Monster (77 page)

Resignedly, the eleven jurors went step by step over all the evidence again, hoping that the holdout juror would see where their logic had taken them. But she still refused to even discuss it.

During breaks in the deliberations, the eleven jurors stood in the cold outside air, wondering what it would take to convince the woman. The bitterness of the deliberations had reduced some to tears. Others reported being unable to sleep at night.

Those watching the trial saw the jurors in their groups during breaks and wondered at the obvious anger and frustration on their faces. The strain was tearing Cher Elder’s family apart all over again. Rhonda and Beth were in tears. Earl paced the hallways, angry and worried.

Richardson and Hall tried to assure them that the delay was not all that uncommon. “It just means the jurors are being careful and reviewing all the evidence,” Hall said. But privately, the prosecution team worried that the jurors were split between the murder charge and accessory, which might have meant a hung jury and a mistrial. Also, jurors had been known to settle for a lesser charge rather than let someone go free.

Back in the deliberation room, the eleven jurors kept at the woman. Some tried to reason calmly with her. Others just yelled and then stomped off. Finally, she spoke again, “If you don’t leave me alone, I’m going for accessory.”

The room was silent. The other jurors were stunned. How could she be ready to vote for second degree murder one minute and then say she would vote for accessory the next? Except out of spite. Her statement brought the other jurors, including the men, to tears. But she turned her back again and wouldn’t speak.

At the end of the day, the other jurors voted to go home for the weekend and return on Monday. Perhaps, if the holdout had some time to herself to think, she’d review the evidence and come to her senses. Or at least be willing to deliberate. “Maybe you’ll be able to persuade us,” someone suggested. She nodded.

On Monday, the eleven returned with renewed hope. It soon changed to despair when the holdout juror walked into the deliberation room carrying a large, new romance novel. She took a seat with her back to them and began to read.

The eleven jurors discussed whether they should say something to Judge Munch, but decided it was their duty to continue trying to reach a verdict. But at 9:45
A.M.
, the holdout put her book down and scribbled a note which she gave to the bailiff to hand to the judge. It read, “Judge, we can’t reach an agreement.”

The other jurors then decided to send a note of their own. “We are at an impasse. One of us has not kept an open mind. She has not used her logic, common sense, or life experience in making a decision. We are wondering if it is possible to call in an alternate?”

Munch responded that it was not possible. Alternates are generally only called in if someone was ill or had clearly violated the rules—such as reading newspaper accounts. He urged them to continue their deliberations.

In the courtroom, where the family and spectators had gathered when Munch received the notes, little was said. The family was bewildered by what it all meant. However, it was some relief to the prosecution team as it became clear eleven jurors were pulling for a murder conviction. Hall did not want to retry the case. It had gone better than he could have hoped, and the defense, he believed, had made several key errors.

At 10:50
A.M.
, the holdhout juror sent the judge another note, saying the jury was “hopelessly deadlocked.” The other eleven responded with a note of their own. “The reason we are deadlocked is we have one juror that will not discuss reasons for her decision. At this time, the person has refused to listen to everyone else or give us her opinion.”

Munch renewed his instructions that it was their duty to deliberate with one another. But at 2:10
P,M
there was one last note from the eleven jurors. “The jury cannot come to a unanimous decision—with our apologies.”

Then Munch asked the prosecution and defense attorneys if he should give the jury what are known as the “Lewis instructions.” Lewis was the name of a Denver case in which a jury had deadlocked not over the defendant’s guilt or innocence, but the degree of the crime. The instructions given by the judge in that case were that if they could not reach a unanimous decision for the greater count, they must find the defendant guilty of the lesser charge.

Enwall and Cleaver readily agreed that the Lewis instructions be given. After it had become clear that the jury had decided on murder, they simply hoped to avoid first degree and a death penalty phase.

Hall contacted his boss, District Attorney Dave Thomas, who said not to agree to the Lewis instructions. Better a hung jury and a mistrial than letting Luther off on the lesser offense, Thomas said. But Hall thought about it and knew that retrying the case meant a very real possibility of losing the murder conviction the next time around. Reluctantly, he agreed that Munch should give the instructions.

The eleven jurors were shocked by Munch’s order. Several argued they’d rather a mistrial and let another jury find Luther guilty of first degree murder. But now the judge was telling them it was the law, they
had
to find Luther guilty of second degree murder. Twenty minutes after receiving the instructions, they sent a note announcing they had reached a verdict.

The three alternates were called at their homes to come back to court, as Munch had promised they would be. Each to themselves, the three had reviewed the evidence at home and decided they would have voted for first degree murder. So they were surprised to arrive at the deliberation room and see their colleagues in tears.

They were bustled onto the elevator for the ride to the fourth floor. The alternates noticed that no one would stand near the 65-year-old woman, who stood scowling in the corner.

“What happened?” an alternate whispered over the sniffles and muttered curses of the others.

“Second degree,” someone said.

Cher Elder’s family, the press, and other spectators were already assembled in the courtroom. They were alarmed when the jury entered and they saw that some were crying.

Papers were passed to Munch, who read the verdict. “Guilty of second degree murder.”

The assembly gasped as several jurors sobbed loudly. The prosecution team sat in their seats, grim-faced. As much as they knew what was coming, it was hard to stomach after getting so close. A single vote.

Luther and his attorneys were all smiles. He hugged Cleaver and then shook hands with Enwall. Looking over at Richardson, he stretched and said, “Now I can start lifting weights again and get my body back in shape.”

The jurors were led from the room and back to the elevator. Cher Elder’s stunned family was ushered through the hallway to another elevator as television and newspaper cameras caught their tears and frustration.

The press had to wait outside the district attorney’s offices on the bottom floor while the jurors and the family gathered themselves. The holdout juror was the first to leave, although no one in the media knew her role at that point as she limped quickly past, angrily refusing to comment.

Back beyond the offices, the other eleven jurors were leaving the deliberation room when they saw Richardson standing with Cher Elder’s family. Several women broke into a run toward them, tears streaming down their faces. “We’re so sorry,” they cried, explaining what had happened.

Richardson had never seen anything like it. Even some of the men were crying, others just shook his hand and walked out, saying they were too angry to talk about it right then. Other jurors stayed to talk to the family, apologizing over and over “for letting you down.”

Earl and Beth Elder went out to the hallway to meet with the assembled media. “That is what is screwed up about our system,” Cher’s furious father said. “The holdout juror was a coward who shirked her duty.”

A television reporter asked if it wasn’t enough that Luther would now be off the streets for possibly the rest of his life.

“Was it enough for my daughter?” Earl Elder shot back. “She’s dead. He’s not. He’s still living and breathing. That’s not right. We give too many rights to criminals and don’t think enough about the victims.”

“We’d have rather had a mistrial,” said 18-year-old Beth, her eyes red from crying. “Another jury would have convicted him for first degree murder.”

The jurors also began filtering out, some stopping to talk to the press.

“There were three shots to the back of her head,” said one. “The first could have been a mistake, but the other two were deliberate. And four times he went back to her grave to make sure she wouldn’t be found.”

“I felt an incredible sadness,” said another woman juror as tears fell from her cheeks. “I don’t think it is fair. It was the law, but it is not a law I care for.”

“We’re obviously upset that one juror wouldn’t agree to convict him of first degree murder,” said another tearful woman. “We’re very sorry.”

Hall was also surprised by the jury response. He told the media that he was concerned that the Lewis instructions had “forced a number of jurors to compromise their beliefs. Our system has flaws. And this may be one of those flaws where the views of one are allowed to outweigh the views of eleven others.”

Considering the type of evidence, Richardson was actually relieved that the jury had come back with a murder conviction. Still, he too was angry that a single holdout had saved Luther from the death penalty.

“Thomas Luther is guilty of first degree murder. He knows it. I know it. And eleven jurors know it.”

The pen moved across the page as if guided by some other hand than hers, leaving behind fragmented thoughts and raw emotions. Sometimes it seemed that writing in her diary was the only thing that kept Rhonda Edwards sane.

Just a few hours earlier, Thomas Edward Luther had been found guilty of second degree murder. Rhonda knew that she should have been happy he was convicted, or at least felt some sense of relief. She’d been told Luther would probably now receive a forty-eight-year sentence to go with a fifteen-to-thirty-five-year sentence he got in 1995 for the rape of a woman in West Virginia.

Nailing him for Cher’s death had been no sure thing. When it was apparent the jury was deadlocked, she had feared the worst—that man, that smirking, laughing monster who sat at the defense table might not have been held accountable for her death at all.

Instead, she wrote as she sat in a friend’s living room in Golden waiting for the evening news to come on the television, “I feel anger, rage, and resentment. I have lost a piece of myself ...”

“... I know I will never be the same as I was before her death, some sorrows leave deeper scars than others. A mother’s loss of her child is a deep scar ...”

Justice seemed hollow, as empty as the hole into which they’d lowered Cher’s casket. “There is a vacuum that can never be filled ... a terrible emptiness ...”

“... Cher didn’t get a fair trial ...” all because one juror, a 65-year-old woman, held out for second degree murder when her eleven colleagues believed he was guilty of murder in the first degree. She wouldn’t even explain her reasoning.

Now there would be no death penalty phase. No public hearing to expose the real truth about Luther instead of the white-washed version that appeared in court. Worst of all, there would be no equal payment for what he had done to Cher, no retribution for what he had put her family through.

Rhonda Edwards had held together after the verdict just long enough to get out of the courtroom before she burst into tears. She hadn’t wanted him to see her cry as he smiled and hugged his attorneys like he’d won. She couldn’t believe how he had callously talked about getting back in shape in the prison weight room.

And what did she have? Memories. Guilt. Frustration. “Our justice system can be twisted, because of one person who cannot see that execution by three bullets to the back of the head is deliberate murder. I hope crime never hits her family so she doesn’t feel the wrath and anger that comes with the system.

“To be able to talk to your child you have to go to a cemetery and visit a cold stone, it is the most heartbreak a mother can have.”

For several days following the verdict, radio talk shows, television newscasts, and newspaper columns were swamped by the outrage of a community that wondered how a single person could have held eleven others hostage.

Cleaver no longer sounded quite so sure when she was quoted saying, “All along our client told us he didn’t do it, and maybe he didn’t. We’re just happy we’re not proceeding to the penalty phase.”

Mary Brown was interviewed. She said she had hoped to testify against Luther in the death penalty phase, only to be once again frustrated and in tears because of the system.

“I wanted to be there for all victims to say, ‘You can go on. You don’t have to let men like this ruin your lives,’ ” she said. “I wanted to look him in the face and let him know that he didn’t win.” Several other states, she noted, didn’t require unanimous verdicts.

The jurors went on the air to say they felt coerced by the judge’s instructions. If the jurors were upset after the verdict, they were absoluely outraged when they finally got to read and hear about Luther’s past. They said they believed that if they’d been allowed to hear about Luther’s track record of attacking other women and unsanitized statements he made—“Why do I do these things?” and “The next girl won’t live”—even the holdout juror would have come around.