To Hatred Turned (39 page)

“Would you expect to see more false positives if it had been caused by a contaminant?” Mitchell asked, intent on destroying the state’s new claim that Thorazine had been misdiagnosed.

Garriott nodded. “The fact that there have not been lends more credence to the belief that it was a positive identification,” Garriott replied.

Looking satisfied, Mitchell asked: “Do you have an opinion about that report?”

“There is nothing,” Garriott answered, picking his words carefully, “that leads me to believe it was not a valid reading.”

Chapman was unable to shake Garriott’s testimony, and an attempt to refute it by calling still another prosecution expert ended abruptly with an attack from Lesser.

The third expert, who worked under Garriott for a long period, wilted when Lesser compared his credentials and experience to Garriott’s, and pointed out that the witness was working on equipment designed by Garriott when he claimed to have found the possible error.

“Do you think you know more than the creator?” Lesser barked, seeking to make quick work of the witness.

Startled by the harshness of the question and the accusatory tone in which it was asked, the witness stammered that he did not.

Both sides agreed to end testimony at 3:20
P
.
M
. on February 28, eighteen working days after the parade of witnesses began. Already it had become the longest guilt/innocence trial in the county in recent memory as well as one of the most bitter. But, true to the spirit of the proceeding, it would not end without a final dispute.

After sending the jurors home for the weekend with a caution to bring a suitcase on Monday in anticipation of the beginning of deliberation, Judge McDowell announced that there would be one more witness: a public defender in Judge McDowell’s court improbably named King Solomon.

The judge said he was calling Solomon as his own witness, outside the jury’s presence, to give still another side to the defense-raised issue of whether Jan Hemphill should be allowed to testify.

When he took the stand, Solomon said he remembered a comment Hemphill made about the prosecutors in a case she was handling: “I can’t believe what the bastards did to me.” It was his interpretation, Solomon said, that Hemphill was referring to the Hopper case and how she had been treated by Chapman and Hagood.

When Solomon finished his brief testimony, Judge McDowell swiveled to Mitchell and Lesser.

“I understand you would like to put that before the jury,” he said, not unkindly, “but right now I think the jury’s heard all it’s going to hear.”

39

For three hours late in the afternoon and evening of Sunday, March 1, the opposing lawyers, taking advantage of the weekend day by showing up in jeans, cutoffs, Bermuda shorts, and baseball caps, met in an empty courtroom in an empty building to discuss the items that Judge McDowell proposed to include in the list of instructions, commonly called a “charge,” that he would deliver to the jurors the next morning.

The fact that it appeared to be a democratic session was somewhat misleading; although the judge had asked for their input, in the final analysis what went into the charge was strictly up to him. And what he decided was not propitious for the defense.

The indictment against Andy read capital murder. If the judge’s charge was to follow the indictment literally, he would tell the jury that there were only two possible verdicts: 1. Not guilty. 2. Guilty of capital murder.

In the highly unlikely event that the jury would find Andy not guilty, he would walk out of the courtroom a free man. Not even Lesser or Mitchell dared hope for that.

If the jury found him guilty of capital murder, the proceeding would then move immediately into what is called the penalty phase, in effect a second trial at the end of which the same jurors would decide what the punishment would be.

However, it was within Judge McDowell’s purview to give the jurors a choice of a third verdict, and that was what Lesser and Mitchell urged. Realizing there was virtually no chance the jurors were going to acquit their client in light of the confessions, the defense lawyers beseeched the judge to give jurors the option of finding Andy guilty of a reduced charge of
attempted
capital murder.

If that option were to be given and accepted by the jury, Andy would then be sentenced to prison for a term to be decided by McDowell. The jury would be dismissed and no second trial would be required.

After considering the defense request, Judge McDowell refused. He did not say why he had made that decision, nor did he have to.

At that point, Andy’s fate was all but sealed.

The next morning the lawyers filed silently into the courtroom. The mood was tense. The trial had reached the stage where all the testimony had been heard and there remained only two things to do before the case went to the jury for a verdict: Judge McDowell had to deliver his charge and the lawyers had to present their closing statements.

With little preamble, the judge solemnly began laying down guidelines for the jurors to follow when they locked themselves into their deliberation room and started debating Andy’s fate. The first thing they should do, he said, was agree not to rely strictly on a confession as a determinant of guilt since that alone was insufficient under the law.

“There must be evidence independent of the confession that the crime alleged was committed,” he cautioned, adding, “and if you have a reasonable doubt that the crime alleged was committed, then you will acquit the defendant.”

Possibly as a result of the defense’s aggressive attempts to prove that one or more others might have participated in the attack on Rozanne and were responsible for an action that at least contributed to her death, Judge McDowell also explained the legal interpretation of reasonable doubt, instructing the jurors in what to look for and how to come to grips with it. Above all, they had to be careful in distinguishing “reasonable doubt” from “all possible doubt.”

“A ‘reasonable doubt,’ ” he explained, “is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”

But, he explained, “all possible doubt” was not the same thing, and it was not the prosecution’s job to prove guilt to that degree. Still, if the jury felt there was a reasonable doubt about Andy’s guilt, it was their duty to acquit him.

From a practical point of view, the mini-lectures on the differences between “reasonable” and “all possible” doubt may have been splitting hairs. What it boiled down to, really, was that the jury had only two choices, each of which McDowell laid out in stilted legalese, which nevertheless was perfectly intelligible.

“Now, therefore,” he read from a prepared statement, “if you find and believe from the evidence beyond a reasonable doubt that on or about the fourth day of October 1983, in Dallas County, Texas, the defendant, George Anderson Hopper, intentionally caused the death of Rozanne Gailiunas…by shooting…or by strangling…while the said defendant was in the course of committing or attempting to commit the offense of burglary…then you will find the defendant guilty of the offense of capital murder.”

Then he gave them the lone alternative: “Unless you so find and believe from the evidence beyond a reasonable doubt, then you will acquit the defendant and say by your verdict ‘not guilty.’”

It was barely 9:30 when Judge McDowell finished delivering his charge, a remarkably early hour considering the erratic hours to which most of the participants had become accustomed during the previous five weeks. But it promised to be a busy and nerve-wracking day and the judge was anxious to get started.

Without further comment, he signaled the lawyers to begin their closing statements. Under the ground rules hashed out the evening before, each side would have ninety minutes to sum up its case. The prosecution would begin and the defense would follow. Then the prosecution would have one more opportunity to speak before the jury began deliberating.

First up was ADA Jim Oatman, who had sat virtually silent at Hagood’s left elbow throughout the trial. While he was an unknown quantity to the spectators, he was not unknown to the jury since he had been Hagood’s partner during the tedious five-month-long voir dire. He planned to take one third of the prosecution’s allotted time.

A sober, soft-spoken man in his early thirties, Oatman walked confidently across the open space between the judge’s bench and the jury box and carefully thumbtacked two blowups of Rozanne to the wall behind the witness stand. One was a color portrait of Rozanne alone, the other was a blowup of a snapshot of Rozanne and Little Peter. The pictures were a signal that Oatman’s narration would be an emotional one, one designed to gain the jurors’ sympathy rather than an outline of the hard facts of the case.

True to those expectations, Oatman returned to center stage and calmly, in a slow, low-pitched drawl, began by expanding upon Judge McDowell’s directions.

“Don’t return a verdict of guilty unless you’re dead-gut, one hundred percent sure of the defendant’s guilt. If you think Thorazine killed that woman,” he said, pointing to the pictures, “and not strangulation and gunshot wounds, then you need to acquit that man sitting right over there.”

It was not Oatman’s intention to speak more than necessary about acquittal, however, so he quickly left the subject, addressing instead the viciousness of the crime and the effect it had upon a number of lives.

He began by reminding the jury about how, at the end of September, just days before Rozanne was killed, workers had to come to her home to install new locks and to replace glass broken in an apparent burglary attempt. The experience had left her shaken.

“She was feeling fear and uncertainty in the days before she was murdered,” he said, while at the same time, on the opposite end of the emotional spectrum, she was eagerly anticipating a visit to her family in Massachusetts on October 10, a trip she never got to make. Her son, Little Peter, never got to make the trip either, Oatman pointed out, because of the murder of his mother.

“Here was a little four-year-old boy who tries to wake up his mother, but he can’t. So he goes to get a glass of milk and his teddy bear and he takes them to his mommy. Then he realizes that Mommy’s not going to get any better.” She was not going to get any better, he added, because she was “tied up like an animal, lying in her own blood and vomit, making a sound that Chief Duggan hopes he will one day be able to get out of his mind.”

Moving systematically through the evidence as it was presented to the jury, Oatman paused to heap scorn upon the defense contention that Thorazine may have been at least partially responsible for Rozanne’s death. The prosecution’s main medical witness, neurosurgeon Dr. Morris Sanders, Oatman reminded the jurors, had testified that Rozanne was so badly wounded by the bullet in her brain that Thorazine would not have made “a damn bit” of difference. “It’s like a man who takes a sleeping pill and then someone comes along and beats him to death with a baseball bat. It ain’t the sleeping pill that killed him.”

Pointing at Andy, who had remained virtually motionless throughout the trial, Oatman labeled him a skilled liar and manipulator, a man who had tricked or misled a whole string of people ranging from longtime friends Merle Ward and Buddy Wright to the members of a family that befriended him in North Dakota. But then, Oatman said, Andy had the bad luck to run into Morris McGowan at the Richardson Police Department.

“Once again he tried to lie and manipulate, but that time he wasn’t talking to someone from North Dakota,” Oatman said. “His lies and manipulations got him into the hole out there,” he said, adding that when he confessed, it was “the first time he told the truth about who murdered Rozanne.” After that, Oatman said, Andy’s attempts to lie and manipulate did him little good.

Swiveling again to face Andy, Oatman implored the jury to convict him.

“This is the man who walked out of that house without a second glance, leaving Rozanne strangling on her own vomit and blood, leaving her there for her little boy to find.”

Pointing a vengeful finger at Andy, he added: “It’s been eight and a half years that Rozanne has laid in that grave and in that time no killer has been called to account for her death.” With a final, cold glare at the rigid Andy, Oatman added that it was time for the jury to rectify the situation.

40

Mitchell and Lesser had decided long before that morning that when the time came for closing arguments, the defense’s side would be presented by Lesser, the experienced trial attorney. Clad in a dark blue suit, light blue shirt, and black Western boots, Lesser grabbed three yellow notepads filled with blue-ink scribblings and took Oatman’s place in front of the jury. He had been up until after three o’clock that morning working on his presentation and he looked tired. With his hands in his pockets and his suit coat open, he began in a muted but firm voice, building on the precepts he had outlined initially in his opening statement.

Mitchell and Lesser were fully aware of the impact that Andy’s confessions had made upon the jury and they had decided that any attempt to try to deny that he had indeed attacked Rozanne would be both silly and suicidal. They also had rejected the option of making an impassioned plea to elicit sympathy for their client, electing to leave that message for the penalty phase of the trial, if it came to that. Instead, Lesser based his argument to acquit Andy on another issue.