To Hatred Turned (32 page)

Getting impatient, Judge McDowell took over the questioning. Did your ex-husband ever tell you “directly” that he killed Rozanne Gailiunas? the judge asked.

“No,” Carol responded firmly, “it was always ‘we’ or ‘they.’”

McDowell nodded sagely. As far as he was concerned, that negated the value of her testimony.

“He never said distinctly that he killed her?” the judge repeated, seeking to make sure that door was closed.

“No,” she replied.

Turning toward the lawyers, McDowell explained that he had two reservations about allowing Carol to testify. “One,” he said, “Garland never said he did it. Two, I have a problem with trying to corroborate anything she has to say.”

That was good enough for Hagood and Chapman. Taking his cue from the judge, Chapman objected to any further questioning of Carol on grounds that anything else she had to say was hearsay and, additionally, was irrelevant to the charges against Andy.

To Mitchell, however, Carol’s use of the word “we” in quoting her ex-husband was significant. “The fact that Bill Garland said ‘we’ makes him a participant and we think that is an exception to the hearsay rule,” he argued. “Plus, what she has to say is definitely relevant.”

McDowell was unmoved and was ready to dismiss her when Lesser slipped in one more question. Did her husband ever mention the name Andy Hopper, he asked.

Carol looked blank for a moment. “I think that’s a name they gave me,” she said, obviously referring to investigators.

Judge McDowell rolled his eyes. With the clock moving rapidly toward noon, the judge abruptly cut off debate. He would not allow the jury to hear from Carol at that time, he decided, adding that she could always be recalled after she returned from Asia.

It was another costly defeat for the defense, which had been relying heavily on Carol’s testimony to create doubt among the jurors and make them question the validity of the state’s clear-cut contention that Andy alone was involved in Rozanne’s death.

In a near parody of the Fifth Amendment claims raised by Garland and Carol, Carl Noska was the next to raise the specter of self-incrimination.

A cabinetmaker who allegedly was the initial go-between linking Garland with Joy, Noska showed up in response to a defense subpoena with his own newly hired lawyer, who promptly announced that Noska also would be seeking protection under the Fifth Amendment.

“How can he get up and say he’s taking the Fifth just because he’s a witness?” asked an outraged Mitchell. “He hasn’t even been indicted.”

“I’m inclined to let him take the Fifth if there’s any hint that what he’s going to say is self-incriminating,” said Judge McDowell, dealing the defense another blow.

“We believe that he knows Joy Aylor,” Mitchell said hurriedly, as if afraid either the prosecution or the judge was going to cut him off. The defense also believed, he added, that Noska would testify that Joy had asked him to help her find a “scary-looking” man to “take care of something” for her. The person Noska allegedly turned to, Mitchell claimed, was Bill Garland, who had a shop next to his. The arrangement between Garland and Joy allegedly led to Brian Kreafle, who in turn led to Andy Hopper. It was Noska, Mitchell was arguing, who was at the beginning of the chain, even above Bill Garland, and because of his position, what he had to say was important to Andy’s fate.

“We believe this could be testified to without endangering his Fifth Amendment privilege,” Mitchell said. “We don’t believe he is the subject of an investigation or that he is likely to be indicted.”

McDowell, obviously unimpressed by Mitchell’s argument, decided to honor Noska’s claim to Fifth Amendment rights. However, he kept defense hopes barely alive by promising to do additional research on the subject, adding that if he changed his mind, he would let Mitchell and Lesser question him.

It had not been a good day for the defense. Mitchell and Lesser had been thwarted at every turn with no one upon whom they could take out their frustration. For the two lawyers, especially the pugnacious Lesser, it was a sobering experience.

In some respects, policemen and lawyers are similar, especially when it comes to digging information out of reluctant witnesses. Defense lawyers, particularly, have to be adept at this procedure. When there are two defense lawyers involved in a case they frequently adopt the good-cop/bad-cop ploy, thus becoming a good-lawyer/bad-lawyer team. However, this did not hold for Lesser and Mitchell. Instead, they adopted a stance under which each was aggressive. Rather than “good” and “bad,” they became “mean” and “meaner.” Sometimes, too, it was hard to tell who was who. Although Lesser did most of the cross-examination and had to wear the “mean” mantle when it came to asking incisive and embarrassing questions, Mitchell donned the “meaner” cap when it came time to throw barbs at the prosecutors or to try to push the judge into making a reversible legal error. They tread a fine line, which is what a good defense team was supposed to do.

Most people familiar with the Hopper case felt that it would be an easy victory for the district attorney’s office. But once testimony got under way, the defense skillfully extracted statements that chipped away at the prosecution. Lesser and Mitchell had shown particular aggressiveness in attempting to introduce an element of doubt about Andy’s culpability, an issue the defense hoped the jurors would remember when it came time to debate his guilt or innocence.

Being realists, they knew that after the confession was played for the jury, they had virtually no hope of getting their client acquitted. But if they could get jurors to believe that he had not acted alone in causing Rozanne Gailiunas’s death—
and
if they could get Judge McDowell to give jurors an option when it came time for them to begin their deliberations—they might be able to save Andy from execution. As far as Mitchell and Lesser were concerned, a life sentence for Andy would be a victory.

At this stage of the trial, this did not yet seem an impossible goal. They felt they had done fairly well in discrediting several prosecution witnesses, particularly Detective McGowan, and they had not yet even started to lay their own case before the jury. The judge’s decisions involving the testimony of Bill and Carol Garland and Carl Noska had hurt—but not nearly as much, admittedly, as McDowell’s decision to let the jury hear Andy’s confession and his refusal to let Jan Hemphill testify. To recoup, they were going to have to make a lot of points with their own medical expert and with two hostile witnesses they figured would be important to their case: Dr. Peter Gailiunas and Larry Aylor.

But there were other factors at work in the courtroom that had nothing to do with the testimony of witnesses. And in the long run, these factors might be just as important.

33

By this time, with the trial at the halfway point in the guilt/innocence phase, the proceeding was beginning to take on its own unique character. And, in this instance, there were some disturbing undertones. Whenever the jury was present, the opposing lawyers gave little hint of the animosity that existed among them. But when the jury was absent, the lawyers seemed strained to maintain an appearance of cordiality and respect. As the days went by, the prosecution and defense teams grew increasingly curt with each other. At times it seemed as though they would have been happy, literally, to strip to the waist and fight it out with bare knuckles.

In addition to the matchup of arch liberals against arch conservatives, there were several reasons that made this trial and the relationships among the participants atypical. For one, the long voir dire had left a lot of open wounds. It had been a tedious process during which attorneys from both sides had rubbed on each other’s nerves.

Yet it was more than that. In some trials, once the proceedings are finished, opposing lawyers can bury their differences, go out and have a drink or a meal together, and commiserate about the state of the judicial system. In the case of Mitchell/Lesser and Chapman/Hagood, there was virtually no chance of that happening.

On the surface, the tension seemed to be most evident between Lesser and Hagood, but that was simplistic. The
real
animosity existed between Lesser and Chapman because it was Chapman who was calling the shots for the prosecution team.

Lesser felt it had been Chapman’s idea to try Andy for capital murder rather than simple murder; that it was Chapman who wanted to see Andy executed, not just tucked away in prison for much of the rest of his life, but strapped down on a gurney and pumped full of lethal drugs. During the voir dire, Hagood had approached the defense lawyers and asked them if they would be willing to let Andy plead guilty to murder as an alternative to trial and a possible death sentence. However, Hagood stressed that the final decision would be up to Chapman. “I’ll go to bat for you, but don’t tell Kevin,” Hagood proposed.

After considerable debate, Mitchell and Lesser decided to take Hagood up on the offer. But the whole idea went down the tube shortly afterward when Hagood told the defense that Chapman had flatly refused to bargain, that he wanted the death sentence against Andy.

Maybe, Lesser decided later, Chapman had made that decision out of frustration with the inability of the government to come to an agreement with France to get Joy back. Deeply disappointed because the district attorney’s office had been precluded from seeking a death sentence for Joy, Chapman may have been looking for a scapegoat, and that happened to be Andy Hopper. At any rate, it was Lesser’s perception that Chapman was the true enemy, a feeling that prompted him to privately refer to his opponent as “the angel of death.”

Judge McDowell was well aware of the situation and he struggled stalwartly to keep it under control. At all costs, he wanted the rancor hidden from the jurors. The last thing he wanted was a mistrial.

To a large extent the judge had been successful up to a point. So far, most of the dueling had occurred off-stage, while the jurors were not there to witness it. However, the judge was slightly less successful when the jury was absent, as was the case very early on, when Chapman had made a blatant attempt to cripple the defense position even before the jury had been sworn and the lawyers had made their opening statements.

One of Chapman’s first actions after he walked into the courtroom on Monday, January 27, was to file a thirty-nine-point document, called a
motion in limine
, which, if it had been approved by McDowell, would have restricted the defense both in what it could do to defend Andy
and
in presenting its own case.

If the prosecution had had its way, the defense would have been prohibited from making “any comment regarding the whereabouts of any person who has not testified,” or from making “any comment regarding Joy Aylor fleeing Dallas.” It would, in fact, have effectively prohibited the defense from even mentioning Joy’s name. But what really made Mitchell and Lesser angry was a clause in the proposed motion that would have put tight restrictions on virtually anything the defense attorneys might say if they strayed at all from the path predetermined by the prosecution.

The effect this motion could have on the trial became evident quite quickly. While Mitchell was urging Judge McDowell not to go along with the prosecution proposal, he expressed puzzlement about one of the points, claiming he was not sure what the prosecution had in mind. Hagood, unwilling to pass up the opportunity to zing his opponent, blurted sotto voce, “What do you mean you don’t know? You’re a big-time, board-certified lawyer.”

Before Mitchell could respond, Lesser leaped to his feet and pointed a threatening finger at Hagood. “See, judge!” he yelled angrily. “That’s what we mean. We don’t need that kind of comment.”

Judge McDowell slowly shook his head, looking like a tired father unhappy at having to referee disputes among his squabbling children. “Okay,” he said calmly, “let’s get back on track.”

But the defense was not ready to give up. Early the next morning, Mitchell and Lesser presented their own motion in limine, which was designed to restrict the prosecution in its presentation. Where the prosecution motion had contained thirty-nine points, the defense motion strained to list forty, including a clause requiring the prosecution to preview the testimony of each of its witnesses outside the presence of the jury before the witness could testify. If that proposal had been approved by Judge McDowell, it could have extended the trial well into the spring and maybe even the summer. Another point would have prohibited the prosecution from presenting
any
evidence until its relevance could be determined in a hearing without the jury being in the room.

Clearly, the document that Lesser privately referred to as the defense’s “chicken-shit motion” would have been impossible to enforce. It was introduced solely in an attempt to harass Chapman and Hagood, to show that the defense did not intend to surrender without a fight.

Again, Judge McDowell shook his head. “I’m denying both motions in their entirety,” he said, firmly explaining that the trial was going to run under
his
rules and that he was not going to surrender his authority to the opposing lawyers. Furthermore, he added sternly, the two sides were going to conduct themselves as professionals or there was going to be hell to pay.

That was for the record. When the lawyers retreated to Judge McDowell’s chambers, things
really
got raucous. At more than one such meeting the “fuck you’s” flew as thickly as mosquitoes swarming along the Trinity River. At times, McDowell feared the opponents would actually come to blows.