To Hatred Turned (36 page)

Chapman did
not
say that none of the officers who had testified up until then could remember the phone ringing while he was in the house.

Eventually, after considerable prodding by Lesser on redirect, Larry explained that it was an extremely stressful day and that he might have erred in the time he estimated making the call by as much as forty minutes, which would have set the time of the occurrence before the paramedics and police arrived.

Before letting Larry leave the witness stand, Lesser had one more item he wanted to question him about, one that might cause additional doubt in jurors’ minds about the prosecution contention that Andy operated in a vacuum when he attacked Rozanne.

In response to the defense attorney’s questions, Larry prosaically related how, on the afternoon of the attack on Rozanne, he had been riding his bicycle down a little-used road in the suburb where he lived when a car mysteriously appeared behind him and struck the rear of his bicycle, sending him and the bike sprawling into a ditch. He suffered only minor scratches and bruises.

“Did you see who was driving the car?” Lesser asked.

“Not clearly,” Larry replied, “but it looked like a little old lady.”

“Are you sure?” Lesser asked.

“Well,” Larry responded, “it could have been a man with long hair or someone wearing a wig.”

What Lesser was trying to do was raise the possibility that someone was trying to kill both Larry
and
Rozanne, that there were simultaneous hits planned for that day and that forces greater than Andy were at work. But it was too far beyond the jurors’ grasp of the case; Lesser’s attempt slipped by without impact. While there was later an obvious attempt on Larry’s life, it did not come for almost three years, and Judge McDowell definitely was not going to let him testify about
that
.

In any case, Chapman quickly demolished this testimony when he got Larry back on recross.

“Do you think the driver of that car was Dr. Gailiunas trying to take you out?” the prosecutor asked bluntly.

Larry, who had little reason to protect Gailiunas but every reason to try to punish him, replied firmly: “No.”

When Mitchell and Lesser first tried to call two Richardson police officers who had questioned young Peter about his father’s presence at the house on the day of the attack on his mother, Judge McDowell refused, honoring a prosecution objection that the officer’s testimony would be hearsay. The defense argued that the statements from the boy were what is known in the law as “excited utterances” and were, therefore, an exception to the hearsay rule.

At first, the judge agreed with the prosecution, saying that remarks made hours after the event could hardly be considered “excited utterances,” which were generally recognized as statements blurted during the heat of the moment. He changed his mind, however, after listening to testimony from a health care professional named Jan Marie Delipsey, who specialized in working with children and adult victims of post-traumatic stress disorder.

Delipsey, called by the defense, explained out of the jury’s presence that children, particularly a child as young as Peter Gailiunas was at the time, did not react to stress the same way as adults. It took them much longer to focus on traumatic events. Often, she said, they went through a period of denial, especially when a loved one was involved.

Under the circumstances, she said, Little Peter’s reaction—first claiming and then denying his father’s presence—was more typical than unusual. His comments, she said, even though they came hours after the event, could, under the principles of applied child psychology, be considered “excited utterances.”

Obviously impressed with Delipsey’s testimony, Judge McDowell changed his mind and told Mitchell and Lesser they could call the officers.

Lieutenant Mike Corley, who had been a detective at the time of the attack on Rozanne, working on the case under McGowan, and Officer Cynthia Percival, who had been Cynthia Coker at the time, testified that young Peter had implied in separate interviews that his father had been at the house at 804 Loganwood Drive on the afternoon of the attack.

Although the prosecution tried to discredit the boy’s observations, Lesser was successful in getting Percival to admit that she placed enough credence in what the boy had said to use the statements, together with Larry’s claim that Dr. Gailiunas had shot Rozanne, as a basis for a request to have the boy placed under protective custody so he could not be influenced by his father or his grandmother. Little Peter told officers it was his father who ordered him to hang up the phone, and Larry had testified that he thought the voice had been Gailiunas’s.

To discredit this, Chapman called Wayne Dobbs, a husky, balding policeman with a radio announcer’s deep voice. He said he had been the first patrolman to go inside Rozanne’s house on the day of the attack. When he walked inside, he said, he was attacked both verbally and physically by Little Peter, who obviously was upset by events. Dobbs testified that he had gone into the back bedroom to see if he could help the paramedics and was returning to the front of the house when the telephone rang. Little Peter answered the call, he said, and was talking into the instrument when Dobbs ordered him to hang up.

“There is a very strong possibility that I cursed at him,” Dobbs said primly, explaining his lapse of professionalism by claiming that he was “scared and faced with the worst crime scene I’d ever been faced with before or since.”

On cross-examination, Lesser pounded at Dobbs, pointing out that the officer, who at the time was a veteran of more than five years with the department, should have had more presence of mind than he admitted to. Besides, Lesser said, Dobbs had previously said he did not remember being the one who gave the command to young Peter. Was he lying then, Lesser implied, or was he lying now?

In response to Lesser’s questions, Dobbs admitted that his recollection of the telephone incident was recent.

“How do you account for that?” Lesser asked sharply.

“Delayed recall,” Dobbs replied smoothly. “It’s quite common in cases like that.”

Lesser gaped at him in amazement.
“Delayed recall,”
he repeated sarcastically. Boring in, he asked, “Do you remember participating in a test in which your voice and Dr. Gailiunas’s voice was played for Larry Aylor so he could try to determine exactly whose voice he had heard instructing Little Peter to hang up the goddamn phone?” Lesser asked.

Uncertainty flickered in Dobbs’s eyes. “No,” he said slowly, “I don’t remember that.”

“That’s good,” Lesser shot back, “because it never happened.”

Dobbs had stepped over the landmine.

37

By February 26, Lesser and Mitchell were nearing the end of their list of witnesses. While they felt Bux, Gailiunas, and Aylor had made an impact on the jury, they knew they had still not come close to overcoming the damage done by Andy’s confession. If anything was going to clinch a verdict against their client, it would be that damning admission. Their lifeboat was the set of tapes of the December 20 interrogation, the recordings that the defense lawyers did not know existed until they were handed over nonchalantly by Chapman a few days previously.

Lesser and Mitchell’s first line of defense, made clear early in the trial, had been to try to keep the confessions, especially the videotaped one, from going before the jury. When they failed in that attempt, all the defense attorneys could do was try to modify the impact.

Although there were several ways they could have done that, each attempt had, up until then, been blocked by rulings from Judge McDowell. They had sought, for instance, to introduce testimony from Bill and Carol Garland, which they hoped would at least cast doubt on the theory that Andy had acted alone. But the judge had closed off that avenue.

Then, they hoped to be able to soften the blow by demonstrating through a rigorous cross-examination of McGowan that Andy had been coerced into making the admissions by a devious detective, who they claimed ran roughshod over Andy’s constitutional rights in the process. But they got little satisfaction from their questioning of the investigator.

As a backup, the defense attorneys had Jan Hemphill, who would testify about the prosecution’s maneuverings to get the confession. But again, they had been thwarted by Judge McDowell, who rejected their request to let Hemphill appear in front of the jury.

The tapes represented a new, and almost certainly last, opportunity for the defense team to do any serious repair to the damage caused by the confessions. But they also knew that getting this information before the jury was not going to be easy. By then, Judge McDowell was showing the strain of being required on a daily basis to referee the increasingly bitter squabbles between the prosecution and defense attorneys and still keep the trial on track. As a result, he seemed to be exhibiting a growing tendency toward the prosecution, repeatedly shooting down defense attempts to stray from the corridor defined by Chapman.

Lesser and Mitchell were going to have to present their case carefully. They
knew
they were going to get strong opposition from the prosecutors. They were
almost certain
that, under ordinary circumstances, the judge was going to come down in the state’s favor. So they had to set up the request in such a way as to get McDowell thinking about how his action—if he denied them the chance to pursue this new field of inquiry—was going to look to an appeals court. Given his druthers, no one in the courtroom wanted to try the case again.

Gingerly, Mitchell broached the subject of the tapes. And, predictably, the prosecution responded with a cascade of objections. Judge McDowell sent the jury out of the room. “Okay,” he said abruptly, setting his jaw, “let’s hear the arguments.”

Mitchell hurriedly began making his case. On December 20, Andy had asked for a lawyer no less than a dozen times, he said, and each time he had been ignored. Those repeated refusals to summon a lawyer were the same as McGowan’s refusal to let Andy “think about it” before he broke down on February 27, Mitchell contended, and both were clear violations of Andy’s constitutional rights. For that reason, the defense lawyer continued, Judge McDowell should tell the jury to disregard the confessions.

Chapman disagreed, arguing, disingenuously it seemed, that McGowan had never
refused
to stop the interrogation in February. “He just told Andy, ‘I want it now,’ ” which the ADA asserted was not the same thing, that if Andy had wanted to stop the interview he should have been more explicit.

Judge McDowell weighed the arguments. Finally, he said, in his opinion, the words “I want to think about it” did not, of themselves, raise the issue of voluntariness. That is, just because Andy said he wanted to think about it did not mean that because he was
not
given time to think about it, that it meant that his subsequent confession was coerced or was given involuntarily. The fact that McGowan had not specifically told Andy “no” when he said “I want to think about it” was significant. Since the detective had not said “no,” he had not violated Andy’s rights by going ahead.

Mitchell shook his head. “Your honor,” he pleaded, “we believe those words—that he wanted time to think about it—was an attempt by Andy Hopper to invoke his right to remain silent and end the interview.”

Staring at Judge McDowell challengingly, he added, “We believe this is a question of fact, not of law,” meaning that in the defense’s view it was a question that was not open to judicial discretion, that Judge McDowell’s opinion was not important because it was not an issue that was within his purview to decide.

Chapman, anticipating a defense request to re-call McGowan to the stand, jumped to his feet.

“It doesn’t raise a factual issue upon which the confession turns,” the prosecutor argued, explaining that there was too big a time gap between the December 20 interrogation and the February 27 confession for there to be a connection between the two events, therefore there was a question of relevancy.

Judge McDowell agreed with Chapman. “I still don’t see a ‘fact’ issue,” he said. “I sustain the state’s objection.”

Mitchell persisted. “I didn’t address the issue of relevancy,” he said. “I just wanted to see if you would instruct the jury to disregard the confession.”

“I’ve determined that the confession is admissible and I don’t think the jury is the proper forum to review my decision,” Judge McDowell replied sternly. “I
do
have legal basis for my rulings.”

Mitchell had reckoned that was coming. If the judge would not tell the jury to disregard the confession, he said, the defense would like to re-call McGowan, Investigator McKenzie, and Jan Hemphill to query them
in front of the jury
about the process under which Andy gave his confession, using the December 20 interrogation as an example of how investigators had systematically worked on Andy, setting the stage for his eventual breakdown. The tapes, he added, amply demonstrated how investigators had violated Andy’s constitutional rights, and the defense wanted the jury to be aware of that.

“I don’t think anything would be served by getting Lieutenant McGowan or Judge Hemphill before the jury,” the judge said. “I’m not going to permit new testimony from Lieutenant McGowan to go before the jury if the state objects.”