Yogurt shop murder argument still rages

AUSTIN (KXAN) - On the 20th anniversary of the infamous Yogurt Shop murders, careful analysis points to the likelihood of one of two possibilities.

One: Capable and dedicated investigators and prosecutors live with the heartbreaking reality that despite their best efforts, they are, so far, unable to prove beyond a reasonable doubt, the guilt of the men they know did the deed.

The other: A botched crime scene led to a tainted investigation and prosecution that violated the defendants’ constitutional rights, resulting in a case blinded by bias that never even got close to the sociopaths who actually committed the crime.

This much we know: Stung by a Supreme Court decision to throw out separate murder convictions against suspects Robert Springsteen and Michael Scott, the prosecution took another hit when new DNA evidence showed no link to either of those men.

The DNA in question is known as Y-STR. It zeroes in on the Y-chromosome carried by males. In this case, the results found nothing that would put Scott or Springsteen at the site of the crime. Not only that, the testing suggested that someone else, someone completely unknown to investigators, not only was there, but was involved in the rape and murder of the victims.

Now the argument begins: The state says it is doing everything possible to follow the evidentiary trail and arrive at the truth.

A prominent Austin defense attorney who represented Springsteen at trial begs to differ, suggesting that investigators and prosecutors are unable to move forward, because they are blinded by the ‘bias of belief.’

Settle in: It’s a turbulent but fascinating ride.

The belief

When all five members of the Austin Police Department’s “Cold Case” unit told KXAN News they believe Scott and Springsteen are, in fact, guilty, defense attorney Joe James Sawyer was not surprised.

“Of course, every hand in the room went up,” he said. “That is the problem: Belief counters reason. If I 'believe,' I am not so much subject to the power of reason.

“It is one thing to believe someone is guilty; but when you let belief run your investigation, you're going to exclude things that are dissonant with your belief.

“If you think you've got the bad guys, you're going to selectively cull out the things that say, 'We've got the right guys,'" he said.

The confessions

But Efraim de la Fuente, the assistant district attorney who led the prosecution team, points to the proverbial ace in his hand.

“Two of these individuals, Robert Springsteen and Michael Scott gave confessions,” he said, “very compelling confessions, confessions that have been held to have been voluntarily given. Two juries looked at these confessions and came back and said, 'We believe in those confessions.'"

The juries were not alone; appeals courts upheld the confession-based convictions, until, that is, the case reached the U.S. Supreme Court.

“When Robert Springsteen was tried,” Sawyer noted, “only those parts of the confession by Mike Scott that supported Springsteen's confession came into evidence. They were using words because they didn't have evidence. The Supreme Court of the United States had no problem in saying, 'You can't do it that way; that's not just; that's not fair; that violates every Constitutional premise that supports the notion of a fair trial.’”

The DNA

With both convictions overturned, the state still had the upper hand. Both defendants could be retried. Then came the DNA results.

“We're confronted now with this unknown DNA,” de la Fuente said. “So you have to pause and take a step back and look again to see, do you have the right people?”

Right people or not, though, de la Fuente worried about the burden new trials would put on the juries.

“It would be unfair to present this case in the state that it is in now,” he said. “You have confessions, but yet you also have this unknown DNA that came from one of the victims. I think it would be very unfair for any juror to have to sort through and make a decision, even though many believe that the confessions are pretty compelling.”

Still, the Confessions

So what about those confessions?

“They both realized what they had done,” Sawyer said. “That is, that they had given confessions that were patently false.”

Furthermore, the attorney argues, the defendants felt guilty about that.

“Even my client agrees: All the years he spent in prison pale beside what [the victims’] families have gone through. My boy spent four years on death row, but his first concern, believe it or not, was about these little girls and their families.

“As he said to me once, ‘I’m the one who confessed; I got myself into this. I thank God I'm out.’”

Still, the DNA

But if it was the confession question that got Springsteen and Scott out, it was the Y-STR DNA that kept them out.

“It is uncontroverted that these little girls were raped, as well as being executed and burned,” said Sawyer. “There is uncontroverted DNA evidence in the vaginal analysis of the DNA recovered during the autopsy that shows

that the men who committed those rapes were not any of the four boys [originally] accused.

“Now the state, rather than accept the truth of that, for over two years, insisted that it had been tainted, that somehow the DNA from one of the firefighters or a policeman or an attendant had inadvertently contaminated these samples.

“They were dead wrong. They didn't hesitate to test everyone they could find to see if they could use that to disprove the plain truth that stared at them.”

“[This case] was a botch from the beginning. Let me tell you: You talk about disserving those families; that was the most botched major crime scene I have witnessed in 38 years of practicing law.

“This was a multiple murder and to this day, they can't tell you how many people accessed that crime scene. They don't know because they didn't set up a log and they didn't use yellow tape.

”They're trying to atone for their shortcomings by saying, 'Gee, we have confessions. You know, they might look across the country and in the state of Texas and see how many men and women have been released from prison now, despite confessions, because DNA says, 'You got the wrong guy!'

“But we want to believe because it's an article of faith that people don't falsely confess. We cling to that belief no matter how many cases we see where the confessions are false and the evidence tells us it's someone else.”

The Other DNA

And now, Sawyer says, the investigators and prosecutors are blowing a chance to redeem themselves.

“There is still DNA evidence out there that can be developed,” he said. “We have partial chains that tell us: We know it's not the four boys who were accused who left the DNA evidence. But I think if we go further, we can find a full DNA chain.”

Unlike the male-based Y-STR DNA, full chain samples are stored in a huge national data base known as CODIS -- Combined DNA Index System . Armed with such test results, a cross-reference with CODIS could theoretically identify the actual killers.

Sawyer points to a recent case involving the exoneration of Michael Moore, a Williamson County man who spent 25 years in prison for the murder of his wife, before DNA tests on a bandana from the crime scene proved his innocence.

“That is how they caught the guy in Williamson County,” said Sawyer. “They developed the DNA out of the bandana in the Morton case; they accessed the CODIS base, which has DNA from hundreds of thousands of convicted criminals; and they found the [right] guy.

“Increasingly, across this state and across the United States … you get people coming out of prison after serving large parts of their lives, when it needn't have happened.

“But more important: The guilty get away. They float; they're not found.

“In a time when we have this much science available, perhaps what we should do is avoid the muddle by stepping back, recalibrate and say, 'You know what, I don't care who I believe is guilty. Why don't we let the evidence tell us everything it can?

“There is still untested evidence in the yogurt shop case. I find that appalling and inexcusable.”

The DA on the DNA

Travis County District Attorney Rosemary Lehmberg will only talk about the case in general terms.

“What he [Sawyer] forgets,” she argues, “is that this case was started over one time before, at least, which led to these two suspects.

“There is some dispute,” she acknowledged, “between the experts about the results and the way some of their testing was done, but as far as the investigation is concerned, we're obviously still investigating. We're talking to everyone we can, testing and using DNA in every way possible.

“This is such an important case and we have tested everything that's available. It was the follow-up testing that we did that led to the unknown donor at the end, before we dismissed the case.

“We're doing everything possible. We're working with DPS, the experts there, to test everything that we have. We've tested everything that can be tested.”

And yet, Lehmberg, too, has her “beliefs.”

“I'm still confident that they are our primary suspects,” she said. “That's where the evidence leads and so I'm still confident of that. Both of them were convicted at one point in time and I'm still confident that the evidence that was used in the trial leads me to believe that they are the primary suspects.”

It is just that sort of talk that sets Sawyer off.

“It is reason, not faith, that can lead us to the truth,” he almost shouts. “But as long as you have the 'Cold Case' unit and the prosecution telling you that they know who the guilty are, in my opinion, we will never arrive at the truth.

“It is very difficult to say, 'I was wrong,' whether you're a prosecutor or a defense lawyer, especially when you've invested years in one case.

“But if you can't do it, then you're always going to have a case like Morton hanging around. You're always going to have some killer who walks free. You have to regain objectivity. If you don't do it, you'll never get there.

So now what?

“I believe