By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
Ahler asks her if she's heard the Gordon Phillips tape. Yes, Anne Costello says, her voice quaking.
"Gordon Phillips was my husband."
The prosecution rests after Anne Costello's testimony. The jury doesn't know she'll soon be back on the stand, to tell a far more detailed version of her troubling tale.
In the wake of Anne Costello's testimony, Paul Ahler asks Judge Reinstein to reconsider his marital-privilege ruling. Harrod's attorneys have hinted that he plans to testify, which may provide the prosecution with an opening.
"The state's position," Ahler tells Reinstein, "is that the defendant should not be allowed free rein to perjure himself . . . This is not what justice is all about and what truth is all about . . . Once [Harrod] gets up and says, 'I'm not Gordon Phillips, and I didn't get paid by Hap Tovrea to do this,' I think you have waiver [of the privilege]."
Mike Bernays makes an impassioned plea to Reinstein.
"The mere fact that James takes the stand. . . . at the risk of losing the marital-communication privilege is an unfair position to put him in . . . How do we know that [Anne] hasn't perjured herself?" he asks.
Reinstein says Ahler's argument is more compelling because Anne Costello is Butch Harrod's ex-wife. He is not currently married.
"In this case, I think the search for truth is more important than the protection of a long-gone marriage," the judge states.
Butch Harrod mouths a silent expletive at Reinstein.
In the end, Butch Harrod does testify.
Mike Bernays starts with four rapid-fire questions:
"Were you physically present when Jeanne Tovrea was killed?"
"Did you shoot Jeanne Tovrea?"
"Did you enter Jeanne Tovrea's home through the kitchen window on April 1, 1988?"
"Did you participate in any way in the killing of Jeanne Tovrea?"
Harrod answers no to each question.
What the jury doesn't know is that, on September 13, 1997, polygraph examiner David Raskin asked Harrod the same questions.
According to Raskin's report, "It is my professional opinion that James Harrod was truthful when he denied having participated in any way in the murder of Jeanne Tovrea."
But the jury won't be hearing the test results. Arizona excludes polygraph results in the courtroom unless both sides agree to it ahead of time.
If the prosecution's theory holds, and if Butch Harrod may not have been the trigger man, it's possible that he may be telling a version of the truth: He may not have been present when Jeanne actually was killed, and, thus could honestly answer the fourth question about participating in any way in the woman's murder. As for the question about entering Jeanne's home on April 1, it's possible the killer or killers got inside on March 31.
Then again, Harrod may just have beaten the polygraph box.
His testimony starts benignly, as he describes his early years in Apache Junction. It sounds nice enough. But Harrod's first words chill more than one juror.
"He's sounding perfectly okay," one panelist recalls, "but I can't think of anything but, 'Damn! He is Gordon Phillips!'"
Harrod's tone is flat, as if he's testifying in a minor civil suit, not trying to save his own skin. He presents himself as a sound businessman who contracted with Hap Tovrea on a sulfur-mining venture in China. For serving as a "liaison," Harrod says, Tovrea promised him a $3,000 monthly retainer and, in writing, guaranteed him a small percentage of royalties on the prospective project.
But the China deal fell through, Harrod testifies, because Hap Tovrea didn't come through financially as he'd promised.
Bernays asks Harrod if he'd ever told the Costellos and others if he'd served in the military.
"Had you been in the military?"
Some jurors look askance at Harrod.
Harrod says he's being framed. He says he's never been to or inside Jeanne's home. Again, he doesn't know how his prints got to the crime scene. He says Hap Tovrea never paid him for murdering the woman.
"I would not take any money like that," Harrod says.
"I'm going to play for you a tape that has been played once or twice during this trial," Bernays tells him.
The jury has been listening to Harrod for more than an hour, tuned at times more to the sound of his voice than what he is saying. Now, they're going to hear Gordon Phillips' taped voice in proximity to Butch Harrod's.
Several jurors close their eyes, concentrating intently.
"Is that you?" Bernays asks Harrod.
"Do you think it sounds like you?"
"Is that you on that tape?"
"That is not me on that tape."
"Did you make that phone call?"
Harrod denies being Phillips, or ever meeting Jeanne Tovrea.
Harrod's alibi for the night of the murder is similar--but not identical--to one he gave New Times.
"Early that evening I was home," he testifies, "but later, I went out and procured some cocaine [at a Tempe bar]. During that period, I was, I guess, what you call a recreational user, and I was getting some for the weekend."
Harrod remembers the drug seller's first name as "Carlos." He says he shared a six-pack of beer with the man at a park, then drove home about 11 p.m. He says he went to bed around 2 a.m. on April 1, and Anne was sound asleep. He says he learned of Jeanne's murder later that morning when he spoke to Hap Tovrea.