by David Staats
“Not while it was moving, no.”
“No further questions.”
Bornstein typed, The defense has gone a long way toward establishing a key point, that the defendant was in custody at the time he gave his confession. [post]
***
After lunch, Prosecutor Preston, cross-examining Corporal Snyder, got him to testify that Houlihan was sitting in the front seat of the car; that in the front seat, the inside door handles worked; that Houlihan could have exited the vehicle at any traffic light where the car stopped; that if Houlihan had asked, Corporal Snyder would have turned around and taken him home.
After that, the judge seemed to become less patient. He began to sustain all kinds of objections, and hurried the lawyers on. The lawyers did their best to “move things along,” not wanting to irritate the judge. The examinations of Detective Johanssen and Lt. Wisdom were conducted with dispatch; the judge even admonished the detective to “stop playing games and answer the questions.”
“I will hear brief argument,” said the judge, when the lawyers announced that they had no further witnesses.
“May it please the court,” began Dure. “You have heard that Mr. Houlihan has no criminal record. Thus, he is not familiar with the police and how they work, is not familiar with the inside of a police car or the police station. For someone like Mr. Houlihan, the police are intimidating. Being inside a police car is intimidating, not to mention being inside a police interrogation room. Even supposing that the police would have released him had he asked to be set free, the intimidation factor prevented him from presuming such a liberty with the authority of the police. And as Your Honor has seen from the testimony from the witness stand, police officers have an authoritative presence and a keen sense of practical psychology. Thus, in effect, and for practical purposes, Mr. Houlihan was in custody while he was being questioned by the police.
“Moreover, once at the police station, Mr. Houlihan was dependent on the police to give him a ride home, and thus was in effect held at the police’s pleasure.
“Since Mr. Houlihan was in custody, the police were required to give him the Miranda warnings. Now such warnings were given obviously and prominently in the video recording which Your Honor saw, but it is improper for the police to question a suspect, get the confession they want, and then give Miranda warnings just before recording the suspects repetition of the confession. And Your Honor heard Corporal Snyder testify that he brought up the subject of the crime first, at the scene of the accident, and that he did not give a Miranda warning at that time.
“The testimony of the police about other warnings given at the station is self-serving, vague, and in some respects contradictory. There is a growing trend in law enforcement to record the entire interrogation, so that there can be no doubt about the giving of Miranda warnings, not to mention the fair conduct of the interrogation altogether, but that was not done here. The Court should therefore view with some skepticism the testimony of the police about Miranda warnings.”
Dure bent down to consult his notes.
“The question thus for the Court to determine is: did the police coerce Mr. Houlihan into this confession? Fairly viewing the facts, the answer is ‘yes.’
“First of all, they made false claims about the evidence they had. Now Det. Johanssen argued that he told no lies because he did not say he had a surveillance recording and a witness, but merely that he said ‘Suppose I told you that we have . . ..’ This is a transparent sophistry. Your Honor would not let the attorneys who appear before you get away with lying to the Court through such a stratagem.
“A police officer is a state official. A person in authority. When such a person represents that he has certain evidence, this assertion, objectively speaking, must compel belief.
“Next, the police promised leniency to Mr. Houlihan if he would confess. They said he could get the death penalty if he did not confess. Given the imperfections of the justice system, this is something that even an innocent person has to consider as a realistic possibility. And a promise, or even a suggestion that a suspect can avoid being put to death by confessing must be considered, again on an objective basis, as heavy coercion.
“Finally, and most egregiously, the police threatened to – really, in effect, to put Mr. Houlihan’s son to death if he did not confess. As you have heard, they told him that they would arrest and prosecute his son if he continued to claim that he did not do it. To arrest and prosecute someone for murder is to intend to put that person to death. This is such a strong coercive factor, that it alone should invalidate this confession.”
Prosecutor Preston now stood to address the court.
“Your honor, we have spent a whole day on what really is a desperate attempt by the defense to deprive the Court and the jury, should it come to that, of the most important, and most credible evidence on the issue of who committed this gruesome murder, and that is the statement of the defendant himself.
“The defense has fluffed up a mountain of words, but they cannot obscure the fact that the defendant is a mature, self-sufficient man, experienced in the world, married for years, having raised a son, and operated his own business. Therefore, it is absurd to claim that he could not tell the police that he wanted to leave whenever he wanted. I submit to the court that it was not the supposedly great authority of the police’s manner that held him, but rather the fear induced by guilt, and the subconscious desire that all the guilty have to confess. You heard all three of the police witnesses testify that Mr. Houlihan was not under arrest, he was not cuffed, he could have left anytime he wanted.
“As Mr. Dure has admitted, the police did not lie to the defendant about the evidence, they merely proposed a hypothetical statement that would worry only someone who was guilty, someone who knew that such evidence might exist, because in fact he did the things that the evidence would have shown. So this is a non-issue.
“As to the supposed threat by the police to put Mr. Houlihan’s son to death if he did not confess, this is hyperbole of the grossest kind. I would say that it is born of desperation. No one has ever heard of such a thing. But to point out to a suspect that the perpetrator can likely be only one of two people is merely laying cards on the table. Coercion it is not.”
Bornstein was tapping away. Attorney Dure has put on a good case, making three powerful points: the false claims by the police of having inculpatory evidence; the promise of leniency; and the threat to go after the defendant’s son if the defendant did not confess. The cumulative effect of all three of these factors could well amount to coercion, that is, an overbearing of the defendant’s will by police pressure. The weak point in Dure’s case is whether the defendant really was in custody, or whether his presence at the police station was voluntary. The judge could go either way on this, but given the powerful evidence of coercion, it would not be surprising if the judge tossed the confession. [post]
“In closing, I want to draw the Court’s attention to a remarkable parallel between Mr. Houlihan’s confession and his testimony in court today. In his confession, he says that he cannot remember what he did with the head and with the murder weapon. At first blush, this might seem strange. But now, in his testimony today, here right before the Court, he testified that with regard to the accident on June 15, he cannot recall what happened just before and during the crash. I suggest to the Court, that Mr. Houlihan has a mental condition, or maybe it is a moral frailty, pursuant to which he blocks from his mind his acts of great culpability. I submit to the Court that Mr. Houlihan’s testimony in court today bolsters the credibility of his confession.”
The prosecutor has just made a powerful point as well, pointing out a parallel between the defendant’s failure of memory in his confession and his failure of memory in today’s court testimony. County Attorney Preston is no slouch. If the confession does not get tossed, then I expect we’ll hear this same argument at trial. [post]
“Mr. Houlihan voluntarily accompanied Corporal Snyder to the police station whe
re he voluntarily spoke with the police about the murder of his wife. He was not arrested, he was not handcuffed, he was not told that he was under arrest. He could have left at any time. There was no coercion by the police. I request Your Honor to deny the defense’s motion.”
“Thank you, counsel,” said the judge. “The motion will be denied. I will give you a written ruling in a couple of days. Court is adjourned.”
Dure showed no reaction to the court’s ruling, but quietly closed the books on the defense table, gathered up has papers, and squared them into a neat pile.
While he had been doing this, the sheriff’s deputies had come up to Houlihan and were hovering one on each side of him, preparing to put him in handcuffs again.
Dure turned to Houlihan. The pupils in Dure’s light hazel eyes were contracted into pinpoints. “We are not done,” he said. The metal bracelets clicked as Houlihan's arms were held behind his back. The sheriff’s deputies held him gently by the arms and steered him towards the access door in the front of the courtroom.
Preston was speaking in a low voice with his associate Ms. Tinder. As Dure passed through the gate from the well of the court he overheard her say, “After this, what choice do they have? They’ve got to come to us for a deal.”
10.
“What I can’t believe,” said Dure, as he discussed the case with Kara and Ralph in Dure’s office, “is that for two, or even three days, nobody in that neighborhood saw anything. How does a woman get killed, her body put in the back yard, vultures coming and going, and nobody notices anything? – for three days! Does that seem reasonable? Maybe there’s a conspiracy of the whole neighborhood against the Houlihans. They murder her, pin it on her husband, and get rid of the whole family!”
“Then maybe the kid’s in danger,” said Kara.
“What?” said Dure.
“Never mind,” said Kara.
“But motive?” said Dure. “What could the motive be?”
“ ‘member?” said Ralph. “That woman across the street said she was a terror to the neighborhood?”
Dure made a wry face. “We need to re-interview the neighbors. We’re missing something. We need to re-interview them after we get as complete a background as we can get.” He picked up the phone and called Kurt Kniffe.
“Kurt? I want you to find out everything you can about the immediate neighbors of the Houlihans: how long they’ve lived there, what they do for a living, the clubs they belong to, everything. Check the court records about any lawsuits, see if you can find any records of police arrests. See what information you can get from the homeowners’ association. The point is, somebody there had to see, or hear, or, for crying out loud, even smell something, and why aren’t they talking?”
A chime sounded. Kara got up and left the room.
“Can you get it to me by Friday?” said Dure, still on the telephone. “I know, but trial begins in eleven days.” Dure hung up.
Kara returned carrying a large manila envelope. “This was hand-carried from the County Attorney’s office,” she said as she handed it to Dure.
Dure opened it. Inside were some twenty or so sheets of paper. “Brady materials,” he said. He began to look through them. “I wonder why they did not give us this earlier,” he said. His eyes ran rapidly over first page; he slipped it aside, scanned the second, and continued, spending no more than five seconds per page. After having shucked eleven sheets of paper onto his desk, he dwelt for a moment on the twelfth. He glanced up at the ceiling for a moment, then said, “This might be of interest. The police interviewed the wife of Rhys Parker.”
“A jealous wife?” Kara mused.
“If Parker was involved with Mrs. Houlihan, his wife would seem to be within a reasonable circle of suspects,” said Dure.
“Even if Parker wasn’t diddling the Houlihan woman,” said Ralph, “maybe his wife thought he was.”
“This report is vague,” said Dure, “and I’m guessing that the police did not follow up because once Houlihan confessed, they were done with the case. Something’s odd here.” He gave the sheet to Kara. “Please make a copy . . . also, a subpoena for Dawn Parker – the spelling of the name is on this page . . . make it for the second day of the trial.”
Kara took the paper and left the office.
“Ralph, I’ll want you to serve the subpoena. Let’s do it now.”
Ralph nodded and left the office to get the car from the garage. Eight minutes later Kara brought Dure a copy of the page from the supplemental police report that he had requested, a subpoena form with the proper blanks filled in, and lastly, a sheet of paper listing the address of Mr. Parker’s real estate brokerage and his home address.
Dure checked them over and signed the subpoena form. “Good job,” he said, making a small smile without parting his lips. He so rarely smiled that Kara was surprised and felt pleased.
Ralph had Dure’s car waiting at the curb in front of the office. Dure got in the passenger’s seat and handed the paper with the address to Ralph, who punched the office address into the car’s GPS.
The office of Parker Realty was in a neat strip mall of five or six store fronts. Large panes of plate glass fronted on a shallow parking lot. Ralph pulled the car into the middle space of three empty spaces right in front of the office. In the bright sunlight, the glass front of the office reflected a Technicolor image of the two men getting out of the car.
A little beep sounded as they went through the door into what turned out to be an empty reception area. Other than that quick beep, the office was silent. Dure and Ralph stood waiting, observing. After more than enough time had passed for someone to come out and greet them, Dure called out a ‘hello.’ Still no one responded and it appeared as if the office were unoccupied. Yet that seemed unlikely as the front door was not locked.
To their left were two small, glass-fronted conference rooms. Inside each were a small, round table and three chairs. The doors to these rooms stood half open, no one was in them, and there were no papers on the tables.
“Hello! Is anyone here?” called out Dure, louder this time.
Dure stood at the reception desk, looking at what was on it without touching anything. Ralph ventured to enter the half-dark hallway to the right of the reception desk.
A woman shrieked and Ralph jumped as she nearly collided with him. “Sorry!” said Ralph.
“I didn’t know anyone was here,” said the woman, holding her hand to her chest as if to still her heart.
Ralph backed up and the woman came out into the reception area. “Can I help you?” she said. She wore a professional-looking skirt and blouse. As she stood expecting an answer or explanation from these two men, she fidgeted with one hand about the top of her skirt, seeming to try to adjust an undergarment.
“I’m looking for Dawn Parker,” said Dure.
“That’s me,” she said. “How can I help you?”
“Here’s my card,” he said.
She took it and Dure waited until she had looked at it. When she looked up, he said, “I’d like to talk with you about the Houlihan case. You’re familiar with it?”
“I’ve heard about it, but I don’t know anything about it,” she said.
“Did you know Mrs. Houlihan?”
Her manner became wary. “No,” she said. She moved over to the reception desk and put Dure’s card on it, as if she were done with it and him.
“But you knew who she was?” said Dure.
At this her eyes flashed. “I’m sorry, I have work to do. You’ll excuse me,” she said, by way of indicating that the interview was over.
Dure nodded to Ralph, who took the folded subpoena from his back pocket and gave it to Mrs. Parker.
“What’s this?” she said.
“A subpoena,” said Dure.
She unfolded the paper and looked at it. Ralph stepped to a chair, sat down, and began to fill in the service affidavit on his copy of the subpoena.
Mrs. Parker looked seriously unhappy. “Why don’t you leave me
alone,” she said.
“If you’ll talk with me now, I may be able to determine that I don’t need you to testify at trial, and I could rescind the subpoena. I don’t guarantee that, but if you don’t want to talk now, I can guarantee that you’ll have to answer questions in court and under oath.”
She stood with her arms crossed, breathing angrily, her jaw clenched. “Lawyers,” she said with disgust.
Dure said nothing. His dark gray suit was unfashionably roomy, as if perhaps he had lost weight. No smile played about his lips; the only feature in his face that showed any sign of life was his light eyes, focusing on her as if they were tractor beams.
“Alright, let’s sit in here,” she said, forcing herself between Dure and the reception desk, almost shoving him out of the way, and going into one of the small conference rooms.
Ralph joined them and the three chairs in the little room were all occupied. “The police talked with you,” said Dure.
She nodded.
“What did you tell them?” asked Dure.
“Basically that I didn’t know anything.”
“They were happy with that answer?”
“What choice did they have?”
“They have ways,” said Dure. “What I’d be interested in knowing is what they asked you, why did they want to talk with you?”
“I don’t remember. You could ask them.”
Dure carried with him a slender leather briefcase. He took from it the copy which Kara had made of the Supplemental Report from the police file. “In fact, I have a copy of the police record of interview,” he said. “I’d like to check on the accuracy of this record by comparing what it says with what you say.”
“Let me see it,” she said.
“If I do that, it would contaminate your memory. I’ll show it to you before we leave.”
She sighed. Exasperated she blurted out a rapid stream of speech. “They wanted to know as best as I remember where my husband was on the weekend of the murder what his relationship with that woman was and where I was.”
