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.”
On the evening of March 27, a Saturday, Hall continued, Cher had argued with Byron over his newest girlfriend, Gina Jones. So she decided to go to Central City to visit her friend Karen Knott. “So that’s what she did as a way of getting her boyfriend off her mind. That was probably a pretty good idea, but she made a mistake. She went up there with Tom Luther.”
Two years later, he said, her body was found in a shallow grave a mile or so north of the town of Empire. She’d been killed by three shots fired at point-blank range in close proximity to each other.
“It took a long, long time to find her because for quite a while many of the people who knew what happened wouldn’t tell us the truth. One of the people who didn’t tell the truth was Tom Luther.
“It’s taken us almost three years now to put all these pieces together and it’s going to take us a week or maybe up to two weeks to show you how they all fit. You’ll hear from the experts and pathologists and a couple of doctors who will tell you how Cher died. You’ll hear from some crime scene analysts who will tell you that a hair matching the hair from Tom Luther’s head was found in Cher Elder’s car, the car that Luther said he’d never seen and never been inside, and you will hear from Luther’s friends—from Healey, from Eerebout, from Deb Snider—who were told by Luther what he’d done and why he’d done it.
“At the very end of the case you will hear Tom Luther’s final statements to the police. He told Detective Richardson he knows he’ll be convicted. When you’ve heard all the evidence, you will see that Tom Luther was right.”
Hall took his seat as Enwall rose. Little half-moon glasses were perched partway down the former judge’s nose, giving him the appearance of a distinguished professor about to lecture students. He shook his head slowly, as if he couldn’t believe the case had made it this far, and then he began.
“This case is a senseless chapter in a relationship between Cher Elder and Byron Eerebout. Cher Elder was a good decent human being getting her life on course, excited about her future.
“Cher Elder thought that Byron Eerebout was her boyfriend. She thought it was a real relationship. She even bought him a $700 waterbed. But Byron thought that this was just a casual sexual relationship.
“Byron had another girlfriend and Cher was a problem to them. This new girlfriend, Gina Jones, wasn’t at all happy that Cher kept coming around. Byron assured Gina that Cher was just crazy and didn’t get it, but that he would take care of it.”
Yes, Enwall said, Cher Elder was angry that night and went to Central City with Tom Luther, where they stayed until 2 A.M. “And as you’ve heard, they had sex on a mountainside, probably Lookout Mountain. She was retaliating against Byron and made that clear to Tom. And she felt badly afterward. She felt that she wasn’t the kind of girl who slept around and had been angry and done something that she regretted.”
However, Cher and Tom returned to Byron’s apartment, only to find him in bed with Gina. Tom tried to console her and she left to call a friend, but she never made that call. “It was the last
anyone will admit to having seen Cher Elder alive.”
But in September, Enwall said, Byron found himself in trouble. He’d beaten a man with a baseball bat and emptied a .357 magnum at him. “He wanted a deal to get out of trouble. First, he said Southy killed Cher and Tom buried the body.” But when it became clear that Richardson thought either Byron or Luther had killed Cher, he decided to pin it on Luther.
“After all, there was no question Tom was the last one seen with her. And because of a bizarre and misguided sense of loyalty, Tom had buried the body. Pointing the finger at Tom would take the focus away from Byron and make Detective Richardson happy.”
However, Enwall said, in order for Luther to be the killer and not just the person who buried the body, Eerebout had to reconstruct his story. “He had to have Cher disappear the night Tom took her to Central City. And, after repeatedly saying that Cher came back to his apartment, he decided that she had not. That he just heard a voice and thought it was her or somebody else. It was the only way his story made sense.”
However, Enwall told the jury, Byron had to have a reason why he knew where Cher’s body was. So he made up a story about following Luther to the gravesite.
“Somewhere along the line, Dennis Healey gets involved. It’s not clear whether it’s before or after Cher Elder was killed.
“The evidence will be,” Enwall said, raising his voice, that Dennis Healey and Byron Eerebout, “a violent man with an explosive temper, are compulsive liars.
“They have an enormous amount to gain by seeing Tom Luther convicted in this case. Neither one of them is sitting over here,” he said, placing a hand on Luther’s shoulder, “but they both should be.”
Hall was a little bit surprised by Enwall’s opening. He expected the attack on Healey and Eerebout as liars, but not the outright accusation that they were the killers.
Enwall’s rather fuzzy motive was apparently that Eerebout killed Elder to please his new girlfriend. But when? He was with Gina Jones all of Saturday night and Sunday. And there didn’t seem to be a motive for Healey’s involvement.
Some of what Enwall said would be easy to refute. Eerebout’s first story wasn’t that Healey killed Elder and Luther buried the body. Eerebout’s first statement after his arrest in the shooting incident, when Richardson asked him why he was protecting Luther, was that he knew where Cher and Luther went and where Luther went afterward. Healey wasn’t mentioned until later.
Luther was the one who first told Debrah Snider that Elder was killed because she was an informant, not Eerebout, as Enwall claimed. And Healey didn’t tell Richardson that Luther had never talked to him about the case, he just said that his information was secondhand.
It was risky to make claims that wouldn’t hold up in the course of a trial. Jurors weren’t stupid. But in the meantime, Hall had a case to prosecute and couldn’t worry about the defense tactics. He called his first witness, Karen Knott.
A thin, dishwater blonde, Knott looked frightened but determined as she made her way to the stand. Cher, she said, arrived in Central City with an older man she introduced as a friend of Byron’s. They were definitely not on a date and the man mostly hung back by himself while the girls chatted.
Cher was upset with Byron, Knott said, but otherwise her usual happy-go-lucky self. She had no more than two drinks and the man with her sipped one or two beers.
“They weren’t drunk or I would never have let her drive back with him,” she insisted.
Karen Knott disputed Luther’s claim that he and Cher Elder bought a bottle of wine in Central City that they later shared, causing Cher to vomit. There are no liquor stores in the gambling towns as a matter of law, she said.
“Did you ever know Cher to use cocaine?” Hall asked.
“No. And she could have if she wanted, because I sometimes used it. But she wouldn’t.”
“Based on your opinion, would she willingly have had sex with the older man?”
“No way,” Karen Knott scoffed. In his seat, Luther’s face turned red.
Knott said she saw Cher Elder get into the passenger side of the man’s car, not the driver’s side as Luther claimed. “It was the last time I saw her,” she added, her voice cracking.
Cher, she said, was her best friend. They saw each other or called every day. Until that Sunday.
Enwall’s cross-examination was brief. “You were her best friend but she saw other people,” he noted.
“I got six days,” Knott retorted. “They got one. I saw her every Sunday and Monday night.”
Knott was excused. She’d held up well and established that Elder likely died after leaving Central City, never having called her best friend on Sunday. Karen made it as far as the hallway outside the courtroom before bursting into tears.
Richardson was called to the stand next, but only to guide the jurors through the casino videotape. He pointed to Elder and the man following her, as the jurors looked back and forth from the tape to Luther.
After the tape finished, Richardson described how he had shown the tape to Byron Eerebout on April 20, 1993. And how Eerebout denied knowing the man, only to receive a call from Luther an hour later. The testimony was a lead-in to Richardson’s taped interview with Luther, which the jury then heard, omitting, of course, Luther’s comments about his prior conviction for sexual assault.
Gina Jones was the next witness. Her distaste for Byron Eerebout was soon evident. Their relationship, she said, had lasted a matter of days. Hardly the sort of love to kill for.
She recounted how she had asked Eerebout if Luther had anything to do with Elder’s disappearance. He’d said no, but later threatened her to “be careful or you’ll wind up in a shallow grave.”
After Jones left the room, Hall turned to Munch and said, “We’ll call Dennis Healey to the stand.”
Healey walked quickly to the witness stand where he was sworn in. The 28-year-old had changed a lot since his first meeting with Richardson. Instead of long and scraggly, his red hair was cut short and combed back; he wore a coat and tie and looked like a young stockbroker.
It’s not unusual for defense attorneys to clean up their clients for trial. In this case, however, it wasn’t the prosecution team who had changed Healey’s image. It had been required by a get-tough drug rehabilitation center where he was currently living.
In fact, it was Hall who took apart the new image. “During the time you’ve been here in Colorado, what kinds of jobs have you held?” he asked.
“Not many,” Healey said in his thick Boston accent. “Just, I don’t know, three or four. Laborer, painter, never one for very long.”
“How did you make money?”
“Mostly dealing drugs or burglaries, whatever, theft.”
“Are you serving a sentence now, Mr. Healey?”
“Yes, I am. Eighteen months for attempted burglary.”
“Do you recall how many other felony convictions you have?”
“Three. Right now I’m in a drug rehabilitation program.”
Before getting into the program, Healey said, he was released to a halfway house.
“Did you want to be released?”
“No.”
“Why?”
“I told the Department of Corrections I didn’t want to be released out onto the streets on parole because I had a drug problem and knew I wouldn’t get the treatment I needed.”
Healey said he only lasted seven days at the halfway house before running away and getting back on drugs. Then he did something he’d never done before: “I turned myself in.” He was arrested and put back in jail, until being placed in the rehabilitation program just two weeks earlier.
“How long would you have if you went back to jail and did your time?”
“Eight months.”
“And how long before you can get out of rehab?
“Fourteen to sixteen months,” Southy replied.
“You think you’re going to finish this program?” Hall asked.
“I hope so. It’s
hard. But I’m not looking six months down the line. I’m not looking a month down the line. I’m looking to, like, tomorrow.”
Hall didn’t dare look at the jury to see how they were responding. They hadn’t rehearsed this testimony, purposely, because he wanted Healey to come off just as he was—a drug addict who stole and sold drugs to support his habit. A young man who had lost his way and now was trying to make it one day at a time. He thought they’d succeeded; it was time to go on.
“In the spring of 1993, how would you have described your relationship with Tom Luther?” Hall asked. “Good friend? Casual friend?”
“At that time,” Healey said, glancing at Luther, who sat staring at the defense table, “he was probably my best friend.”
Hall led him through the events of late March 1993. The late-night telephone call. “Hey, bro, I need some help.” The car with the dirt in the back. “I fucked up. Killed this broad.” Standing lookout. The dirt and something wet and shiny on Luther’s clothes. A grave too shallow.
“He said he took her out. They were having a good time, doing their little thing, and then he killed her,” Healey said. “I was mad. I said, ‘Hey bud, you fucked up. I don’t want to be in this. This ain’t me.’ Yeah, I’m a drug addict. Yeah, I’m a thief. I’m a conniver, whatever you want to call me, but I ain’t no murderer, you know what I mean. That’s just not me.”
Hall took a seat as Enwall rose to cross-examine. “Good afternoon, Mr. Healey.”
“How you doing?” Healey responded, his thick accent and cheerful greeting bringing smiles to jurors and spectators alike.
“Have you turned over a new leaf here?” Enwall asked.
“I’m trying.”
“But this clean-cut look is not the real you, is it?” Enwall asked. “You’re more used to kind of shoulder-length hair and biker clothes?”
“Biker clothes?” Healey looked puzzled. “If jeans and a t-shirt is biker clothes, I guess so.”
“But this appearance that you’ve got here today is pretty astonishingly different from what you looked like last time you were in court, wouldn’t you say?”
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