Authors: Ken Englade
On cue, Chapman objected.
“Sustained!” Judge McDowell responded quickly.
Mitchell did not want to give up.
“I’d like to call Lieutenant McGowan [before the jury] and start asking him questions,” he suggested. “Then, if the prosecution has objections they can make them then.”
Judge McDowell was faced with another close call. What the lawyers were arguing about was a fine point that was not clearly defined in any of the case histories he had been able to find. Also, he was weary of the constant bickering.
“I’d like to get
something
before the jurors,” he sighed. “They haven’t heard any substantial testimony for five days.”
Sensing an opportunity, Mitchell continued. The defense’s earlier cross-examination of the detective had been done before he and Lesser knew about the tapes of the December 20 interrogation, he said, and therefore they did not have all the facts available upon which to base their questions. If the judge would let them re-call McGowan, they could question him more thoroughly.
Besides, Lesser said, entering the debate, the long time between the December session and the one in February was immaterial because what had happened at both sessions demonstrated the attitude of investigators. “It relates to police conduct,” he contended.
Chapman resorted to form: “What the defense wants to go into is irrelevant,” he said, lighting Lesser’s fuse.
“How can proof of lying ever be ‘irrelevant’ in a trial?” he screeched. “The jury has the right to know what kind of truth teller this witness is. It goes to his credibility. It proves he lied to the jury under oath.”
McGowan was a “liar,” the defense attorney proclaimed loudly, reminding Judge McDowell that when he had cross-examined McGowan earlier—
before
he knew about the December 20 tapes—he had specifically asked the investigator what he would do if someone he was interrogating asked for a lawyer. In response, McGowan had replied that he would stop the questioning immediately and accede to the request. Lesser said the tapes undeniably showed that McGowan did not practice what he preached, that he had willfully and repeatedly ignored Andy’s requests for a lawyer, which violated Andy’s constitutional rights.
“It’s clear that Mr. Hopper asked for a lawyer a dozen times,” Lesser continued. “In response, Lieutenant McGowan disparaged lawyers, called them ‘bloodsuckers,’ and said he didn’t need one, that all one was going to do was tell him to shut up.
This
,” Lesser contended, “is the heart and soul of the defense case. This confession was involuntary.”
What the defense wanted, he summarized, was a chance to impeach McGowan.
Judge McDowell considered what Lesser had said. Viewed from that perspective, he said thoughtfully, the defense had the right to impeach a major prosecution witness. And the tapes
had
given the defense evidence on which to base a renewed attack. Possibly worried as well about how an appeals court was going to look at the record, he promised Lesser and Mitchell that he would let them re-call the investigator if the defense lawyers would strictly limit their questions to the issue of whether Andy had, under the legal definition, been requesting an attorney.
Willing to take whatever opportunity presented itself to grill McGowan again, Lesser and Mitchell readily agreed.
It had become more and more evident, however, as the trial progressed that things would not move smoothly. Virtually nothing up until then had been accomplished without acrimonious debate and snide comments by lawyers from both sides. The tape issue was not going to be an exception. Despite McDowell’s announced intention to allow a new cross-examination of McGowan, the prosecution raised new objections the first thing the next morning, even bringing in one of the district attorney’s appeals experts to bolster their arguments.
“They’re just trying to use this issue to bootstrap into more questioning of Lieutenant McGowan,” Hagood argued, adding that whatever answers the investigator made were irrelevant to the case before the jury. “Their theory is that just because Lieutenant McGowan may have been bad on December 20 he was bad on February 27. They can’t do that,” he contended.
Indeed they could, Judge McDowell announced. “I just feel I
have
to let the defense do it.”
“Impeachment for bad acts are not allowed unless those acts result in a conviction,” Chapman persisted. “What McGowan would have done if the defendant had asked for a lawyer doesn’t matter because he never asked for a lawyer on February 27.”
Judge McDowell, running out of patience, tried to put an end to the debate. “Men,” he said sharply, “I’m going to stay with my ruling. I’ve got to do this. I think it’s the right thing to do.” Turning to Lesser, he reminded him that he was going to strictly limit his questioning to make sure it did not stray outside his announced boundaries.
Unwilling to give any unnecessary ground, Chapman demanded that the defense reveal its specific questions before McGowan was called. “I’m very concerned about getting inadmissible evidence before the jury,” he contended.
Judge McDowell shook his head. “I can’t tell the defense what questions to ask,” he said.
McGowan and the jury were summoned at 10:49. Within thirteen minutes the jury was sent out for the first time. In that brief time span, Hagood and Chapman objected six times to Lesser’s questions. Before the examination was over one hour and forty-five minutes later, the prosecution filed an additional thirty-nine objections—an average of about one every two and a half minutes—and the jury was removed three more times.
Despite the frequent objections that slowed the pace of the questioning and prohibited the defense from building momentum, the defense was able to underline its point that it believed McGowan had violated Andy’s constitutional rights to have a lawyer present during an interrogation.
For his part, McGowan denied that, claiming the discussion he and Andy were having had nothing to do with the crime itself and, therefore, Andy had no need for a lawyer. The detective said he knew that whatever details he extracted from Andy could not be used against him; that he was seeking “information” rather than material that could be used at a trial.
His voice rising, Lesser argued that whatever McGowan had thought about the purpose of the interrogation did not matter because Andy had the
right
to have an attorney there. The detective countered that Andy had never specifically asked for an attorney.
Lesser was flabbergasted. He pointed out that Andy had said that he “thought” he should have an attorney with him, that he “should be” talking to an attorney, that he did not “want to say anything else without an attorney,” and that he was going to “wait” until his lawyer was there before saying anything else. Flipping through the transcript of the December 20 tapes, Lesser found a passage he thought was particularly pertinent.
“Here,” he said, pointing to the transcript, “Mr. Hopper says, ‘I want my attorney,’ and McKenzie responds: ‘Want a Coke?’ and you say, ‘Well, I want some coffee,’ and the interrogation continues. What would he have had to say to put an end to the interrogation?”
“He would have to say, ‘Put me in my jail cell; I have nothing more to say to you,’ ” McGowan shot back.
Didn’t the investigator think that Andy was entitled to an attorney? Lesser wanted to know.
“It depends on the circumstances,” McGowan replied. “I was after
information
,” he said, trying to emphasize the distinction, at least in his view, between
information
and
admissible evidence
.
“So then it’s all right to violate his constitutional rights?” Lesser asked, setting off an objection from Hagood that was sustained by Judge McDowell.
“Every time Mr. Hopper is asking for an attorney, isn’t that an attempt to invoke his constitutional rights?” Lesser asked, approaching from a different angle.
“Objection!” Hagood yelled. “Mr. McGowan can’t answer because that is a legal conclusion.”
“He doesn’t have to be a lawyer to understand the Miranda rights,” Lesser countered.
The judge sustained Hagood’s objection.
“He
has
to know that when a man says he wants a lawyer, he has to stop talking,” Mitchell interjected.
“If he tells me he did it, the interview would end right there,” McGowan replied, adding that in his view Andy’s references to a lawyer were simply his way of saying that he did not want to talk about the crime itself. “I didn’t see it as any indication that he wanted to stop talking to
me
. He just didn’t want to talk about the offense.”
Lesser’s frustration was evident. “He kept saying he wanted an attorney—” he began.
“He said he wanted
an
attorney,” McGowan interrupted, his voice rising as well. “That’s not the same as him asking me to get him one.”
Lesser took another tack. “Did you read him his rights when he was arrested?”
“I don’t think so,” McGowan replied. “I wasn’t asking him anything then.” He read Hopper his rights when they got to the jail.
But what about when he asked for an attorney during the interrogation at the jail? Lesser asked.
“I wanted information that may have been inadmissible,” McGowan said.
“So that gave you the right to ignore Miranda?” Lesser yelled.
“No sir,” McGowan said before Hagood jumped to his feet and yelled at Lesser, who yelled back.
Judge McDowell, visibly displeased, sent the jury out of the room. Standing with his hands on his hips, the judge took both Lesser and Hagood to task.
“I’m not going to have any more interchanges between the lawyers in the presence of the jury,” the judge said angrily. “The next time there is a sidebar remark addressed by any lawyer to the other lawyer, I’m going to send the jury out and I’m going to sanction that lawyer for contempt of court. If you have to come down here every day and try the case out of the jail, that’s going to be the way it’s done.”
Both Lesser and Hagood sank into their seats, appropriately chastised.
The exchange between Hagood and Lesser effectively ended McGowan’s cross-examination on the December 20 interrogation, but the investigator was called back one more time before the day was over as a rebuttal witness for the prosecution.
By calling McGowan, Chapman hoped to counter the defense’s contention, raised earlier, that there was a sizable time gap on the afternoon of the attack on Rozanne during which Dr. Peter Gailiunas had no alibi. According to defense witnesses, Gailiunas had been unable to account for the time between roughly 3:45
P
.
M
., when he was seen at Parkland Hospital, and about 5
P
.
M
., when an associate said he chatted with him outside his office door.
Under Chapman’s questioning, McGowan told how he had driven from Parkland Hospital to Rozanne’s house by three different routes and was convinced that Gailiunas could not have made it to 804 Loganwood Drive and back to his office within the prescribed time limitations.
“How long did it take you to make those trips?” Lesser asked on cross-examination.
“I don’t know,” McGowan replied, adding that he had taken no notes on the experiment.
Throughout the trial the defense had pounded away at the investigators’ failure to take notes to substantiate their testimony. In every instance, investigators said they were relying strictly on memory. This practice was thrown in the detective’s face a few minutes later when Lesser asked him to describe what he had found to be the quickest route between Parkland Hospital and Rozanne’s house. After the investigator recited the list of streets he had taken, Lesser pointed out that he could not have taken the route he claimed he had because two of the streets did not intersect.
“Oh,” McGowan said in surprise. “I forgot Central Expressway.”
Lesser pounced. “That goes to show just how faulty memory can be, doesn’t it, lieutenant? Doesn’t that prove the adage that a short pencil is better than a long memory?”
“Yes sir,” McGowan answered sheepishly.
38
Before resting its case and handing the baton back to the prosecution for rebuttal, Mitchell and Lesser wanted to make one more attempt to let the jury hear Jan Hemphill.
Unlike McGowan, whom Judge McDowell reluctantly had allowed to be questioned before the jury, Hemphill was to be heard first outside the jury’s presence. If the judge then determined that what she had to say should be shared with the panel, jurors would be summoned and the process would be repeated. But, since it was midafternoon and the judge anticipated that Hemphill’s questioning might take some time, he sent the jurors home for the day.
In an almost-empty courtroom, Lesser began for the second time the unpleasant task of making a colleague publicly confess her mistakes. He started at the beginning.
Hemphill, poker faced and as terse as usual, answered his questions directly and concisely.