Recording full interrogations would have saved a lot of grief in Austin's Yogurt Shop case

It's been 17 years since the infamous Yogurt Shop murders rocked the Texas capital, and as time passes it's becoming more difficult to determine where investigators went wrong in building their case against Robert Springsteen and Michael Scott.

But go wrong they did.

A combination of coerced confessions and new DNA evidence appear to be causing their case to crumble. The Austin Statesman's Steven Kreytak reports ("Yogurt defense lawyer lashes out at prosecutors," June 12):

A lawyer for Robert Springsteen, facing retrial in the 1991 Austin yogurt shop slayings of four teenage girls, chided prosecutors Wednesday for failing to disprove his contention that DNA evidence disclosed this year exonerates his client.

Joe James Sawyer spoke outside court after an otherwise uneventful pretrial hearing in the case of Springsteen's co-defendant, Michael Scott, whose lawyers say also is cleared by the DNA evidence.

Both men disavow confessions they gave Austin police in 1999, saying they were coerced. An appeals court threw out their previous convictions, saying Scott's confession was improperly allowed at Springsteen's trial and vice versa.

They stand accused of capital murder in the deaths of Amy Ayers, 13; Eliza Thomas, 17; and sisters Sarah and Jennifer Harbison, 15 and 17. The girls died during a robbery at the I Can't Believe It's Yogurt store near Northcross Mall in North Austin.

In April, prosecutors said that in preparation for the retrials, they ordered new DNA testing of swabs taken from Ayers' body. Prosecutors said previously undiscovered DNA was found and it did not come from Scott, Springsteen or two men initially charged as co-defendants: Forrest Welborn and Maurice Pierce.

Prosecutor Gail Van Winkle said at the time that the discovery does not prove that Scott and Springsteen are innocent and said prosecutors were having testing done to determine the source of the newly discovered DNA.

On Wednesday, she said that testing had not been completed.

Sawyer said they are moving too slow.

"The law has passed them by," Sawyer said, referring to the appeals court rulings.

"The science has surpassed their arguments," he said of the DNA evidence.

False confessions are much more common than most people think, and in this high-profile case they were a particular problem. More than fifty different people confessed to the Yogurt Shop murders! By definition most people who confessed weren't involved. In that context, virtually any confession becomes suspect.

Now that DNA evidence found at the scene failed to match any of the suspects in the state's theory of the crime, the case against Springsteen and Scott appears to be wearing awfully thin, especially since the appellate courts have said they can't use one another's confessions against each other.

The critical piece of evidence in the case - Michael Scott's confession - was videotaped, but only the end result, not the full interrogation which lasted more than 22 hours. The Court of Criminal Appeals later agreed it should be excluded. If the entire interrogation were recorded, we'd either see a coercive situation were the defendant was pressured to confess, or clear evidence the police did the right thing. We wouldn't be wondering after the fact whether coercion took place: We'd know.

I'm learning in a book I'm currently reading, Police Interrogations and American Justice by Richard Leo, that part of the reason false confessions happen is that US police are trained to use an inquisitory instead of an information gathering approach to interrogations like police in other countries. Under the American model, the investigative target is accused of the suspected offense as a routine part of the investigation. Denials are cut off by interrogators, sometimes angrily. Crime details or even false information may be fed to suspects in order to trap them into a lie.

According to Leo, about half of all criminal convictions (45-55%) result from confessions to police. "American detectives assume that the suspects they interrogate will initially lie to them and deny their guilt," he writes. "Detectives assume suspects will lie because it is not in their rational self-interest to provide the state with testimonial evidence that almost certainly will lead to his arrest, prosecution, conviction and incarceration. The modern methods of psychological interrogation have been designed to break down a suspect's denials of guilt by persuading him that he has no meaningful choice under the circumstances but to comply with detectives, and that contrary to all appearances, logic, and common sense he is better off by confessing."

So applying that observation to the current instance, Austin detectives used these inquisitorial techniques to aggressively accuse hundreds of possible suspects during their investigation, in many cases refusing to let them out of the interrogation room for many hours. The questioning was so aggressive that many innocent people threw up their hands and agreed, "I did it." That's how you get dozens more people confessing to a crime than could actually have been involved, as in the Yogurt Shop case.

Remember, if Springsteen and Scott didn't do it, that means the real killers may still be out there.

Recording interrogations helps prevent wrongful convictions and protect officers from false allegations. In most cases it actually helps the prosecution more than the defense, at least when they've accused the right person. Given how cheap recording technology has become, I can see little justification for not routinely recording what happens in police interrogation rooms. Not only does the practice prevent false accusations of coercion or misconduct during questioning, it captures tidbits of information that might be missed if an interrogating officer must write up the event from memory or notes afterward.

It's just impossible to know what went on in the hours before Michael Scott's confession, and that's the main reason these cases appear headed for the rubbish pile.

If the pair is actually innocent, it's taken far too long to figure it out and a tremendous injustice has been done to them. If they're guilty, the failure to record what happened in that interrogation room back in 1999 will most likely be the reason the state can't convict them.