Authors: Ken Englade
“This case has never been about whether Andy Hopper went to 804 Loganwood Drive,” he said. “It’s about ‘the rest of the story.’”
Predictably, his voice increasing in volume as he went along, Lesser hammered at the Thorazine issue, insisting that it was not a minor detail to be ignored by jurors.
“It was there!” he asserted, implying that whoever put it there played a major role in Rozanne’s death because, recalling the testimony of the defense medical expert, if it had not been for the Thorazine Rozanne might have survived the gunshot wound.
“Where did that Thorazine come from?” Lesser asked rhetorically, scoffing at the initial prosecution contention that Rozanne took it voluntarily. If she had taken it orally, she would have had to swallow twenty-eight pills to result in the concentration found in her blood, he pointed out, leaving unsaid the question “Who takes twenty-eight pills of anything?”
The effect on her, if she had taken it voluntarily, would have been remarkable, Lesser contended, adding that she would never have been able to perform the activities that witnesses had described her completing on the day she was attacked.
While continuing to use the Thorazine as a basic premise for suspecting the involvement of someone else in addition to Andy, Lesser implied that that other person was Rozanne’s estranged husband, Dr. Peter Gailiunas. He reminded the jury that one of Rozanne’s neighbors had testified about how Gailiunas had warned her not to tell anyone that she had seen him that day, how his son had also told investigators that his father had been there “before and after Mommy got sick,” and how Gailiunas continued doing business with Larry Aylor, the man who was having an affair with his wife.
“Dr. Gailiunas is a very unusual man,” Lesser said contemptuously, pointing out how Gailiunas, after talking to his son on the telephone and learning that Rozanne was incapacitated in a mysterious fashion, brought his
mother
along with him when he went into what possibly could have been a dangerous situation. That was not very considerate, he said, “unless he knew what the scene was because he had already been there.”
The Dr. Gailiunas the jurors had seen on the witness stand was not the real man, Lesser contended, explaining how jurors had never been able to hear testimony from Larry Aylor in which the homebuilder related how Rozanne had told him that Gailiunas had threatened her with a shotgun and had threatened suicide if his wife persisted in leaving him.
“He was masking his real emotions for you,” Lesser asserted. “He masked them with Valium when he testified here in this courtroom.”
He said Gailiunas misled them about his lack of knowledge about Thorazine and about the access he would have had to the drug. The prosecution also misled the jury, he asserted, with its weak attempts to explain the presence of the drug.
“But if she didn’t give it to herself, and if Andy didn’t give it to her, then they tried to tell you it wasn’t there. But it
was
there,” he repeated. “How did it get there? Where did it come from?” he asked, pausing before adding: “It’s the defense theory that it came from Dr. Gailiunas.”
Lesser reserved his real scorn, however, for Morris McGowan, assailing the detective for, among other things, failing to take notes throughout the long investigation. “He doesn’t take notes because notes can come back to contradict you years later,” Lesser asserted.
But mainly Lesser attacked McGowan for his actions during the December 20, 1988, interrogation of Andy, when Andy’s repeated requests for an attorney were ignored, and for disregarding Andy’s two requests to “go back to his cell to think about” developments during the February 27, 1989, interview minutes before Andy confessed.
“This trial has been the tale of two victims,” Lesser argued, claiming that one of the victims was Rozanne. The second victim, he said, surprising those who expected him to say Andy, “was the U.S. Constitution.” What the jurors saw evidence of, Lesser bellowed, was “Miranda according to Mo.”
Reading excerpts from the transcript of the December 20 interrogation, Lesser derisively accused McGowan of repeatedly trampling on Andy’s constitutional right to a have a lawyer present during questioning.
“What happened when Andy asked for a lawyer?” Lesser asked, melodramatically striding across the room to the defense table. Reaching into a paper bag, he produced a bright red can of Coca-Cola and popped the top. “They offered him a Coke!”
Taking a sip from the can, Lesser looked directly at McGowan, who was sitting in the first row of the spectator section.
“What contempt for the Constitution of the United States,” he spat. “What contempt! To Mo, our Constitution is a very fluid document that he interprets in his own way. What Mo did is more criminal, I submit to you, than the crime. In this case, the victim is all of us and our rights.”
Unhappily, he said, the jurors had little remedy because the judge’s charge narrowed their options.
“I wish you had a middle ground,” he said, “but you don’t. You have a Hobson’s choice; it’s a real dilemma. But if you enforce the Constitution, maybe there will be no more such violations in Dallas County. I ask you,” he concluded, “to enforce the Constitution and find Mr. Hopper not guilty.”
When Lesser returned to his chair, it was 11:44. He had consumed eighty-seven of his allotted ninety minutes.
Wrapping up the case for the prosecution was Dan Hagood. The last voice the jurors would hear, except for Judge McDowell’s, would be the parade-ground bellow of the the no-nonsense prosecutor.
With a twenty-one-inch television set and a VCR as a background prop, Hagood began by attacking Lesser’s “anybody but Andy” defense, ridiculing his opponents’ attempts to criticize McGowan, Hemphill, Gilliland, and Gailiunas. “And if you convict Mr. Hopper,” he promised, “you will be viewed by him as a bad jury.”
As expected, Hagood criticized the defense argument that Thorazine was an important factor in the case.
“It’s not a defense to Mr. Hopper’s conduct if in fact there was Thorazine in Rozanne’s body. Legally,” he contended, “Thorazine is a nonissue.” But he could not say the same for Andy. “He’s the one,” Hagood roared, pointing at the defendant, “who pumped a bullet into her brain.”
Abruptly changing pace and tone, Hagood asked the jury a rhetorical question. “What would have happened if Little Peter would have waked up and gone into that bedroom?” he asked in a quiet, reasonable tone. Pausing dramatically, he continued: “I don’t want to think about that.” For emphasis, he added a theatrical shudder.
Turning to the television set, Hagood flipped the on switch of the VCR and Andy appeared on the screen. With his finger over the pause button, Hagood ran a few feet of tape, just enough for the jury to get a look at Andy’s semi-relaxed stance.
“Does that look like a man who has had his rights trampled upon?” Hagood asked contemptuously.
He ran a few more feet of tape, pausing again after Andy explained how he had accepted the money from Brian Kreafle, reminding the jurors how the defense had criticized the prosecutors for not calling as witnesses Kreafle and others alleged to have taken part in the conspiracy.
“We’re not required by law to bring him in here,” Hagood said. “His testimony at this stage is irrelevant.”
Hagood hit the play button, running enough of the tape for jurors to witness again Andy’s admission to being a heavy user of the drug called crystal.
“What is ‘crystal’?” Hagood asked. “It’s a drug and Mr. Hopper was a drug user. For the defense to suggest that Mr. Hopper would not know how to inject Thorazine flies in the face of this statement.”
Again he ran the tape, letting it go to the end.
“That tape has been saved to show you that Mr. Hopper’s rights were not violated,” he said disingenuously, not admitting that the tape was played in a final attempt to play on the jurors’ emotions.
“He didn’t feel his rights were being trampled upon. He lied and lied and he tried to put it off on an innocent man named Chip.” But it didn’t work, Hagood said. “You ought to exult,” he told the jurors, “you ought to rejoice because this man was caught,” implying that whatever tactics the investigators used was justified by the end.
“What the defense boils down to is no defense,” he said. If there was Thorazine in her body, and Hagood was not going to concede that there was, he had the same question Lesser did: How did it get there?
“It certainly couldn’t have been Dr. Gailiunas,” he averred, “because Dr. Gailiunas was on the other side of town. So it had to have been put there by Mr. Hopper, by Mrs. Gailiunas herself, or by some mystery man. But even if there is a mystery man out there, folks, Mr. Hopper is still guilty as charged. There is only one human being on this planet who is guilty,” Hagood said in summation, “and that is Mr. Hopper. He is as dangerous a human being as you’re ever going to see in a courtroom. He has the sadistic capacity to turn
this
,” he said, flourishing the portrait of Rozanne, “into
this
,” he added, replacing the portrait with a blowup of an autopsy picture of Rozanne showing the bullet wound in the back of her shaved head.
“There,” he said dramatically, pointing again at Andy, “is the most dangerous man on this planet.”
McDowell glanced the clock. It was 12:56, precisely forty-six minutes since Hagood took the floor. Without hearing further comment from the lawyers, the jury filed out of the room to begin its deliberations.
When the jury left, so did the judge and the lawyers. McDowell retired to his chambers while the prosecutors disappeared into the warren of rooms the district attorney’s office commands on the eleventh floor of the new courthouse, directly across the freeway from the well-known Reunion Center. The defense team, whose office was several miles away, nervously paced the hallway or slumped on a sagging couch in a court anteroom. Assistant Jean Bauer and Mitchell smoked and chugged diet soft drinks. Lesser nervously jiggled a handful of worry stones and gulped M&Ms.
When the silver dollar-sized red light on the back wall of the courtroom flashed on at 4:45
P
.
M
., a mere 3 hours and 49 minutes after the jurors left to begin deliberations, the atmosphere became immediately tense. The light signaled that the jury wanted to communicate with the court. Either they had a question for the judge, wanted to examine some of the evidence that had been presented during the trial, or they had a verdict.
A bailiff disappeared through the door and down the hallway. When he returned twenty seconds later, he was solemn.
“They have a verdict,” he said.
Lesser, Mitchell, and Bauer were engulfed in gloom. Given the options the jury had, the only thing the defense could pray for was a hung jury. But if the jury was undecided about what to do about Andy, the deliberations would have dragged on for days. Because the verdict was being returned so rapidly, the defense knew instinctively that the jury had found him guilty of capital murder.
Quickly the participants gathered. Hagood, Chapman, and Oatman bustled in, along with a handful of others from the district attorney’s office. Rozanne’s father, her sister and her husband, having flown back from Massachusetts for the finale, took seats in the second row. Gailiunas’s mother was there, as she had been throughout the trial. Andy’s parents slid into their customary seats behind the chair occupied by their son. McGowan was there, too, as was Investigator McKenzie, Andy’s archenemy.
Andy was escorted into the courtroom from the holding cell where he spent his time smoking and sleeping when his presence was not required before the bench.
Judge McDowell, who had used the interval to dispose of some other cases on his calendar and to visit with the attorneys and spectators who had waited around, donned his robe and slipped into his chair.
At 4:54
P
.
M
., without fanfare, McDowell read the verdict that had been handed to him seconds earlier by the bailiff, who had taken it from the jury foreman.
“Guilty of capital murder,” McDowell read solemnly.
There was no commotion in the courtroom, the spectators having been warned by McDowell before the jury was summoned not to react because to do so might send a signal to the jury, which still had to hear more evidence and debate one more time in the punishment phase of the trial.
Go home, Judge McDowell told the jury, advising them to take the next morning off, while he would tend to some of his other duties, and to come back at 1
P
.
M
. prepared to listen to more testimony as the trial progressed to the next phase.
41
With no more than a morning off, a grim group of jurors reassembled in Judge McDowell’s courtroom after lunch on March 3 to begin the phase that would determine if Andy spent the rest of his life in prison or was executed.
The precondition for a conviction in the guilt/innocence phase of the trial had been whether Andy had actually committed the murder. But in the punishment phase there were two preconditions: “deliberateness” (which for all practical purposes is synonymous with “intentionality”), and what they called in Texas “probability of future dangerousness.” That is, was Andy cursed with such a violent nature that he would be likely to kill again, thereby posing a threat to other prisoners or to society if he were ever released?