CHAPTER 63
Wednesday, May 23, 2001
Robert Springsteen’s defense began. First up on the witness stand was Hector Polanco. Instead of going after Polanco, however, Joe James Sawyer practically handled him with kid gloves.
“You have never used coercion, threats, duress of any kind to achieve any of the hundreds of confessions you have developed during the time you were in homicide, did you, ever?” asked Sawyer.
“I’ve been accused of it, but no. I say no.”
“You never so much as carried a gun when you talked to anyone, did you?”
“No, I never carried a gun.”
Sawyer asked Polanco about a false confession in 1989 where a husband confessed to killing his wife and burying her body in their yard, even though he, very obviously, had not done so. An objection by prosecutor Robert Smith led to a bench conference with the judge and the two attorneys. In pretrial hearings, Judge Lynch granted two false confessions related to the yogurt shop case for the defense. Those were from Alex Briones and Shawn Smith.
“I’m not going to allow any more specific instances if they don’t in any way relate to this case. I think if you ask him generally if people confess to things they didn’t do . . . that’s probably proper,” stated Judge Lynch. “[If you] try to drag in more dead fish like this other than the dead fish I’ve allowed you to drag in, I think, is abusing my broad ruling.”
“I’m not going to go over the dead fish limit,” replied Sawyer.
Something stank to Judge Lynch. He sensed Sawyer was trying to get at the Christopher Ochoa case.
“I’m not cracking the door to Ochoa,” the judge declared, referring to the Austin Pizza Hut murder case of 1988. Twenty-year-old mother and Pizza Hut employee Nancy DePriest was attacked while opening up the restaurant. She was raped and shot in the head. The crime scene was virtually evidence free. No gun. No witnesses.
Despite the lack of evidence, the case was closed quickly. Hector Polanco wrangled murder confessions from two young men, Christopher Ochoa and Richard Danzinger. Apparently, Ochoa ratted out Danzinger because he claimed Polanco threatened him with the death penalty. He believed the only way to save his own life was to implicate his friend.
Eight years after DePriest’s murder, a young man by the name of Achim Josef Marino found God while in prison for robbery and sexual assault. He decided to put pen to paper and confess to another crime.
The murder of Nancy DePriest.
He mailed it to Austin police.
Marino also mailed a confession letter to Governor George W. Bush wherein he informed him, “You are legally and morally obligated to contact Danzinger and Ochoa’s attorneys.”
No one responded to the letters.
Finally someone did. A subsequent search of Marino’s residence found the gun used to kill DePriest.
Ochoa claimed he feared for his life when questioned by Polanco. He also claimed the officer fed him the details of the DePriest crime scene.
“They’re not my lies,” declared Ochoa. “They’re his.”
The conference ended and Sawyer returned to question the witness.
“No matter what safeguards you take, people will . . . falsely confess?”
“Yes, sir.”
Sawyer asked about leaks early on in the yogurt shop case. Polanco admitted there were suspicions amongst the ranks that holdback information was being leaked. As a result, Sawyer believed the majority of confessions could be considered tainted because so much information was available to the public. He mentioned that more than sixty teenagers who hung out at Northcross Mall were brought in for questioning within a week or two of the murders.
Sawyer cited one source of the leaks as possibly an emergency medical technician who worked the crime scene. He also expressed concern about the local news reporters who were in tow with Sergeant John Jones.
“Did their presence hamper and impede the investigation or did it help?” asked Sawyer.
“My personal opinion, it hampered us.”
Sawyer focused on the false confessions from Smith and Briones. “Both of these men wound up confessing to this crime, didn’t they?”
“Yes, sir.”
“And the one thing that you and I know . . . is that neither one of them committed this crime.”
“That’s correct.”
Sawyer also pressed Polanco on the handling of the yogurt shop crime scene by Jones. “If that crime scene had been handled differently, this would have been a very different case, wouldn’t it?”
“In my opinion, it would have.”
Next up on the defense witness list was Sergeant John Jones.
“Sergeant Jones,” Sawyer asked, “if you were running this crime scene today, would you handle things differently?”
“There might be certain aspects,” the officer calmly replied.
“Which aspects would you handle differently, and why?”
“We have our own crime scene team now. Hopefully, they would have been out there a lot quicker.” He added, “We have our own PIO now.”
“What is a PIO?”
“Public information officer. When this incident went down, we didn’t have a PIO. So, in addition to trying to make sure the scene got investigated, we are also charged with putting out information for the public.”
“Anything else you would have handled differently?”
“I don’t think so. In my opinion, a crime scene like that comes along once in a lifetime. There is really no way to prepare for it.”
“If it’s a once-in-a-lifetime crime, don’t you think it’s worth making every effort?”
“Yes, sir, and that’s what we did.”
“Would you try today to limit the number of people going in and out?”
“That was an unusual crime scene, sir. Everyone that was in that crime scene had a purpose.”
Sawyer shifted gears and focused on the holdback information that had been leaked. He talked about how people were able to recite back supposed concealed information. “This began making a real problem in trying to solve this case, didn’t it?”
“No, sir, not once we realized that. We actually turned that to our advantage,” Jones stated.
“You think it was an advantage that it took ten years to solve it?”
“No, sir. Your question was about the information getting out.”
After that snippy exchange, Sawyer asked about the four suspects. “You took in both Forrest Welborn and Maurice Pierce as possible suspects and you wound up clearing both in this case, didn’t you?”
“No, sir, we inactivated them. We would get to a point with a potential suspect where we just couldn’t go further with them and we had to inactivate them.... Maurice fit into that category, and so did Forrest.”
“Mr. Springsteen was considered nothing but a witness?”
“Yes, sir. He was named by Maurice as being involved, so we had to check it out. But at the time, we ran into a dead end on him.”
“And a dead end on Michael Scott as well?”
“Yes, sir.”
Prosecutor Robert Smith focused on the holdback information during his cross. “At the time the autopsies were conducted, were certain steps taken to edit the autopsies . . . to keep certain facts from becoming public?”
“Yes, sir.”
“And, in fact, there have been several court battles fought over keeping that information secret?”
“Yes, there were.”
“Is it true that the police never released the caliber of a .380 to the media?”
“That’s true.”
“And they have never released the distance the shooter would have been from the victims?”
“That’s correct.”
“And they have never released what it was that the victims were bound with?”
“That’s correct.”
At the end of the day, the prosecution asked that Sawyer refrain from making any more on-camera interviews.
“Mr. Sawyer, have you been making on-camera interviews again?” asked Judge Lynch.
“But not about the case,” responded Sawyer.
“About McDuff,” interjected Darla Davis. “You told him in chambers not to give any more interviews. I just don’t want my McDuff stuff walking out the door.”
CHAPTER 64
Thursday, May 24, 2001
The day started off on a bad note. Once again, the elevators in the Blackwell-Thurman Criminal Justice Center were experiencing difficulties. After welcoming the jurors back into the courtroom, Judge Lynch said, “I understand that our multimillion-dollar building and multimillion-dollar elevators . . . still are not working properly.
“A couple of months ago, we had a prosecutor in my court that left here one day with some witnesses and pushed the elevator button and the door opened and there was no elevator there,” Judge Lynch recalled. “It was a floor or so below. We reported that to the company, of course, immediately, and the company wrote us a nice letter saying it was impossible, and she really didn’t see what she said she saw. We may call on some of you as witnesses, since you have had bad experiences with the elevators as well.”
It was an apt metaphor for the current stage of the trial.
The next stage reverted back to an earlier stage—fire.
The defense hoped Gerald Hurst would take a hot poker to the analyses of the origin of the yogurt shop fire as presented by Melvin Stahl and Marshall Littleton. Hurst, a scientist who worked as a consultant for the military and corporations in regard to the use of incendiary devices, came to the same conclusion originally posited by Melvin Stahl. He believed the evidence showed the fire probably started on the shelves and not on top of the girls.
Joe James Sawyer asked Hurst, “You agree with Stahl’s conclusions he drew in the hours following the fire actually happening, don’t you, Doctor?”
“Yes, I do.”
“Do you believe that the observations he made and the conclusions that he drew on-site that day using his eyes, his nose, and his training are supported in everything that you have seen in all of the data that we have been provided?”
“Yes.”
“In all probability, I take it you agree with Stahl that the fire, its ignition point, was probably one of the shelves three feet off of the ground?”
“Yes, on one of the shelves.”
“And we don’t know whether it was the left or the right shelf as we face the shelves, do we?”
“No, we don’t.”
“All that we know in looking at the evidence on the shelves is where the greatest intensity of burn happened. We can establish that, can’t we?”
“Yes, we can establish that.”
“But in terms of ignition point, it could have been paper goods to the right, paper goods to the left. It could have been a polystyrene cup?”
“Could have been both.”
Hurst described the fire as “a very intense, short fire.” He was also certain of the fuel load that caused the fire. Hurst believed the intensity of the burn was due to the polystyrene from the little Styrofoam coffee cups.
“I would estimate that the fire burned intensely probably no longer than about three minutes,” continued Hurst. “It could have reached a stage of intensity high enough to do the damage you have seen in a minute-and-a-half or less.”
“Going back just a moment to Mr. Littleton’s fire,” posed Sawyer, “(i)f an accelerant had been used to start the fire, would you have expected there to be some physical evidence that would have been observable by someone immediately after the fire to support the notion that an accelerant, let’s say lighter fluid, had been used?”
“Yes. That’s the first thing an investigator looks for is evidence of a liquid accelerant.”
“For example, as Stahl said, you would be able to smell the presence of the accelerant if you were there that quickly?”
“Yes. The first thing an investigator does is use his nose to see if he’s getting an aroma of a hydrocarbon, a mixture of some sort.”
“In this particular fire, the physical evidence supports the fuel load being in the shelves. The destruction of the shelves themselves supports the intensity of the fire, doesn’t it, Doctor?”
“Yes.”
On cross-examination, prosecutor Efrain de la Fuente pointed out that Hurst was not a certified arson investigator. The prosecutor also asked Hurst about the fees he charged for his services.
“What is your hourly fee?”
“Well, my hourly fee when I bill in civil cases is two hundred dollars an hour.”
“And in a criminal case, sir, how much is your hourly rate?”
“It varies. Usually the defendant has no money, so I usually wind up doing it for free. If I’m ever lucky enough to get a multimillionaire, I’ll charge the heck out of it.”
“So, are you working for free?”
“I don’t know. I haven’t been paid anything and I really don’t know.”
De la Fuente chose to travel down a different path. “Let’s assume for a minute that the fire did, in fact, start on the bodies. My question to you, sir, is, is it possible in your expert opinion that if, in fact, the fires started on the bodies that the fire—and we know that fire travels up and out—could have, in fact, hit the shelves, ignited the items on the shelves, ignited the entire thing on the shelves, gone all the way to the corner, causing some great damage over there—ignite the ceiling, go across, hit the ladder, come down, and get your lines of demarcation? Is that, in your expert opinion, possible?”
“Oh sure. It’s also possible that the fire started by a meteorite strike. But if you are just going to deal in possibilities, you will get a yes out of me every time.”
“Was there a strike that night? Do you know?” asked the annoyed prosecutor.
“I don’t think so. It’s highly improbable.”
“All right. I just want to make sure we are on the same sheet of music here, Dr. Hurst.”
Hurst described how he believed Marshall Littleton ascribed the origin of the fire so it would be beneficial to the prosecution. He claimed he, on the other hand, merely sought out the truth.
“And the best person to ask as to how the fire started would be the person who started the fire,” claimed de la Fuente.
“That’s hard to say. People who start fires tend to lie a lot.”
“But that would be a good source of ”—de la Fuente stopped himself—“well, yeah, I guess you would be right on that. But that would be a good source to start with, wouldn’t it?”
“Maybe under Sodium Pentothal.”
Hurst also testified he did not believe the fire started on top of the girls and Jennifer Harbison’s body rolled off the pile, into the shelves, and ignited the items on the shelves. “I haven’t seen any evidence that she rolled off anything. I think she was lying in the same position at the origin of the fire.”
“Let me ask you a common-sense question here,” said de la Fuente. “If I had a pile of clothes here and a pile of clothes back there and I wanted to get rid of these pile of clothes over here in front of you by burning it, where would I start my fire?”
“Well, there isn’t any good way to start the fire you’re talking about. A pile of clothes doesn’t burn worth a damn.”