Authors: Ken Englade
A ponderous, six-foot-five, barrel-chested man with his hair in a Fifties-style crewcut and the type of unlined, boyish face that, had he lost seventy-five pounds, would have made him look twenty years younger, Garland shuffled nonchalantly to the stand when he was called by Mitchell. In a surprisingly small voice coming from such a large man, Garland declined to answer each of Mitchell’s questions on the grounds that to do so would violate his Fifth Amendment right to protection against self-incrimination.
After a half dozen repetitious responses, the judge interrupted Mitchell to ask Garland if he would continue to answer in the same vein if the questions continued. When he replied that he would, Judge McDowell nodded, announcing that he was going to honor Garland’s right not to answer, thereby ending any chance that Garland would divulge any pertinent information—or any information at all, for that matter—during Andy’s trial. When he was excused a few minutes later, it was with the understanding that he would not be seen again in McDowell’s courtroom until Joy’s trial or his own.
When Carol appeared, it actually was the second time in a week she had been before Judge McDowell. The previous Wednesday she had been dragged in against her will because she had refused to accept the defense’s subpoena to appear. When she fled from the process server, the man called the police, who tracked her down and slapped her in handcuffs.
A pudgy, frumpy-looking woman with long blond hair and outsized purple-framed glasses, Carol was still seething over the incident by the time she got to Judge McDowell’s courtroom, complaining loudly that the arrest and handcuffing constituted police brutality.
The judge, undoubtedly remembering the way her sister, Joy, had skipped on the eve of her own court appearance, sternly asked Carol if she anticipated a problem in obeying the subpoena.
“No,” she replied haughtily. She would appear, she added contemptuously, but she would not answer any questions.
Judge McDowell’s eyebrows went up. That would be up to her and her attorneys, he told her. But his tone said, We’ll see about that.
True to her word, when she was called by Mitchell, she appeared only minutes after her ex-husband had left the room. And, as she had promised, she remained essentially mute, also claiming protection under the Fifth Amendment.
McDowell said he needed time to consider her position because she apparently did not fall into the same category as her former spouse. The charges against her had nothing to do with Andy Hopper, while Bill Garland was in the Rozanne “chain.”
On Friday, February 7, day ten of the trial, Chapman told Judge McDowell that he was almost through with his case-in-chief and the prosecution intended to rest on Monday. Since the judge had promised to give the defense a week to fine-tune its presentation, the judge indicated he would recess the proceeding at the end of the day and bring the jury back on February 17.
Mitchell and Lesser accepted the judge’s announcement with sighs. They figured they were going to need all the time they could get. Lesser was almost through with his cross-examination of McGowan and they had been looking forward to the week off to prepare their witnesses, especially their medical expert who would expand on the Thorazine issue and try to discredit Dr. Gilliland’s autopsy report. But first, there were a few more questions Lesser wanted to put to the detective dealing with his preparations in anticipation of the trial.
What material, Lesser asked the detective, had he read to get ready for his testimony?
To the defense attorney’s surprise, the detective admitted to virtually no preparation, confessing he was relying instead entirely on memory.
In response to another question, McGowan admitted that he had taken no notes during the entire investigation with the exception of a few scribblings he had made in the days immediately after the attack. But, he added hastily, he had destroyed those when he incorporated them into a formal report. “I operate from memory,” he said.
When Lesser then asked him if he had reviewed any reports that might help him remember what had transpired, McGowan answered that, on orders from Chapman, he had read very few reports.
“What do you mean?” Lesser asked incredulously.
“Mr. Chapman told me to read some reports and not to read others,” McGowan said.
“Which ones were you told not to read?” Lesser pressed.
He said he had been told not to read anything dealing with events that transpired between 1984, after Rozanne’s death, and the time Andy was arrested late in 1988.
“Is it your habit
not
to review all the reports before you come to testify?” Lesser asked.
“Yes sir,” McGowan replied. “That’s so I can testify only about what I did myself.”
The note issue surfaced prominently again later in the day when Lesser asked the detective to list in detail the sequence of events that occurred after Andy was taken into the interrogation room following the polygraph.
“My memory is I went up to see him,” McGowan said.
“I don’t guess you took any notes?” Lesser asked sarcastically.
“No,” McGowan replied.
“Do you have
any
notes on what you did on that day?”
“No,” McGowan replied.
Throughout the remainder of the trial, Lesser would return to the theme again and again, quizzing every police officer who testified about his or her note-taking practices. The defense attorney wanted to establish that it was department policy rather than just personal idiosyncrasies that stopped investigators from taking notes. If they did not take any notes, Lesser pointed out, no notes could come back to haunt them years later. While this practice could save a lot of embarrassment and headaches for the investigators, it made it difficult to put together a clear picture of events that had transpired nine years previously.
Veteran Dallas defense lawyers smile knowingly when asked about the no-note policy, accepting it as an unhappy but unchangeable fact of life. “Don’t forget,” one of them commented cynically, “that Dallas County investigators questioned Lee Harvey Oswald for twelve hours before he was killed and none of them took notes.”
A few minutes later, Lesser announced that he was through with McGowan, thinking as he did so that the detective would not be back on the stand again during Andy’s trial. He was wrong.
At that point, however, both sides had come away with something as a result of the detective’s extended testimony. The prosecution got to present to the jury a sanitized and incomplete version of events that led to Andy’s confession, as well as to demonstrate the tenacious police work that went into Andy’s capture. Once jurors had these facts, Chapman hoped, they could not help but come to the same conclusion as the DA’s office: that Andy, acting alone, had cold-bloodedly shot and fatally wounded Rozanne Gailiunas.
The defense, on the other hand, longed to expose a side of the investigatory process that the prosecution would have preferred to keep hidden, that is, that McGowan may have acted precipitously in targeting Andy exclusively, and may indeed have violated Andy’s rights in his eagerness to bring the long investigation to what he considered a fulfilling conclusion. Furthermore, Lesser and Mitchell believed they had planted in juror’s minds a suspicion that McGowan—whose dedication to his job could not be doubted—nevertheless harbored an instinctive distrust for the defense, an attitude that was clearly shared by Chapman and Hagood. The defense lawyers hoped that they could persuade the jurors that the district attorney’s office was more interested in convictions than in truth.
Later, as the lawyers packed their files and prepared to leave the building for the week-long recess, Chapman handed Mitchell two audiocassettes, explaining that they were recordings of the interview with Andy on the night he was arrested. The move caught the defense lawyers by surprise; they did not know such tapes existed.
Originally, Chapman did not plan to give the tapes to the defense, but Judge McDowell had a copy of the transcript and Chapman knew the judge felt it was information the defense should have. If he had not voluntarily surrendered the tapes, Chapman feared that Judge McDowell would have ordered him to do so.
The tapes, although Mitchell and Lesser did not know it at the time, would necessitate a major shift in defense strategy, pave the way for two more appearances by Jan Hemphill, require another long stint in the witness chair for McGowan, and lead to some of the most revealing testimony of the trial.
32
On February 17 Carol made her third appearance in Judge McDowell’s courtroom, again outside the jury’s presence. The judge had bad news for her: He said his research convinced him that she was not entitled to take the Fifth Amendment in the current trial because the charges against her stemmed from the attack on Larry Aylor, not the one on Rozanne. That meant that as far as he was concerned, she could not incriminate herself in a proceeding in which she was not involved. However, before allowing the lawyers to question her, the judge cautioned Carol not to bring her sister Joy into her testimony.
Joy, who was in jail in France, was not an issue in the case currently being tried, the judge warned Carol, and he did not intend to let her become one. The prosecution, worried that even the slightest mention of Joy during Andy’s trial might derail chances to prosecute her later for her alleged connection to Rozanne’s murder, had pleaded with Judge McDowell to keep out any testimony relating to her.
Despite the judge’s admonition, when Lesser tried to question her, he got no further than the second question, which was what Bill Garland had told her about the attack on Rozanne. In response to his question, Carol began, “He said my sister had hired him—”
Hagood leaped to his feet. “Objection,” he roared, professing concern that testimony along those lines might hinder her future prosecution. It was an odd basis for complaint, considering that the district attorney’s office had made no attempt to bring Carol to trial in the two years since her indictment.
Startled by the prosecutor’s reaction, her emotions fed by her own dominant unease, Carol suddenly became very wary.
In his statements to her, she said apprehensively, her former husband had implied that he was “more or less a broker” in arranging for Rozanne’s murder.
“Was he a shooter?” Lesser asked.
“No,” she responded.
“Did he say he threw away the gun?” he persisted, trying to get her to repeat statements he believed she had made earlier to investigators.
“No,” she said, adding that Garland had never told her directly that he had been present when the attack occurred, but that was the impression she had gotten from his graphic description of the scene. Of course, Garland could have learned the details from various other sources.
Lesser’s suggestion that Carol be allowed to read a statement she had made to Richardson police in order to refresh her memory touched off another series of objections from Hagood.
“I’m real worried about the future prosecution of this witness,” the ADA repeated.
“I think she ought to be allowed to refresh her memory,” Judge McDowell interjected, setting off a complaint from Chapman, who suggested that the judge take the three-inch-thick stack of transcripts, which included Carol’s various statements, into his chambers and review them privately before allowing the defense to continue its examination.
McDowell glanced at the digital clock on the wall above the jury box. It was 11:15. The judge had promised the jury he was going to dismiss them at noon, which would leave him no time to comply with Chapman’s proposal. Plus, the issue could not be put off until the next day because Carol had a dawn flight to Hong Kong and she was not coming back for two weeks.
“It’s a very simple one-two question,” McDowell explained, mindful of the advancing clock. “Mr. Lesser just wants to know if your husband said he killed Mrs. Gailiunas and threw the gun away.”
“No,” Carol replied, looking flustered.
“Why is it mushrooming like this?” Lesser asked, frustrated by the lack of progress. “There’s just one statement—”
Chapman interrupted him, claiming that Carol had made several statements.
Lesser, who was not privy to the statements because the prosecution guarded them zealously as “work product” information and therefore material that was not required to be supplied to the defense, repeated his demand that Carol be allowed to see the document in which, Lesser believed, she claimed that Garland acknowledged his presence in Rozanne’s house. If Lesser was successful in getting that information before the jury, it could help his client tremendously. And Carol was his last hope in that regard because Judge McDowell had already ruled that Garland, in light of the charges against
him
, could not be forced to testify about the situation because such testimony would be self-incriminating.
Lesser’s demand struck a sore spot with Chapman, who until then had never raised his voice or given any indication that he was under stress. In a rare display of temper, Chapman yelled across the courtroom at Lesser.
Judge McDowell, in an attempt to reestablish order, instructed Chapman to show Carol the transcript of the statement the defense had been alluding to.
Some fifteen minutes later, Carol resumed her testimony, but it was vaguer than ever.