... You take the original equation, and you do your own work, and you come to your own conclusion. That way you can find out where the errors occurred."
The Polanco Standard
Just before midnight on Friday, Dec. 6, 1991, then-rookie Austin Police Officer Troy Gay was on patrol when he spotted smoke coming from the I Can't Believe It's Yogurt! shop on West Anderson Lane. Dozens of firefighters and police responded to the two-alarm blaze, including Jones, then an investigator with the APD's small homicide unit. He was out that night riding with a local news crew working on a feature about homicide in Texas. The cameras were rolling as they pulled into the parking lot of the yogurt shop; the footage, played in court in 2001, showed a chaotic scene of public safety officials tramping in and out of what they would soon learn was the scene of a quadruple murder. After the blaze was suppressed, firefighters made the shocking discovery: the bodies of the four girls, stripped and bound, shot in the head, some of them stacked together, and terribly burned from the fire that investigators concluded was set to cover the crime. "'Holy shit' – that's exactly what I said" after seeing the crime scene, Jones (since retired from APD and now head of security for Capital Metro) recalled recently. "I mean, I've seen burned bodies before, but the enormity of that, to have the stacked bodies and, you know, we couldn't tell a lot then – race or sex. When you're able to put a name and face and a circumstance, man."
At the time, Jones had been in the department's homicide unit long enough to investigate the murders of 154 people – "that's how you measure time in homicide," he says – but this was something new. And because of the fire, it was a mess: Water had puddled in the shop, particularly in the rear where the bodies were found, and the high-powered fire hoses had inevitably shifted elements of the scene – perhaps including the bodies – making it difficult at best to identify and collect what evidence remained. Jones immediately reached out for help – to the federal Bureau of Alcohol, Tobacco, and Firearms; to the FBI; and to the Texas Department of Public Safety, which at the time handled the majority of crime scene investigations for the local police department. Still, Jones says he approached this murder scene the same way he had handled every other homicide: He started at the beginning. He and the homicide team initially tasked with investigating the crime interviewed customers who'd been to the shop that day, as well as employees and friends of the girls; they fielded thousands of tips phoned in by a concerned public. And eight days later, they talked to then-16-year-old Maurice Pierce, who had been picked up at Northcross Mall, just blocks from the crime scene, carrying a .22-caliber hand gun.
During questioning, Pierce said he'd lent the gun to his friend, Forrest Welborn, then 15, and that Welborn had used it to commit the yogurt shop murders. Welborn denied any involvement but told investigators that he and Pierce and a pair of acquaintances, Springsteen and Scott, had taken a joyride to San Antonio in a stolen SUV not long after the crime, an admission that put Springsteen and Scott on the police radar as well. Nonetheless, after lengthy questioning, Jones and his team dismissed Pierce as a suspect, concluding that he was lying. "We had to deal with him – he got caught with a goddamn .22," says Jones, the same caliber as one of two guns used in the crime. But it became clear to Jones that neither Pierce nor Welborn had any connection to the crime. "Forrest had no clue," Jones recalls. "He couldn't organize a two-car parade."
In part, says Jones, his feeling that Pierce was not a viable suspect was based on the work of another homicide investigator, former Detective Hector Polanco. To say that Polanco had a reputation for coercing confessions out of innocent suspects would be an understatement. Indeed, it was Polanco who infamously secured a confession from Christopher Ochoa that put Ochoa and Richard Danziger behind bars for a 1988 murder that neither committed; they were exonerated in 2002 after the real perpetrator came forward. Polanco was a pit bull interrogator, using techniques that at times were successful, but were also responsible for any number of false confessions during the yogurt shop investigation – including one from a man whom Jones believed to be a good suspect until he learned that many of the crime scene details featured in the man's confession had actually been fed to him by Polanco. "That was common, recurring," says Jones. Despite Polanco's success at securing such confessions, Pierce, whom Polanco also interviewed, never admitted any involvement. In Jones' mind, that went a long way toward clearing Pierce. "My story is, if Hector couldn't get him to confess, he didn't do it," says Jones. "Trust me."
Moreover, says Jones, Pierce's gun didn't match the ballistics of the crime – though .22s can be difficult to match to a given crime and are often considered throwaway weapons because of the way the bullets flatten and leave few clues that help to match them to a particular gun. Pierce's gun was among dozens that investigators tried unsuccessfully to link to the crime. "When I left, I think they'd test-fired pretty close to 75 guns," Jones recalls. That array included not only .22, but also possible matches for the second gun from the crime, a .380 pistol used to fire a single bullet into Ayers. Looking for the .380 was a good idea, he said, in part because while most .380s have a particular twist to the rifling of the barrel, the one used in the yogurt shop murders had the opposite twist; if that gun could be found, Jones still believes, it would be tremendously helpful in closing the case. Despite police having searched everywhere that various suspects – including Springsteen and Scott – professed to have dumped it, that gun has never been found.
Theory First, Evidence Later
Roughly three years after the crime, Jones was promoted to sergeant and transferred to another assignment. The murder investigation was officially cold. "We worked with what we had," Jones says of the initial stages of the investigation. "You know, we did everything we could."
Although it was never entirely abandoned, the case remained on a low simmer until 1996, when Detective Paul Johnson picked up the file and set about reworking it into manageable bites. In so doing, he reorganized the contents of the offense file into various tips – among them the so-called Maurice Pierce tip, which Jones and his crew had cleared years before. It was Pierce's .22 that caught Johnson's attention, he testified during Springsteen's trial in 2001. Exactly why that gun, out of all the others mentioned by various suspects (some of whom had confessed to the crime), caught his attention remains unclear. Indeed, why Pierce was vaulted to the top of the pack of potential tips – there were some 2,000 of them after his reorganization, according to news reports from 1999 – remains a mystery to many involved in the case. (Johnson retired in 2003 and could not be reached for comment.)
To Joe James Sawyer, who headed up Springsteen's defense team, the decision to focus on Pierce remains curious. "There is an assumption in cold-case reviews that they missed the truth [in the file] the first time out," he says – that is, that the perpetrator has already been identified and is somewhere buried in the file. "And that is fatal. That is the most imbecilic – and you may say, Joe James Sawyer said that was imbecilic – way to approach an old crime. Because the proper way to reapproach it is to say, 'What might we have missed? What didn't we see?' instead of being convinced that in the first investigation you simply missed the bad guy and that you had him all along." Jones agrees that Johnson started from the point of assuming that everything that came before was simply wrong. "Paul started from the premise that we screwed it up," he says. Jones believes that led investigators to Pierce and, ultimately, to arresting the wrong people. "That's what happens when you come up with a conclusion and then you go about building [a case] to that conclusion, other than [going about it] the other way around," he says. "That's what happened in this case, really. I think that ... certain people came up with what they thought happened and then constructed a case around that theory." The evidence of that faulty approach is everywhere, Jones and Sawyer agree.
For example, the city's fire investigator, Melvin Stahl, concluded from reviewing the crime scene that the fire had started in a corner of the shop where supplies were stored. Later, after investigators obtained from Scott a confession that he started the fire on the bodies of the girls by using an accelerant, investigators went out and got a second opinion from ATF agent Marshall Littleton that matched Scott's confession; Stahl then recanted his conclusions and reworked his theory to match Littleton's. "That stunk to high heaven," says Jones. "That bothered me."
Nonetheless, it was part of a strategy to bolster the confessions of Springsteen and Scott that, while on first glance read as telling, actually contain no concrete details that could be corroborated by outside evidence, Jones and the lawyers for the two men say. No physical evidence connected any of the four men to the scene – not the hair or fingerprint evidence collected from the scene nor the DNA more recently discovered. That alone should call into question the men's confessions, says Carlos Garcia, lead defense attorney for Scott. For example, although Springsteen said he raped one of the girls, it wasn't his DNA, but instead that from an unknown male, that was identified through evidence testing – meaning Springsteen's statement was a lie. "All of this stuff has to be explained," said Jones, "because if you impugn any [part] of [the confession], that brings the whole thing into question."
Indeed, Garcia and other members of the defense team suggest that instead of still relying on false confessions to insist that the four arrested in 1999 are responsible for the crime, there is a better way to determine the guilty party: Go back to the crime scene and begin again. "Square one is the crime scene," says Garcia.
The Timeline – and Two New Suspects
In the end, the only things that convicted Springsteen and Scott were their individual – and tainted – confessions. More specifically, what aided prosecutors tremendously during each man's individual trial – given the dearth of physical evidence to back up those confessions – was a strategy that was also the prosecution's ultimate downfall. In order to corroborate the details of each man's confession, prosecutors sought successfully to have entered into evidence portions of the other defendant's confession. Although it worked as a trial strategy, the procedure ultimately led to the convictions being overturned, because by presenting the confessions, the state violated each defendant's rights not only to not incriminate himself but also to cross-examine all witnesses. Since Scott could not be compelled to testify at Springsteen's trial, for example, Springsteen could not challenge the substance of Scott's confession after it was entered into evidence at Springsteen's trial.
There is little doubt that the prosecutors' move to sidestep those protections was effective. After the jury delivered its sentence in the Springsteen trial, juror Gunther Goetz told the Austin American-Statesman that the panel considered Scott's confession the "key" piece of evidence. "That really struck a chord," he said.
Later, with the convictions vacated and returned to Travis County prosecutors who promised the men would be retried, defense lawyers also had an opportunity to review the case. Garcia separated the crime scene photos into sequence – looking for details that might previously have been missed – and the lawyers put the testimony and police statements of every witness into separate binders, to look at how those statements had evolved over time and how the recollections of different witnesses, from firefighters to police to store employees and customers, might create a larger picture of the crime. As part of that reorganization, Garcia gave Farrelly, then still clerking for the defense teams, a binder full of statements given to police by people who had been customers at the yogurt shop on Dec. 6, 1991. Farrelly put the information into a timeline that eventually stretched across five white sheets of poster board, with arrows connecting customers – denoting who remembered seeing whom at the store at what time – offering the lawyers a clear sequence of events for the first time. "It is revealing," says Garcia.
That timeline, Farrelly, Garcia, and Sawyer believe, may very well have revealed the real killers: two men who were in the yogurt shop sitting at a booth as the girls cleaned the shop, stocked the napkin dispensers, and turned the chairs upside down onto the tops of the dining room tables. Farrelly, Sawyer, and Garcia declined to divulge any specific details about the customers or what they said about the two men they saw, because the customers were never called to testify in court, but other sources with knowledge of the case have confirmed a basic account of what the final two customers, a married couple, told police happened on Friday, Dec. 6, 1991, just before 11pm. (Contacted by the Chronicle, the witnesses declined to comment for this story.)
According to police statements, the couple saw two men sitting at a booth and acting strangely; by watching their reflections in the plate glass shop front, the woman could see the men from where she was sitting. The woman said the pair made her uncomfortable, sources tell the Chronicle. The couple left as the girls began to close up shop, leaving the two men alone with them.
Indeed, considered in sequence with the recollections of at least one other witness who did testify, it appears to the defense lawyers that more than one person at the shop might have come into contact with at least one of the men the couple had seen. According to Dearl Croft, a former police officer who in 1991 ran a security company, when he visited the shop around 10pm that evening to buy yogurt for himself and two friends, he was approached by a man wearing a military fatigue-style jacket. The man was loitering in the customer line, ushering other customers to order first; when Croft came in, the man asked if he was a cop and offered to allow Croft to also pass him in line. Croft refused, and when the man finally approached the counter, he ordered only a can of soda. After he paid, he moved around the counter and headed to the back of the store; Croft asked where he'd gone and was told by Eliza Thomas, who as the store's shift supervisor was operating the register, that she'd allowed him to go into the back to use the restroom.
Croft was uneasy and testified that he hung around the counter for a few more minutes to see if the man ever returned; according to Croft, he never did. "[T]here was just something that didn't feel right, you know," he testified at Scott's trial in 2002. With his yogurt beginning to melt, Croft said, he left the store. (Croft did not respond to our request for an interview for this story.) Days after the crime, Croft was able to give a fairly detailed description of the man he saw – a white male about 6 feet tall; mid- to late 20s; medium build; dark hair; clean-shaven; a clear, deep voice; and a long, pointed nose – but he was never able to identify a suspect out of numerous lineups given to him by police. Moreover, on Oct. 1, 1999, just five days before police announced they'd found the four killers, Croft could not identify anyone from four separate photo lineups shown to him – presumably including photos of the four official suspects.
The account given by witnesses comports with crime scene photos, says Garcia – and with the couple's account of the two men in the shop just before closing – including photos that Garcia admits did not capture his attention during Scott's first trial. In two photos of the shop's dining room, one table stands out: a booth where the napkin dispenser is empty and there is no chair turned up on the table top, unlike every other table in the store. That is the table, the defense lawyers believe, where the killers sat.
Although the lawyers note that eyewitness identifications are notoriously unreliable – mistaken ID is responsible for the vast majority of Texas' exoneration cases – they believe that the accounts of the final customers, in combination with other crime scene evidence, are particularly telling, offering a corroborated and broader picture of what happened inside the shop just before closing. Garcia says that he has offered to share with D.A. Lehmberg the timeline the defense developed, but to date, he says, she has not accepted that offer.
Tunnel Vision
When the charges against Springsteen and Scott were initially dismissed, prosecutors and police were adamant in their declarations that the men were actually guilty and remained the investigators' prime focus. A little more than two years later, their official comments suggest their focus has since broadened. "We're hitting it on all fronts; every possibility is on the table," says Assistant District Attorney Efrain De La Fuente. In trying to match the unknown male DNA from the crime scene to a suspect, he says, investigators are looking not only to see whether it might belong to someone connected to the four originally charged with the crime, but also to see if it might belong to someone else "who may have acted alone" to commit the crime. They're also still looking at whether the unknown profile was actually the result of "contamination" – perhaps by a DNA lab worker or one of the public safety employees at the crime scene. Sgt. Ron Lara, who supervises the APD's cold case squad, wrote in response to a set of emailed questions that his unit remains committed to solving the case. Moreover, he wrote that while Springsteen, Scott, Pierce, and Welborn remain "suspects," the "investigation remains broadened in scope and focused on getting the ... DNA identified." That, he says, includes actually going back to the beginning – as defense attorneys and Jones say should be done – to include "crime scene evidence, crime scene photographs and original statements," he wrote. "We consistently re-evaluate all avenues that may assist us in pursuing further leads. This includes re-interviewing or re-evaluating customers ... that may have additional information not previously given."
Jones is skeptical of the official statements. First of all, trying to connect the DNA to personnel from the crime scene is a wash, he believes. He says he's been swabbed for DNA – or "fondued," as he calls it – four different times. Not surprisingly, the DNA does not match Jones – nor has it matched any of the numerous lab workers or public safety officials who've been tested. Sawyer says he simply does not believe that investigators have gone back to square one. "Had they gone back, with honest analysis, perhaps they would've said, 'What did we miss?' Maybe it's the guys sitting at the table," he says. "Maybe we go back and ask a different question: Why did it happen the way it happened?"
Defense attorneys and Jones both suggest that what's happened in the yogurt shop murders is not unlike what happened in Williamson County with the recent exoneration of Michael Morton, who spent 25 years in prison for murdering his wife until DNA evidence this year demonstrated that another man, Mark Alan Norwood, may have been responsible for the crime. Morton's lawyers are now investigating whether possible prosecutorial and police misconduct led to Morton being the prime suspect in the case despite compelling evidence to suggest, all those years ago, that another person was responsible for the murder. It's the problem of tunnel vision, says Farrelly. Once investigators here found Pierce, and especially after they got "confessions" from Springsteen and Scott, they were unable to look at anything else, she says. "The fact that they can't even admit the possibility that these are false confessions is where they are flawed," she says. As investigators, she says, they must be willing to accept that could be the case – especially when the hard evidence, the DNA, not only does not match the confessions but also casts into doubt their entire narrative. "Twenty-five to 27 percent of all exonerations ... involve false confessions; it is a fact that they occur. It is a fact that false confessions occur in Austin, Texas, with the Austin Police Department," Farrelly says. "And the fact that they won't even acknowledge that possibility is where they are going wrong."
Indeed, despite official assurances, it does seem that police are keeping Springsteen, Scott, Pierce, and Welborn at the center of their investigative crosshairs. When asked by a KXAN reporter last week who among the cold case squad still believes that the four men were involved with the crime, each of the five investigators raised a hand. Sgt. Lara insists that the investigators continue to consider all possibilities. "It is very important for us in this investigation to remain flexible understanding that there could be several other possibilities," he wrote to the Chronicle. "However, it also would not be prudent for the investigation to completely abandon and simply discard all facts corroborated by the voluntary confessions and statements of the suspects, as well as witness statements, without understanding fully the source of the unknown DNA in its entirety."
To Jones, the problems facing investigators now are precisely those expected when you "try to un-ring a bell," he says. "They want to connect it to those four because they're out on a thin limb, and I think it's been sawed off – according to them, it's only half-sawed off and we can regenerate that limb," he continued. "There is an undercurrent that people want so desperately to believe that the police and that the legal system is right, that it would be a sign of weakness, or they would lose [public] confidence by admitting they're wrong."
Ruthless Crime, Ruthless Criminals
Each of the lawyers involved in defending Springsteen and Scott in court has his own theory of how the crime actually happened – as does Jones, who says he believes two men were likely responsible for what started as a robbery and then went sideways. Although each has a slightly different variation on that theory, none of them believes that this was a crime committed by four teenage boys. For starters, notes Farrelly, the four victims – Thomas, Ayers, and the Harbison sisters – were smart, feisty, strong, outdoorsy girls who were heavily involved in the Future Farmers of America. The notion that four scraggly boys – none of them particularly well-built or, importantly, intelligent – could overpower these four girls is beyond belief, the lawyers (and Jones) agree. "We all believe that if these four boys had walked in there, [the girls] would've laughed at them and said get the hell out of here," says Farrelly. Had the boys attempted any assault, Sawyer believes the four girls likely would have overpowered them. "If they'd been age equivalents," Sawyer says, the four girls "would've just kicked them in their asses."
Likewise, among the evidentiary details that have always caught her attention, Farrelly says, is the account offered by the owner of the party store next door, who said he didn't hear anything from the yogurt shop save for several popping noises – which the lawyers each assume was gunfire. The fact that the shop was otherwise silent through a strip-mall wall suggests to Farrelly a certain amount of control over the victims, which she believes only would be possible had the assailants been grown men – and likely men with some previous criminal involvement. Moreover, the systematic nature of the murders – all the girls undressed, multiple victims raped, the execution-style shootings, and the bodies stacked – suggests experienced, sadistic criminals with far more foresight and ruthlessness than likely for teenage boys.
Ultimately, what the defense lawyers and the current investigators have in common is a stated belief that the crime can be solved. The question – the final one that appears to separate the two camps – is how to get there. "If someone were to come in with an open mind, with no ties to the previous cold case ... and to look at the original investigation ... I think they would come up with a different theory," says Farrelly. "And I think that they would be on the right path."
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