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Click here for the full text of this decision FACTS:At 11:47 p.m. on the night of Friday, Dec. 6, 1991, firefighters were called to the “I Can’t Believe It’s Yogurt” shop in north Austin. In the back of the burning establishment they found the nude bodies of four teenage girls: 17-year-old Eliza Thomas and Jennifer Harbison, who both worked at the yogurt shop; 15-year-old Sarah Harbison, Jennifer’s sister; and Sarah’s 13-year-old friend, Amy Ayers. All four girls were found dead. All four of the girls had been shot, two had been choked with ligatures, two had been gagged, and one had been sexually assaulted. The girls had obviously been in the middle of their closing-up routine when the killings occurred. Although all four .22 caliber bullets, and a .380 caliber bullet and shell casing, were recovered, the police were never able to match them forensically to any particular weapon. Some $540 was estimated to be missing from the night shift’s business. Eight days after the murders, on Dec. 14, 1991, police arrested 16-year-old Maurice Pierce at Northcross Mall, close to the yogurt shop, for possession of a .22 caliber pistol, along with Pierce’s companion, 15-year-old Forrest Welborn. Police questioned the two about the yogurt shop killings, and the next day they independently questioned Michael Scott and his roommate Robert Springsteen as well. All denied any involvement in the murder. Later forensic testing failed to establish the pistol as the murder weapon. Despite an extensive investigative effort, the crime went unsolved until September 1999, when a cold case task force re-interviewed Michael Scott. After days of interrogation, police obtained an inculpatory written statement. Because there was no forensic evidence tying Scott to the offense, the state’s case depended critically upon convincing the jury that his confession was reliable. Over the course of a six-week guilt phase of trial, the defense team devoted the bulk of its cross-examination and case-in-chief evidence to challenging that reliability. At trial, the prosecutor invited the jurors to resolve any doubt they might otherwise have about the reliability of Scott’s confession by considering how closely it corresponded to Springsteen’s, both in the details of the offense itself, and in other, neutral aspects. He also urged the jury to consider that, unlike with Scott, the interrogating officers “had not suggested answers to Springsteen.” The jury deliberated from 3:34 p.m. on a Friday until 3:15 p.m. the following Sunday before reaching a guilty verdict. On appeal to the 3rd Court of Appeals, Scott challenged the legal and factual sufficiency of the evidence. The 3rd Court rejected these complaints. The 3rd Court recognized that the state predicated its case against Scott on his own statements to the police, since there was no forensic evidence tying Scott to the offense. The 3rd Court acknowledged that there were components of Scott’s statements that did not match up to the crime scene. Nevertheless, the court observed that many of the details of Scott’s account did coincide with the known facts, held that a rational jury could have found him guilty beyond a reasonable doubt, and found that Scott’s jury having found him guilty did not amount to a manifest injustice on the facts of this case. When it later came to consider whether the admission of Springsteen’s statement might have contributed to the jury’s guilty verdict, the CCA found that the 3rd Court seemed “to have discounted the potential problems with the appellant’s statement that might have caused a rational jury to doubt its reliability.” The 3rd Court conceded that Springsteen’s paraphrased statement was “admitted to corroborate [Scott's] statements and thus to rebut [Scott's] defensive claim that his statements were unreliable and untrue.” The 3rd Court nevertheless identified three circumstances that it believed converged to supply the jury, quite apart from Springsteen’s statement, with “overwhelming support [for] a finding that [Scott's] statements are true.” First, the 3rd Court cited the many details in Scott’s statements that corresponded to the physical evidence at the scene. Second, the 3rd Court stressed that it was not until Scott informed investigators where the fire originated that they realized that their original expert’s assessment of the fire’s origin was wrong. Third, the 3rd Court pointed to other evidence that independently corroborated aspects of Scott’s statements. The 3rd Court acknowledged that the prosecutor argued to the jury at some length about the interlocking nature of Scott’s and Springsteen’s statements. But the 3rd Court discounted the significance of this argument, because the state had spent the great majority of its argument emphasizing the other facts that matched Scott’s version of the murders. Thus, the 3rd Court acknowledged that the trial court erred, under the U.S. Supreme Court’s 2004 decision Crawford v. Washington, in admitting the content of the statement into evidence during Scott’s trial, but held the error to be harmless under the constitutional-harm analysis embodied in Rule 44.2(a) of the Texas Rules of Appellate Procedure. HOLDING:The CCA reversed the judgment of the 3rd Court, reversed Scott’s conviction and remanded him to the custody of the Travis County sheriff to answer to the indictment. In determining specifically whether constitutional error under Crawford may be declared harmless beyond a reasonable doubt, the CCA stated that the following factors were relevant: 1. how important was the out-of-court statement to the state’s case; 2. whether the out-of-court statement was cumulative of other evidence; 3. the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and 4. the overall strength of the prosecution’s case. The CCA examined whether there is a reasonable possibility that the Crawford error moved the jury from a state of nonpersuasion to one of persuasion on a particular issue. The CCA stated that ultimately, after considering the four factors, it must be able to declare itself satisfied, to a level of confidence beyond a reasonable doubt, “that the error did not contribute to the conviction” before it could affirm it. But the CCA stated it was unable to achieve that level of confidence that Springsteen’s statement did not contribute to Scott’s conviction. First, the CCA found that “very few of the corroborative details cited by the court of appeals are immune to the appellant’s criticism that they were either suggested to the appellant to varying degrees by the interrogating officers, or were already available to some portion of the public at large as indicated by the accurate details supplied by some of the known false confessors.” Moreover, the CCA stated, “like others who gave known false confessions to the police, the appellant supplied many details that either conflict with, or at least are not corroborative of, the known physical evidence.” The CCA noted that the 3rd Court placed greatest emphasis upon the fact that it was not until Scott’s interrogation that the fire investigators realized that the fire had actually been set on top of the girls’ stacked-up bodies, rather than on a shelf as they had originally thought. The 3rd Court characterized this as the “most critical corroborating fact,” and placed great weight upon it in its harm analysis. But the fact that investigators and experts initially thought that the fire started in two other places “might have led the jury to doubt the corroborative value of the appellant’s account with respect to the fire’s origin, had the appellant’s version of the events not been otherwise corroborated by Springsteen’s confession.” The CCA found that “almost none” of the other corroborating evidence “went unchallenged or unimpeached in one respect or another by the defense.” “We do not mean,” the CCA stated, “to suggest by this that the jury could not rationally have convicted the appellant even absent Springsteen’s statement � quite the contrary. But a constitutional harm analysis does not turn on whether, discounting the erroneously admitted evidence, the remaining evidence was legally sufficient to convict. Instead the question is whether, given the state of the record as a whole, the reviewing court can say, to a level of confidence beyond a reasonable doubt that the erroneously admitted evidence did not contribute to the jury’s verdict.” Especially in view of the prosecutors’ final arguments that stressed the importance of Springsteen’s statement, the CCA could not say beyond a reasonable doubt that Springsteen’s statement did not contribute to the jury’s verdict. Thus, the CCA held that the 3rd Court erred in failing to conclude that there was at least a reasonable possibility that the erroneous admission of Springsteen’s statement moved the jury from a state of nonpersuasion to a state of persuasion with respect to the reliability of Scott’s inculpatory statements, and thus contributed to its verdict. OPINION:Price, J., delivered the opinion of the court, in which Womack, Johnson, Holcomb and Cochran, J.J., joined. DISSENT:Keller, P.J., filed a dissenting opinion in which Meyers, Keasler and Hervey, J.J., joined. “Appellant confessed to the police. He confessed to Amanda Statham. His two exculpatory statements to the police conflicted with each other and with the testimony of another witness. All of his statements, both inculpatory and exculpatory, placed him in the company of Pierce, Springsteen, and Welborn on the day of and around the time of the murders, and statements made by appellant to the police and to Amanda Statham indicate that the other boys were involved in or connected to the crime. Appellant knew the money taken in by the yogurt shop was”dropped’ and that a revolver and a small automatic were used in the crime. December 6, 1991, was a noteworthy day in appellant’s life: he contemplated committing suicide that day, and shortly thereafter, at least two of his close friendships broke down. That appellant tried to mislead the police in his statements and to concede only as much as he thought he could get away with does not create a reasonable doubt about the truthfulness of his admission that he was involved in the murder. I would hold that the error in admitting Springsteen’s statement was harmless beyond a reasonable doubt. I respectfully dissent.”

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