“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 cou
ld 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.
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.
Monster Page 58
