Authors: Ken Englade
This enmity, initially expressed subtly but gaining in perceptibility as the trial progressed, apparently was not going to simply disappear. Before the trial was over, one particularly bitter clash between Hagood and the defense would lead Judge McDowell to angrily threaten to throw them both in jail. The unusual display of open antagonism between the opposing pairs of lawyers—far exceeding the belligerence expected in a normally competitive environment and at times seeming to border on actual hatred—would haunt the trial, severely test the judge’s patience, and force one of the city’s most even-tempered jurists into a tantrum of his own.
One particular incident when the trial was well under way seemed to effectively demonstrate the lengths to which the lawyers would go to try to wound the other side. It involved Andy’s parents, who had been in the courtroom faithfully every day since the proceedings started, including the lengthy jury selection process. They had become fixtures: two inoffensive, middle-aged people who were immediately recognized by the jurors and the regular spectators.
On February 5, day eight of the trial, Chapman asked Judge McDowell to invoke the rule banning potential witnesses from the courtroom. That meant expelling Andy’s parents, who the defense tentatively planned to call to testify about Andy’s childhood.
At the start of the trial, the defense and prosecution teams had agreed to exempt Rozanne’s and Andy’s families from the rule holding that potential witnesses would not be permitted in the courtroom, at least until after they had given their testimony. The reasoning behind the agreement to ignore the rule regarding family members was that none of them would be able to give substantive testimony relating to the facts of the case. To exclude them from the proceedings, when the issue affected them so deeply, would be cruel and unnecessary.
Early in the trial, Chapman had called Rozanne’s father, Henry Agnostinelli, as an historical witness to testify about Rozanne’s early life in Massachusetts. And, although the Hoppers were standing by, Lesser said he did not plan to call either of them until the punishment phase of the trial. Even then they would be, as Rozanne’s father had been, historical witnesses only.
For the first seven days of the trial, Andy’s father and mother sat quietly in their seats in the first row on the far-left-hand side of the room, immediately behind their son. Hopper’s mother, especially during the more sanguinary testimony, usually immersed herself in a religious tract. Rozanne’s family huddled on the opposite side of the chamber, behind the prosecution table. Allowing them all to remain seemed like a humane arrangement. For that reason as much as anything else, it came as a shock when Chapman asked Judge McDowell—with the jurors absent—to order the Hoppers to leave the room and be prohibited from returning.
What made the act especially astonishing was its timing. Chapman made his request only hours after the jury viewed Andy’s confession and almost immediately after Rozanne’s family returned to Boston. The prosecutor never explained his reasoning, leaving the impression that it was a petty impulse, that he had gotten what he wanted out of the agreement to let the families stay and, once that was accomplished, he wanted to wound the Hoppers and the defense. The last time the jury had been in the courtroom, the Hoppers had been sitting in their customary seats. When jurors came back, they could not help but notice that the Hoppers were missing.
Lesser, remaining uncharacteristically calm under the circumstances, opposed Chapman’s proposal to eject the Hoppers, arguing that the results of the banishment could have an adverse effect on the way the jury viewed Andy. For the Hoppers to suddenly and inexplicably disappear could raise serious questions in the jurors’ minds about Andy’s guilt. The most logical conclusion the jurors could draw, Lesser argued, would be that the Hoppers were so revolted by their son’s confession that they abandoned him. If the jurors thought the Hoppers felt that way about their own son, they would be more inclined to look upon him without mercy themselves.
“I’m more concerned about the appearance their absence will create than about the rule being invoked,” Lesser argued to no avail since Judge McDowell said he was powerless to deny the prosecution request.
“It’s not going to be for the rest of the trial,” Chapman said in an attempt to soften the blow, “but only for the testimony that is coming up.” He did not elaborate.
However, for the next several days, the Hoppers remained in limbo. To prove that they had not forsaken their son, they camped on a hard bench in the hallway just outside the courtroom, where jurors had to pass them as they came and went.
Then, as unexpectedly as he had demanded their expulsion, Chapman reversed himself and told the judge that he would have no objections if the Hoppers wanted to return. His reason for asking for their removal—or for changing his mind—was never made clear. As far as Lesser was concerned, though, it was simply additional evidence of the prosecutor’s pettiness; it did not help to relieve the tension between the two.
One of the results of this animosity among the lawyers affected the pace of the trial. It slowed.
The amount of time the jury spent out of the courtroom, particularly during the presentation of the state’s case, was far more than usual. One of the reasons for this was because the trial was breaking new ground, particularly as far as admissibility of a confession was concerned. There also were frequent long and bitter arguments about what was hearsay and what was not, an issue that, to the best that Judge McDowell could determine, was not adequately spelled out under existing Texas law. These were arguments, understandably, that demanded the jury’s absence.
As a result of these issues and others, in the first ten days of the trial, the jury probably spent more time out of the courtroom than inside it. One day, for example, when the lawyers were engaged in particularly acrimonious debate, the jurors were in the room for less than two hours.
Hagood and Chapman also proved exceptionally quick to object. Every time momentum built in the trial, testimony got sidetracked under a deluge of protests from the prosecution. This was part of the strategy of the district attorney’s office in order to keep the focus as narrow as possible and to attempt to censor any testimony that did not fit with its contention that Andy acted independently in the attack on Rozanne.
In most trials, the objection tactic is preempted by the defense, which is anxious to keep out testimony harmful to a client. In this case, it seemed, the prosecution was being extremely cautious because it feared that revelation of any material that did not deal specifically with Andy Hopper might hinder the future prosecution of Joy Aylor, or give information to her lawyer. Still, by taking this stance, Chapman risked alienating the jury. By the time the defense got to its case-in-chief, jurors were audibly groaning about the yo-yo treatment they were receiving, constantly being asked to retire to their cramped quarters behind the courtroom while the lawyers fought out whatever issue was being raised. Most of the time the objections were raised by the prosecution.
Two other factors also contributed to the trial’s slow progress. One was McDowell’s attempt to keep up with his usual workload in addition to trying Andy Hopper. And then there was the string of unfortunate circumstances that seemed to plague the proceeding, particularly members of the jury, a stream of misfortune that veteran courthouse employees could not recall ever before occurring during a single trial.
The most serious of the incidents was when one of the jurors, who later came in red-eyed and shaken, had stopped for gas on the way home and was fueling his car. A twenty-year-old soldier on furlough walked into the station seeking help for his broken-down vehicle. While he was talking with an attendant, a car with five teenagers drove up and the youths began yelling obscenities at the soldier’s half-sister. The soldier yelled something back and one of the group produced a shotgun, which he leveled at the soldier. He missed with his first shot, but the second blast caught the soldier squarely in the chest, killing him instantly. The juror witnessed the entire incident. As a result, he spent most of the rest of the night at the police station giving statements and being questioned about what he had seen.
And then there was the incident that occurred on day ten of the trial. The prosecution was examining Larry Fletcher, the state’s firearms expert, in an attempt to connect the gun allegedly used by Andy to shoot Rozanne and the bullets that were recovered. The problem erupted when Fletcher opened a small vial purportedly containing the slug taken from the wound near Rozanne’s right ear. To his and everyone else’s surprise, the container was empty. The missing bullet subsequently was found in the property room at Richardson PD and, although it was admitted into evidence over defense objections, its value was unquestionably greatly diminished.
These ups and downs, ironies, inconsistencies, bouts of pugnacity, and childish digs at each other were hardly more than one might expect, one courtroom wag pointed out, in a trial that featured a fundamentalist Christian being defended by two liberal Jews before a Roman Catholic judge.
34
Larry Mitchell and Peter Lesser, who had been impatiently waiting for the eleven days it took the prosecution to wind up its case-in-chief, summoned as their first major witness the medical examiner from San Antonio, Dr. Robert Bux.
An affable and articulate witness, Bux had been called by the defense to give jurors another version of what might have caused Rozanne Gailiunas’s death—a common practice in many murder trials—and fill them in on the properties of Thorazine, the powerful drug discovered to be in Rozanne’s system the night she was attacked.
Before delving into the Thorazine issue, however, Mitchell led Bux through a painstaking reexamination of Gilliland’s autopsy report, beginning with the least serious of all the wounds inflicted upon Rozanne: the second gunshot wound to the head. In that case, the bullet never penetrated the skull, but struck a glancing blow and lodged just below the skin on her right temple. The pathologist, who had performed more than 2,600 autopsies, scoffed at Gilliland’s conclusion that this wound contributed to Rozanne’s death.
“There was no evidence of severe bleeding from this wound. There was no evidence it hit anything vital. There was no evidence that the wound was septic. In my opinion,” he said, brushing aside Gilliland’s contentions, “you can eliminate this.”
Significantly, he added that he did not believe that the tissue found stuffed down Rozanne’s throat had been a contributing cause in her death. It may have made it difficult for her to breathe, he said, but it had no effect on her fate. Since it was removed by paramedics at the scene and since it left no telltale signs that it ever had been inserted, it was not even mentioned in the autopsy report.
Lesser and Mitchell had wanted to make sure that Bux’s statements about the tissue were in the record for a very specific reason: Andy denied ever cramming the material in her mouth. But getting Bux to testify about it was part of the strategy. The defense lawyers wanted to lay the groundwork for this claim in case they ever got the opportunity to try to prove that someone other than Andy was involved in Rozanne’s death. To Lesser and Mitchell, the presence of the tissue was another indication that someone knowledgeable about physiology had been involved because the idea of trying to suppress a person’s breathing in such a way would never have occurred to the ordinary person.
In the end, the defense team was not able to get the issue before the jury. But the tissue’s presence, like that of the Thorazine, was never satisfactorily explained.
Different from the tissue, however, but still questionable as a cause of death in Bux’s point of view, was the attempt at strangulation. In her testimony, Gilliland had detailed the wounds at great length, concluding that the attempt was a contributing cause of death.
Bux also questioned her opinion on that issue. In the first place, he pointed out, he did not believe the sash from her robe and the stocking, both of which were found on Rozanne’s bed, had been the ligatures used in the attempted strangulation. From his examination of the wounds, Bux concluded that in his opinion the instrument that had done the most damage was a piece of rope, which the assailant apparently carried away with him. In any case, though, no one could argue with the fact that Rozanne was alive and breathing on her own when paramedics arrived. “If you’re going to say that strangulation was a cause of death, she should have been dead at the scene,” Bux contended.
But, he added, he could not
prove
Gilliland wrong about the strangulation because the necessary evidence did not exist, again thanks to an apparent mistake on Gilliland’s part.
Pathologists commonly take tissue slides from the brain to determine if a victim has been strangled. Scientists have been able to determine that sudden oxygen loss, as would occur if a person were throttled, creates a distinguishable change in the tissue in a particular area, a change that can be as readily observed as a black eye. Apparently, Bux said, Gilliland tried to do this, but she took the slides from the wrong section. If she had only taken the slides from the correct area, Bux said, it would have shown conclusively whether strangulation played a role in Rozanne’s death.
The jury, far from being bored with the medical terminology that was flying around the courtroom like jetliners circling DFW, hung on Bux’s every word, much to the consternation of Chapman and Hagood.
What particularly disturbed him about Gilliland’s autopsy, Bux said, was her failure to examine blood that had been drawn by hospital personnel when Rozanne was admitted and she was still alive. In his view that was an inexcusable error that could not be dismissed with the notation on Gilliland’s report that no antemortem blood was available.