Authors: Ken Englade
She had been appointed to defend Andy on December 29, 1988, she said, and in her first interview with him she told him the same story he had told investigators: that he had passed $1,000 of the money and the data on Rozanne along to Chip. As far as she knew at the time, there was no physical evidence linking Andy to the attack. At that point, she did not know that a pistol had been recovered.
“On the basis of what the prosecutors had told you, what was the evidence at that time against Mr. Hopper?” Lesser asked.
“It wasn’t great,” Hemphill replied succinctly.
Did you have a copy of the December 20 tapes? Lesser wanted to know.
“I don’t think I
ever
got those,” Hemphill said, adding that she certainly did
not
have them by the time in February when Hagood asked for permission to polygraph Andy.
According to Hemphill’s memory of the sequence of events, Chapman had told her that Andy had fingered Chip as the “shooter,” but the prosecutor wanted to talk to Andy to help investigators track down Chip.
“Chapman wanted the first and the last people in the chain,” Hemphill said, “while those in the middle were out on bond.” Because she thought Hopper fell in the middle, she was not particularly worried about his fate. She was so unworried, in fact, that she agreed to let Hopper go to Richardson to be polygraphed.
“Why would you let him take a state polygraph without first giving him one of your own?” Lesser asked.
“No good reason,” said Hemphill.
“Did you request to be present?”
“No.”
“Would a competent lawyer let his client be questioned in a capital murder case without that lawyer being there?” Lesser asked uncomfortably.
Hemphill did not hesitate. “Obviously not,” she replied dryly.
Lesser quickly followed with two more questions relating to competency: Would a competent lawyer let her client be polygraphed, or go to police headquarters without specific instructions on how to respond?
Hemphill answered both questions negatively.
“Would a competent lawyer keep on representing her client under those circumstances?” Lesser asked.
“I should have withdrawn,” Hemphill replied candidly.
Finally, Lesser got to the most important question of all. In a sad voice he asked Hemphill if she thought her actions amounted to ineffective assistance of counsel, one of the most damning accusations that can be leveled against a defense lawyer.
Hemphill looked directly at the prosecution team and answered unwaveringly, “Yes. I fell below the standards.”
If she had been there after the polygraph was administered, Lesser asked, did she think the results would have been different?
“The questioning would have been cut off,” she replied.
Chapman, apparently surprised by Hemphill’s responses, asked permission to pursue that issue. Judge McDowell agreed.
“You would have stopped the questioning?” the ADA asked.
Hemphill shot him a withering look. “I sure would have,” she replied.
Chapman asked her how she could say that since the ultimate decision on whether to continue rested not with the lawyer but with the defendant. “That would have been his decision, would it not?”
Hemphill shot him a contemptuous look. “Of course,” she said.
His rhythm broken, Lesser tried to reestablish the pattern of his questions. In a brusque series that the defense attorney and Hemphill had obviously worked out beforehand, Lesser confirmed that Hemphill felt retrospectively that it had been her duty to be with Andy when he was taken to Richardson and that by the time he had confessed it was too late for her to try to make a plea-bargain arrangement with the district attorney’s office.
After he confessed, why did she continue to let investigators have access to her client? Lesser asked.
“I didn’t see how he could be any worse off,” Hemphill replied.
Hagood rose, objecting that Lesser was intentionally trying to embarrass Hemphill.
“Do you think I’m trying to do that?” Lesser asked Hemphill softly.
“I think you’re trying to protect your client,” she responded.
Once the questions were over, Chapman asked that the jury not be allowed to hear Hemphill’s testimony. How she felt about her representation of Andy was irrelevant, he argued.
Judge McDowell agreed; the jury never got to hear Jan Hemphill.
The defense had run out of witnesses. Feeling they had been consistently and unfairly rebuffed in attempts to present testimony pertinent to Andy’s defense, Mitchell and Lesser reluctantly surrendered the initiative to Chapman and Hagood for rebuttal. It was 2:30
P
.
M
., Wednesday, February 26, day sixteen of the first phase of the trial.
During the remainder of that afternoon, and all of the next two days, the prosecutors brought forth still more testimony designed to seal Andy’s fate. During that period, Chapman and Hagood scored with two powerful witnesses.
The first was a clean-cut twenty-nine-year-old convict named Michael Matthews, who was serving a twenty-year sentence for burglary and robbery.
In October 1990, Matthews said, when he was sharing a cell with Andy, Andy told him that he had been hired by a woman named “Joy” or “Joyce” to kill another woman. Andy also claimed, Matthews said, that he gained entrance to the victim’s house by posing as a floral deliveryman, that he had tied the woman’s hands, stuffed cotton in her mouth, and shot her.
“What was your reaction?” Chapman asked.
“I didn’t want to hear any more,” Matthews said, obviously nervous about being called to testify, mindful of what could happen to snitches in prison.
“What was Mr. Hopper’s demeanor when he told you this?” the prosecutor pressed.
“Looking into his eyes was like looking into the eyes of a fish,” Matthews replied. “He had no emotion; no remorse.”
Mitchell objected to Matthews’s testimony on the grounds that it was too vague; that he could not identify the victim, and that the facts of the crime, as related by Matthews, were only partially correct.
“Overruled!” Judge McDowell said.
The second witness was Andy’s boyhood friend Buddy Wright. His testimony was more emotional and potentially much more damaging than Matthews’s.
Wright said he had kept up with Andy in the years since they were childhood members of the same church and was not surprised when he received a telephone call from him in midsummer 1988. The purpose of the call, however, did surprise him.
Andy told him, Wright said, that he had been accused of killing someone and, although he was innocent, he needed money to help pay for a lawyer. Wright said he scraped together $5,000 by selling some stock he had been holding on to and flew to Dallas to personally deliver the money. Soon afterward, Andy fled and Wright did not hear from him again until March 1989. Wright did not know it, but by then Andy had confessed to McGowan that he had attacked Rozanne. The contact he had with Andy at that time, Wright said, was via a letter.
Mitchell and Lesser froze. They were aware that a letter existed, but they had never seen it and Hopper’s memory of what he had written was vague. When Wright testified that Andy had admitted in the letter that he had killed Rozanne, Lesser’s jaw dropped.
With a theatrical flourish, Chapman temporarily broke off his questioning. Assuming a position immediately in front of the jury box, Chapman, in a soft uninflected voice, dramatically read the letter.
“I am the one who killed this person,” Andy wrote. “I know that by telling this that I am taking a chance of receiving the death penalty, but Buddy even if this is my destiny I have been given such a peace with God that what ever shall be is His will.”
Chapman paused and looked up at Wright. Both he and Andy were crying. He continued: “Buddy, I have been so bound by this for five and a half years that every time I got on my knees to pray and ask for forgiveness, I couldn’t even ask without feeling so guilty for what I’ve done. Now, Buddy, I know God has forgiven me of all my sins and is preparing a home for me someday.”
Chapman again looked up at Wright. “How do you feel about this letter?” he asked.
Wright fought to control his voice. “I wish I’d put ‘return to sender’ on it and sent it back,” he groaned.
One of the prosecution’s last witnesses was Peter Gailiunas III, Rozanne’s son. The bespectacled youth, who had been only four and a half when his mother was murdered, was a twelve-a-half-year-old seventh-grader when Chapman called him to the stand, ostensibly to try to set the record straight on whether his father had been in the house that afternoon.
Dressed in a Sunday suit and tie, with comb marks clearly discernible in his short brown hair, young Peter peeked over the edge of the witness stand and, in a squeaky little boy’s voice, related how he remembered going ice-skating that fateful afternoon in 1983 and being picked up by Rozanne, whom he now referred to as his “first mother.”
They went home, he said, and he went into his room to take a nap. When he awakened and was unable to rouse his mother, he called his father.
Did he remember speaking on the telephone at any other time that afternoon after talking to his father? Chapman asked.
“No,” young Peter said without hesitation, pushing his horn-rimmed glasses up on his nose.
“Did you go outside?” Chapman asked.
“I don’t recall,” the boy replied.
The prosecutor asked Peter if he had seen
anyone
at his house from the time he and his mother got home until the paramedics arrived.
“No,” he said firmly.
Figuring they had nothing to gain and everything to lose in the eyes of the jury, who might regard any questions as an attempt at badgering, Mitchell and Lesser waived cross-examination.
Factwise, the boy contributed nothing to the prosecution’s case, but his appearance was important nonetheless: Chapman carefully planned the scene to win sympathy from the jury.
Since the first day of the trial when the defense had first made Thorazine an issue, prosecutors had been haunted by the apparently inexplicable presence of the drug in Rozanne’s body. At first they tried to make it sound plausible that Rozanne had taken the drug on her own to help relieve depression she was suffering as a result of her marital problems. But that explanation fell apart under the weight of medical testimony that indicated it would be very unusual for
anyone
to take Thorazine voluntarily since it had such unpleasant effects, much less a registered nurse who would know better.
In another attempt to try to resolve the Thorazine mystery, prosecutors called Robert Nalepka, a bearded chemist at the laboratory that performed the test on the sample of Rozanne’s blood for Parkland Hospital on October 4, 1983.
Chapman asked Nalepka if he believed in 1983 that Thorazine had been correctly identified in the blood sample.
“I certainly did,” the chemist replied.
“Do you still believe that today?” Chapman asked.
“I would say it would be hard to say whether it was or was not,” Nalepka equivocated.
“Why do you doubt it?” Chapman wanted to know.
Because, Nalepka explained, he had later learned that there was a contaminant that gave an identical reading as Thorazine. He estimated the odds that it had indeed been Thorazine in the 1983 blood sample at about 50-50.
On cross-examination, however, Lesser ripped apart Nalepka’s testimony.
Had the chemist seen any articles in professional journals relating to similar problems with a contaminant, Lesser asked?
No, said Nalepka.
Could he recall recording any other such false positives at the lab in the same general time frame?
Nalepka said he could not.
Did you see any similar results after that? Lesser wanted to know.
He had not, Nalepka admitted.
In light of your answers, Lesser asked, what do you now think were the odds that Thorazine had been correctly identified in 1983?
Nalepka refigured. “About sixty-six percent,” he now replied.
With his testimony in doubt as a result of Lesser’s aggressive questioning, the chemist’s claims were all but demolished the next day when the defense called Dr. James Garriott, the former chief toxicologist for the Dallas County Medical Examiner’s Office. Garriott also had been one of the founders of the lab at which Nalepka worked and had devised the testing process the facility had used to identify Thorazine.
Garriott testified that under the double-check system he had instituted at the lab, it would have been difficult to misidentify Thorazine since a contaminant would have to create a false reading in two separate sections of the automated test report.
“In my opinion, it appears that Thorazine was properly identified,” he said.
Asked to review the laboratory records for the month before and two months after the time that Rozanne’s sample was tested—some four hundred and thirty tests—Garriott testified he could find only three other reports of Thorazine, two of which also showed another drug commonly administered along with Thorazine. In the single case where Thorazine alone was found, it proved to be in a sample from a patient at a psychiatric hospital.