To Hatred Turned (29 page)

The defense team, however, had better luck in their cross-examination of some of the state’s peripheral witnesses.

Lesser, for example, scored points when he got Merle Ward, the longtime friend of Andy’s who sheltered the defendant in the hours immediately preceding his arrest, to admit that the two of them had been smoking marijuana from the time Andy showed up at her house and that her recollection of events may have been influenced by drug intoxication. He also successfully painted Ward’s former roommate, Rebecca Trammell, as a fanciful, adventurous young woman who may have surrendered to hyperbolic style when she composed a written statement about Andy’s visit for investigators.

Trammell was not called as a witness, but Lesser made his point by having the defense trial associate, Jean Bauer, read a sixteen-page statement drafted by Trammell for investigators. It was replete with imaginative descriptions of Andy’s visit, including an aside about how the author of the document was sufficiently worried about Andy’s presence that she took a .38 caliber pistol to bed with her.

“Needless to say, in a fugitive’s reach, sleep was had by none that night,” she wrote. There were other references to how the house felt “eerie” with Andy in it, and unfounded speculation that he may have had ties to organized crime.

To counter the twenty-one-year-old Trammell’s report, Lesser elicited testimony from Ward in which she said she considered Andy anything but threatening. Ward also told how Trammell had volunteered to retrieve Andy’s belongings from a park where he had hidden them just before he knocked on Ward’s door.

Did Ward, Lesser wanted to know, feel that Trammell was being overly dramatic in her allegations to police?

The witness shrugged. “She was just a kid,” said Ward, who was a dozen or more years older.

The first real clash between prosecutors and the defense came on the fifth day of the trial after Judge McDowell ordered a special hearing—a
Jackson
v.
Denno
proceeding, so-called because of a Supreme Court decision setting the law for dealing with the admissability of a confession—to determine if the jury would be allowed to see and hear Andy’s confession, which was on both videotape and audiotape.

This was a critical issue for the defense, probably the most crucial of the trial. Without that confession, the state’s case would be considerably weakened if not demolished. Although Chapman and Hagood had a pistol they claimed they could link to Andy,
and
prove it was the weapon that fired the shots into Rozanne’s head, the prosecutors had no fingerprints from the weapon or from inside the house tying Andy to the scene. They had no eyewitness testimony placing him there, and they could discover no motive for him being there except from what other highly questionable sources had told investigators. If Andy had not confessed and had stuck to the allegations he outlined in the “Chip statement,” it would have boiled down to his word against Chip’s. But that possibility evaporated when Jan Hemphill gave her permission for Andy to be polygraphed.

The defense’s best hope of keeping the confession from the jury was to prove that it was illegally obtained. To do that, they would first try to get Lieutenant Morris McGowan to admit that he acted improperly in pressuring Andy to confess. The hearing began with McGowan taking the stand as a prosecution witness.

McGowan projected the image of a cop’s cop: shrewd, intelligent, experienced, well-spoken, dedicated, and incredibly persistent. He had, after all, doggedly continued the investigation into Rozanne’s murder for more than five years, long after many other homicide investigators in a similar situation would have shoveled the papers into the “unsolved” file and gone on to something else.

Under minimal guidance from Chapman, McGowan related how he worked to build a relationship with Andy and parlayed that into getting Andy—with Hemphill’s permission—to come to Richardson to take a polygraph to determine the veracity of his “Chip statement.”

At that time, McGowan said, he honestly did not believe that Andy had been the triggerman; he only became suspicious when Andy did so poorly on the polygraph. Even after the test showed he was trying to be deceptive, Andy repeated the Chip story. But McGowan got him to change his tune. “I told him I didn’t think he was telling us the entire story,” McGowan drawled.

It was only after the investigator proved to Andy that he knew who Chip was that Andy’s resistance crumbled.

“ ‘Andy,’ ” McGowan testified he told him, “ ‘we can’t go any further until I hear it from your lips. I don’t know if you were in the house, but whatever I need to know the truth.’”

At that point, McGowan said, Andy confessed. Afterward, McGowan added, Andy asked him what was going to happen to him and he told him that he didn’t know.

“It was an emotional time for both of us,” the investigator said softly.

Then Andy asked to call his wife, Becky, saying he wanted to explain to her what he had done.

When the man who had been in the room with McGowan and Andy, Investigator Brent Tourangeau, at the time little more than a rookie, finished testifying (covering basically the same ground as McGowan), Jim Oatman wheeled in a rack with a TV and a VCR. It was time to see the tape itself.

In a courtroom empty except for the judge and the lawyers, Andy’s parents, Rozanne’s father, sister, and her husband, plus a few diehard spectators, mostly courthouse workers dropping in to chart the progress of the trial, Oatman kicked off the tape.

The picture flashed on the screen in full color. It showed Andy sitting calmly at a table dressed in a white prison jumpsuit, smoking a cigarette, and occasionally taking a sip from a can of Coke. As the camera zeroed in, Andy began speaking in a matter-of-fact voice. But as the minutes passed, as he described in gruesome detail how he had attacked Rozanne, his voice got more emotional.

The recording lasted a little more than ten minutes. When it was finished, the courtroom was hushed. Andy stared at his hands and showed no emotion. His mother sobbed on his father’s shoulder. It was a powerful piece of evidence, one which undoubtedly would have a tremendous impact on the jury.

On cross-examination, Lesser was unable to shake the unflappable McGowan. In order to show that the investigator had simply used the polygraph exam as an excuse to get Andy into his web where he could put pressure on him to confess, Lesser would have to get McGowan to admit that he thought that Andy was the killer even before he brought him to Richardson.

McGowan would not do that. Despite persistent questioning, he insisted that his only motive had been to clear Andy as the triggerman.

“I thought Andy had been in the house, but I didn’t think he was the killer,” McGowan said.

“How about after the polygraph?” Lesser asked.

McGowan nodded slightly. “After the test,” he said dryly, “I thought his involvement was greater than he had led me to believe.”

The day ended inconclusively as far as the admissibility of the confession was concerned. The next day, in a last-ditch attempt to keep the statement away from the jury, the defense planned to call Jan Hemphill. It was not a task that Lesser and Mitchell relished.

30

On February 3, day six of the trial, defense lawyer-turned-judge Jan Hemphill made the first of what would be several appearances in Judge McDowell’s courtroom, all of them outside the jury’s presence.

A blocky, middle-aged woman with a puckish sense of humor and a Gary Cooper complex that seemingly prohibited her from answering any question in more than two words, Hemphill calmly took her seat in the witness chair, a strange position for her since she was more accustomed to looking down on that spot from her perch behind the bench.

It was a delicate situation for Lesser. If he was going to help Andy, he was going to have to attack not only a former colleague for whom he had tremendous respect but also a sitting judge before whom he might one day have to appear. Not only did he have to attack her but he had to try to demonstrate that she had acted incompetently when she represented Andy. Still, he and Mitchell knew that if anything would sink Andy, it would be the confession, a confession he made on Hemphill’s watch.

In a strong voice, Hemphill forthrightly admitted that she blundered. “I didn’t expect the man to make a confession,” she answered, adding in a steady voice that she blamed herself for abandoning him. “It was a big mistake,” she conceded. “I should have been there.”

Why had she let him go alone? Lesser asked.

“I was convinced he would pass the test,” Hemphill replied. “It was a big mistake,” she repeated. “Even if he had passed, it was still a big mistake.”

However, she said she did not blame Hagood and Chapman for misleading her about McGowan’s plans for Andy. Perhaps, she conceded, they should have called her after the polygraph and before initiating an interrogation, but she had not given them specific instruction beforehand on what to do in such an eventuality. “I did not say, ‘Now don’t take a confession from him,’ ” she admitted. On the other hand, she added, neither had she given permission for an interrogation.

When Hemphill finished, the defense said it had two requests of Judge McDowell: 1. To not let the jury see or hear Andy’s confession. 2. Barring that, to allow Hemphill to testify before the jury about how that confession had been obtained.

McDowell pondered the pleas. Even at such an early stage of the trial, he already was exhibiting a pronounced tendency to rule in favor of the prosecution on the close calls. He had made it clear from the beginning that he was not going to allow the defense to introduce details about Joy Aylor, that he regarded Andy’s and Joy’s cases as distinctly separate and to waver in that respect would be to open a Pandora’s box that would totally confuse the jury and possibly result in a mistrial. He took the same position in connection with the defense requests surrounding the confession. He apparently felt that he had to hold the line on what the jury could or could not consider because to do otherwise would obfuscate the issues and pave the way to disaster. In that frame of mind, McDowell rejected both entreaties.

It was a double blow for the defense. While Mitchell and Lesser would have celebrated a McDowell decision prohibiting the introduction of the confession as a major victory, they felt it would have been a good consolation prize for the judge to allow the jury to listen to Hemphill’s story. When McDowell announced that he was denying both, Mitchell’s and Lesser’s spirits plummeted. The trial had more or less just started and they had not even begun their case, but already the defense attorneys felt they were fighting an uphill battle.

Shaking off their disappointment, they told each other that they still had some cards to play. Jurors had not yet heard from McGowan because they were excluded from the
Jackson
v.
Denno
hearing. Mitchell hoped they could regain some ground by ruthlessly cross-examining the detective in front of the panel. However, that opportunity did not come until February 5, day eight of the trial, and it again proved a frustrating experience for the defense.

If Lesser and Mitchell had their way, the trial would be as much about police procedures, botched evidence, and leads that were not followed up as it would be about Andy Hopper. They would never try to claim that Andy did not shoot Rozanne, but they
would
try to create a major doubt about whether it was the bullet wounds that actually killed her. The trial, as much as the defense could make it, would be about Morris McGowan, Dr. Peter Gailiunas, Thorazine, and, hovering in the background like an unutterable entity, Joy Aylor.

The defense’s first major effort to broaden the scope of the proceedings came when McGowan was seated before the jury. By then, the prosecution strategy seemed clear: Zero in on a theme, keep the focus as narrow as possible, stick to it with aggressive singlemindedness, and divulge as little as possible to the defense. And nowhere was this approach articulated better than through the star witness of the district attorney’s office’s, Detective McGowan.

On direct examination, in response to softball questions lobbed to him by Chapman, the detective repeated essentially the same story he had told at the
Jackson
v.
Denno
hearing about following the trail to Andy, his arrest and subsequent collapse. But the real test for the witness came on cross-examination.

Remaining polite, the investigator nevertheless was contrary to the defense. He was never openly antagonistic, but his attitude was clear in the way he answered Lesser’s questions. After awhile it seemed to become something of a game. If Lesser asked a question in exactly the right way, using the precise wording that the detective had determined was necessary to prompt a response, McGowan would answer positively. If the defense attorney did not hit upon the correct code, the response was negative.

For example, at one point Lesser was trying to learn from McGowan how the detective had gotten information about Andy’s presence at Merle Ward’s house. Lesser had a good idea that Andy had been betrayed by his, Andy’s, telephone call to his girlfriend, Shelley Zachary, but he wanted to make sure.

The defense attorney began by asking McGowan how many wiretaps he had used. McGowan said he had not used any, which prompted a series of questions from Lesser designed to see if some agency other than Richardson PD had used wiretaps. When that drew a string of negative answers, Lesser wanted to know how many wiretaps had been sought, even if they had not been used. That led to a deadend as well. Some fifteen minutes later, however, Lesser was able to wring from McGowan that the information had not come from a telephone
tap
but from a
trap
. The difference in the two, as explained by McGowan, was that a wiretap permitted someone to listen to a conversation while a trap merely recorded the numbers of the calling parties.