Cleaver returned to the same questions so often without getting anywhere that Spriggs directed her to move on. And in the end, Heather was the one holding her head up while Cleaver plopped back in her chair angry and frustrated as the prosecution rested its case.
The third day of the trial started poorly for the defense. Cleaver had subpoenaed Richardson. She believed she could get him to testify that he had never known Luther to have a beard or silver glasses.
What she didn’t know was that Richardson had been told by Matt Marlar about Luther showing up in a disguise that included a beard. And he’d noted the silver, square-rimmed glasses on Luther’s kitchen table when they first met.
Cleaver tried to interview him before the trial, but he said he would only respond to the subpoena. The morning of the third day, she caught him on his way to the courtroom.
“Can I ask you a few questions before you go in?” Cleaver said.
“Swear me in on the witness stand and you can ask all you want,” he replied.
Cleaver looked at him angrily. “You can get out of here,” she said. “We won’t be calling you.”
The defense lawyer did call Smith’s old boyfriend Jason to testify that Heather was prone to exaggeration, including her account about the incident in which he held a gun to his head. The defense attorney’s tone was mocking, with a lot of eye-rolling thrown in.
On cross-examination, Jackson asked Jason about the time when he threw a dart into Heather’s leg. “I suppose that was exaggerated?” Jackson asked.
Jason blushed. “It was an accident.”
“An accident? How could it have been an accident when the dartboard was the other direction?” To that, Jason had no explanation.
Cleaver called a man who had been Luther’s co-worker at the janitorial service in April 1993. He said they always worked as a team and there was never a day when he went to work that Luther wasn’t also there, including the night of April 12. Cleaver introduced a time card that showed Luther had punched in.
But the card never showed him punching back out. And Jackson was able to show that several days the week before the attack, Luther had not shown up for work. In fact, there was no supervisor who could say that Luther stayed at work the night Heather Smith was attacked.
The closing arguments were short and sweet. Jackson noted that Heather had plenty of time to study her attacker under normal conditions and had made a positive identification. Luther’s alibi, he said, didn’t wash.
Cleaver again went back to portraying Smith as a desperate woman, tormented by the violence done to her, seeking closure by convicting Tom Luther after being shown a photograph in the newspaper “by her psychiatrist.” She stressed the last three words.
Judge Spriggs then left the bench to go over the evidence in the quiet of his chambers. He said he expected to render a verdict after noon. With nothing else to do, Heather and her mother went to lunch and arrived back at the courthouse just as it was announced that the judge had reached a decision.
Smith took a seat with her family three rows behind and to the side of Luther so that she could just see his profile. The judge entered and sat down, shuffling through his papers for what seemed like an eternity.
When he began to speak, it immediately didn’t sound good, and Smith felt her heart sink. “Initially, I want to point out that this court is acutely aware that sometimes persons are unjustly convicted as a result of good-faith, but mistaken, eyewitness identification,” the judge said. “In fact, it’s the one single factor most likely to lead to unjust conviction in a given case.”
Oh no, Heather thought, he’s trying to make me feel better, but he believes Cleaver. Her mother seemed to sense Heather’s fears, or was perhaps thinking the same way, and squeezed her daughter’s hand.
“I have, in the past,” the judge continued, “had some personal experience with situations like this one many years ago, when a person was in prison for some period of time as a result of erroneous eyewitness identification by a deputy sheriff.
“More recently, a few years ago I recall a case where the young lady was stabbed to death after getting off a bus. A young suspect was arrested who fit the description of the eyewitness and who was a resident of a nearby halfway house, and who gave a statement to the police admitting that he was on the bus and he got off at that stop, but denied any participation in the killing. The man was identified by two eyewitnesses at a preliminary hearing, bound over for trial, and fortunately, most fortunately for him, the actual perpetrator subsequently confessed to a roommate, who was kind enough to call the police and tell them the situation, thereby exonerating the person who had been improperly identified and ultimately leading to the conviction of the true perpetrators.
“So I’m anything but blind to the possibility of inaccurate, or mistaken, eyewitness identification testimony.”
Luther and Cleaver looked at each other and smiled. Heather saw it and tears sprang to her eyes. But then the judge’s tone began to change.
“Having listened carefully to the testimony of the witnesses in this case and having had occasion to judge and assess their credibility, the court makes the following findings of fact,” the judge said.
“The court has spent some time comparing the sketch of attacker with the photograph of the defendant. I have seen a fair number of these police sketches over the years, and frankly, in my experience at least, this is about as good as it gets.”
Spriggs noted that the glasses brought by Debrah Snider matched those described by Heather Smith. He also noted that Snider had described the green jacket “as a nylon windbreaker,” exactly as had Smith.
“In assessing the credibility of this testimony, and the court notes first of all, Ms. Smith is an exceptionally detailed historian, unlike many crime victims called upon to give a description of someone, or make an eyewitness identification.”
Again, tears welled up in Heather’s eyes, but this time they were tears of happiness. For the rest of her life, she would remember the judge’s description of her as an exceptional historian. He believes me! she rejoiced. He believes me!
Cleaver’s smile had turned to a frown. Luther glared briefly at her.
Spriggs noted that Heather had a long time to observe her attacker. And that from what he could see for himself, Luther matched her description of the attacker. Same size. Same build. The eyes, nose, chin, and particularly his hands.
The discrepancy about the beard, he said, could be explained several ways. One being that Luther had a heavy beard; even shaved it stood out against his pale skin. The other lay in Debrah Snider’s testimony about how he would go several days without shaving when out on his forays.
Luther’s evidence of an alibi—his co-worker—“is wholly unpersuasive,” Spriggs said. “The court concludes beyond a reasonable doubt that Mr. Luther is, in fact, the perpetrator of these offenses.”
Heather Smith began crying as Spriggs announced that Luther was “guilty as charged.” After all the years, she was vindicated.
Stunned, Cleaver spoke briefly with Luther then asked that her client be sentenced immediately.
“All right,” Spriggs nodded. “Mr. Luther come up here to the podium with your counsel, please.” When the two were standing before him, the judge asked, “Mr. Luther, is there any statement you would like to make to the court on behalf of mitigation of your defense?”
Luther nodded. “Yes, sir. I hope that Ms. Smith is happy she has gotten someone convicted of this crime she suffered. I’m sorry for her and I’m sorry for her family that suffered through all of her pains, but I will say this, I’m not the man that attacked this woman. I’m not the guy that did it.”
It didn’t matter to Heather. Luther had said the same thing every time he got caught. I’m not the guy who did it. Or it was blown out of proportion. But Luther no longer mattered to her.
The judge then turned to the prosecutor. “Mr. Jackson, what is the People’s position?”
Jackson replied, “The People
ask the court to give Mr. Luther the maximum sentence.”
“All right,” the judge said. “In light of the nature of this crime, which is almost inexplicable, it appears to be without motive, other than plain old vexation. I don’t know what triggered this, what would cause someone to answer an ad in the paper, look up a total stranger, converse with them for ten or fifteen minutes, and then for absolutely no reason whatsoever, try to hack them to death with a knife. But that’s certainly more of a problem for psychiatrists than for judges. I certainly don’t pretend to understand this, and I strongly suspect the perpetrator doesn’t understand it either.
“In any event, it’s clear to this court, Mr. Luther, for whatever reasons, you’re a serious menace to the public, and I don’t think I have really any choice in this matter but to give you every day the law allows.
“So it will be the judgment of the court that the defendant is remanded with all convenient speed to the custody of the Department of Corrections, to be confined in an institution for a period of fifty years on count one and fifty years on count two.”
Even those in the courtroom hoping to see Luther get his just desserts hadn’t expected this. Fifty years! Using the habitual offender provisions, Spriggs had given Luther more than he got for murdering Cher Elder. He remanded Luther to the Colorado Department of Corrections.
Cleaver glumly noted that Luther had to return to West Virginia to serve his sentence there first.
“I understand that,” Spriggs said. “And I understand that he has a substantial sentence out of Jefferson County.”
“Actually, less time than you gave him here, judge,” Cleaver said, not quite managing to keep the sarcasm out of her voice.
The judge arched his eyebrow and replied dryly, “I know that, too. The judge out there gave him every day the law allows, and I gave him every day the law allowed. And I did so, and don’t mind saying it, because it’s my intention this man never be released, and that he remain in prison until the day he dies.”
Luther was immediately surrounded by deputies. Turning back to where Heather Smith’s family and friends were congratulating her, he dropped the polite act he’d played during his trial. With the mask off, his face screwed up in hate as he snarled, “At least I get to go back to where I don’t have to be nice anymore.”
Epilogue
July 1998—Denver, Colorado
In the spring of 1998, Thomas Edward Luther’s conviction for the murder of Cher Elder was upheld by the Colorado Court of Appeals. He claimed he didn’t get a fair trial. The court said otherwise.
Luther once complained to Debrah Snider that he always gets blamed for more than he does. But if he is not a serial killer, and merely a self-professed “angry motherfucker” with a heart “half good, half bad,” and a twice-convicted brutal sexual predator, as well as your run-of-the-mill murderer, then he is certainly dogged by the horrible coincidence that wherever he goes, young women are sexually assaulted in the same manner, disappear, and die. Their bodies are left to rot faceless and nameless in remote wooded areas.
Following Luther’s trail, one comes upon a number of police agencies, even friends, who wonder if he is the killer of some young woman in their jurisdiction. Sometimes, it has been too long, the trail too cold to ever know the truth, unless somewhere down the line there is a confession.
In Vermont, police officials can only speculate about the young woman from Stowe who disappeared and died in the woods two decades ago, at a time when Luther was reported to have lived in the ski resort town. And even his former friends in Hardwick still worry about the blond hitchhiker he showed up with in the fall of 1993 after leaving Colorado. He said she left for West Virginia the day before he did; they wonder if she ever left at all.
In Pennsylvania, Les Freehling of the state patrol believes that Luther is his prime suspect for the attacks on two women in his area. The woman whose body was discovered Dec. 10, 1993—beaten, strangled, raped vaginally and anally—has still not been identified. She, like thousands of others across the country, remains a Jane Doe. However, Freehling says, his investigation has revealed that she was a transient often seen hitchhiking near the construction site where Luther and his brother-in-law, Randy Foster, worked during that time.
Neither has the body of Karen Denise Wells, who disappeared from Newport, Pennsylvania, in April 1994, ever been found. Just her car, five miles from where the other girl’s body was discovered, and her clothes in a motel. Luther was still working in the area and commuting to nearby Delray.
Another unhappy coincidence? Freehling notes that the coincidences stopped after Luther was arrested in September.
And then there was Debrah Snider’s recollection of the girl from the West Virginia campground, whose likeness appeared on the “missing” flyer on the post office wall. But with Luther in prison, apparently for the rest of his life, there has been no urgency to pursue the cases, though Freehling keeps them open and at hand. The task of comparing Luther’s blood DNA to the blood on the first victim’s sweater remains undone.
In Denver, homicide detectives are stymied in the case of the woman found sexually assaulted and stabbed in her apartment, and left under an American flag in June 1994. They have only a single, gray curly hair discovered on the body, and the word of a former Jefferson County inmate who claims Luther told him details about the murder only the killer should have known.
In Summit County, Colorado, the DNA test done on the blood found on Bobby Jo Oberholtzer’s mitten came back negative for Luther and his girlfriend, Sue Potter, although her blood type initially matched. Was Luther accompanied by someone else that night? Or was he not involved at all in the murders of Bobby Jo and Annette Schnee?
Detectives Richard Eaton and Charlie McCormick keep Luther on the short list of suspects and follow each lead as it appears. They have tried to trace a report that an airline stewardess in California, who sold Luther the truck he was driving in 1982 when he assaulted Mary Brown, was later found beaten to death. But so far, it remains a rumor.
In the meantime, Eaton is looking more closely at another convicted killer from Idaho, who was known for shooting his victims in the back. However, there is no evidence that other killer was ever in the state of Colorado.
Initially, Eaton was troubled that Bobby Jo and Annette were executed with a gun, while Luther attacked his other known victims, Mary Brown and Bobby Jo Jones, with a hammer and his hands. But then Luther was convicted of shooting Cher Elder.
Breckenridge is no longer a stranger to murders and other violent crime. It keeps Eaton too busy to devote much time to the murders of Bobby Jo and Annette. But he still pulls over whenever he reaches the summit of Hoosier Pass and also pauses by the small white cross beside the stream if other matters take him to Alma. “No one stops being a suspect until I got the guy who did it,” he says.
Although they’re not his cases and he keeps a discreet distance, Richardson remains convinced that Oberholtzer and Schnee are Luther’s work. He, like Freehling in Pennsylvania, points out that the murders, rare for the area back then, stopped when Luther was arrested.
“Luther is an opportunistic killer,” he says. “It’s only in television and the movies that a serial killer always kills the exact same way. Luther’d take a trashcan and shove it down your throat if that’s what he had. On the night Cher died, he just happened to have a gun in the car because numb-nuts, the Eerebout brothers, had given it to him a couple days before.”
There are other factors that continue to point the finger at Luther for the murders. He wasn’t working the day of or after the murders, though he told investigators that he was. He drove a truck similar to the truck the hitchhiking Breckenridge couple insisted having seen Bobby Jo in. And by his own accounts, he had access to several guns.
Sue Potter’s photograph was similar enough to the composite sketch of the dark-haired woman seen with Annette Schnee the night she disappeared that a judge in the state where she currently lives believed there was grounds
to have her forced to give blood samples at a hospital. The blood on Bobby Jo’s mitten didn’t match. But does that exclude Sue Potter from having been with Luther and Annette at some point during that late afternoon?
Then there are Luther’s comments, which still haunt Sheriff Joe Morales. “Why do I do these things?” What things? How many? When? Morales wonders. “It won’t be over for me until he’s dead,” says the sheriff.
Mary Brown insists, as she has for several years, that she recalls Luther pointing a gun at her back during the assault. Her imagination? Or is it only a coincidence that several of Luther’s former jailmates, who Mary had no contact with, claim he said he intended to shoot her but feared waking the neighbors?
Unfortunately, after the passage of time and leads not pursued by the original investigators, there are more possibilities than proof. Did John Martin tell the deputy of Luther bragging about leaving a woman he had raped face down in a creek in May, before the body of Annette Schnee was found, or not until September?
If not until September, why did Luther assault him for being a snitch? And for that matter, why did Luther then try to arrange the murders of Martin and Sue Potter? Revenge, anger—or because he feared what they might say?
Tantalizing questions, but will there ever be answers? The last Eaton heard, Martin, who told him that he had terminal cancer, was released in 1996 from the New Jersey prison and living with his family. But he hasn’t been heard from since.
If a case can ever be made against Luther in Summit County, the prosecutor there may find it easier to get a judge to allow evidence of similar transactions. One of Cleaver’s arguments that swayed Judge Munch was that Luther didn’t use a gun on Mary Brown and Bobby Jo Jones and that he let them live. After Cher Elder, that argument no longers washes.
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