Authors: Ken Englade
“You’re not going to be dealing with me then,” McGowan said firmly. “I’ll tell you that now.” Instead, McGowan added, the case would be taken over by the district attorney’s office.
Andy tried to ask if he could request that McGowan remain on the case when McGowan’s boss, Captain David Golden, knocked on the door and motioned McGowan into the hallway.
“He’s done asked for an attorney six times so we ain’t getting anywhere with this deal,” Golden whispered in disgust. “He could drop to his knees and confess all day long, but we ain’t going nowhere now.”
“I’m going after information,” McGowan explained.
“Why don’t we let him call an attorney in here?” Golden asked.
“Because all a lawyer is going to do is tell him to shut up and that’s it,” McGowan said impatiently. “Right now I want the information.”
“So you want to go for inadmissible information?” Golden asked incredulously.
“Basically, yeah,” McGowan said. “I’m kind of laying groundwork for the future.”
Golden suggested that any information obtained would be usable against other defendants.
McGowan agreed. “Yeah, against the other person.”
Golden sighed. “All right,” he said. “Let’s go and get it over with.”
Picking up where he left off in the conversation, McGowan told Andy that if he weren’t the triggerman he ought to just tell McGowan what happened.
When Andy did not respond, McGowan added: “Let’s face it, you’ve asked for your attorney enough times now. I’m not going to be able to use a fucking thing you say. Even if you wrote me a confession, I couldn’t use it. That’s the law. But let’s get down to brass tacks now because I have to know your part because that’s going to take me in someplace else.”
McGowan repeated how others involved in the case had agreed to cooperate and it would be to Andy’s advantage for him to do the same. He hinted that with some cooperation, he might even be released pending trial. But that, he added, depended on Andy’s willingness to talk. “How can we know you’re going to get straight, even offer you a bond, until we know for sure what’s going on?” the detective asked in mock sincerity.
When Andy still refused to respond, McGowan decided to end the session. But he did not want to go without the last word. “Everybody can give you advice,” he said, “but I want to tell you the truth. I’m going to lay my cards on the table. I ain’t asking you to put a fucking thing in writing. Nothing. But I’m going to shoot straight with you from the word go. And I’ll be there.”
21
While preparations were under way in New Mexico to dispose of the cases involving the Matthews brothers stemming from the Lindquist incident, thus clearing the decks for their trials in Texas for attempting to kill Larry, McGowan was also moving ahead in an attempt to seal up the other side of the dual murder schemes and write an end, finally, to the investigation of Rozanne’s killing.
On Wednesday, February 22, 1989, McGowan appeared at the Dallas County Jail to take Andy’s formal statement. During an unrecorded interview conducted in a small room at the jail, Andy gave his first formal version of events of his alleged involvement in the death of Rozanne Gailiunas. It later became known as the “Chip statement.”
Andy admitted to the detective that he accepted an envelope containing money and some biographical data from Brian Kreafle. In late September, he said, he went to Rozanne’s house with the intention of killing her. Using a glass cutter to remove a pane in a back window, he reached through the hole and unlocked the door, letting himself inside. Once in the house, he told McGowan, he appropriated a steak knife to use as a weapon and hid in the darkened house waiting for Rozanne to return. While waiting, however, he became worried that Rozanne might not be alone, that she would return with a man. Not anxious to face a confrontation of that sort, Andy said he left.
A day or so later, he said, he decided to extricate himself from the plot. He kept $500 of the money and turned over the rest to a man from whom he claimed he had bought drugs, a man whom he knew only as “Chip,” with the expectation that Chip would fulfill the contract.
A few days after that, Andy said, he ran into Chip, who told him that “everything had been taken care of.” Andy said Chip also warned him that if he ever told anyone about what had happened between them, he would take revenge on Andy’s family.
In the period between visits with McGowan, Andy’s demands for an attorney finally had been met. Jan Hemphill, a respected criminal defense lawyer with a reputation for being tough and unyielding, was appointed to represent him.
Hours after the February 22 session, as soon as McGowan and lawyers from the Dallas County District Attorney’s Office had a chance to go over the Chip statement, one of the prosecutors called Hemphill and asked for her permission to check Andy out of the county jail. They wanted to take him to Richardson, the prosecutor said, to give him a polygraph examination in an attempt to verify that he was telling the truth about Chip. Although polygraphs are not admissible in Texas courts, the tests are used routinely by both prosecutors and defense lawyers in an attempt to establish basic veracity. If Hemphill had acted correctly, she would have told the district attorney’s office that she would not allow them to polygraph Andy until she had a chance to have her own expert test him first, or at least to be present when the exam was given. But she ignored her instincts. Much to her later regret and embarrassment, Hemphill agreed to let Andy be taken alone to Richardson to be strapped to a lie detector.
On Monday, February 27, RPD Investigator Brent Tourangeau picked up Andy and took him to the police department, a twenty-minute drive away, where the polygraph would be administered.
Unfortunately, Andy did poorly on the test. According to the examiner, Andy indicated deception in his responses to three crucial questions: 1. Were you in the house when Rozanne was attacked? 2. Do you know who murdered her? 3. Did
you
murder her?
As soon as the examiner told McGowan that he thought Andy was hiding something, the detective escorted Andy to a tiny interrogation room on the ground floor of the Richardson Public Safety Department building, motioned Tourangeau inside, and closed the door. The room was barely large enough to accommodate the three men and a tiny table. McGowan said later that his intention had been to question Andy further about the inconsistencies uncovered during the test. But before he began there was one detail that he felt needed to be attended to: McGowan ordered Tourangeau to read Andy the list of rights he was entitled to under the Supreme Court’s Miranda decision. Andy stared at the table-top while Tourangeau went through the procedure in a dull monotone.
If McGowan had followed the correct procedure, Andy’s lawyers would argue vigorously at his trial, the detective should not even have been in the room with Andy. The detective should have returned him to the Dallas jail as soon as the test was over, regardless of the results. Then, if investigators wanted to talk to him further, they should have called Hemphill and made new arrangements. Hemphill, they asserted, had agreed to release him
only
to be tested, not to be interrogated about his responses during the test. Instead, they argued, what McGowan did was a further violation of Andy’s rights: He was questioned without his attorney being present even though he was represented by counsel, which just added to the clear-cut desecration of his rights that had occurred when McGowan and McKenzie ignored Andy’s repeated requests for an attorney on the night he was arrested.
The back-to-back decisions—Hemphill’s concurrence with the request for Andy to be taken alone to Richardson to be given a polygraph, and McGowan’s impulsive interrogation
after
the test—would be irreversible acts that would later have a tremendous detrimental influence on Andy’s future.
In the five days that had passed since Andy had first told McGowan about Chip, McGowan had sent investigators on an emergency search to try to uncover the mystery man’s identity. Their success was phenomenal. They had not only learned Chip’s full name, but had tracked him to southern California, where he now was under surveillance at the request of the Dallas authorities. When McGowan went into the interrogation room with Andy, he had in his pocket a picture of Chip.
Hunched over the table in the small room, McGowan leaned close to Andy and asked him to tell his story yet again. “Tell me
exactly
what happened,” he urged, “from beginning to end.”
Andy repeated the tale he had told the detective on February 22: that he had kept some of the money he had received in the envelope from Kreafle to use for drugs, that he gave the rest of it to Chip, and that he believed Chip was Rozanne’s assailant.
McGowan responded skeptically. “If I go find Chip, what is he going to tell me?” he asked, putting pressure on Andy. “Who is that going to bring me back to?”
Andy obviously did not like the idea that McGowan might try to contact Chip; the suggestion made him visibly nervous. “That would bring it back to me,” he answered uneasily.
Realizing that Andy was vulnerable on two counts—rattled because of the unsatisfactory polygraph and by being without his lawyer—McGowan played his trump card, certain he would never have a better shot at extracting more details from Andy. Reaching into his shirt pocket, McGowan slowly removed the picture of Chip he had brought with him and slapped it down on the table with a flourish.
“Who is this?” he asked coldly.
Andy was stunned; apparently he had never considered the possibility that Dallas police would be able to track down the elusive Chip on the slim leads he had provided to his identity.
“That’s Chip!” he exclaimed in horror.
“That’s right,” McGowan replied with satisfaction. “That’s Chip.”
The investigator was on a roll and he knew it. Andy was reeling, so McGowan pushed harder. “I haven’t contacted him yet,” he confided to the confused prisoner, “but if I do and I ask him his involvement, where would that leave us? If I put Chip on the polygraph and he passes it, where would that leave us?” ”
“It would come back to me,” Andy said softly, slumping in his chair.
“That’s right,” McGowan agreed, realizing in that instant that he had won, that Andy was going to tell him everything he wanted to know.
Tourangeau, who had been watching the procedure as a fascinated participant, gazed in awe as Andy deflated like a collapsing hot-air balloon. He swiveled toward McGowan, wondering what the veteran detective was going to do next.
McGowan had forgotten that Tourangeau was there; he was focused on Andy with deadly concentration. Extending his right hand, palm flat and perpendicular to the floor, McGowan drew an imaginary line on the wall behind him. “On this side of the line is Joy Aylor,” McGowan said, “and on the other side is us. Andy,” he said earnestly, “I want Joy Aylor, and I want you with us. I want you to testify against Joy Aylor.”
Still in shock over the Chip revelation, Andy showed his bewilderment. “Can I go back to the jail and think about it?” he asked softly.
At that point, McGowan was not about to let go; it would be like cutting the line when the record-setting fish is almost in the net.
“I need the whole truth,” McGowan pressed, letting a note of urgency creep into his voice. “Regardless of what it is, I want the truth. If you were there, tell me.”
Andy gave it one more try, acting more out of instinct than conviction. “Can I go back and think about it?” he repeated halfheartedly.
McGowan leaned closer and tried to lock eyes. “Andy, I need it now!” he said firmly.
Andy’s head sank to his chest and he stared listlessly at his hands for what seemed a long time but actually was no more than half a minute. Then he whispered, “I did it.”
His response was so soft that McGowan was not sure he had heard him correctly. “What did you say?” he asked, leaning forward.
“Mo,” Andy said, using the detective’s nickname, “I did it! I killed her!”
McGowan shook his head sadly. Motioning to Tourangeau, he quietly told the investigator to fetch a tape recorder.
One of the things that came out during Andy’s confession was how he gained entry to Rozanne’s house. When he explained that he had bought a plant at a nearby supermarket and then posed as a floral delivery man when Rozanne answered the door, McGowan’s eyes bulged in surprise.
Later, when Andy had been returned to the Dallas County Jail, the detective dug through his files and extracted the photos taken in Rozanne’s house the night of the shooting. To his amazement, the pictures corroborated Andy’s claim. Sitting not two feet from the front door was the plant Andy had in his hands when he confronted Rozanne. It was the clue McGowan had been looking for, and had never been able to find, on his repeated trips to 804 Loganwood Drive.
For the first time in almost five and a half years, McGowan felt himself truly relaxing; his long search for Rozanne’s killer was, in his mind, successful. When Andy was taken back to the Dallas County Jail late that afternoon, McGowan was confident that he had finally solved Rozanne’s murder. And he had a detailed confession to back him up.
There were, however, three points stemming from the
way
the confession was obtained that would be debated heatedly during Andy’s trial. One was whether McGowan had violated Andy’s constitutional rights by conducting the interrogation without the explicit permission of Andy’s lawyer, Jan Hemphill. Another was whether McGowan had further violated Andy’s rights by continuing with the interrogation despite Andy’s two requests to “go back and think about it.” According to the defense, a prisoner was entitled under Miranda to terminate an interview at any time. The question was whether the words “go back and think about it” constituted a request to stop the discussion. The third and touchiest of the points was whether Andy’s lawyer had acted ineffectively by allowing him to be polygraphed without her being present. It was primarily because of Jan Hemphill’s absence, Andy’s trial lawyers would argue, that McGowan was able to conduct the improper interrogation that led to the confession.