For one thing, Elder was shot, the other girls beaten and strangled. And, most importantly, they lived. “It would be improper to use prior bad acts to convict him of another.”
“If you allow the prosecution to use this,” she warned the judge, “you’ll be signing his death warrant.”
Cleaver contended that her client’s rights to due process had been violated by law enforcement personnel, “particularly Detective Richardson,” who she said was out to “get Tom Luther at any cost.”
Judge Munch took the arguments under consideration. Office personnel later said they had never seen him so torn over a decision. On one hand, he believed that he might very well allow a serial killer get away with murder if he ruled against allowing the prior similars. On the other, he feared jurors, told about the terrors of the two rapes Luther was convicted of, would be unable to look at this case solely on its merits.
Several days passed. Hall had a sinking feeling that things were not going his way. Judges were often like the general television-watching public in that they were indoctrinated to believe that serial killers always committed their crimes in exactly the same fashion. They didn’t take into account the opportunistic killer who struck when and how the mood took him.
In his book, Dr. Macdonald described men like Luther as anger-retaliatory rapists, “a moody, argumentative man with a violent temper.”
“He uses a blitz attack. The attack occurs on the spur of the moment, perhaps someone he knows or just met in a bar. The attack is violent, and he will use any weapon at hand. He will strike her with his fists or a club, and he may kick her before ripping off her clothing. There is much profanity, and he may continue to beat her during the sexual assault. Anal sex precedes oral sex. If there is sexual dysfunction, it will be retarded ejaculation.”
The way Richardson and Hall saw it, Luther didn’t set out on the morning of March 27, 1993, to sexually assault and murder Cher Elder, though he probably had his “rape kit” along just in case the mood took him. He also had the gun the Eerebout boys had given him several days earlier stuffed under the front seat.
Then later, in the car with Cher, she angered him and he attacked without warning. Beating her senseless, he raped her and then, to cover up that crime, he killed her with the weapon he had available. A .22 Baretta.
And the murder was premeditated. The public thinks of “premeditated” as a carefully planned-out crime. But all premeditated really means in the legal sense is that the perpetrator gave the act some thought—in Cher’s case, Luther knew he would be sent back to prison for rape and assault and decided to kill her to cover up the crime. He executed her while she was helpless with not one shot, but three. It wasn’t accidental, it wasn’t in the act of her fleeing or struggling, it was an execution.
But judges in Jefferson County were said to grant prior similars motions only for “fingerprint” crimes. That is, crimes in which the perpetrator did everything exactly the same from crime to crime. Same time. Same way. Same weapon. Same words.
It was late Friday when the decision was delivered to the district attorney’s office. Munch had sided with Cleaver on the prior similars.
While the three women—Mary, Bobby Jo, and Cher—“bear a striking resemblance to each other,” Munch wrote in his opinion, the prosecution had not persuaded him that there was enough evidence outside of Luther’s “bad character” to make a case that he sexually assaulted, beat, and choked Elder. Nor had the prosecution demonstrated that it could prove Luther attacked women “because they reminded him of his mother.”
Munch, however, did not entirely side with defense motions. Cleaver wanted the court to exclude statements “allegedly made by Luther” to other inmates and to Debrah Snider. But Munch said he wouldn’t necessarily preclude the prosecution from entering some such evidence, including Luther’s remarks that he would kill the next woman he raped and bury her body, so long as the prosecution could work around the issue of his prior convictions.
The similar transactions ruling was a serious blow to the prosecution. So serious that Hall believed the pendulum had swung clearly to the side of the defense. He even explained to Cher Elder’s parents, who attended every hearing, that the case was now in grave jeopardy.
Unable to refer to Luther’s history with women, Hall wouldn’t be able to show why a nice-looking, 37-year-old man would attack a young woman out of the blue. Luther would look like a Boy Scout. Meanwhile, the prosecution witnesses, other than Debrah Snider and law enforcement personnel, were criminals or liars whom the defense would have a field day impeaching—even accusing Byron Eerebout, who had argued with Elder the day of her disappearance, or Healey of the murder.
It became clear in the weeks that followed that the defense team knew they had crippled the prosecution case. They didn’t even bother to approach the prosecution about a deal, highly unusual in a death penalty case.
However, Hall wasn’t about to back down. While some prosecutors worry about win/loss records, and wouldn’t even prosecute “iffy” cases, he believed that his responsibility was to place the evidence before a jury and let the chips fall where they might. If they won a first degree conviction, all of Luther’s past would be fair game, and the death penalty would be a slam dunk.
“If he walks,” he told Richardson, whom he called with Munch’s decision, “at least it won’t be because we didn’t try.”
Chapter Twenty-Seven
January 1996—Jefferson County, Colorado
Like a long-distance runner drawing on his last reserves of energy to finish strong, Scott Richardson didn’t let the approach of the trial slow his investigation. Indeed, the defense attorneys, who at one time complained to Judge Munch that they weren’t receiving the prosecution’s evidence fast enough, now complained that they kept getting so much new information from the investigation team that they couldn’t keep up.
Much of the latest buzz had to do with Dennis “Southy” Healey, who told Richardson about a curious visit from Cleaver and her female defense investigator. He said that during an interview, the defense investigator shoved a letter across the table to Healey.
It was from Luther. “It said, ‘You know, bro, that Byron is the one who killed her,’ ” Healey told the detective.
The letter was an obvious appeal from his former friend to switch sides and implicate Byron Eerebout for Elder’s murder. Cleaver acted like that she had never seen the letter before and was as surprised at its sudden appearance as Healey. But she also snatched it up before leaving.
The other information involving Southy Healey came from a James Greenlow, who had once done time in prison with Luther. Now he claimed that while in the Jefferson County Jail, Healey told him that Luther wasn’t involved in the murder. “It was Southy and Byron Eerebout,” Greenlow told Richardson.
Richardson didn’t believe him, but Greenlow said he’d be willing to take a lie-detector test to back up his allegations. He said he just didn’t want to see an innocent man face the death penalty for something he didn’t do.
The results of lie-detector, or polygraph, tests aren’t admissible in Colorado courts. However, Greenlow passing such a test would certainly have cast a cloud over Healey’s story. Richardson arranged for the test, but Greenlow didn’t show. His wife said she didn’t know where he was.
Angry, Richardson warned Greenlow’s wife that he would personally see to it that anyone who perjured themselves in the case would be prosecuted. When the detective finally caught up to Greenlow again, the ex-con had decided against taking the test.
Just a week before the trial was set to start, Richardson got an unexpected boost for the prosecution when he heard from Bob Ramierez, the former boyfriend of Myra Healey. He’d been trying to find Fletcher without success to that point.
Ramierez said he wasn’t sure what help he could be, and judging from his comments, he didn’t seem to know that Elder’s body had been found. However, he recalled a trip he made with Southy and Myra to Longmont in July 1993, where they met up with a man he knew as “Lou,” one of Luther’s nicknames.
Southy, he said, got out of the car and talked privately to Lou. When Southy Healey got back in the car, “He kept calling Lou a ‘fuckin’ asshole punk.’ I asked him why he was so pissed off, but he wouldn’t say anymore while Myra was around.”
Later, however, Healey told him that Lou “did something to a girl.” When Ramierez asked what he meant, he replied, “She’s not around anymore.”
Ramierez kept pressing, and Southy Healey finally told him that Lou had “killed a broad and was afraid that the cops had found the body. I don’t remember if he said Lou shot her or knifed her, but shooting sticks out more in my mind.”
“What about Healey? What’s his involvement?” Richardson asked.
“He said he wasn’t involved,” replied Ramierez, who had since split up with Myra Healey. “He wasn’t even around when Lou killed her.”
There wasn’t much else he could think of, Ramierez said. Except that Lou once came over to Myra’s house earlier that spring at 3
A.M.
to get her brother, “and that seemed strange.”
Then, just days before jury selection was set to begin, Richardson got another call, this one from a Jefferson County Jail inmate named Robert Cooper. He said Luther had told him about killing a girl and he wanted to come forward.
Richardson told Cooper he’d be out to see him. Then he got an idea. If Luther was bragging, maybe other inmates would have something to say. If not, it was another chance to put the fire to Luther’s toes.
The next day, Richardson, several other Lakewood detectives, and district attorney investigators assembled in the parking lot outside the Jefferson County Jail. There was a detective for every inmate in Luther’s section, or “pod,” at the jail.
“We’re pulling them all out at once,” Richardson said as he gave last-minute instructions to his colleagues. “Everyone ‘cept Luther. He’ll be in there all alone, wondering what’s goin’ on and who’s sayin’ what.
“Even if your guy don’t say nothin’, keep him at least forty-five minutes before you let him go back.”
Pulling them out at the same time served a couple of purposes. One, it wouldn’t expose any real informants, like Cooper, and it would make Luther nervous and even more paranoid.
Richardson could visualize the scene on the pod when the first inmate returned.
“What were you talkin’ to the cops about?” he imagined Luther saying.
“Nothin’,” would be the reply, whether it was the truth or not.
“Nothing? Forty-five minutes and you said nothing?”
Then the next guy would return and the process would start all over. Again and again.
The detectives went in. Richardson met with Cooper, who said he had known Luther since August. Neither man was much for playing basketball or watching television, so they had naturally started talking to pass the time. It was quickly evident to Cooper that Luther didn’t much like women.
“Whenever we’re watching television and he sees a good-lookin’ girl,” Cooper said, “he calls them ‘tramps’ and ‘sluts’ and ‘whores.’ ”
Nor did Luther have a soft spot for the law. “He refers to you as an asshole and a prick,” Cooper said. “But I got two daughters of my own, and just thought I should say somethin’.”
“You ain’t lookin’ for a deal?” Richardson asked skeptically.
Cooper shook his head. “I’ve already pleaded guilty to the charge against me, and I don’t want nothin’.”
Luther told him in December that he had “killed a girl and buried her up a dirt road. He said they had gone to a bar and gotten into a fight. He said ‘I slapped her around’ before he killed her.”
A few minutes later, Cooper said, he was walking past Luther, who was talking to another inmate, when he heard Luther say “about five shots to the head.” He assumed Luther was still talking about the girl he murdered.
Luther also told him that if he was convicted, he hoped the state would “just do it to him and get it over with. He said if he beat this one, the police would just pin another one on him.”
Apparently, Luther was already preparing for the death penalty phase of his trial if what Cooper said was the truth. “I heard him talkin’ to his sister on the telephone,” Cooper recalled. “He said, ‘You know how our family life was. We were abused and mistreated. Don’t lie, tell them that we were abused and mistreated.’ Then he got really angry and slammed the telephone down.”
Richardson kept Cooper for forty-five minutes before sending him back to the pod. The other inmates were just filtering back then, too.
Back out in the parking lot, talking to the other detectives, Richardson was rewarded by a pounding on the windows on the second floor of the jail. He looked and saw Luther, his face a mask of rage and hate, beating his fists against the glass.
Richardson couldn’t make out what Luther was screaming, although he was sure it wasn’t pleasant. The deputy sitting at the intake desk inside the building walked out. Pointing up to where Luther was still pounding on the glass, he smiled and said, “Hey, I think you made a friend up there.”
The trial of Thomas Edward Luther began January 16, 1996, with the jury selection process. And even that was unusual.
The disappearance and subsequent unearthing of Cher Elder, followed by the arrest of Luther, had generated a storm of press coverage. Luther even contributed when he wrote a letter to a Denver newspaper saying he was being framed.
Luther’s lawyers asked for a change of venue due to the publicity. Judge Munch denied their request; however, he ordered that a particularly large jury pool be assembled from which to choose. More than 400 notices were sent out, of which 250 people showed up at the Taj Mahal causing a traffic snarl and parking fiasco that eased only after the prosepective jurors were assigned dates to return to the courthouse to be questioned about what they knew of the case and their feelings about the death penalty.
A death penalty jury is different in several respects from a standard jury. A standard jury only decides if the prosecution has proved a defendant’s guilt beyond a reasonable doubt. A death penalty case, however, may contain two parts for the jury. The first to determine if the defendant is guilty or not, and, if found guilty, a second phase to determine if the defendant should be put to death.