To Hatred Turned (30 page)

The jury eventually learned what Lesser was trying to elicit, but McGowan’s apparent obstinacy gave the impression that the detective was deliberately trying to be evasive. This impression was bolstered by Lesser’s fruitless attempts to get McGowan to reveal to the jury the details regarding the investigation culminating in Andy’s arrest. The usual way of learning about the progression would be to induce McGowan to read from notes he had made at different stages of the inquiry. But that avenue was closed off very early when McGowan confessed that he had made virtually no notes, and those that he had taken had long ago been incorporated into a formal statement and the originals destroyed.

Lesser also was frustrated in getting details on the investigation by McGowan’s refusal—backed vigorously by repeated objections from Chapman and Hagood—to reveal what any investigators working under him had uncovered. Even though McGowan had been in charge of the investigation, he refused to reveal any information he did not develop on his own, seeking refuge in the contention that anything told to him by anyone else was hearsay, and thus safe from disclosure. If the purpose of this stance was to prevent the defense from learning any more than absolutely necessary, it proved amazingly effective.

The basis of the prosecution’s objections was that the defense was trying to obtain information to which it was not legally entitled, that is, investigatory reports. Judge McDowell repeatedly sustained Chapman’s and Hagood’s protests, effectively slamming that door on the defense. Although the prosecutors were successful in keeping the information from being disclosed, they were risking a backlash from the jury, some of whose members might look upon the prosecution’s complaints as an attempt to hide or cover up information that would tend to point a finger at anyone but Andy. Chapman and Hagood did not stand to gain by coming across as if they were interested in convicting Andy at any cost and had no tolerance for conflicting details.

Lesser had begun his cross-examination of McGowan on Wednesday morning, February 5. He did not finish until Friday morning. The questions about the search for Andy took up only part of the time because Lesser and Mitchell were interested in a much broader view of the investigation. What they wanted to do was make the jurors question the entire process by trying to show that Richardson police, acting in concert with Chapman and Hagood, had taken a wrong step early on and that had led them down a false path. While the prosecution’s trail to the end of the chain that led to Rozanne ended with Andy, Lesser and Mitchell contended that the true path should have been in another direction, that there were enough warning flags along the way to have alerted investigators to the fact that the conclusion was not as simple as they wanted the jury to believe.

One thing the defense hoped to accomplish by grilling McGowan so thoroughly was to get the jury thinking about the possibility that the investigator had been too quick to reject Rozanne’s estranged husband as a suspect, or ignored him altogether when the trail to the attacker diverged toward Andy. They also wanted to plant in the jurors’ minds the possibility that Andy might not have been involved in the attack on Rozanne at all despite the confession, but even if he had, he may not have acted alone, as the prosecution wanted them to believe. Finally, they wanted the jury to begin thinking that McGowan acted improperly in pumping Andy to confess.

Needless to say, these were not ideas that the prosecution was interested in seeing promulgated. If Lesser and Mitchell thought the going was tough in extracting details about how investigators tracked Andy, it was easy compared to attempts to drag other details out of McGowan. As soon as Lesser mentioned Gailiunas, for example, the prosecution tried to shut down the questioning completely.

After attacking from several angles in an attempt to find a way around prosecution objections, Lesser eventually was able to pry from McGowan an admission that the detective had, for a long time, considered the possibility that the doctor had been the perpetrator, although the detective had eventually eliminated him as a suspect.

As soon as he saw which way Lesser was moving, Chapman tried to deflect the defense questions, arguing that McGowan had no personal knowledge of Gailiunas’s involvement and that interviews with the doctor had been conducted largely by McGowan’s subordinates, therefore were safe from disclosure under the hearsay rule.

Probing as diligently as a dentist performing a root canal, Lesser found a small hole in this argument by resorting to lawyerly tricks. Rather than asking McGowan what his investigators had told him about Gailiunas, Lesser asked the detective what conclusions he himself had drawn from what they had told him.

“What was your
state of mind
about him being a suspect?” Lesser wanted to know.

Judge McDowell let the question pass.

“He was,” McGowan replied taciturnly.

“Why?” Lesser asked, touching off a hearsay objection from Chapman.

McDowell sustained it, forcing Lesser to take another tack.

“Was Peter Gailiunas living with Rozanne?” he tried, searching for a way to get the detective to testify about his personal contact with Gailiunas.

“He was not,” McGowan replied.

“Did you have a conversation with Peter Gailiunas that night?”

“Yes.”

“How did he appear?”

“He was acting upset.”

“What did he say?”

“He said he was her husband.”

“Did
you
feel that the attacker had been her husband?”

“I never completely ruled him out.”

“Why?”

“I felt he had the most motive,” McGowan said. “They were estranged and his wife was seeing another man.” For McGowan, it was a remarkably loquacious reply.

Step by step, Lesser also was able to get McGowan to admit that Gailiunas did not have an alibi for part of the time period during which Rozanne must have been attacked, that Larry Aylor evidenced his own suspicions about Gailiunas when, soon after he was notified of the incident, he blurted to McGowan, “The doctor did it,” and that he had never completely rejected Gailiunas as a suspect until Andy came along.

Lesser also scored points supporting his contentions about Gailiunas as a neglected suspect when he got the detective to admit that he had paid little attention to the fact that Thorazine had been found in Rozanne’s system. McGowan said he did not learn this until 1985, two years after Rozanne’s death, when he got the news from a Massachusetts investigator looking into details of the killing on behalf of Rozanne’s family.

“Did the fact that Thorazine was found in her system surprise you?” Lesser asked.

“No sir,” McGowan answered.

“Do you have any explanation for how it got in her body?” Lesser asked.

“No sir,” McGowan replied, effectively ending
that
attempt.

31

Searching for a weak spot, Lesser bore down on Detective McGowan about his actions leading to Andy’s confession. Lesser insisted that the detective relate how he had tried to present himself to Andy as a sympathetic soul, the helpful half of the legendary good-cop/bad-cop team that historically has proven so effective in breaking down a criminal’s defenses.

McGowan admitted that he had, under the guise of trying to find out if a lawyer had yet been appointed to defend him, telephoned Andy during the Christmas holidays in an attempt to get Andy thinking about him as the good cop.

“You were trying,” Lesser said, “to ingratiate yourself with the prisoner so you could get his confidence?”

“Yes sir,” McGowan acknowledged.

From then until the time Andy admitted attacking Rozanne, Lesser contended, McGowan did everything he could to break down the prisoner’s resistance, including skillfully manipulating the situation so that Andy was deprived of his lawyer when he needed her the most.

McGowan answered noncommittally.

Once he had him in the interrogation room, Lesser continued, it was simply a matter of applying enough pressure. “You were trying awfully hard to get him to make an admission,” Lesser said accusingly.

“Of his involvement, yes sir,” McGowan replied politely, adding that he did not feel obligated at that stage to suggest to Andy that he call his attorney. He had already read Andy his rights, which included telling him that he could call an attorney. In addition, he added, he had not regarded Andy’s statement that he would like time to think about the situation as a request to stop the questioning, as is required under the Miranda rulings. As far as Jan Hemphill went, McGowan candidly admitted that he had not expected her to let him get as far as he had with her client.

“Is it fair to say that if the man had an attorney present, these things may have turned out differently? That you may not have gotten the statement that you did?” Lesser asked.

“That’s correct,” McGowan replied.

Before winding up his cross-examination, Lesser—despite Judge McDowell’s edict against bringing Joy Aylor into the Hopper trial—managed to open the door a crack by asking the Richardson detective how he had first learned about Brian Kreafle, who allegedly had given Andy the envelope that contained the money to kill Rozanne.

As soon as he moved into that area, Hagood was on his feet objecting to the jury being allowed to hear testimony that was irrelevant to whether Andy had killed Rozanne.

Judge McDowell gritted his teeth, angry at the backdoor attempt to slip Joy into the proceedings. He knew that he eventually would be presiding at Joy’s trial and he did not want anything in Andy’s trial to taint that process in advance. Reluctantly, he ordered the jury out of the room while he and the lawyers hashed out which, if any, questions Lesser would be allowed to repeat in front of the jury.

With the courtroom empty of everyone except trial participants and a handful of spectators, McGowan testified that he got Kreafle’s name from Carol Garland, who, in turn, led him to Bill Garland.

What, exactly, did Carol say about Bill Garland’s possible involvement in the attack on Rozanne? Lesser asked.

“She kept saying that ‘
they
’ killed Rozanne,” McGowan replied. “She assumed ‘
they
’ included Bill Garland.”

Judge McDowell interrupted. “I don’t think Bill Garland has anything to do with this trial unless he was the killer,” he commented.

This time it was Mitchell who was on his feet.

“Your honor,” he said, “we believe that Carol will testify that Bill told her that
he
killed Rozanne and that Andy Hopper was a sacrificial lamb.”

“But he didn’t tell
Detective McGowan
that,” the judge pointed out. “Bill Garland’s involvement in this trial is irrelevant unless he said he did it.” Turning to McGowan, he asked: “Did Garland say he did it?”

“No sir,” the detective answered.

Frustrated by what he considered the judge’s decision to go along with the prosecution’s attempt to keep the jury from hearing any evidence that Rozanne may have been killed by Bill Garland, or by Garland and someone else, rather than by Andy, Mitchell argued angrily. “What I’m hearing,” he said loudly, “is that the court doesn’t care how the crime was committed.”

Judge McDowell struggled to keep his temper. “The jury is trying to focus, as I am,” he said coldly, “on Andy’s guilt or innocence. I’ll sustain any objection about whatever Bill Garland told Lieutenant McGowan.”

To soothe the defense somewhat, the judge gave Mitchell the opportunity to make what is called in legal terms an Offer of Proof, which basically was a statement outlining what testimony the defense would
expect
to elicit from a witness if it had the chance.

Conceding that he was operating strictly from supposition, Mitchell hesitated only slightly before launching into the defense theory. He had never talked to Bill Garland, he explained, and he had never seen any statement Garland had made to investigators. But from what he had been able to piece together from scraps of what he knew of Carol’s statements, Mitchell said he “believed” that Garland would say, if forced to testify under oath, that he was present at the time of the attack on Rozanne, that he had been the one who shot her, and that he later disposed of the weapon by tossing it into a lake. He also believed that Garland would testify that Andy was not there when the attack occurred.

“Our position,” Mitchell continued, “is that Bill Garland admitted it, that Brian Kreafle was involved, and that all have made deals with the government” to keep from coming to trial. “They’re all out on low bonds and they haven’t had a court date set for two years,” he added.

Judge McDowell shook his head. “All I have right now is a theory.”

Mitchell persisted. “The court is prohibiting the defendant from getting a fair trial. It’s an issue that they lied about the involvement of Andy, that the evidence that led to Andy is a product of lying by others. The evidence we have is that Bill Garland and Brian Kreafle are parties to the crime.”

The jury never got to hear this argument, although several days later both Bill and Carol Garland made cameo appearances in a juryless courtroom. They were called during the first week that McDowell had given the jurors off. When the formerly married couple showed up, each was accompanied by an attorney.