“There were a lot of fights, so it could have been.”
“At one point in time, Tom said that Cher Elder was killed because she was a snitch.”
“Correct.”
“But you didn’t tell that to Richardson until April or May. And you tell us that in your mind it made sense that you would actually be angry at Cher Elder because she shouldn’t have been having sex with your boyfriend, right?”
Snider nodded. “She had no business with him regardless of what she did with him.”
And wasn’t it true she had a husband and two sons in Fort Collins while she carried on an affair with Luther?
“Yes.”
“And throughout your life, you’ve had quite a lot of problems, is that fair to say?”
“Absolutely.”
“And since you were fairly young, you’ve attempted to kill yourself a variey of different times, right?”
Hall jumped to his feet. “I object to that, judge. That isn’t relevant to anything.”
“Sustained,” the judge replied.
Cleaver asked to approach the bench. There she argued that the jurors deserved to know that Debrah Snider was a troubled woman and had been for some time. But Munch ruled that only suicide attempts made in relation to the case could be delved into.
“During the time you were living with Tom Luther, or he was your boyfriend,” Cleaver said sarcastically, “you tried to kill yourself a couple times, is that right?”
“Wrong. I tried once.”
“And you have a felony conviction, is that right?”
“Correct.”
“And through the two years you were with Luther, the only thing he ever admitted to was burying Cher, isn’t that true?” Cleaver said.
“Right.”
“And throughout all of this investigation, Tom always told you that he did not kill Cher?”
“Right.”
“He was real clear on that, wasn’t he?”
“He was very clear on that.”
“And he told you that he didn’t want to be a snitch, correct?”
“Right.”
“He told you that he was going to go to hell for something he didn’t do, correct?”
“He said he was going to pay for something he is not responsible for.”
“Told you that Byron better keep his mouth shut because he could not do a life sentence.”
“Yes, he said that.”
“And when you asked him to step forward with who killed Cher Elder, he said no, correct?”
“Correct.”
Finally, Cleaver had no more questions. Debrah Snider had not cracked under the pressure. She’d told the truth, no more, no less.
But Hall had just one more thing to ask her. “There is a question about whether you told Scott Richardson everything you knew about this. Why hadn’t you?”
For the first time that day, Debrah’s eyes filled with tears and her voice cracked as she answered. “Because it was something that had happened that nobody could undo, and I wanted to preserve my relationship with Tom Luther.”
She stole a glance at Tom. But he was looking down.
The prosecution case was drawing to a close. There were just two witnesses left.
The first was Robert Cooper, the Jefferson County inmate who had come forward just before the trial. “He said he shot a lady in the head and carried her up a road and buried her,” Cooper testified. “Before he killed her, he said he slapped her around.”
The last was Charles “Mongo” Kreiner. But first the jurors were excused for a break, while Cleaver first objected to Kreiner testifying and then insisted the judge make sure he understood that he couldn’t mention where Luther made his comments or anything that would give the impression that Luther had previously commited a sexual assault.
Munch finally told Cleaver to sit down and be quiet. Turning to Kreiner he asked, “Do you have any question as to what it is that you are to say and you’re not to say?”
“No sir,” Kreiner said. “I’m smarter than I look.”
The jurors were brought back into the courtroom, and Kreiner was called, squeezing his muscular body into the cramped confines of the witness stand.
He said he knew Luther simply as a friend.
“Did he ever say anything about if he committed a crime, what he would do?” Hall asked.
“He said that if he were to commit an act of crime, there would be no witnesses—no one to testify.”
And on that note, the prosecution rested its case.
January 30, 1996
After the prosecution rested its case, Judge Munch threw out the first degree murder charge based on the indictment count that Luther killed Cher Elder to cover up the evidence of a rape. The body had been too decomposed to ascertain if she had been raped. And except for Southy Healey’s statement that Luther said he was having a good time with Cher Elder when he “fucked up and killed her,” and Luther’s own admission of consensual sex, there was no evidence to support the charge.
It left the prosecution with only a single count of premeditated first degree murder after deliberation.
At the start of the defense case, Luther stood and announced that he would not be testifying on his own behalf. “I choose to remain silent as I have through this whole case,” he said.
Enwall then recalled Byron Eerebout to the stand, mostly to repeat questions about whether or not he saw Cher Elder return to the apartment as he originally told police. “And why you decided to change your mind.”
“We’d like to call Lauren Councilman,” Cleaver announced when Byron left.
Councilman was a friend of Cher Elder’s who obviously didn’t want to be there as a witness for the man she believed killed Cher. But the defense wanted to know about two telephone calls she received from Cher on the fateful weekend.
The first time she spoke to Cher Elder personally on that Saturday evening. Elder was upset with Byron, she conceded, but before the conversation got much farther, Cher announced she had to go and hung up.
Lauren Councilman said she went out that night and didn’t get back until late. She also got up late on Sunday and when she checked her messages, there was another from Elder, apologizing for hanging up on her and said she’d try again later. The defense intimated that meant that Cher was alive on Sunday afternoon when she called the second time.
However, on cross-examination, Hall was able to get Councilman to point out that she didn’t know what time the second call came in. It could have come shortly after she left Saturday night, or even from Central City.
James Greenlow was called next. As he took the stand, he glanced at Richardson, who pulled out a pen and prepared to write, a reminder of what would happen if Greenlow committed perjury.
Suddenly, Greenlow couldn’t remember much. He said he heard Southy Healey talking about a murder in the jail, but that was about it. Luther scowled as Cleaver tried to get him to recall the statement that Southy told him that he and Byron were responsible for Cher’s death.
Hall easily disposed of Greenlow on cross-examination. “Did Southy ever say the name Cher Elder?”
“No,” the ex-con shrugged.
“Did he say who had killed someone?”
“No,” Greenlow said again as the defense team fumed in their seats.
The biggest surprise in the defense case was when they called Mark Makarov-Junev to the stand. Richardson sat stunned and angry as he listened to Makarov-Junev claim that he had rejoined Byron Eerebout’s circle of friends in the summer of 1993 because he was personally investigating the disappearance of Cher Elder.
Makarov-Junev said Byron Eerebout tried to kill him after he repeatedly accused Eerebout of being Cher’s killer. “He thought I was going to go to the police,” Makarov-Junev testified. “I told him I would.” And, oh yeah, he added, he owed Eerebout $400 for drugs.
Richardson was livid. At no point in the investigation of the shooting, including interviews with Mark and his cousin, was there any mention of Makarov-Junev investigating Elder’s death. It was all about money and drugs.
Makarov-Junev hadn’t even bothered to show up for the trial against Eerebout, and he was the victim. They’d convicted Eerebout anyway. Lately Richardson had heard that Makarov-Junev was angry that Byron got a deal. But he hadn’t expected this low blow.
But once again Hall dealt with the problem. He asked why Makarov-Junev hadn’t mentioned this rather important motive during the year it took to bring Eerebout to court. Makarov-Junev shrugged. It was an independent investigation and he didn’t think the cops would believe him.
The defense then rested their case after less than a day of testimony. Apparently, they believed that they had cast enough doubt on the prosecution witnesses that there was no need to go any farther.
Munch announced that closing arguments would begin first thing in the morning. “Talk to no one about the case. Avoid the media. Keep a free and open mind,” he told the jurors and sent them on their way.
January 31, 1996
In the American justice system, the prosecution gets two shots at the jury during closing arguments under the premise that the state has the greater burden. It must prove a defendant’s guilt beyond a reasonable doubt; until then he is presumed innocent. As opposed to opening statements, which generally outline a case and give jurors an idea of what to expect from either side, closing arguments are just that—arguments over the merits of the evidence. The prosecution goes first, followed by the defense, after which the prosecution follows with any rebuttal arguments.
Hall gathered his thoughts as he waited that morning for the jury to be brought to the courtroom. All the work of the past three years, all the heartache, would be boiled down in what he said over the next twenty minutes.
He couldn’t have been happier with how the trial had gone, even with Eerebout’s slip. Healey had more than held his own and, Hall believed, come off as believeable. Debrah Snider dealt with her demons and came back to court to tell her story heroically, even poignantly. Eerebout had scored a point or two when he matter-of-factly insisted that he didn’t kill Cher Elder, “Tom Luther killed Cher Elder.” And Richardson was the perfect police witness—direct, polite, sure of himself, a defender of right, emotionally involved in the case without having lost his objectivity. He’d slept by Cher’s grave to protect it, for God’s sake.
They’d lost a couple along the way. Mortho had retracted what he’d said about the ring, so they didn’t call him. The West Virginia inmate, Mark Dabbs, who said Luther had told him about the murder, refused to testify unless he was moved to another prison. They’d dropped him, too.
Rick Hampton, who never was offered a deal for his testimony about Luther saying he’d kill his next victim and bury the body, also refused at the last minute to testify. But Cooper, who’d had nothing at all to gain by testifying, and Ramierez, another piece glued into place by Debrah Snider, had made up for the losses.
Hall looked around. Luther sat staring at the floor, chewing his lower lip. Every once in awhile, he said something to Cleaver, but she seemed off in another world and would only nod. Enwall studied his notes, making notations here and there. Minor sat, Buddah-like, waiting, just waiting. Richardson seemed tense and at the same time relieved that it was almost over. Cher Elder’s family smiled at him, but looked frightened.
At last the jury arrived. They too seemed ready to get it over with. With a nod from Munch, Hall stood and cleared his throat.
“Once again, good morning. In my opening statement, I told you that we spent almost two years putting the pieces of this case together. But I didn’t tell you how all the pieces fit.
“Today I’m going to tell you how it all fits together and I’m going to tell you why the evidence you’ve heard proves to you, beyond a reasonable doubt, that Thomas Luther killed Cher Elder.”
There were two or three main things they needed to keep in mind as they began their deliberations. “The first one is the presumption of innocence, which can only be overcome by the second one—proof beyond a reasonable doubt based on reason and common sense. It is not some vague, speculative, or imaginary doubt, but doubt that would cause a reasonable person to hesitate to act in matters of importance to themselves.
“The third major issue concerns the way crimes are defined in our country. The law defines crimes by lists of things that are called elements. Make your decision by reading each element of this crime and asking yourself whether we have proved that element beyond reasonable doubt. If we have proved them all, you must find Thomas Luther guilty; if we failed, you must find him not guilty.
“I think what you will see is that all of the elements in this case are not in dispute. There is no dispute, for example, that Cher Elder was murdered on or about the date and place we’ve indicated. There is no credible dispute that whoever killed Cher Elder did so with the intent to kill her, causing her death after deliberation—there is simply no other explanation for three point-blank shots to the back of her head. The question, element number one, is who did it?”
Hall paused as he stuck his hands in his pockets. If Enwall was the college professor, Hall was the earnest young teacher with a message for his students. “I know you heard from some pretty unsavory characters in this case. I assume you didn’t like those people very much, and I know that you probably wouldn’t want them moving onto your street. I’m not going to make excuses for those folks. All I can tell you is that we don’t choose witnesses, but Thomas Luther chose his friends, and the people you heard from were his friends.”
Hall paused again to let the message sink in. Murders are not committed in heaven with angels for witnesses. “No one of Thomas Luther’s former friends knows the whole story, or in fact, no one person knows the whole story. And the recollections of all the people you’re heard from over the past week have been colored by the passage of time, and they have inconsistences, and they’ve been tainted by the lies that Thomas Luther told all of them. But regardless of all of that, what they told you fits together, and it explains to you what happened to Cher Elder on the evening of March 27th, 28th, 1993, and this is how it fits together.
“Cher and Tom Luther left the casino. Luther drove. Karen said neither was drunk. The plan was to go back to Byron’s. That’s where Cher’s car was.