Monster (76 page)

“We are not asking you to let a murderer go free in this case. We’re not asking you to let Tom Luther go free. We’re asking you to convict Tom Luther for the crime that he committed, accessory to murder, burying the body.”

It was a smart move, the defense lawyer asking the jury to convict his own client for accessory. He couldn’t be both an accessory and a killer. Any juror who had qualms about convicting Luther of murder but didn’t want to take a chance that their mistake would let him back on the streets, could still vote to put him in prison.

Hall knew the strategy was sound. However, he also believed that the defense had committed a cardinal sin. Instead of trying to poke holes in the prosecution case and leaving the identity of the killer up to the imagination of the jurors, they had tried to label Southy and Byron as the killers, but without ever really saying which one. Or was it both? But then how and when? The prosecution had at least given them a realistic storyline.

And did Enwall really expect the jury to believe that Luther would rather face the death penalty than “rat” on two guys who were ratting on him? It wasn’t like he hadn’t already told Debrah Snider, who told Richardson, the same thing. He had tried to rat. It just hadn’t worked because it wasn’t the truth. The irony of that logic caused Hall to make a last-minute revision to his rebuttal argument which he stood to deliver.

Hall had seen the wavering attention of the jury and told the jurors that he would keep his remarks brief. He also said he wouldn’t try to refute every wrong statement the defense attorney had made, he’d let them do that. “You know this case as well as I do now. My recollection of the facts isn’t the same as his. But it’s not our recollection that matters, it’s yours.”

He touched briefly on Lauren Councilman’s testimony that the second call could have come anytime Saturday night. He asked when Dennis Healey and Byron Eerebout supposedly talked in jail, Enwall having alluded to them making up their story at that time. “I don’t recall any testimony about that.”

“You heard a lot about us changing our theory and conceding things,” Hall said, strolling over toward the jury with a hand on his cheek, which he dropped and placed in a pocket. “But we haven’t done that. Our theory has always been the same. Cher was killed sometime between after she left the casino parking lot and dawn. We don’t know when or exactly where.”

Hall was now only a few feet directly in front of the jurors, who were all looking up at him, and some had begun to nod. “The defense theory is that Byron is not a nice guy and Dennis Healey is not a nice guy, and there’s a whole bunch of lies in this case.”

Hall shrugged and made a face. “Well, I agree with that. But Mr. Enwall also told you that Tom Luther knows who killed Cher Elder, and he would rather face the death penalty than tell you the truth about it, so I guess the theory is that either Dennis Healey or Byron Eerebout killed Cher Elder.

“We did check Byron out as a suspect. We searched his apartment and found blood, not because we needed the practice, and there is not any evidence to say he is the person who killed Cher.

“We thought about Dennis as a suspect. We found a gun under his car seat and checked it out. It was not the gun that killed Cher.”

Hall asked the jury to again remember to consider only the elements of crime. “You may have reasonable doubt about whose voice Byron heard that morning. But that’s not an element here.

“You may have reasonable doubt about the date that Byron and J.D. went up to the mountains to see Tom Luther burying Cher’s body. You probably do, but that isn’t an element either.

“Mr. Enwall says that some of the pieces of this jigsaw puzzle don’t fit. That may be. But it doesn’t matter. This puzzle is a very big picture, it’s like a panorama. It has a lot of people in it, a lot of scenes. But all of those things don’t matter because they are not elements of this crime.

“The part that matters, the piece we need to know is the piece that shows the face of the person who pulled the trigger. And reason and common sense tells me that face isn’t the face of Byron Eerebout. It’s not the face of Dennis Healey.

“It’s the face,” Hall whirled and pointed at Luther who scowled and looked down, “of the man sitting right there. It’s the face of Thomas Luther.”

Chapter Twenty-Eight

February 1, 1996—Jefferson County Courthouse

It didn’t take long for the jury to make a request to review some of the evidence. They wanted to see the video from the Central City casino in which Luther followed Cher Elder around. Several jurors needed a reminder that the relationship that evening between Luther and Elder was anything but a date.

When they first went back into the jury deliberation room, the jurors selected a foreman and took a quick poll. Half were ready to convict Luther of murder, either first or second degree; the other half weren’t sure or leaned toward accessory.

However, after just five or ten minutes of going over the major points of the testimony, they were all convinced that Luther killed Cher Elder. They split on the degree of his guilt—seven were for manslaughter, four for second degree, and one for first.

Through the trial, the jurors had gotten along with each other very well. They weren’t supposed to discuss the proceedings, so they spent time between court appearances talking about families, and work, and hobbies. Of the fifteen, only the 65-year-old woman who had been selected last kept herself apart from the others, though she would speak if spoken to.

After closing arguments, Judge Munch had dismissed the three alternates, two men and a woman. Some thought the 65-year-old woman might ask to be excused. Her ankle was in a cast and her husband, who had been driving her back and forth to the courthouse, had just been hospitalized. But she insisted it was no problem. She’d remain.

Over the course of the trial, the jurors had formed opinions about the personalities making up the two sides. Enwall, they all agreed, was the most polished. However, they’d also found him overly dramatic, especially during the closing arguments, when he kept going on and on as if he didn’t quite believe what he was saying. Cleaver had turned them off with her overly solicitous routine with Luther, which they saw through as a charade for their benefit, and the hostile manner in which she treated prosecution witnesses and referred to Detective Richardson.

Hall’s habit of placing a hand on his cheek as he talked had bothered some, and at first the jurors had pegged him as meek and unsure of what he was doing. That gradually changed, however, when they saw how meticulously he pieced together the complex evidence into a convincing, as he called it, jigsaw puzzle. Minor had been direct, if not wildly entertaining.

Richardson, however, was the key. They all agreed he could be trusted, and had kept his cool while the defense hammered at him. No one bought the argument that he had focused on Luther to the exclusion of other possibilities; he’d checked it out and still arrived back at Luther. They had also seen how emotionally involved he was in the case, how he’d cared for Cher Elder’s family. His sleeping by Cher’s grave had left a lasting impression of his dedication and humanity.

One of the first things the jurors did when sent to deliberate was discuss how they felt about the testimony of the witnesses. On the prosecution side, they believed Southy Healey when he said, “I’m a thief and a conniver, but I ain’t a killer.” And there was simply no evidence that he was, or that he’d done anything more than stand guard while Luther buried Elder’s body. It didn’t make him a good guy, but the prosecution hadn’t tried to say he was.

Taken on his own, they might have dismissed Eerebout as a pathological liar. He was a smirking criminal without a lot going on upstairs. However, his obvious slip had not surprised them about Luther.

“It was like ‘Whoops,’ ” said one juror, “we weren’t supposed to hear that. But it was obvious Luther had been in prison, look who his friends were. I just didn’t know what it was for. It could have been shoplifting or murder. It didn’t matter.”

And in the end, even his critics conceded, Eerebout had acquitted himself well. “Enwall just kept pushing and pushing,” a juror noted, “but Byron just sat there and said, ‘I didn’t kill Cher Elder. Tom Luther killed Cher Elder.’ I believed him.”

Another juror said she didn’t understand why Enwall was going so hard after Eerebout when he had an alibi. “He was in bed with Gina.”

Robert Cooper and Chuck “Mongo” Kreiner were also convincing. And for once, neither witness had anything to gain by testifying against a former friend.

Of all the prosecution witnesses, at least those who weren’t there in an official capacity, Debrah Snider was the most convincing and did the most to sew up the loose ends and tie it all together. It helped that she was obviously, however strangely, still in love with Luther, so much so that it had looked like it physically hurt her to tell the truth. She hadn’t tried to elaborate on what she knew; she never said that Luther confessed to her, and yet she had damned him just the same.

The defense case was confusing in its paucity. “It was like they thought no one would believe any of the prosecution case,” said a juror. “Cleaver looked like the cat who swallowed the canary, as if she knew so much more than we did.”

Greenlow was a joke. He was obviously just trying to help his old friend Luther and even at that hadn’t said anything terribly damaging, just that he’d heard Healey talking about a murder. And neither did the jurors believe that Makarov-Junev had been “investigating” Elder’s disappearance when Eerebout attacked him. As Hall had pointed out, why hadn’t he said something during the investigation of the shooting when he knew Richardson would have jumped at whatever information he had.

But the most damaging statement to Luther had come from his own defense attorney, Enwall, when instead of saying Luther didn’t want to rat on some anonymous friend, he said Luther wouldn’t rat on two guys who were ratting on him.

Hall had summed it up nicely for the jurors when he asked: would Thomas Luther rather face the death penalty than rat on Byron and Southy? “I mean Enwall was standing there accusing Byron and Southy of killing Cher. Who wasn’t ratting?” said a juror. “That pretty much put the nail in the coffin for me.”

Still, the jurors felt they owed it to everyone involved to carefully, step by step, go over the evidence and testimony to see, as Hall said, if the pieces fit. Or if there was another interpretation.

The jurors went home the first day after deliberating for four hours. More than half were now convinced that Luther was guilty of first degree murder, the others were standing on second degree and wanted to talk more about the concept of whether Luther deliberated before killing Elder. The jurors were convinced that they’d reach the required unanimous decision by the next day.

Thursday morning, they met again and began reviewing the evidence. At one point they asked that the testimony of the ballistics expert be read back to them, just to answer some confusion about whether he said the gun stolen by Tristan Eerebout could have been the murder weapon. The testimony quickly cleared that up—the stolen gun was one of only three types that could have been used out of dozens of .22-caliber handguns on the market.

By noon, only seven hours into deliberations, eleven jurors were in favor of convicting Luther of first degree murder. They had decided the issue of premeditation not so much on what the witnesses had said as on the forensic evidence. All three bullets had entered Cher Elder’s skull in close proximity, indicating that she was unconscious or unable to move when she was killed. “She wasn’t trying to get away or struggling,” said a juror.

“One shot could have been an accident or in the heat of the moment. But three? She was executed.”

The jurors had even come up with their own scenario of what they thought could have happened. Coming back to Byron’s apartment with Luther, only to find her “boyfriend” in bed with Gina, Cher had caused a scene. Luther took her outside, where they struggled and he knocked her unconscious, causing the fracture to her skull. He then put her into his car, where she vomited on the backseat due to the blow to her head.

Some felt he probably raped her—there was something about the sex between Luther and Cher they believed they were not told about—before or after he took her to Empire. There he dragged her into the woods and pumped three bullets into her head. They felt he planned to kill her during the forty-five-minute drive to Empire.

However, one woman, the 65-year-old housewife, did not agree. But her arguments made no sense, logically or legally. She kept insisting that while she thought Luther was guilty of second degree murder, the prosecution had not proved “beyond a shadow of a doubt” the first degree charge. She said she thought Luther acted “knowingly” but not “deliberately,” the required threshold for first degree murder.

How, the other jurors asked her, could Luther shoot a helpless woman three times without deliberately intending to murder her? “It’s not supposed to be ‘beyond a shadow of a doubt,’ ” a juror argued. “The judge explained that we can’t ever be one hundred percent sure of anything. It’s ‘beyond a reasonable doubt.’ What a reasonable person might conclude looking at the evidence.” They tried to get her to explain her reasoning, but suddenly she stopped talking to them completely.

The other jurors grew angry. “You’re not using your common sense or life experiences like the judge told us,” said one.

“And you’re also breaking the law by refusing to deliberate or explain yourself,” said another when the holdout juror remained mum.

Frustrated, the jurors went home Thursday afternoon. They’d have to try again Friday.

It didn’t go any better the next day. In fact, it got worse and turned ugly. The eleven jurors took turns getting in the woman’s face. What was wrong with her, they asked. Was she stupid? “Tell us your scenario,” one yelled. “At least if you could tell me why you think it’s only second degree, I could respect that!”

“I don’t have to. I don’t have to tell you anything,” she replied and turned her back.