Authors: Ken Englade
On that day, Anthony insisted, Taylor came to him and told him that she was very upset with her husband, was thinking about leaving him, and asked him to meet with her at her home so she could discuss the situation. After that meeting, she filed charges against him.
The story was as improbable as it was salacious. While it made for excellent news copy and spirited gossip, there were not many in white Dallas, including the six-man, six-woman jury hearing the case, who were prepared to believe Anthony’s version. The jury deliberated for less than two hours before finding Anthony guilty of aggravated robbery and recommending a ninety-nine-year sentence. As of April 1993, he still faced kidnapping and assault charges.
The point, however, was that Lesser, a rabble-rouser in a city and a profession not known for its tolerance of anti-establishment thought, may have been the only attorney in Dallas who would have dared mount such a defense. The fact that it was unsuccessful did not diminish the boldness of the move or the fervency with which he argued his client’s case. His performance did little to diminish his reputation as an out-of-the-mainstream liberal, while at the same time it also enhanced his fame as an unpredictable, quick-thinking defense attorney, a lawyer who could be infuriatingly exacting and combative to the point of being overbearing, but one who also was aggressive and imaginative. It was a mix that would be confirmed in coming months.
District Attorney John Vance has made it his policy, as did his predecessor, the eminent Henry Wade, to let his first assistant assign lead counsel, choosing among the one hundred and fifty or so assistant district attorneys the one who would take a particular case into court or negotiate a plea bargain. Under Wade, that duty had fallen to Doug Mulder. Under Vance, the task is performed by Norm Kinne, a crew-cut graduate of Texas A&M who sets the example for the militaristic attitude that prevails in the suite of offices atop the new Frank Crowley Criminal Courts Building. Kinne picked a rising thirty-six-year-old ADA named Kevin Chapman, a slight, trim man with a soft, raspy voice and a rapidly disappearing hairline, to steer the prosecution team in the Aylor/Hopper cases.
A native of Midland in West Texas, Chapman got both his undergraduate and law degrees at the University of Texas in Austin, compiling an extraordinary 3.8 average in undergraduate school and finishing law school in the top 10 percent of his class. He joined the district attorney’s staff immediately upon graduation in 1981. Over the next ten years, Chapman prosecuted and convicted hundreds of criminals. He sent three of them to death row.
By the time of Andy’s trial, because of his courtroom record, his dedication, and his proven ability to produce, Chapman was supervisor of activities in three criminal district courts and head of the DA’s special projects section.
As is customary among attorneys appointed to defend someone accused of capital murder, the lead prosecutor also selects another ADA as an assistant. As Mitchell had picked Lesser, Chapman chose Dan Hagood.
A tall, athletic man with a permanent scowl on his face and a boot-camp haircut, Hagood was known around the courthouse as “the colonel,” not only because he actually
was
a lieutenant colonel in the Marine Corps reserve but also because his bearing and attitude seemed rather Prussian.
Despite his no-nonsense demeanor and the absence of a verifiable sense of humor, Hagood also was known as one hell of a lawyer. The son of one career military man and the brother of another, Hagood earned his undergraduate degree at the University of South Carolina and went straight into the Marine Corps upon graduation. Four years later, he accepted a scholarship at the SMU law school. As a student, Hagood consistently made the dean’s list and served in the prestigious and much-sought-after position of moot court judge. He went to work in Vance’s office after he graduated in 1982.
By the time Andy’s trial came along, Hagood, then just two months shy of forty, was in charge of the office’s organized crime division, a unit specializing in the most serious prostitution, gambling, and drug cases the county prosecutors had to handle. Like Chapman, Hagood had hundreds of trials under his belt and two more capital murder trials than his teammate, for a total of five. As Chapman’s had, all Hagood’s capital murder trials had resulted in convictions and death sentences.
Unlike defense lawyers, who came and went depending on who was on trial, Chapman and Hagood were in for the duration, coordinating not only Andy’s trial, but the trials of Joy and the others in the dual “chains.” Andy had Lesser and Mitchell to defend him; Joy had Doug Mulder; and the others would hire still other attorneys. But Chapman and Hagood were constants.
However, because of the complexities of the cases, a third lawyer was appointed to the prosecution team for Andy’s trial: a relative neophyte named Jim Oatman. Much as Lesser and Mitchell had divided the responsibilities of the defense, the three ADAs divided the prosecutorial duties. Hagood and Oatman worked virtually alone in the jury selection process with Chapman making only an occasional appearance. Once the case was set for trial, however, Chapman assumed responsibility for presenting the prosecution’s case, while Hagood, who could be ferocious and sharp-tongued, was delegated to handle most of the cross-examination. Oatman took over much of the behind-the-scenes work.
The other major figure in the courtroom for Andy’s trial was Judge Patrick McDowell. Like members of the prosecution team, McDowell was a permanent fixture in proceedings related to Joy; by the time jury selection began for Andy’s trial in the summer of 1991, McDowell had been involved in the case or its spin-offs for almost three years.
A slim, middle-aged man with a patrician nose and a head of judicially gray hair, McDowell was an experienced lawyer who had seen both sides of the criminal bar before taking the bench. He began his legal career as a prosecutor, then, in a move common in the city’s legal community, he switched sides.
As a defense attorney, he participated directly in two cases involving men accused of capital murder, and assisted colleagues in three others. Additionally, as a judge, McDowell had presided at three other capital murder trials, all of which ended in convictions and death sentences. While McDowell appeared easy-going, he could be very exacting and he had a quick temper.
In the months it took to pick a jury and try Andy Hopper, McDowell’s patience and judicial acumen would be tested a number of times, not only by the esoteric legal issues that would arise with amazing frequency throughout the proceedings, but by his need to be a combination of scholar, moderator, father confessor, and referee, especially the latter since, from the beginning, the opposing lawyers clashed bitterly and frequently over the tiniest of details.
28
The first step in Andy’s trial was the selection of a jury, a process commonly referred to by its Latin name,
voir dire
, literally, “to say the truth.” And, since it was going to be a special sort of a trial, a capital murder case, special procedures had to be followed in picking the panel of citizens to determine Andy’s fate.
In Texas, a capital murder trial is actually
two
trials. In the first one, the jury determines the defendant’s guilt or innocence. If the verdict is guilty, the second trial begins, one in which the end result is either a sentence of life in prison or death by lethal injection. As a result of this dual or bifurcated trial system, a jury has to be selected with care. Each potential juror has to be meticulously grilled to make sure that he or she is not philosophically opposed to the death sentence, and is capable of making an unbiased judgment.
Because the jury selection process in a case like Andy’s can be so long and tedious, not every accused murderer is actually
tried
for capital murder. In fact, the percentage of such trials is remarkably small considering the number of murderers. There are more than six hundred killings each year in Dallas County, but John Vance and Norm Kinne typically pick only three or four of the accused killers to prosecute for capital murder.
One criterion in deciding who gets tried for capital murder and who doesn’t is the heinousness of the crime. Rozanne’s murder definitely met that requirement. Another requisite is “winability.” Vance and Kinne constantly ask themselves if there is a strong likelihood that a conviction is going to be forthcoming.
Over the years, stretching back to Henry Wade’s days, the district attorney and his first assistant have gotten quite good at this. By the time Andy went to trial, the DA’s office, beginning when the death penalty was reinstituted in Texas in 1974, had a 56-0 record on capital murder convictions. That is, not once in fifty-six consecutive capital murder trials had prosecutors failed to convince a jury to convict. And of those fifty-six convictions only twice had the jury failed to follow through with a death sentence.
A third, and probably the most important, factor in determining if a defendant should be tried for capital murder was deciding if the crime fit within the state’s death penalty statute.
In Texas, the death penalty is of restricted applicability. It can be sought only if the crime meets certain particulars, called “special circumstances.” These include someone accused of multiple murders, or of the single murder of a policeman, a fireman, or a prison official. Another special circumstance—and this was the crucial one as far as Andy was concerned—was a murder perpetrated during the commission of another felony. Burglary is a felony. If a burglar kills a homeowner in the process of breaking into his or her residence, that person can be tried for capital murder. Since Andy entered Rozanne’s house illegally, it could be presumed from a technical point of view that he was there as a burglar. Whether he actually stole anything, or even intended to, was immaterial.
While there was at least one other special circumstance that could have applied in Andy’s case—murder for hire—prosecutors decided not to raise that issue. The reasoning was sound: If Chapman and Hagood had sought to try Andy as a hired killer, they would have had to reveal whatever evidence they had against Joy, his alleged employer. That they did not want to do for fear of ruining their chances of convicting her later. It was much more convenient from the prosecution’s point of view simply to legally label Andy a murderous burglar.
Since Judge McDowell had issues to deal with beside the Hopper case, he announced that potential jurors would be questioned no more than three days a week, depending on his own schedule. In practice, some weeks were skipped altogether, either because of McDowell’s workload or to accommodate the lawyers’ schedules.
As a result of the jerky work schedule and the care exercised by both teams in questioning the veniremen, it took from June 3 to November 18—with fifty-six working days—to pick the panel of thirteen: twelve regular jurors and one alternate. Courtroom observers pronounced it as the second longest voir dire in county history in terms of actual days spent at work, and
the
longest in the number of days consumed by the process.
The panel eventually selected was composed of five women and seven men. The woman alternate would be used only if one of the regular jurors was forced to drop out before the trial was finished. They ranged in age from their mid-twenties to their sixties, and most of them were blue-collar workers. Two of them were black, one woman and one man.
Although the jury was picked before Thanksgiving, Judge McDowell was reluctant to start the trial immediately because he feared that it would drag into the holiday season and wind up being a major inconvenience for everyone.
As a rule, capital murder trials in Dallas County took a week, two at the very most. But this looked from the beginning as if it was going to be an exception. Defense attorneys already had warned McDowell and the prosecutors that they expected it to take a minimum of four weeks. As it turned out, it would take almost twice that long. In any case, though, the last thing the judge wanted was to have to sequester a jury during Christmas. So he set a target date of January 21. In the end it didn’t matter; it was late getting started anyway.
First there was a difficulty over a conflict in lawyer’s schedules, which pushed the beginning date back to January 27. Then, on the day the proceeding was scheduled to commence, it was postponed again because of a jury problem, the first of several that would plague Andy’s trial from beginning to end and set courtwatchers to mumbling about the “snakebit”—unlucky—panel. With all the court personnel in place except for the jury, McDowell sadly announced that one of the jurors had a medical emergency in her family and had not shown up that morning.
The next day, Tuesday, January 28, with a full panel sitting nervously in the jury box, the trial formally got under way. It was a hot start; spectators got a hint of just how far apart the defense and prosecution would be as soon as Chapman and Lesser presented their opening statements.
Designed to be freewheeling speeches with the purpose of giving jurors a preview of what they could expect from each side during the trial, Chapman and Lesser’s presentations outlined the gulf that separated the two sides, a remarkable gap considering the general belief that the prosecution had an airtight case against Andy Hopper.
Chapman’s oration lasted for sixteen minutes and was fairly predictable. Essentially, he recounted details about the crime that had already been made public through media reports. Andy, Chapman contended in a steady, soft Texas drawl, accepted $1,500 for killing Rozanne, an act he performed by strangling and shooting her after he had forced his way into her house (the burglary). After he was arrested, Chapman continued, Andy first tried to lay the blame on a man named Chip. However, Chapman continued, Andy changed his story after a polygraph examination failed to confirm his version of events. Admitting that he had lied earlier, Andy then gave two separate statements in which he admitted that he, not Chip, had been the killer.