“I wanna know, man, you’re saying that the DAs aren’t gonna fuck me,” he said. “How do I know that?”
“You’re gonna have to take me on my word,” Richardson said, pushing a pack of cigarettes at the nervous convict. “If you don’t, then go and play your game. I’m not gonna waste any more time.”
“You seem to be the only one thinkin’ it’s a game,” Southy retorted.
Richardson ignored the remark. “We’ve got grand jury starts at six-thirty tonight. I need a full breakdown of what you can testify to. Now. You’re one of five people that is gonna testify. You got to tell me the truth, Dennis, because, listen to me, we know the facts of the case.” Actually, the “five people” included investigators, but he wanted Healey to think that all sorts of Luther’s acquaintances and friends were rolling over.
Healey swore he was telling the truth. “She was shot, right?”
Richardson shook his head. “No more guessing games, either you know or you don’t,” he said. “I am not gonna feed you information. You’re gonna feed me. I’m the hungry dog here, bud.”
Healey scowled. “I’m not gonna give you every fuckin’ thing. I’m not gonna confess to you, man. You’re not my priest.”
Richardson put up his hands. “I’m not askin’ for a Christian confession,” he said.
Healey considered for a moment. Then his shoulders slumped as he gave up the tough guy act. He said he was passed out at his sister’s house on the night in question when she came to wake him up. Luther was on the telephone, she said. “It was one, two, maybe three in the morning. Tom said, ‘Hey bro, I need you to do me a favor.’ ”
What’s that, man? Southy said he replied
“I need you to drive the car for a few minutes, man, while I take care of something. I’m comin’ to get ya.”
He had gotten up and dressed but fell back asleep. He was awakened by Luther, who urged him out to his car. “There were a couple of shovels in it and a bunch of dirt on the back seat,” which was unusual for Luther, who was fastidious about his car’s upkeep.
“Where we goin’?” Southy asked when Luther told him to get in and drive.
“I gotta get rid of somethin’,” Luther replied.
At the jail, Southy Healey reached for another cigarette. “He must have already put it there, man,” he told Richardson. “That’s where the fuckin’ body is, or somewhere around there.”
Healey was upset that apparently his information had not produced a body. “He wouldn’t have come and got me with a body in the car because he knows right then I’d have said, ‘No, no, no, no. I’m not gettin’ in there.’ As far as getting involved in the murder, man, he knows I’m not gonna do that. That’s not my fucking game. I’m a petty thief, man. I’m fucked. I scam and I sell a little dope. I’m not a murderer. I’m not a fuckin’ accomplice to murder. Although I think I may have ended up helpin’ him fuckin’ get rid of the body, I don’t see that as complicity.”
Richardson knew that he was at last hearing the truth from Southy. But he needed to keep him on edge. “The State of Colorado does,” he said.
“Well, then the State of Colorado is gonna have to get me on that then,” Healey said angrily. “I never saw no body. I never saw shit. He could have been up there burying a fuckin’ deer, man, I don’t know.”
He went on with his story. They were driving up Interstate 70 when Luther blurted out, “I think I fucked up.”
“What do you mean?” Healey said he asked.
“I killed her.”
“Killed who?”
“A broad.”
He paused to blow a cloud of blue smoke at the ceiling of the interview room. “I knew he was in prison before for that shit. I don’t know if it was murder, but I think it was for rape or some shit.”
Luther directed him to drive past the little town where he’d taken the detectives that day in January. “He told me to slow down when we got to that turnoff, and that if someone came, to honk the horn. Then he jumped out of the car. I drove a little farther up the road, turned around and came back and parked.”
A little while later, Luther appeared across the road and ran over to jump back in the car. Even in the dim light, Healey said, he could see that Luther’s clothes were covered with dirt and sticky with what appeared to be blood. “He said the grave was shallow because the ground was too hard to dig.”
He couldn’t recall when he learned that Luther shot Cher. He knew that sometime after Richardson’s press conference he’d overheard a conversation between Matt Marlar, a boyfriend of one of his sisters, and Luther. “Matt was demanding that Tom come get a gun he had given him. Apparently, Tom was tryin’ to calm him down. He said that particular gun was not connected to nothin.’ Luther showed up later, disguised in farmer’s clothes, wearing a fake beard and a hat. He took the gun.”
“Where’d he shoot her?” Richardson asked, trying to jog Southy’s memory.
Healey thought for a moment, then nodded his head. “In the head. He must have said that ’cause I knew she got shot in the head.” He stopped and looked down at the floor, frowning. “But I don’t know if she got shot in the head, though.”
He said he’d been doing a lot of dope in those days, and he didn’t always know one day from the next, much less how he learned that Luther shot Cher. “I do remember him sayin’ something about having a good time with her, that they had sex. And there was something about a ring with diamonds on it.”
Richardson noted the remark about the ring. Another witness! “What did he do with her clothes?” he asked.
“I don’t know.” I know his went into the river.”
They were driving back down the road from Empire to the interstate as Luther stripped his soiled clothes off and got into sweatclothes he had in a backpack. When they reached the place in the road that went over Clear Creek, Luther told him to slow down so that he could toss his soiled garments into the water.
“He threw his boots out, too, but one didn’t make it and was lying in the road. We had to stop so he could run back and get it.”
It was just beginning to get light when they got back to Denver. “Did you go to Byron’s?”
Healey shook his head. “No. He dropped me off at my sister’s.” He was over there once before in the morning, but that wasn’t during this incident.
Recalling that Byron Eerebout said that Cher’s body was left at the house of one of Southy’s sisters for as long as several weeks, Richardson asked, “Where was the body kept before it was buried?”
“I don’t know.”
Richardson nodded. He had to ask. However, a NecroSearch entomologist had studied Cher’s remains and concluded her body had not been exposed for very long because she’d found only a few unhatched blow fly eggs on the remains. Blow flys are quick to lay their eggs on decomposing material. They will even lay eggs on the ground above a buried body with the larvae working their way down, so long as the distance is only a few inches.
Cher’s body was far enough below the surface that larvae could not penetrate that far. A few eggs meant that her body had been exposed for a short time, probably just long enough to bury her. Left in a basement for even a week, there would have been many more eggs.
With the information he’d just learned from Healey, it was the detective’s hunch that Luther killed Cher and dumped her at the spot outside of Empire in the early morning hours after they left the casino. He then returned to Byron Eerebout’s apartment and moved the car. But he’d only moved it five blocks, to the first large parking lot he could find, indicating he was working alone.
Worried that someone would stumble upon the body, Luther then called his pal Southy after midnight Sunday and returned to bury Cher. After breaking Debrah’s shovel, he’d injured his hands trying to dig deeper and then by moving the large granite rocks he piled on the grave. After tossing his clothes in the creek, he dropped off Healey and returned home to Fort Collins, where Debrah Snider found him in bed Monday afternoon.
Healey said he called Luther after the press conference and arranged to meet in Longmont. There a panicky Luther said, “They’re on me, Southy. They’re on me tough, bro.”
It fit with Snider’s story, but Southy couldn’t have known that. Richardson decided to test him further.
“What would you say if I was to tell you that Thomas Luther said that you came up after he killed her and helped transport the body from the murder scene?” Luther, of course, had said no such thing.
“I’d say he was a liar,” Southy spat out. “Simple as that, ‘cause it didn’t happen. The only reason he’d be sayin’ somethin’ like that is to cover someone else’s ass. J.D. maybe. Byron. I don’t know.”
“What if Thomas Luther said that the body was kept in your house for a while before she’s buried?”
Again, Healey reacted in anger, his eyes blazing. “I know he didn’t keep the body there,” he said. “There’s no fuckin’ way.”
Well, then what about his previous story about learning of the gravesite while on a dope run with Byron and Luther? “That’s how I was coverin’ up the fact that I drove him up there. The trip never happened.”
“How come you included Byron bein’ in the car with ya?”
“Because him and Luther were close, and I figured you’d go for that.”
“How do I know you’re telling me the truth this time?” He shrugged. “It doesn’t matter. I told ya, pull out your polygraph, man. I guess you’re just gonna have to take me for my word this time.”
Then the convict softened. He’d also told that story because he didn’t want the detective thinking he was involved with the murder of a girl. “I didn’t want you thinkin’, ‘Oh, you fuckin’ bastard.’ ”
Healey shook his head. He was sorry the grave wasn’t where he thought it would be. “I thought she was fuckin’ there. I wouldn’ta wasted my time or yours doin’ that had I thought she’d been moved or whatnot. I thought you’d end the whole fuckin’ thing right there that day. But I know if he’s sayin’ that I went with him to move a body, he’s full of shit.”
“Well, Dennis,” Richardson said, not unkindly. “In a few hours, you’ll get your chance in front of the grand jury to make up for whatever mistakes you made. But we’re not going to subpoena you or force you to appear. If you go, it’s of your own free will. I ain’t makin’ you no promises, or offering you nothin’.”
Southy Healey nodded. “I ain’t gonna do this for you or nobody else, except her family. I want her family to be able to say, ‘At least we know what happened.’ ”
The evening of March 6, 1995, the members of the Jefferson County grand jury assembled secretly in the courthouse. No media was aware of the gathering. Cher Elder’s family had been asked to keep the finding of her body secret for a little while longer.
In the State of Colorado, there are two ways to bring charges against a suspect. By a direct filing of the charges, after which a hearing is held before a judge who determines if probable cause exists to bring the suspect to trial. And through a grand jury, which hears testimony from witnesses presented by the prosecution and decides whether to indict.
The grand jury in Jefferson County is used only rarely. There are about 3,000 felonies charged in the county every year through a direct filing and perhaps a dozen through the grand jury.
There are several advantages to seeking a grand jury indictment. For one thing, a grand jury can issue subpoenas for records and compell testimony from reluctant witnesses. For another, the prosecution can protect the identity of confidential informants—a grand jury’s testimony is not public record.
A less evident advantage is that the prosecution gets to test run its case. It can then poll the jurors about holes in its theory or the believability of witnesses. In the Luther case, Dennis Hall wanted to get a feel for the community reaction to Byron Eerebout and Dennis “Southy” Healey. If the jurors came back and said the two simply weren’t believeable, that would have been the end of the case.
Another prosecution advantage is that a grand jury hears only the prosecution side of a case and, rather than the presumption of innocence and reasonable doubt issues before a trial jury, is instructed to look at the evidence in a light most favorable for the prosecution. The statutes read that an indictment must be handed down if the evidence, taken in that most favorable light, is such that a reasonable person would believe a crime was committed and that the suspect may have committed the crime.
Hall would also instruct the jurors that they were only hearing a portion of the prosecution case, just enough to establish probable cause.
The danger with a grand jury is if it declines to indict, the case cannot be brought again—either before a grand jury or through a direct filing—unless significant new evidence is uncovered. However, there is no time limit to the proceedings. If a witness doesn’t testify as expected, or the prosecutor believes that the jurors don’t seem convinced, he can stop the proceedings for as long as needed until the evidence is better or new witnesses are found.
Dennis Hall had run the Jefferson County grand jury since the early 1990s. Some prosecutors, concerned about their win/ loss records, will hand off risky or borderline cases to subordinates to take their chances. But Hall always kept the cases he filed personally, and he had filed the case against Thomas Luther. Three counts of first degree murder. A death penalty case.
District Attorney Dave Thomas had made the decision some time back that if Cher’s body was found and Hall could convince the grand jury to indict him for first degree murder, they would seek the death penalty. Luther was a monster whose trail of battered and dead women left no room for pity, just as he had never shown any to his victims, nor remorse.
Still, it would be a difficult case. There were no witnesses to the murder. The witnesses who knew of the murder were mostly liars, thieves, convicts, or drug users—all of which the defense attorneys would use to impeach their credibility.
The only reasonably untainted witness who Luther admitted anything to, and then only that he buried the body, was Debrah Snider. She would be the most important witness of all; along with her own damning information, she was the link between what the other witnesses would say and Luther’s actions.
But how would she come off to a jury? How could Hall explain her lapses in judgment, the length of time it took her to confess? Would the jury see her as blinded by love or an unstable, jealous woman getting even with an abusive boyfriend? And who really knew what she would do when it came time to choose between Luther and the truth?
At trial, Hall hoped to introduce Luther’s other crimes against women under a provision of the law known as “similar transactions.” Usually, in criminal trials, a defendant’s past cannot be referred to by the prosecution in front of a jury unless the defendant takes the stand. The concept is that a defendant should be tried only for the crime with which he or she is standing trial at that moment, not their “bad character.” However, on occassion prosecutors can convince a judge that former “bad acts,” or similar transactions, bear so close a resemblance to the current charge and may supply a motive for the defendant’s actions that they should be admissible in court. But that was for a future hearing. First, Hall needed to convince the grand jury to indict.
J.D. Eerebout was the first of the witnesses to testify. He told the jurors that Luther was a friend who he met a dozen years earlier when visiting his father in prison. The night Cher Elder and Luther left for Central City, he said, he stayed behind with his brother Tristan. The next time he saw Luther, it was dawn the next day.
He wasn’t sure, but he believed that it was the day after Cher was killed that he and his brother followed Luther into the mountains. Byron got out of the car and spied on Luther digging the grave, he said.
Luther didn’t tell him at the time that he killed Cher. “But we knew he had,” J.D. said. “Byron seemed to have a general idea of where Tom was going.”
However, J.D. denied ever going back to Empire to retrieve Luther
in May 1993. The Eerebouts still had not been told that J.D. was followed by the police that day.
J.D.’s testimony took almost two hours. He was followed by Southy Healey, who essentially told the same story that he’d told to Richardson a few hours earlier. Then it was Byron Eerebout’s turn to tell his story.
When they were through, Richardson was called to the stand. For several hours, he went over the details of two years worth of investigations. Cher fought with her boyfriend. She appeared in Central City with the man in the videotape, Thomas Luther. They were seen leaving at one-thirty by Karen Knott, who saw a sober Cher Elder get in the passenger-side seat. They drove to Lookout Mountain where he believed Cher was attacked, beaten—fracturing her skull—sexually assaulted, and then executed by three bullets in nearly the identical spot. The gun was thrown in Clear Creek. Cher’s body was taken to Empire, where Luther returned the next night with Southy to bury it. Sometime later he confessed the murder to Byron, who with his brother followed Luther to the grave to bury it better and put rat poison on it to discourage scavengers. He talked about the torturous process of trying to wring confessions from witnesses like Byron and Southy and of Luther’s prison claim that the next girl would not survive.
Then there was nothing to do but wait for the grand jury to deliberate. It didn’t take long.
The Jefferson County grand jury indicted Thomas Edward Luther on three counts of first degree murder. Each count included aggravating circumstances that carried the potential of the death penalty. In count one, the aggravating circumstance was robbery—the theft of Cher’s ring. In count two, the aggravating circumstance was rape, or rather that Cher was murdered to cover up the rape. In count three, the aggravating circumstance was that the murder of Cher Elder was premeditated and deliberate.
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