To Hatred Turned (41 page)

In the guilt/innocence phase the prosecution was aided tremendously by Andy’s confession. But in the punishment phase the prosecution would be—technically at least—starting from scratch. They would have only the testimony of others to show that Andy was such a dangerous man that the only way they could be sure that he would not kill someone else was to kill him first.

Chapman and Hagood desperately wanted the death sentence. But their job would be tougher this time around because asking jurors to look into a man’s psyche and predict what he would do in the future was trickier than proving a past action. The prosecutors ran the risk of having just one juror decide that he or she could not forecast human behavior.

Working against the prosecution in their effort to prove Andy’s future dangerousness was the fact that he had no history of violent crime other than the attack on Rozanne. In fact, he had no criminal record at all except for the indecent exposure incident in 1976, a misdemeanor, when he was twenty-one years old. The episode involving the insurance man and his missing wallet occurred in 1984, when Andy was twenty-nine. No one in the courtroom except Andy knew exactly what happened there because no charges were ever filed. Sandwiched between the two incidents was Rozanne’s murder.

What Chapman and Hagood would have to prove was that at age thirty-six, almost eight years after his last brush with the law, Andy was a killer incapable of controlling his impulse to murder, that he was, as Hagood had labeled him in his closing statement, “the most dangerous man on the planet.”

However, the prosecution was heavily favored by precedent. Of the fifty-eight capital murder convictions sought by the Dallas district attorney’s office in the previous seventeen years, prosecutors had been denied only twice. There had been a case in December 1991 when a jury that had already convicted a youth of capital murder for stealing a security guard’s gun and shooting him to death was locked 8-4 on whether to sentence him to death. They never were able to make a unanimous decision and the youth got a life sentence. In the only other previous case since 1974, the jury was hung with eleven votes in favor of execution and one against. That defendant also got life.

There was no question that juries across the state, not just in Dallas, had few compunctions about sending convicted murderers to death row. At the time Andy was found guilty, there were three hundred and fifty-five persons, including four women, awaiting execution in Texas, the largest number of any state in the country.

Not all of them would be put to death, of course, since all of their cases are in one stage or another of appeal (in death-sentence cases an appeal is automatic; the jury’s verdict
has
to be considered by a higher court). But the odds are that the large majority of those sentenced to die eventually will be wheeled into the lethal-injection chamber. In Texas, only one out of four death sentences is reversed.

In the period since the death penalty was reinstituted and the time Andy was convicted, forty-six prisoners had been executed in Texas, five of them in 1991 and four up to then in 1992, even though the year was not yet two and a half months old. It was the highest rate of execution in the country.

If Mitchell and Lesser hoped to save Andy from the lethal-injection chamber, they would have to convince jurors that Rozanne’s murder represented an aberration in Andy’s life, that he was not by nature a violent person, and that the chances that he would ever kill again were virtually nonexistent.

Their task was made more difficult by the fact that the attack against Rozanne had been a very brutal one and, by Andy’s own admission, well-planned, thus apparently deliberate. And despite any admonitions from the court not to let the details of Rozanne’s murder influence the decision on future dangerousness, it would be impossible for jurors simply to disregard the graphic testimony they had heard not many days previously, the vivid autopsy pictures, or Andy’s matter-of-fact appearance on the confession tape.

In a typical capital murder case in Dallas, the punishment phase is a relatively straightforward procedure. The prosecution calls witnesses, commonly law enforcement officers, to testify to the defendant’s violent nature, while the defense counters with character witnesses in an effort to disprove the accusation that the defendant is inherently and incurably vicious.

Generally, the entire proceeding takes no more than a couple of days. But nothing up to then had been typical about Andy Hopper’s case and the punishment phase of his trial would not be any different.

Apparently lacking witnesses to testify about Andy’s violent nature (except for the convicted drug dealer James Carver), Chapman and Hagood were forced to fall back on an odd assortment of witnesses, many of whom seemed to be testifying
for
Andy rather than against him. Among the witnesses who were allegedly giving testimony designed to prove Andy’s future dangerousness were his ex-wife, Becky, and two women with whom Andy had had affairs, Debbie Hosak Lalor and Stephanie Dyess.

By calling Becky, Chapman wanted to introduce evidence of Andy’s quick temper, although her testimony concluded in a poignant scene in which both she and Andy were crying.

Lalor told how she thought Andy had taken advantage of her by sweeping her into bed, although she readily admitted she had been flattered by Andy’s offer.

Dyess confessed that she was as much the seducer as the seduced in her affair with Andy. Chapman’s reason for calling her seemed to be her rather weak admission that Andy once mentioned bondage during a sexually explicit telephone conversation.

Apartment manager Frances Ferguson told about the indecent-exposure scene, but admitted that Andy never tried to attack her or seemed threatening in any way.

Insurance man Glenn Johnston testified that Andy had threatened his wife and children in an attempt to extort money from him. Andy had admitted taking Johnston’s wallet but denied threatening his family.

The only law enforcement officer Chapman could muster to talk against Andy was his old nemesis Detective Ken McKenzie.

But by far the most puzzling witness
against
Andy called by the prosecution was Carl Joplin, Andy’s former boss at the Chevrolet dealership. Rather than testifying about faults in Andy’s character, Joplin had nothing but praise for his former employee. “I’d hire him tomorrow if he got out,” Joplin said.

Then, for a reason clear only to himself, Chapman uncharacteristically created a situation over which he had absolutely no control. Almost as a throwaway line, he offered Joplin the opportunity to say whatever he wanted to the jury about Andy.

“As a matter of fact,” Joplin replied with undisguised relish, “there certainly is something I want to say.”

For the next five minutes, Chapman, who had been so careful throughout the trial to squelch any mention of Joy Aylor, had to listen to Joplin address that very issue.

“I think Andy’s getting railroaded,” Joplin said with as much indignation as he could muster. “This is a case where other people are involved and nobody is doing anything about it. They’re getting away with it,” he said, while Andy was being made a scapegoat. “I’ll go to hell believing Andy didn’t do it,” he concluded.

Mitchell and Lesser could hardly contain themselves, scarcely believing their good fortune. As soon as he got the witness on cross-examination, Lesser moved to broaden the discussion.

“What do you mean ‘other people are getting away with it?” Lesser asked Joplin.

“Objection!” yelled Hagood.

Judge McDowell stared at him in disbelief. “Overruled,” he said, pointing out that it was the prosecution who had thrown open the door.

The real villain, Joplin said, mentioning her by name, was Joy Aylor, who was sitting safely in France while Andy was on trial for his life. Even if she were to be returned, Joplin added indignantly, she would never be sentenced to death because the district attorney had already made that promise.

“There are so many people involved,” Joplin said, “but the people who pushed this deal are not here to stand trial.”

Staring at Lesser, Joplin asked, “Is anybody else in jail?”

Lesser shrugged, unsuccessfully smothering a grin. “I can’t answer that,” the defense lawyer replied.

“Well, I can,” Joplin answered angrily, giving the jury the news that the alleged middlemen in the Rozanne murder plot were walking free and had made “deals with the government” so their punishment, if there were to be any at all, would be minimal. At the same time, he contended, Andy was being tossed to the wolves.

Chapman and Hagood fidgeted nervously, anxious for Joplin to wind down and surrender his seat in the witness box. The defense, on the other hand, hated to see Joplin go, but they knew there was only so much mileage they could get from his testimony. Unhappily for them, a few minutes later, Joplin ran out of steam and Lesser had to dismiss him. It was one of the highlights of the trial for the defense, but it was too little and much too late.

The most damaging testimony, as far as Andy’s alleged viciousness went, came from James Carver. But the effect of his words on the jury was mitigated by his background. Being the self-admitted second largest marijuana dealer in the country was not the best credential available if truthfulness were an issue.

The balance of the state’s witnesses seemed more like supporters of Andy than detractors. There was a former coworker from Houston, two of Andy’s former bosses, and his boyhood friend Randy Cain.

The parade of prosecution witnesses began after lunch on Tuesday, March 3, and ended just before lunch three days later. At that time, honoring a defense request for time to gather witnesses and make last-minute strategy adjustments, Judge McDowell told jurors to take the following week off and report back on Monday, March 16, for the start of the defense’s presentation, which was expected to take a week or more.

During the break, Mitchell and Lesser examined and reexamined transcripts of testimony from the prosecution’s witnesses up to that point. They concluded that the most damaging thing that had been said about Andy was that he had committed adultery. And that, Mitchell and Lesser decided, was not a crime punishable by death. Not even in Texas.

They were prepared to call as many as sixty witnesses to testify in Andy’s behalf and against the state’s contention that he would be likely to kill again, including Dr. James P. Grigson, a Dallas psychiatrist often referred to as Dr. Death or Dr. Doom because of his proclivity toward testifying for the prosecution in capital murder trials. Although he occasionally is called by the defense—as he would be in Andy’s trial—he usually testifies in favor of the execution of a particular defendant, arguing that in his opinion the accused would be likely to continue to commit murder. Until the fall of 1990, Grigson had testified for the prosecution in 124 capital murder trials. In 115 of those, he convinced jurors that they should assess the death penalty. In this case, however, he was prepared to say that Andy was
not
likely to commit another murder.

Mitchell and Lesser balanced the value of Grigson’s testimony, as well as that of the remainder of their potential witnesses, against the testimony of the witnesses Chapman and Hagood were believed to have held in reserve to be called after the defense finished its case. Among those, the defense lawyers suspected, was a woman who they thought was prepared to testify that she had heard Andy claim that he had been involved in a drug-connected killing that had nothing to do with Rozanne. Although Mitchell and Lesser were prepared to refute that, they feared the impact the testimony would make upon the jury even if it was unproven.

The biggest advantage for the prosecution up to then was Andy’s confession. Also working in Chapman and Hagood’s favor was the apparent mind-set of a jury whose members had taken less than four hours, including time for lunch, to find Andy guilty of capital murder. That rush to verdict was something that caused Mitchell and Lesser considerable distress, but they partially rationalized it by reminding each other how Judge McDowell had not given jurors much of a choice. The fact that the jury convicted Andy, given those options, was not surprising.

Of the things that occurred during the trial that Lesser and Mitchell felt most damaged their case, the failure of Judge McDowell to give jurors another option was paramount, even more harmful than his decision to allow the jury to view Andy’s confession. Even after seeing the confession, some jurors may have been inclined, after considering McGowan’s testimony and weighing the other issues the defense had fought to raise—Thorazine, the possible role of Dr. Gailiunas, and the hint that Andy may not have acted alone—to vote to convict Andy of a less serious charge if that option had existed.

There was one other thing the defense lawyers considered in devising their final strategy: the actions of Judge McDowell.

Mitchell, the appeals expert, was convinced that McDowell had made enough errors in his rulings, particularly with regard to hearsay and the testimony the jury was not allowed to hear, to insure that a higher court would order another trial. As the prosecution had come into trial confident they had a conviction in their back pocket, the defense went out of it convinced that a higher court was going to overturn
whatever
was decided by the current jury.

After considering the various factors, Mitchell and Lesser decided to again be bold. When they showed up on March 16, rather than calling their first witness, they announced that there would be no defense, that they were resting their case without eliciting any testimony.