The Case of the Missing Department Head

by David Staats

  Torvald Bornstein began tapping softly on the keypad of his tablet computer.

  “Mr. Dure,” said the judge, “call your first witness.”

  “I call Howard Houlihan.”

  Reporting on the defense's motion to suppress the confession in the Houlihan case. [post] (Bornstein posted this entry to his live blog. He had to be quiet and surreptitious, because if the judge found out that he was live-blogging from the courtroom, he could get a painful whack – the worst case would be to be found in contempt of court and jailed.) It doesn’t look good for the defense. Prosecutor Preston seems to be in good form and made a forceful opening statement. [post]

  Houlihan was sworn and took the stand. Dure asked him to simply relate what had happened.

  “I was on my way home when my truck ran off the road. I don’t actually remember going off the road, but I remember waking up, or coming to, as some medics opened the door of my truck.”

  “And then what happened?”

  Attorney Dure is putting his client on the stand. This could be considered a waiver of his client’s privilege against self-incrimination, but probably the confession itself was a waiver. However, if Dure can get the confession suppressed, that instance of waiver would be out of the case. So by putting his client on the stand, Dure is risking a waiver which otherwise would not occur. I’d say he’s loading his whole case onto this motion. If he wins, his client has a chance; if he loses, not only will the confession come into evidence, but the prosecution will be able to call his client to the stand and question him about whatever testimony he gives at this hearing. [post]

  “I was a little dazed, but I wasn’t hurt, so I didn’t want to go to the hospital.” Houlihan was slumped forward slightly in the witness chair, with his forearms resting on his thighs. He therefore had to make an effort to hold his head upright to look Dure in the eye, and this gave him an appearance of coerced alertness. He continued:

  “A policeman was there. He asked me what happened. I told him I wasn’t really sure, and he called a tow truck. So while we were waiting for the tow truck, we were just chatting, and he said, ‘You’re the Houlihan whose wife was murdered?’ and I said, yes, and he said he was sorry. And the tow truck came and I was going to ride with my truck to Mike’s Garage, but the officer asked me did I have a ride home from there, and I said, no, and he said he would give me a ride home.

  “So, I let the tow truck take my truck to Mike’s and I got in the police car with the officer.”

  “Did you get into the front seat or the back seat?” asked Dure.

  “The front seat. He was going to take me home, it wasn’t an arrest or anything,” said Houlihan.

  “Go on,” said Dure.

  “The officer said how sorry he was for me, and it must be a hard blow to lose your wife that way, and then he said, ‘You know, we’re working hard to solve this case,’ and he took a turn which was the wrong way to go to my home and he said, ‘You know, you could help us clear up a couple of questions, help us solve this case,’ and he said ‘Would you mind coming to the station for a few minutes.’

  “And what did you say?” asked Dure.

  “I said, ‘If I can help, sure.’”

  “Go on,” said Dure.

  “So, he took me to the station and they put me in a room, and said they’d be right with me, it was just a couple of questions that I could help them with, but then nobody came back and it must have been at least an hour.”

  “Sorry to interrupt,” said Dure. “But up until this point did you at any time initiate a discussion about the murder of your wife?”

  “No, no. It was the officer who brought it up.”

  “Continue,” said Dure.

  “Then finally a man came in and he was one of the detectives that I had seen on the day that my wife was . . . killed. And he was harsh and unfriendly and he says, ‘We know you did it, Houlihan. Why don’t you stop lying and tell the truth. It’ll go easier on you if you do.’”

  “And what did you say?”

  “I didn’t say anything. He didn’t give me a chance. He just continued in a very threatening manner, ‘What I’m going to do, Houlihan, is read you your rights.’ And in a loud and threatening voice he read from a card he held, ‘You have the right to remain silent,’ and so on.”

  “Alright, and then what happened? – Just a minute. About what time was this?”

  “It was late in the morning when my truck got in that accident. It must have been about noon or a little later that we got to the police station, so this must have been between one and two sometime,” said Houlihan.

  “And during this time had you had anything to eat?”

  “No.”

  “Alright, and then what happened?”

  “Then he said, ‘I’m not going to waste a lot of time with you, Houlihan. We’ve got the proof. We can just as easily send this case to trial and when you’re convicted you’ll get the death penalty. Hacking off the victim’s head will do it. But for fifteen minutes I’ll give you a chance to tell us your side of the story, and there’s a good chance you’ll escape the death penalty. They don’t give the death penalty to people who have confessed.’”

  “Are these the detective’s exact words?”

  “Pretty close. It was a shock to me what he was saying and I remember it pretty well.”

  “Go on.”

  “I told him, or started to tell him, that I didn’t do it, but he cut me off, shouting at me, ‘Don’t bullshit me, Houlihan.’ So I basically just shut up. There wasn’t any point in saying anything.”

  “And then?”

  “He just stayed in the room, standing and staring at me for maybe another ten minutes, and then he left, went out of the room.”

  “Alright,” said Dure.

  “So I was left alone in the room for a long time. There was no clock, but I had my cell phone. So I surfed the web.”

  “You surfed the web?”

  “Yes. There was nothing else to do.”

  Dure said, “I’m going to ask you this, because the prosecution is sure to: Why didn’t you call me or my office or someone for help?”

  “I don’t know. Maybe I didn’t think of it. Maybe I was afraid to because they would overhear me. I don’t know.”

  “Okay, go on.”

  “It was about two hours later, the policeman who had brought me to the police station came in. He said he was sorry he had left me so long, but just after he had brought me in, he had been called out on an emergency call. He had just gotten back.”

  Houlihan paused as if waiting for Dure to ask him the next question, but Dure was standing behind the defense table, head down, as if lost in thought. After a moment, Houlihan continued on his own initiative:

  “So he says to me, ‘I understand that Detective Johanssen came in?’ ‘A detective came in, he didn’t tell me his name,’ I said. ‘Yeah,’ he said, ‘Johanssen is kinda rough – not rough physically, but he just doesn’t like to waste time. So, I’m sorry you had to deal with him.’ Then he told me that the police had a surveillance video recording that showed me driving into the development around the time of the crime, and a witness who would testify that I had dragged something heavy and bulky into the back yard. I knew they couldn’t have that, so I asked him to show the video to me. He said they couldn’t show it to me because it would compromise their witness and their investigation, but that if I went to trial I would see it then.”

  “They told you they had a video of you?” asked Dure.

  “Yes.”

  “Go on.”

  “He told me the police did not have any doubt that I killed my wife, and that in his experience with investigations there usually was an explanation for what appeared on the surface to be bad, but usually was done for an understandable reason. So he said if he could get my side of the story, he could probably help me get a favorable plea-bargain for a lesser offense than first-degree murder.”

  “What was your mental and physical condition at the time
?” asked Dure.

  “I was getting hungry, and I was tired, and maybe I was still a little woozy from the crash.”

  “Alright. Please go on.”

  “I was there for a long time, and the policemen would come in and out of the room, and leave me along for a long time and I’m sure I can’t remember everything. But they kept trying to get me to say that I had killed her because of domestic abuse and that that would be a mitigating factor, and they had talked to witnesses who said they thought my wife had been abusive.”

  “How long did the police hold you?”

  “Basically forever, because after I gave them the confession they wanted, they then put me in a cell, and I’ve been in jail ever since.”

  “I meant, how long did they hold you before they got you to sign the confession?”

  “I think it was around 5:00 in the morning,” said Houlihan.

  “Five o’clock in the morning!” said Dure.

  “Yes, sir.”

  “Without then asking you to go through every minute of the time, did anything else of importance occur while you were being held?”

  “As I remember, the thing that really made me decide to agree to what they wanted was they said if I didn’t do it, then it had to have been my son.”

  “You have a son?”

  “Yes, sir. My son Liam. He’s 23 years old.”

  “And where does he live?”

  “He lives on University Avenue here in town.”

  “He does not live at your house?”

  “No, he’s grown up and moved out.”

  “Did the police tell you that if you did not confess, they would charge your son with the murder?”

  “Objection!” called out prosecutor Preston, rising to his feet. “Counsel is leading the witness.”

  “Sustained,” said the judge. “But since there’s no jury, I as judge know when counsel is leading the witness, and it makes the testimony less credible. Not all of us judges are idiots, you know.”

  “What did the police tell you?” said Dure.

  “They said that if I insisted that I didn’t do it, then it had to have been my son.”

  “What about the surveillance video and the eyewitness?”

  “They said that my appearance and my son’s were similar enough that it could have been either one of us.”

  “Is your appearance similar to your son’s?”

  “I suppose, except that he is more fit and weighs less than I do.”

  “Go on.”

  Houlihan shrugged his shoulders and looked unhappy. “They were so insistent and so confident and it never occurred to me that the police would lie . . . and I guess I was tired . . . and old, and what do I care about my used-up life compared to the life of my son?”

  “This may be my last question. Why are you now recanting your confession?”

  “Because it is not true and because you showed me that due to this false confession the police would stop their investigation, and the killer is still out there. Which seems to have come true.”

  “I have no further questions, Your Honor,” said Dure.

  Prosecutor Preston stood.

  “Mr. Houlihan, you are 51 years old, is that not right?”

  “Yes, sir.”

  “You graduated from high school?”

  “Yes.”

  “You attended two years of college?”

  “Yes.”

  “Do you vote?”

  “Sometimes.”

  “Do you consider yourself a normal, intelligent adult?”

  “I guess so.”

  “Yes or no, do you consider yourself a normal, intelligent adult?”

  “Yes.”

  “You are self-employed?”

  “Yes.”

  “You don’t have any boss telling you what to do?”

  “No.”

  “And yet, you have been able to make a living by your own efforts?”

  “I suppose.”

  “It’s true, isn’t it?”

  Houlihan’s head swayed back and forth. “Between my wife’s income and mine, we were able to pay our bills.”

  “This confession that you gave, no one physically forced your hand to write your name, isn’t that right?”

  “Yes.”

  “And no one struck you or offered any kind of violence?”

  “No.”

  “You know about your Miranda rights, do you not?”

  “What do you mean?”

  “When you were first questioned, at the time of the initial police investigation, you were given your Miranda rights, were you not?”

  “Yes.”

  “So you had already been advised of those rights at the time you crashed your truck?”

  “Not at that time.”

  “But, before. Before that, you had been advised of your rights?”

  “Okay.”

  “And therefore, you knew of them at that time?”

  “At the time of the crash, I was shook up a bit. I wasn’t thinking about . . . the murder or rights or anything else.”

  “You weren’t so ‘shook up’ that you wanted to go to the hospital for treatment. In fact, you specifically and knowingly declined treatment.”

  “Yes.”

  “At the time you gave the confession which we have recorded on videotape, and signed the typed transcript of your words, you were not sick?”

  “Not more than what I have already said?”

  “Oh. You mean you were tired and hungry?”

  “And I might have been woozy from the accident.”

  “You might have been woozy from the accident,” repeated Preston in a mocking tone. “We’ll see how woozy you were. – If it please the court, I would now like to play for the court the videotaped confession of the defendant, so that I can question him about it.”

  “Does the defense have any objection?” asked the judge.

  “No, Your Honor,” said Dure.

  “Go ahead, Mr. Preston.”

  Preston signaled to his associate, Ms. Tinder, who tapped several keys on a computer at the prosecution’s table. On the computer screens mounted at the bench, the witness stand, and on counsel’s tables, came the image of a police detective and Houlihan in a small room. The video recording showed the detective reading the Miranda warnings, followed by Houlihan’s confession. Houlihan had bags under his eyes, and a salt-and-pepper “five o’clock shadow,” but otherwise appeared in good condition.

  “Was that an accurate depiction of the events which occurred?” asked Preston.

  Houlihan admitted that it was.

  “I move the admission of this videotape into evidence,” said Preston.

  “I object, Your Honor,” said Dure, getting to his feet. “The whole point of this motion is that the confession should be suppressed and not come into evidence.”

  “Just for purposes of this hearing,” interjected Preston quickly.

  “It shouldn’t come in for any purpose,” said Dure.

  “Gentlemen,” said the judge. Then addressing the court reporter the judge asked if she had taken down the words of confession as the video had played. The court reporter said that she had. “So, what I’m going to do,” said the judge, “is deny the admission of the videotape. The transcription will be in the record of this hearing, but if I grant the motion, I will order the transcription stricken from the record.”

  Preston resumed his questioning.

  “Now Mr. Houlihan, isn’t it a fact that the police never told you that they had surveillance video and an eyewitness? Isn’t it true that the detective said ‘Suppose I tell you that we had a surveillance video.’?”

  “I don’t remember his exact words. He definitely gave me the impression that he was claiming to have a surveillance video. That’s why I asked to see it.”

  “Where were you on the afternoon of June 5?”

  “Objection!” This question brought Dure to his feet. “Your Honor, this is not a trial on the merits, and the question is irrel
evant to the issue here, which is police coercion of a confession.”

  “Your Honor,” said Preston, “the defense is claiming that the confession is a false confession. That means that the facts in the confession are put in issue. If the prosecution can show that Mr. Houlihan is guilty, that defeats the defense’s claim that the confession is false.”

  “If it please the Court,” said Dure, “the issue here is police tactics coercing a confession. Even if the confession were true, if it was obtained by coercive methods, it should be suppressed. So this motion does not put the accuracy of the confession in issue. The prosecution is making an unfair attempt to hijack this hearing for discovery purposes.”

  “I am going to sustain the objection,” said the judge. “At the trial, if there is a trial, the question of guilt or innocence will be thoroughly litigated.”

  “You voluntarily accompanied Corporal Snyder to the station?” asked Preston.

  “The reason I got in his car is that he said he was going to give me a ride home.”

  Preston seemed embarrassed by this answer. “But when Corporal Snyder suggested going to the station, you didn’t object at all, did you?

  “I wanted to help the police find who murdered my wife. . . . And besides, I did not think it would be intelligent to jump out of a moving police car.”

  “Isn’t it true that you could have left the police station at any time?”

  “I didn’t think so.”

  “It is true that at no time did any police officer tell you that you were under arrest?”

  “I can’t remember.”

  “And in fact, you never asked to leave?”

  “I didn’t think that I would be allowed to leave.”

  “You never asked to leave?”

  “No.”

  “I have no further questions,” said Preston.

  “Does the defense wish to re-direct?” asked the judge.

  “No, Your Honor,” said Dure.

  The defendant has just left the stand, typed Bornstein. The defense made some good points, including that the police appeared to initiate the conversation about the crime and did not give a Miranda warning at that time, and that the police appear to have held the defendant unreasonably long without sleep or food, and may have misled him about the facts. One of the most important things brought out was a threat made by the police to charge the defendant’s son if the defendant did not confess. The prosecution did not address this fact on cross-examination. But the prosecution otherwise did a good job on cross, showing that the defendant is a normal, mature, functioning adult who was aware of his Miranda rights. Further, the prosecution threw into question whether the defendant was in custody at all, certainly opening the door to the possibility that his presence and statements at the police station were all voluntary. I’m going to score this advantage defense, but not a large advantage. [post]