Monster (68 page)

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, Claudette. 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!”

A few minutes later, down in the basement, a large German Shepherd dog was brought muzzle-to-face with Luther, who quickly decided he’d rather appear in court. From that point on, dogs were posted in the hallways outside the courtroom. Every once in awhile throughout the trial, their handlers would get the dogs to bark once or twice just to remind Luther, who flinched at the sound, that they were there. Five large deputies also were present in the courtroom at all times, one standing close to the defense table, the others guarding the doors.

Brought into the courtroom, Luther looked quickly back at the gallery while the deputies removed his handcuffs. Seeing no friendly faces, he turned his attention to his attorneys and smiled. Munch warned Luther and his attorneys that if he acted up in the courtroom, he’d be bound and gagged. And if that didn’t work, he’d have to watch his trial on television from another room.

By the time the jurors were escorted into the courtroom, Luther was acting like he’d been there all along, anxious to get started. He joked quietly with Cleaver and smiled at a number of pretty, young female law students the defense had seated immediately behind its table. He was casually dressed in a green, short-sleeved shirt with new jeans.

Finally, an hour later than planned, Dennis Hall stood to make his opening statements. He knew he faced a daunting task, had known it since Munch ruled against allowing Luther’s past into evidence. Despite what’s shown in the movies and television, it’s not necessary to prove motive to obtain a murder conviction. However, as Hall knew full well, it’s only human to want to know why a man would kill an innocent young girl in cold blood.

Luther’s motive, Hall believed, was as simple as he was a serial killer, who raped and murdered women who reminded him of his mother when they made him angry. But with Luther’s prior history off limits, the prosecution had only weak, hypothetical explanations to feed the jury—that Luther killed because she was a police informant or got into an argument with Luther for some unexplained reason on their drive back from Central City.

At a prior hearing, Munch had already thrown out one of the murder indictments—the one that contended Luther killed Cher Elder in the commission of a robbery, the theft of her ring. He said there was not enough evidence. And now it was going to be damn difficult to prove the second count—that Luther killed Elder to cover up having raped her. That would leave only the third count—that he premeditated her murder.

Hall knew he couldn’t hide the truth about Southy Healey’s and Byron Eerebout’s pasts. Luther would look like a choir boy to the jury, and he would have to find a way to dance around his criminal activities. But in the meantime, the defense lawyers were certain to rip into the questionable backgrounds of Luther’s accusers like sharks into a bloody carcass. So he might as well steal their thunder, and use it to show the jury that the prosecution wasn’t trying to hide anything.

Debrah Snider was an unknown. They still didn’t know how she would testify or come off to a jury. What he had going for him was Richardson, as dedicated a detective as he’d ever met, and a lot of little pieces that fit together. And he had a portrait of Cher Elder, a nice girl who wasn’t the sort to have casual sex with a man almost twice her age.

Hall stood and faced the jury. “Once again, good morning everyone. You’ve all heard some bits and pieces of this case over the last week or so, and I assume you’re all wondering when you’re going to hear what it’s all about.

“I thought it would help to understand what this case is about if I begin by sort of setting out the cast of characters, and as I told you in the jury selection, it’s a pretty interesting cast.

“The victim in this case was a young woman named Cher Elder. Cher was about twenty years old at the time of her death. She had plans to go on to college. She was not married. She had no children. And she had a sometime boyfriend named Byron Eerebout.

“It was through Byron that Cher met Thomas Luther, who is the defendant in this case. Thomas Luther in March 1993 was working for a janitorial service in Fort Collins. Luther was a very close friend of Byron Eerebout’s father. Luther frequently came to Denver to visit Byron and his brothers, and frequently stayed over at Byron’s apartment in Lakewood.

“Dennis Healey is one of the more colorful people you’ll meet in this case. Healey is a convicted felon and a drug addict who is currently in a rehabilitation center. He was a close friend of Tom Luther’s. Healey had met Byron once or twice, didn’t know him very well, and isn’t sure whether he ever met Cher.

“The last person I want to introduce to you before I start with what happened in this case is a woman named Debrah Snider. Of all the witnesses you’ll meet in this case, Deborah Snider is probably the most puzzling. Debrah Snider, who back in 1993 was Luther’s girlfriend, lived with her husband outside of Fort Collins. Deb Snider observed many of Luther’s actions during the spring and summer of 1993, and she had a number of conversations with him about Cher Elder and about what happened to Cher.”