“No,” she replied. “But I know he’s innocent.”
The investigators left Betty Luther’s home and drove to the home of Gary Powers, whose sons were said to be good friends of Thomas Luther. “Hey,” he said, “you’re my second visitors. A coupla’ gals from the defense were just here.”
Powers said he didn’t know Luther well. “Just met him two years ago,” he said. “He showed up in a blue Geo with a woman named Kathy. She was about, I’d say, thirty-five, dirty blond hair. Said they were on their way to West Virginia. My son might know more if you want to check back.”
Next, they went to talk to Luther’s sister, Donna, who also mistook them for the defense team. “I know you guys are trying to build a defense that Tom was abused,” she said. “But it’s not true.”
When they explained who they were, she shrugged. She had nothing to hide. At Richardson’s request, she showed them a photograph of her mother taken on her wedding day. In it, Betty Luther had dark shoulder-length hair. She gave them the photograph when Richardson promised to return it.
Donna, too, remembered Luther bringing a woman named Kathy with him when he visited in the fall of 1993. He never said anything about a missing girl in Colorado, however. Then again, they weren’t very close.
Donna’s husband, Ted, came home and was introduced to the investigators. He clearly did not like his brother-in-law, who he described as “a blowhard with a chip on his shoulder. He was with some girl named Kathy and bragging that he had a lot of land and was raising wolves.”
From Donna’s house, the detectives went to see George Luther, the youngest brother. Tom had moved out, he said, when he was still very young and they weren’t close.
“He was always hot-tempered,” George said.
“How would he show that?” Newhouse asked.
“Well, he’s a strong guy, you know,” Luther replied. His sister, Becky, had told him some things about the murder case. “It had something to do with drug deals, and the girl was a heavy user,” he said. “Tom took her out and brought her back, then she was killed.”
William Luther was waiting for them when Richardson and Newhouse arrived. George had called to warn him.
Tom left home at an early age, William said, and he never knew him to have serious relationships with a woman. “He was used to getting his way one way or another, though,” he said.
“Any idea why Tom might commit this offense?” Newhouse asked.
William Luther eyed them suspiciously. “Well, what kind of stories have you guys heard? You aren’t going to help him are you?”
Newhouse ignored the questions and asked his own. “Think it had anything to do with your mother?”
Luther paused, then said slowly, “I don’t think so. He never said why he attacked women, like that girl he went to prison for.
“I heard this Cher was working undercover drugs and her boyfriend had shot her,” he said, but wouldn’t reveal who he heard it from. “But if he did what they say he did, he deserves to be punished.”
The next interview was with Jennie Ross, who surprised Richardson by asking “Do you and Lauren Cleaver have a personal or business relationship?”
Richardson responded that he only knew Cleaver because of the case. “I never met her before. Why?”
Well, Ross said, Cleaver had already been by, and she wasn’t exactly kind in her description of the detective. “She said this is an ego trip for you, another notch in your belt. She used really offensive language about you, really harsh, and to tell you the truth, I was offended. I thought maybe you two had lived together or something and had a falling out.”
Richardson nodded. The defense team had already shown they meant to play hard ball. Twice a defense investigator had come by his office and dropped off what the investigator called “evidence” —two .22-caliber shell casings and a leather jacket—but without saying where the evidence was found or how it related to the case. Cleaver also refused to say anything about the so-called evidence.
Cleaver had called Debrah Snider and said she knew who killed Cher Elder because Luther told her. The defense lawyer claimed that they had the clothes Luther wore that night, which Southy Healey said had been thrown in the creek. And they were going to portray Snider as “a vindictive bitch” at the trial.
“She told me that Luther was abused by his family,” Ross said. “I never heard that until she said it. I’ve known him since he was seventeen and thought he was a pretty good kid.”
Two years ago, she said, in the fall, Luther showed up with a hitchhiker who looked about 25. “The next morning she was gone, and nobody’s seen her since.”
The investigators returned to the Powers’ home and found Gary’s son, Nelson, who said he’d visited his friend in jail after his arrest in Summit County. “He said he wished the girl was gone and out of his life,” Nelson recalled. “I think he wanted me to do something to her. I told him not to talk like that or I wouldn’t be back to visit.”
As the sun began to set in Hardwick, Richardson and Newhouse located one last person they hoped could shed some light on Luther. Becky’s former husband, Carl.
Carl said he started living with Becky, who he described as having an drinking problem and cocaine habit, after she abandoned her first husband and child. “I remember Tom as being pretty good with his fists,” he said. “Becky told me once that Tom killed a man over a $50,000 dope deal back in the ’eighties, before his first arrest out there in Colorado.”
After Luther showed up with the hitchhiker, the two of them had stayed in an isolated hunting cabin owned by his mother. “The girl just disappeared one day,” Carl said. “When I asked him about it, he said he gave her some money to go on to West Virginia, which I always thought was kind of funny ’cause he left for there the next day.
“We been kind of worried, figurin’ a body’s goin’ to turn up somewhere around that cabin.”
After Vermont, Richardson and Newhouse flew to West Virginia. The first person they stopped to see was Debrah Snider, who had moved back when Luther stopped writing or allowing her to visit that past summer.
The visit to Snider’s was mostly a social call. She did say Cleaver’s investigator called and asked if she had ever known Luther to wear a green jacket, a blue baseball cap, or facial hair.
“I remembered he had a green nylon windbreaker and a blue cap with the word ‘Navy’ on it,” she said. “He never really kept a beard, but he’d go for days without shaving when he would go on his little excursions, and he has pretty heavy facial hair.”
Richardson recognized the defense investigator’s questions as pertaining to the Heather Smith case. They couldn’t have been too happy with Deb’s answers, he thought to himself. Too bad. He recalled that one of Southy’s sisters and her boyfriend, Matt Marlar, said that Luther showed up to get his gun wearing a beard and farmer’s clothes as a disguise.
Leaving Snider’s, they drove to see Randy Foster. He was angry with Richardson. Cleaver was saying that Foster told Richardson that Luther had confessed to killing and burying Cher Elder. “I never told you that. I said Luther told me Byron strangled Cher,” Foster said. “Now it’s caused all sorts of problems between me and Becky.”
More lawyers’ tricks, Richardson thought. “That’s not in any of my reports,” he told Foster. “I never said you told me he confessed. She’s makin’ that up.”
Didn’t matter, Foster said, he wasn’t going to come back to Colorado and testify against his brother-in-law. “You can arrest me and put me in jail,” he said. “But I won’t help you.”
“Well, you got any evidence to prove Luther’s innocence?” Richardson responded.
Foster laughed. “If I had anything like that, I would have given it to everybody a long time ago. All I can say is there’s a lot of lying going on around here.”
On November 14, Richardson and Newhouse made their last stop. This time in Purdy, Missouri. Richardson was sure the defense would try to attack Cher Elder’s character, accuse her
of being into drugs and sexually promiscuous to explain her “quick little intercourse thing” with Luther.
However, like he once told Southy Healey, the more Richardson dug into Elder’s background, the cleaner she got. Friends described her as boisterous, especially for a small southern town not used to teenagers speaking out. But no one knew her to ever do anything to harm someone else.
Neither were there any indications that she used drugs or drank much, according to friends and the local police. She was described as a hard worker, who paid her own bills while attending high school, where she was a straight-A student.
No one knew her to be sexually active. In fact, she had turned in a high school coach who was having an affair with a friend of hers. The coach and a member of the school board who supported him had been forced to resign.
No one could think of a single bad thing to say about Cher Elder. She was a bubbly, outspoken teenager who loved to talk and was well-liked.
Richardson was proud of her.
After granting a continuance to the defense, the trial of Thomas Luther for the murder of Cher Elder was rescheduled by Judge Munch to begin January 16. It would be a death penalty case—if Luther was convicted he would go through a second trial to determine if he should be put to death by lethal injection.
Deputy District Attorney Dennis Hall filed the required paperwork indicating that he intended to introduce as evidence “similar transactions”—the attacks on Mary Brown and Bobby Jo Jones. In general, evidence of other crimes or actions is not admissible to prove the character of a suspect. However, in Colorado, the limitations are relaxed in certain cases, especially felony-murder involving first a sexual assault, and the prosecution, Hall wrote, “may introduce evidence of other similar acts or transactions of the defendant for the purpose of showing a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent.”
Hall said he needed the similar transactions evidence for two reasons. One was identity—that there were significantly distinctive features to the three crimes as to identify Luther as the offender. Those features were: each victim was a young woman of similar height and weight with collar-length dark hair; each victim voluntarily entered Luther’s car, and spent some time in the car with him; after a period of ordinary conversation in the car, and without warning or provocation, Luther announced his attention to sexually assault his victims; Luther then physically and sexually assaulted the victims.
The second reason was motive—that Luther felt anger and hostility towards women because, as several psychiatrists had noted through the years, of the abuse he perceived he suffered at the hands of his mother. “Defendant expanded upon the similarities between Mary Brown and his mother in an interview with Dr. John Macdonald and several Denver detectives in 1985. In this interview, defendant described similarities between Ms. Brown’s hair and defendant’s mother’s hair when defendant’s mother was young, and stated that Ms. Brown ‘reminded him’ of his mother, ‘especially when she began screaming.’ ”
Hall noted that in both the assault on Mary Brown and then eleven years later on Bobby Jo Jones, Luther made statements reflecting his subconscious motivation. “Why do I do these things?” to the Summit County deputies. And then “What is ailing me? I don’t know what causes this to happen,” to his brother-in-law.
The prosecutor included the photographs of Brown, Jones, Elder, and Betty Luther. “It is the People’s theory that defendant’s motive for assaulting and murdering Ms. Elder is that Ms. Elder, like Ms. Brown and Ms. Jones, physically resembles defendant’s mother; and that, after spending some period of time in close physical proximity with persons like defendant’s mother, defendant without warning or provocation physically and sexually assaults them.”
Dennis Hall knew that the case might very well hang on whether the judge allowed the evidence of similar transactions. Otherwise, there was very little evidence against Luther, except the testimony of admittedly poor witnesses and a single, curly gray hair found in Elder’s car that was “in the same class” as Luther’s, though the science could not say for certain it was his. Everything else—the vomit on the back seat, the “quick, little intercourse thing”—Luther had explained away in his first meeting with Richardson.
The similar transactions hearing was heated. Cleaver, who had been joined at the defense table by the more experienced attorney Mike Enwall, a former judge, opposed their introduction saying, “The lack of similarity between Cher Elder’s death and the two sexual assaults in Summit County and West Virginia are striking.”
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 ch
oked 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.”
Monster Page 50
