DEFENDANT'S OPENING STATEMENT
          
MR. MOORE: Good morning, ladies and gentlemen.
          [Jurors respond]
          
MR. MOORE: This part of the trial, what I say is
not evidence, what Mr. Porter said to you is not
evidence, We're merely telling you what we believe the
evidence will show, what the witnesses will testify to.
          As the judge told you, the bill of indictment,
too, that you have has been read to your is not evidence
in the case. You'll have the original out with you to
examine, and I'd ask you to note on there that only one
witness appeared before the Grand Jury. The defendant
does not get to appear, we do not have an opportunity to
present any evidence or know what's done there, The
grand jury merely decides whether to send the case --
         

 MR., PORTER: Your Honor, I hate to interrupt
Mr., Moore's argument, but that is not a proper argument
to explain that no inference can be drawn from the fact
that that is the technique in which an indictment is
made.

THE COURT:   Mr. Moore
          
MR., MOORE:   Your Honor, I believe that's what the
Court instructed the jury, that it's not evidence, it's
not -- the jury's not to draw any inference from it of
guilt.          

THE COURT: I've instructed them that is the law,
I believe this is the time to tell them what the facts
are and what you expect the evidence to be, Mr., Moore.
Objection's sustained.
          
MR. MOORE:	 Ladies and gentlemen, this is a case
where the state wants you to believe that they've got all
this solid, ironclad evidence, the way Mr. Porter
describes it. The truth is this case was built from the
beginning on probabilities, suspicion, thinks, and
guesses, and gossip. Mr., Porter's going to present
gossip to you, too, to try to convince you that Mike
chapel is guilty.

          Mike Chapel had the misfortune as a dedicated
police officer to answer a call to Ms. Thompson's
residence on April 3, 1993, He found a mother, a
distraught mother, who wanted desperately to believe that
her son had not taken her money. She took him to the
back door and she pointed and said, 'Here's where
somebody cut the screen.' He talked to her, She showed
him her money, and she showed him that she only had
$7,000 left She told him there was $14,000 to begin
with.
          Officer Chapel told her, 'Ma'am, you don't have a
burglar. Burglars don't take half your money. Your son,
who has problems, took your money. If you wish for me to
prosecute, I'll do so. That's my job as a police
officer.' She did not wish to prosecute. Officer Chapel
did not write a report. He felt the incident didn't
deserve a report, that nobody wanted to prosecute, the
mother didn't want him to. He mentioned the call though
to his sergeant, Sergeant Stone. And I believe the
evidence will show that Sergeant Stone recommended that
he write a report. He never did.
          She called him back once or twice about the money,
the evidence is going to show. And he attempted to do
some things to perhaps make her son own up and say he
that took the money. Everybody knew, including the
mother, she didn't want to believe it, that no burglar
takes half your money when you've got $14,000 in cash.
Everybody knows that.
          After the murder, the -- immediately, Mike Chapel
went forward to his supervisor, Sergeant Stone, and
reminded him that 'I was out there on that call,' He did
not attempt to hide it. He in no way attempted at any
time to hide the fact that he was out there on a call,
          Now, the police on the other hand, the evidence is
going to show that on the night of Ms, Thompson's murder,
the police were doing what they shouldn't have been
doing, including Mike Chapel. They were not doing what
they're paid to do. There was thunderstorms that night, bad storms, so they decided to all go up to the fire
station up at the northside precinct and sit at the fire
station and` watch TV.
          And Mike Chapel, Sergeant Stone, and Brian Reddy,
a police officer, were all sitting up there at the fire
station watching TV that night until about ten o'clock,
They left about ten o'clock, and the evidence will show
that Mike Chapel got a call, He responded to that call
in a timely manner. In the period of time between the
time he responded to that call and the time that the
state says Ms. Thompson was killed, the state contends
that he drove down, stopped Ms. Thompson, killed her, and
then went to his call, all in a timely manner.
          Now, the Gwinnett County police department made a
serious error of judgment, I think, in this case. They
elected to investigate this case themselves. They knew,
as Mr. Porter said, by the second day that a Gwinnett
County police car was involved. There were too many
witnesses that had seen a police car parked out there on
Peachtree Industrial Boulevard. Instead of calling in an
outside, independent agency, they undertook to
investigate themselves. They in fact put people in there
that were friends. They put people in there that perhaps
was the person who committed the crime to conduct the
investigation.
          The evidence is going to show, like Mr. Porter
says, that Ms, Thompson was shot twice, and the death was
instantaneous from either shot. The medical examiner's
going to say either one, After the police set up these
roadblocks and started finding people who said that, yes,
we saw a police car out there, then the police department
at that point had a real problem. If the media got hold
of it, if they told you, the public, that we've got a
police officer out here on the streets who has killed
somebody and we don't know who he is yet, there would
have been panic.
          At that point, the police were in a rush to solve
this thing as quickly as possible, make an arrest, assure
you, the public, that everything was okay, they've caught
the person that did it.
          So they had a suspicious circumstance. Mike
Chapel had made the call at Ms. Thompson's, Let me tell
you how they went about investigating it.
          The evidence is going to show they didn't go up to
the northside precinct where they suspected an officer up
there may have done it, although there's no assurance it
couldn't have been any Gwinnett County police officer in
uniform, They don't necessarily had to have been on
duty. The evidence is going to show they take their cars
home. The Gwinnett County police officers all take their
examined those photo lineups  this photo lineup for
about two minutes. He looked it over, he looked at
number 7, which was not Mr. Chapel, and said, 'That's
like him, but it's too skinny.' Then he proceeded to
pick Mr. Chapel. And I want you to listen very carefully
to the evidence when it comes in the court here, His
exact words, and I'11 quote what Mr. Kautter said was,
'I'11 have to say that it's number 3. I'11 have to say
that it's number 3,'
          During pre-trial hearings when the evidence will
come out to you, I questioned the officer showing him
that photo lineup. 'Did you inquire -- was he sure about
it? What did he mean by that?' And the officer said,
'No, he signed the affidavit, and that was good enough
for me.' He didn't ask him what he meant by, 'I'11 have
to say that's number 3.'
          At the pre-trial hearings we had, I took the
photographs of the other twenty-nine police officers,
male police officers, that worked that precinct and
showed them to Mr. Kautter. Mr., Kautter will testify --
          
MR. PORTER: Your Honor, I'm going to object to
this, Mr. Moore's testifying, unless he intends to take
the stand as to that matter, and, of course, he can't as
counsel,
          
MR, MOORE: Your Honor, there's transcripts of
those. I believe I can go into what's been testified to
by witnesses I expect to be proved.
          
THE COURT: Would you approach the bench, please?
          [Counsel approached the bench and the following
conference ensued outside hearing of the jury.
          
THE COURT= It seems to me the distinction is
between state what transpired at the hearing as opposed
to what they're going to say when they get here. It
seems to me if you know  if what they've said is what
you expect them to say here, you're entitled to say what
they're going to say and what the statements are going to
be and what the evidence is, I don't think the issue is
what have they said at some other time at some other
hearing, it seems to me; but, in fact, what they are
going to say, what the evidence is going to be. It seems
to me you're entitled to say about what the evidence will
be. Is that a fair statement?
         
MR. PORTER: That and Mr. Moore saying, 'I did
this and I did this,'
          
THE COURT: Okay? All right.
[Bench conference concluded.]
THE COURT: Go ahead, please.
MR. MOORE: I'll rephrase that a little
differently. I expect the evidence to show that
Mr. Kautter will testify that there's a photo in that
photo lineup that is similar to one of the other officers
at the northside precinct. That photograph that he
picked out is of Officer J. P. Morgan, who committed
suicide May 10, 1993, shortly after Mr. Chapel's arrest.
          At that time, the police conducted a minimal
investigation of Officer Morgan. They Luminoled his car,
they did some checking of weapons and everything after he
committed suicide, and that was the end of it.
         Now, let me talk to you about this rush to arrest
somebody, to solve this case quickly. At the time that
Mike Chapel was called in on April 22, the night of
April 22, the morning of April 23, late in the evening,
early morning hours, at that time, the police department
had not interviewed the other officers at the northside
precinct. They didn't go up there and isolate everybody
and ask every officer up there, 'What were you doing,
where were you on the night of April 151' They called
Mike Chapel into headquarters. He came, like a police
officer dutifully would when he's ordered to come in.

THE COURT: Well, I'm inclined to agree. I think
if you know that's what they're going to say when they
get here, if you know what they're going to say, that's
what the evidence is going to be, I think you're entitled
to say that.
          
MR, MOORE: Okay.
          The evidence will show the decision had already
been made to arrest Mike Chapel at that point based on
the photo ID by Mr. Kautter. The evidence will show that
after they got Mike Chapel to headquarters, when the
decision had already been made to arrest him, in a
frantic flurry then, they went out and started
interviewing people.
          They interviewed Brian Reddy who was working that
night with Mike Chapel. For some unexplained reason
Brian Reddy lied to them and said that Officer Chapel was
not at the fire station that night. All of the evidence
subsequently shows that Mr, Chapel was there the
firemen, Sergeant Stone, the other officers.
          That didn't seem to bother the police very much.
They proceeded on. They took minimal statements from
every other officer accepting whatever they said without
really checking into it, The decision had already been
made to arrest Mike. There wasn't any reason to check
any further.
          Now, the videotape that's going to be played, they
did videotape the statement of Officer Chapel. I would
ask you to watch that very carefully, too. Mike Chapel
is a police officer. He understands how things work, and
he understands when the police department doesn't
investigate and turns on him and starts to put all these
things to try to show that he did it, that it's an uphill
battle. He's against the whole police department at that
point. He realized, and you'll notice it on that
videotape, they didn't tell him, but he knew they were
probably going to arrest him at that point.
          Now, the state wants to make much of a lot of
little things here and say that all of these show that
he's guilty, They talk about the money that he had. The
evidence is going to show that Mike Chapel -- it's a
small town up at Buford  that Mike banked at the same
bank, the People's Bank, that Ms. Thompson did. It's
going to show that he owned a business called Iron World,
a gym up there, which generated cash, mostly cash fees
from people going there and working out and everything.
His wife worked at a restaurant, a place called Hooter's,
some of you may have heard of it, and she received cash
tips there, They didn't have credit cards. They dealt
and paid their bills and everything with cash and with
his police department paycheck.
          The state wants to make a lot about his financial
circumstances. Mike Chapel didn't have a lot of money,
He was a police officer. The citizens don't pay their
police officers very much. He had side jobs. Nearly all
of the police officers work second jobs, The evidence
will show that he worked a second job.

          He had a wife and two children, The state wants
to go in, too, to what Ms, Thompson's friends may have
said, gossip, about what was going on prior to this
happening, and we'd ask you to take that for what it's
worth,
          They left the car out at the police department,
where Mr. Chapel drove in and parked it, basically
unsecured for several days out there with a number of
sets of keys to it around different places that people
had access to it. It was parked in a parking lot there
where the public pretty much has access to it, There's a
gate there, but that gate's never closed, or at least on
rare occasions, if it is.
          The DNA in this case, and I know you've all heard
a lot about it from television, and we all asked you
questions about it during voir dire, first of all, in
this case there was a very small, very poor quality
sample to begin with.
          In forensics, when you have a problem with a test,
you only have the one small sample. You cannot go back
and retest it, In diagnostics, such as paternity, if you
had a test that showed there might be a problem, and you
were concerned about it, the scientists will testify they
would go back and rerun that test. They wouldn't accept
the results,
          We expect the evidence is going to show that there
are problems here with the test that was run in this
case. The crime lab does things that's called bio-
imaging that Mr. Porter referred to. That's a computer
that takes this thing, like an autorad, it's like an x-
ray, and it finds the darkest spots There's spots on
there that match up or don't match up of DNA. It finds
the darkest spot which it believes to be the center and
it centers on that to make measurements then to determine
whether or not there's a match with the computer.

          Well, that's all a nice, sophisticated piece of
equipment, but it's not a lot different than a ruler or
yardstick. If you -- it's more sophisticated in that it
measures smaller amounts, but if you have something here
and you place it in the center with a ruler to measure
it, then depending on where you decide the center is,
you'll get different results in the measurement.

          That fancy machine that they've got, if they don't
like the way it places the dots in the center there, they
have the ability to manipulate it. In other words, they
visually say, 'Well, I Look at this and it doesn't look
to me like that's the center,' so they eyeball it and
they put it where they think the center is, They don't
rely on the machine. You're going to hear the testimony
of that.
          They were under a court order  that last probe
that was run, they were under a court order, the evidence
is going to show, to preserve that, that bio-image, so it
could be examined by other expert witnesses. They, this
crime lab, accidentally erased that and destroyed it.
When they were searching for it, after they had erased it
and destroyed it, they discovered that they had one of
the bio-images from the original five probes that they
had told us had been erased,
          When we examined that, when the expert witness
examined that, it appeared that they had in fact
manipulated the points where the machine picked up things
on that probe that they had preserved. In other words,
they had not relied on the machine. They had gone back
in and made changes. Now, they didn't keep any records
of the others, whether they had manipulated-any of the
others or not, so we don't know, and they don't know.
What they're saying is, 'I'm a scientist, trust me.' And
we think the evidence is going to show that other
scientists disagree with them.
          We expect there's going to be evidence to show
that there may have been contamination from a mixed
sample here. And when you have that, then the results
are no good in the DNA test. They can't do a mixing
experiment here. If it was a diagnostics situation, like
paternity, they can do what's called a mixing experiment
to determine whether or not there's been a mixed sample,
They can't do that here, And the reason they can't, they
don't have a large enough sample. The sample that's
located is not large enough. It would be a simple
accepted test in a paternity case for child support to
determine whether that happened or not, but they can't do
it here.
          There's one probe that you're going to see that it
matches the car seat, it matches Ms. Thompson, and it
matches Mike Chapel's blood. Now, they included that in
their results even though it's a match for all three,
And they explain away, 'Well, that can happen. Those
things happen,'
          The standards, we expect the evidence to show,
should be the same for all DNA. There should not be
lower standards simply because the evidence that they
have available is not of good quality or is not enough to
do the right test or enough to do what should be done.
          The examples that I gave you about the 'probably,'
the suspicion, they focused on Mike Chapel from the
beginning. They arrested him when they didn't have any
of this DNA evidence. They had not talked to the other
witnesses. That rush to judgment. Then they proceed to
get the eyewitness identification, which is tentative at
best, and we don't expect there to be any evidence that
he tried to find out whether or not Mr. Kautter was sure
about that,
          Getting back to the crime lab with the DNA
evidence, Mr. Porter talked to you about the Luminol. We
expect the evidence is going to show that Keith Goff from
the crime lab, who performed the test on the DNA, he's
the one that did the actual work, asked his boss, George
Herrin, Dr. George Herrin, about the Luminol, whether it
would affect the test or not. Dr, Herrin's scientific
answer was, 'I don't think so.'
          Ladies and gentlemen, the state  we contend the
evidence here, and the state never started at the police
department with an open mind, in their rush to make an
arrest, to assure the public everything was okay, they
immediately went after Mike Chapel because h6 had the
misfortune to make that call out there to Ms. Thompson's.
After you listen to all the evidence in this case, we
believe that you're going to return a verdict of not
guilty in this case, and that verdict speaks the truth.
Thank you.