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.
“But something happened. It wasn’t a bottle of wine. It wasn’t casual sex in the front seat of a Geo Metro. We know that story isn’t true. But something went wrong, and both Robert Cooper and Byron told you, there was an argument between Cher Elder and Thomas Luther. What about, we don’t know.” Or, Hall thought, we can’t tell you.
“Where did it take place? We don’t know exactly. It could have happened in the car on way back. Or it could have happened at Byron’s. But whatever it was about and wherever it took place, it happened after they left the parking lot.
“As a result of the argument, Tom Luther told Robert Cooper, Byron Eerebout and Dennis Healey he shot Cher in the head.”
There is a flip side to the elements, he said. “We are not required and don’t need to prove things that are not element. We don’t need to prove exactly where the argument took place, and we don’t need to prove exactly where Cher was shot. Nor do we need to prove the exact moment in time at which Tom Luther shot her. What we have to prove, though, is who pulled the trigger.”
Hall poured himself a glass of water and took a drink. Placing the cup down, he continued, “Let’s get back to our story. In the hours after Tom Luther shoots Cher, he does two things. First, he gets Cher’s car keys and moves her car about five blocks. We know that happened because we know from the testimony of crime scene people that the car wasn’t broken into and the ignition not forced. That means whoever moved it had the keys. And we know from Karen that Cher left her coat and keys at Byron’s.
“And we know that there was a hair on the front seat of that car. It was Tom Luther’s hair, and Tom Luther told Scott Richardson that he had never been in that car.”
“Tom Luther did something else in those hours. He did something with Cher’s body. What?” Hall shrugged, his hands in his pockets, and took a couple of steps toward the jurors.
“Well, we don’t know. He hid it somewhere. We do know a couple of things. We know that a few weeks later, Tom Luther talked to Deb Snider about cleaning his car. Deb had spilt some blood, blood from a steak, on the upholstery of her car, and she’d used some kind of cleaner to get it out. Tom Luther asked to borrow that cleaner and used it on his car.
“We also know that by the next night, Sunday the 28th and Monday the 29th, there’s no body in the car, but there’s dirt in the back of it.” Hall reminded the jurors of the midnight call to Healey.
“Deb Snider was out of town on Saturday and Sunday. When she got to Tom’s apartment, Luther was still in bed. There were fresh scratches on his hands and a finger was broken. He gave her a story about AK-47s, but like Debrah Snider told you, ‘Who’s going to give Tom Luther a box of machine guns?’ There were no guns. Tom Luther spent Sunday night burying Cher’s body.
“But the ground was too hard. He couldn’t dig it deep enough. Instead of spending a long time and digging it deep, which is why he needed Healey as a lookout, he dug a shallow grave and carried rocks over it. It was carrying rocks that hurt his hands and finger.
“Weeks later, Luther, as Deb told you, becomes anxious and paranoid. He tells her a number of stories about Cher being a snitch and that her body was mutilated in some way. He talks about a mysterious ‘other’ killing Cher and dumping her body as a message to other people. But you know Cher was not an informant and her body was not mutilated.
“The only thing he told the truth about is that Cher’s body is buried. Buried too shallowly. He had to wait until later in spring when the ground warmed up.”
Hall described the case as a giant jigsaw puzzle in which the box is missing. “You know it’s supposed to be a building or a landscape, but you don’t have a picture to go by. So you use your reason and common sense. You turn the pieces this way and that and see how they fit. The pieces in this case show a cold-blooded murderer of a young woman.
“This case is all about common sense and reason. Keep in mind what it is we need to know: who pulled the trigger? Compare the testimony.
“For example, compare the testimony of Healey to the testimony of Eerebout on this point. Healey tells you that Tom Luther told him, ‘I fucked up and killed a broad.’ Then he took Healey to a place where he buried her. Byron told you that Tom Luther said, ‘I killed her, I shot her in the head.’ And Byron followed him to where he buried the body.
“There’s no evidence these two men ever talked to each other. They met only a couple of times. Yet both of them took us to the same place.
“Go through and compare. You’ll come to one conclusion: the pieces fit in a single way, and that the man who pulled the trigger on the gun that killed Cher Elder that night is the man seated right over there.” Hall whirled and pointed a finger at the defense table. “Thomas Luther.”
Turning back to the jury, as he walked to his seat, Hall added, “Now I’m going to sit and let the defense attorneys show how reason and common sense tell you something else.”
Hall took his time getting back in his seat. Enwall pretended not to notice as he stood and studied his notes one more time, his glasses slipped near the end of his nose, one hand in a pants pocket. After Hall took his seat, Enwall continued to stand looking at his notes as his free hand moved thoughtfully to cup his chin.
As if only just aware of the jurors, he looked up, pursed his lips and addressed his audience like an actor on a stage. “Tom Luther has come here to tell you that he’s not guilty of murder.”
Now he wagged a finger at the jurors. “Not that he hasn’t done anything wrong, not that he’s not up to his ears in covering up this murder, not that he’s not guilty of a very serious crime. But that, in his words, he’s not a killer.
“You’ve been asked to believe that if you move some pieces around, the most accomplished liars on the planet have come clean and decided as good citizens to come into this courtroom, and tell you the truth. The problem is, their new stories don’t make any more sense than their old stories.”
Enwall smiled and shook his head. “And they’re as transparent as clear glass. Byron and Dennis lied systematically. They lied about big things and lied about small things. That’s how they operate in life, they lie.”
Looking back at Luther, Enwall said, “The words Tom said to Richardson in West Virginia tell the whole story of why he’s here: ‘I’m an angry son of a bitch, but I ain’t a killer. I ain’t a rat, and I ain’t going to be one.’ ”
Enwall raised his hands, palm up and shrugged. “I’m sorry you’re stuck with that, but we all are. He obviously thinks that’s a normal trait. I’m sure you don’t. It’s macho. It’s stupid. In this case, it’s self-destructive to Tom Luther. If he didn’t have this attitude, he wouldn’t have buried a body and covered up a murder in the first place.”
“Tom Luther has served time in prison,” Enwall said, knowing he had to do some damage control. “But as the judge told you, that has nothing to do with the facts in this case.”
When police discovered that Tom Luther was in Central City with Cher, he voluntarily went to them and said that they had consensual sex, Enwall said. “And that Cher was getting back at Byron.”
“Now,” Enwall said, jerking his head over his shoulder at Hall, Minor, and Richardson, “the prosecution has given up. They concede she came back. Just moving the p
ieces around.”
Enwall called Debrah Snider “the most credible witness in the whole trial. Now there are an enormous number of ways to get abrasions on your hands, it can happen at work.” He held up his well-manicured hands as if examining them for cuts, then looked back at the jurors. “But the prosecution wants you to believe he got them burying a body. You’ll remember Debrah telling you about Tom crying. He’d got involved in something he shouldn’t have. That he wishes he hadn’t. Helping somebody cover up one of the most heinous crimes you can imagine.”
The defense attorney looked sideways at Richardson. He planned to attack the detective, but he had to be subtle. He began by saying Richardson made Luther a scapegoat just because he had done prison time. Of course, it was from the noblest intentions—he had an important and unusual mission, “finding Cher Elder’s body for this family,” he said, his hand sweeping back toward the gallery. “And I don’t think any of us are prepared to say that that objective isn’t worth taking some chances.
“The problem is that mission blinded Detective Richardson from looking in more than one direction.”
Several jurors looked at the detective, but he just sat impassively waiting for the defense attorney to move on. He expected the attack. He hoped the jury would see it as a weakness in the defense case.
Southy may have been the real killer. Byron and Jimmy Greenlow had said so. “Tom wasn’t there, Southy was. But Richardson had blinders on and so he believed that Dennis Healey had come to Jesus. ‘You ain’t my priest.’ But,” Enwall looked from juror to juror, “maybe Jimmy is the priest.
“Southy tells Richardson that Tom ‘fucked up and killed a broad.’ But he doesn’t give a motive, there’s certainly no deliberation—just fucked up and killed her.”
The three men at the prosecution kept their faces impassive, but anger rose as Enwall asked where was Luther’s motive. The same defense attorney had argued against Luther’s motive being introduced. He was a monster, plain and simple. Hall also recognized that Enwall was hedging his bets for a second degree murder conviction, by subtly contending that Luther had not deliberated before killing Cher.
Enwall mocked the theory that with “a superhuman effort” Luther killed Cher, hauled her body up a hill, went back and got Southy, and then returned to Denver before dawn.
“Healey got a deal,” Enwall said. “He was facing a serious charge and gets rehab.”
Eerebout was just a liar. “First he tells Richardson that she came back, said fuck you, and left. He said he heard her car start. But then Byron is very concerned that no one think they’re boyfriend/girlfriend, it’s just sex. But there was a serious difference with how Cher perceived the relationship.”
Then there was Mark Makarov-Junev, Enwall noted to the jury. “He’s looking into Cher’s disappearance and Byron comes at him with a bat and then unloads a .357 at him, or maybe it had to do with $400. But why kill for $400? To kill somebody you’re afraid may know something about a case in which you’re a murderer—that might be worth taking a few shots at somebody.”
Enwall paused as though to let the juror ponder his last statement. Then quietly, as if instructing recalcitrant children, he said, “Tom Luther had a very strong, close relationship—a strange relationship, I agree—but a strong relationship with Debrah Snider. He tells Deb over and over, ‘I buried a body, but I didn’t kill her.’ ”
Then Enwall flipped back to the “unbelieveable” night Byron and his brother J.D. supposedly followed Luther into the mountains, and found him after stopping for a soda, “in the dead of night. And why did they supposedly go up there?”
Enwall stopped and shook his head sadly. “That was maybe the most shameful thing that happened in this trial. Byron Eerebout tells you that they’re going up there so they can find the location of the grave so that they can put an anonymous note under the Elders’ door to let them know where their daughter was. That’s the same guy who, according to Southy, laughs when he talks about Cher Elder’s dad wanting her body. Leaving the note under the Elders’ door was, I guess, something they just didn’t get to or it slipped their minds.”
The trip never happened, Enwall contended. It was cooked up to justify how the Eerebouts knew where the body was. “And how come Byron knows where the body is, if he had nothing to do with killing Cher Elder?”
Enwall reminded the jurors that the hair found in Cher’s car was only similar to Luther’s. “It could have been someone else’s.” And there was no real evidence of blood in the back of Luther’s car, “or at least, that’s their implication, that Tom was cleaning up blood not vomit. But this woman is supposedly bleeding all over the place and not a drop shows up on the seat.”
Lauren Councilman had proved that Cher was alive on Sunday. “There’s no reason to believe she wasn’t.”
Enwall returned several more times to reasons why the jury should believe that Cher Elder returned to Byron’s and drove away. The last time, he said, Tom Luther saw her. And he repeated over and over statements that proved Byron Eerebout and Southey Healey were liars. He backtracked so often that those watching noticed that he was losing the jurors, some of whom were yawning or looking into the gallery, studying the faces rather than looking at Enwall.
The defense attorney apparently noticed the growing antipathy as well and worked his way to the end of his arguments, already more than three times as long as Hall’s.
“Tom Luther is in this courtroom today because he won’t tell police, the judge, or you who killed Cher Elder. That may be and I would submit to you it is despicable behavior, but it’s not murder. He’s here because he buried a body to avoid her murder being detected. That again, no question about it, is despicable behavior and it’s a very serious crime. It’s accessory to murder, but it’s not murder.
“This trial hasn’t shown conclusively who killed Cher Elder or when or why. It hasn’t even established whether it’s first degree murder or second degree murder. But it’s pointing some pretty strong fingers. The prosecution tells you that those fingers point at Tom Luther.”
Enwall pointed to his client, but then his finger drifted over toward the prosecution table. “It’s up to you to tell Detective Richardson, ‘You were wrong about the assumptions you made.’ And tell Mr. Hall, ‘You’re wrong about the assumptions you made.’
“If you convict Tom Luther, you’re convicting the wrong man. If you convict him, you’ll be closing down the investigation in this case, and I submit to you the investigation of who killed Cher Elder ain’t done. It’s produced a result, but it’s the wrong result.
“This isn’t a case about reasonable doubt. This is a case of massive unmitigated doubt. This is obviously a supremely important day in Tom Luther’s life. If you convict him of first degree murder, his very existence is at stake. But it’s also an enormously important day for somebody else. It’s enormously important to the person who put three bullets in Cher Elder’s head because if you convict Tom Luther, that person goes free.
“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 wou
ld 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.
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