In sorting through the details of the infamous yogurt shop murders case and preparing for long-awaited retrials, it appears that prosecutors and defense attorneys have marked a milestone: They’re actually working together to move the case forward. This is no small feat. The last year of pretrial hearings has been tense at best – a circumstance amped up since the discovery this spring of previously undetected male DNA found on a vaginal swab taken from the youngest of the four victims, 13-year-old Amy Ayers. The DNA, detected by more discrete testing that was unavailable until recently, does not match any of the four victims or any of the original four suspects, two of whom – Michael Scott and Robert Springsteen – are facing retrial for capital murder. (Charges against another suspect, Maurice Pierce, were ultimately dropped for a lack of evidence; the case against a fourth man, Forrest Welborn, dissolved after two grand juries failed to indict him.)
Springsteen and Scott were each tried previously, but their cases were ultimately overturned after the appellate court concluded that the trial judge erred in allowing certain statements into evidence, violating each man’s Sixth Amendment right to confront witnesses – meaning, importantly, that prosecutors will be barred from using that evidence in the same way during retrial. In short, this is trouble for state prosecutors, who don’t have much direct evidence to build their case (no physical evidence links either Scott or Springsteen to the murders) and certainly don’t need the introduction of other unknown DNA to screw them further – but that’s exactly what’s happened. Indeed, Springsteen attorney Joe James Sawyer believes the mystery DNA exonerates his client. The state has been working overtime to figure out to whom the DNA belongs but has had no luck, even after testing the sample against dozens of other people in an attempt to find a match. As such, the tension around the case has been thick, and there’s been little love lost among the attorneys working each side.
But it would appear there has been a reprieve – however modest – in the overall air of animosity. On Oct. 29, the lawyers told Travis Co. District Judge Mike Lynch that they’d come to an agreement concerning how much additional pretrial discovery is left, including what additional DNA testing should be done (tests the defense adamantly insists should be performed using the most current DNA technology). And they’ve actually come to terms on the DNA testing of five or six “alternate suspects” that defense attorneys have been seeking to test in an attempt to finally identify the DNA donor. The names of those alternate suspects have not been made public. Travis Co. Assistant District Attorney Efrain De La Fuente told the court that the state already has biological samples from two of the men but will have to find the others in order to do the testing. Even then, it isn’t clear that those people would be willing to supply a bio sample – and because they haven’t been charged with or indicted for any crime, there remains an “interesting question of legal authority,” said Lynch, as to whether the court would have the power to compel their cooperation. (Undoubtedly this will come up again, likely during the next pretrial hearing, scheduled for Dec. 10.)
While the start of another round of DNA testing means the retrial date will be set back again – certainly until at least February – the comity among the lawyers earned a nod from Lynch. Because he’d “castigated [them] so often” for not working together, he told them it was worth recognizing their efforts at moving things forward. “So, consider yourselves commended for once.”
This article appears in November 7 • 2008.