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.
The verdict must be unanimous to go on to the second phase, at which the prosecution and defense do their best to portray the defendant in the worst and best lights possible. In the Luther case, the prosecution team knew their case was weak but were confident that the death penalty phase, if they got that far, would be a given. At that point, all of Luther’s past crimes would be fair game.
As would strike home in the Luther case, there are often misconceptions by the public about who may be excluded from a death penalty jury. Mere opposition to the death penalty is not enough to be automatically excluded, if the prospective juror promises that under the right legal conditions they can follow the law and sentence someone to death.
There are two schools of thought about which side is favored by having a jury sworn to be willing to carry out the death penalty. Anti-death penalty activists and, of course, defense attorneys contend that such a jury is more conservative and law-enforcement oriented.
On the other hand, prosecutors and police say that the enormity of what’s at stake—a man’s life—makes such jurors more likely to err on the side of caution than risk sentencing a potentially innocent man to death. The general school of thought among prosecutors is that if the case is shaky, it is better to seek life without parole than put a jury in the position of making life and death decisions.
Eighteen prospective jurors at a time, who first made it through the initial phase of answering questionnaires without being thrown off for cause (such as claiming that under no circumstances could they invoke the death penalty), were brought into the Jefferson County courtroom to answer questions from the attorneys and judge. It was there that those who would eventually make up the jury got their first glimpse of the contrasts of the two sides.
On the defense side were Enwall and Cleaver. Silver-haired and silver-tongued, well-dressed in expensive, tailored suits, Enwall would take the lead for the defense. Cleaver, fortyish and a former public defender, made it a point in front of the jurors to sit close to Luther, leaning close to converse and share inside jokes, as if to prove he was no danger to women.
Some jurors would later say that it took them awhile to realize that Luther was the defendant. He appeared a good-looking, middle-aged, blue-eyed cowboy in his boots and new blue jeans. He smiled a lot and seemed much more relaxed than the prosecution team.
On the other side of the aisle sat Hall, Richardson, and Mark Minor, the deputy district attorney who had prosecuted Byron Eerebout for the shooting incident and would now assist at the murder trial. Slight and boyish, Hall was his usual mild-mannered self, with a habit of placing one hand on his cheek while cupping his elbow with the other hand, even while standing. Minor was his physical opposite, heavy-set with a neck that bulged over the collar of his shirts and a football player-sized body stuffed into ill-fitting suits. He rarely smiled and gave the impression that he would rather be almost anywhere else but in the courtroom.
Then there was Richardson. He favored dark suits, the pants legs of which he pulled down over his cowboy boots. His dark, intense eyes seemed to follow every move made in the courtroom and, with his fu manchu moustache, some jurors would later say, he seemed at first glance somewhat intimidating. Some even believed in the beginning that he was the defendant.
Judge Munch, a round, owl-faced man, had decided to seat fifteen jurors, including three alternates who would not take part in the final deliberations unless another juror fell ill or had to be replaced. For all the so-called jury experts who are sometimes paid to help pick the right jurors, it’s an inexact science. Each side had its own theory on how to winnow the obvious threats, but after that it was a guessing game.
The prosecution team assigned numbers to how individuals answered each question, adding the numbers together to indicate those they felt were weak or strong. They were satisfied with the first fourteen jurors to be seated, even though several had indicated reluctance to impose the death penalty. But for the final spot, it came down to choosing the lesser of several evils.
For instance, the prosecution team didn’t want a 65-year-old housewife, a Catholic who said she did not support the death penalty and seemed to be stuck on a concept of guilt “beyond the shadow of a doubt,” rather than “reasonable doubt.” But, under questioning by Munch, she agreed that if convinced beyond a shadow of a doubt that Luther was guilty of first degree murder, she could follow instructions that might lead to Luther being sentenced to death.
It was the prosecution team’s bad luck that the next two jurors in line behind the woman had ranked even lower in their scoring. And with only two preemptory challenges to have prospective jurors removed without having to show cause, they allowed the woman to be seated as the fifteenth juror.
It had taken a week, but at last there was a jury of six men and nine women. No one was told who would be the alternates so that the three would listen just as attentively as the other twelve, in case they were called upon.
Munch announced that opening statements would be heard the next day, January 23, beginning at 9 A.M. The wait was over.
January 23, 1996
The morning of the trial arrived with deceptively blue and sunny skies. Outside, the temperature was bitterly cold, made more so by a stiff wind.
It was going to be a long trial, but then it had been a long time in the making. Scott Richardson had talked to more than 1,000 people over the course of his investigation—from crime lab technicians to family members to the assortment of drug dealers, thieves, liars, and convicts who were former friends, associates, and enemies of Thomas Luther and the Eerebout brothers. Many of those conversations were recorded on more than 150 audio cassettes, some fifty videotapes, and eighteen four-inch volumes of typed notes and transcripts. He’d followed up on dozens of reports of unidentified bodies found throughout the United States. And he’d logged more than 1,000 paid hours, maybe twice that much unpaid, working on the case alone since April 1, 1993.
In the next couple of weeks, he’d know whether any of it had meant a damn thing. The only thing he knew for sure now was that he never wanted to go through another case like this again. It had sapped him emotionally and physically, like the wind carrying away the small clouds of condensed breath of the people hurrying into the building. He took a deep breath. It was time.
The courtroom was small. Three rows of long benches on either side of the aisle made up the spectator gallery, separated from the rest of the room by a wooden banister.
On the other side of the banister, the prosecution table, where Dennis Hall and Mark Minor already sat, was on the right, in front of the jury box. On the left was the defense table, where Enwall and Cleaver busied themselves at laptop computers, closest to the witness stand and judge’s podium.
There were no windows in the wood-paneled walls, just doors. One led to the judge’s chambers, the other to an elevator in which the prisoner would be brought up from a holding cell in the bowels of the building.
The courtroom was already packed. Cher’s family sat in the rows behind the prosecution table. Earl Elder and his wife, C
laudette. His former wife, Debbie. Rhonda Edwards and her husband, Van. Cher’s half sister, Beth, and half brother, Jacob. Her grandparents. The media was out in force, occupying seats on both sides of the aisle. And there were the usual assortment of court watchers who followed crime stories like some people follow soap operas.
In the first row on the prosecution side, against the wall next to Elder’s maternal grandmother, sat a pretty, blond woman. It was Sabrina. Richardson saw her immediately but didn’t acknowledge her. She’d only been to one other trial, the murder case against a boy who had been found guilty in a heartbeat. Richardson worried that someone might hunt her to get even with him.
Sabrina had wanted to come to this to support Scott. But also because she wanted to look at the face of the monster who had haunted her family for so long. She wanted to see fear in his eyes when he realized that her husband was going to put him away for a long, long time, maybe even forever.
The defense side of the spectator gallery had filled only when there was no room left on the prosecution side. The jury might be kept in the dark about Luther’s past, but onlookers were well aware and gave their opinion about his guilt or innocence by where they sat.
It was 9 A.M., but the jurors were still in the jury room, waiting to be summoned by the judge. Already there was a delay.
As with most trials, Luther’s defense attorneys had successfully petitioned the court to have their client appear in civilian clothes rather than his jail jumpsuit. He was also to be led into the courtroom before the jury so that they wouldn’t see his guards remove the shackles from his ankles or the handcuffs from his wrists. It would be as though he had walked in off the streets on his own volition. However, Luther had decided he didn’t want to come to court. He was refusing to leave the holding cell.
“I don’t care how you do it,” a perturbed Judge Munch growled to the sheriff’s deputies who handled court security, “but get him in here now!”
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