Richardson also recounted the humorous moments, like when he asked Luther to mark the spot on a map of Mexico, where he’d be in case he escaped. “He said I had lost a lot of weight and that I looked like crap. And I said, ‘Yeah, because of you.’ I looked at his hair and said, ‘Jesus, you got a lot of gray hairs,’ and he kind of laughed and said, ‘Yeah, because of you.’ ”
Richardson smiled. Luther chuckled. And the jurors smiled for the first time since they’d seen the photographs.
“And at the end of bringing him back to Denver, he made the comment, ‘You know, I’m kind of glad this is over because I don’t have to spend the rest of my life looking behind my back for you.’ ”
Hall turned the questioning over to Enwall, who immediately attacked Richardson for destroying the notes he’d made of Luther’s comments on the trip back.
Richardson shrugged. That was his practice after his secretary transcribed notes and he’d proofread them. There was a tape-recording of the conversations, a copy of which had been given to the defense, Richardson said. But he acknowledged that due to background noise it was all but inaudible. “You can hear a lot of yelling and something about Colombians.”
Enwall accused Richardson of telling Healey and Eerebout his theory so that they could tailor their own stories to fit. “In general, isn’t it a good idea not to give witnesses too much information?”
“Depends on the interview,” Richardson shrugged. “There’s some interviews where you would do it to show that you know what you’re talking about, you know what happened, and you may feed information to them, but there’s certain details that you don’t tell.
“That way when they feed information back to you, if it works, if they think you know what’s going on, then you can tell what is accurate information or are they really just kind of going with what you’re doing, or are they giving you real information. That’s a common procedure.”
But, Enwall said, the detective told Southy Healey that it was his theory that Tom Luther killed Cher Elder that Saturday night. “Which was certainly true at that point, that that was your theory.”
“Yes, sir.”
Enwall went back and forth on essentially the same question when Judge Munch interrupted. “It’s been a long day, and I believe it’s time to quit.”
Again he admonished the jury, and sent them on their way.
When the jurors were gone, Munch listened to the attorneys discuss whether other statements Luther had made the day before his extradition should be allowed.
Enwall wanted certain parts removed that he said would prejudice the jury, including all of the comment, “Just like this fucking bullshit case I’ve got here, and all that fucking come down on me hard because of your bullshit out in Colorado.”
Hall said he already figured that because it mentioned Luther’s West Virginia case it was off limits.
Enwall wanted to select lines from the next comment, some of which he wanted out and some of which he wanted left in. He wanted the line, “I ain’t no fucking serial killer,” out because it implied Luther had killed before. But he wanted to keep, “I’m not a fucking rat,” because it reinforced the defense argument that Luther was on trial because he refused to identify the real killers. Enwall also wanted to keep, “I’m an angry bastard, but I ain’t no killer.”
Hall argued that they were all part of the same statement. It was Luther, not some other witness or even in response to a question, who contended he wasn’t a serial killer.
The judge said he’d think about it overnight and let them know his decision in the morning.
January 25, 1996
The courtroom filled quickly every morning of the trial. Many of the spectators, even those who weren’t part of Cher Elder’s family or the press, remained the same, such as two women who brought their children every day for a civics lesson as part of their home schooling. But there were always new faces. This morning, Detectives Richard Eaton and Charlie McCormick were in the rows behind the prosecution, as were Heather Smith’s father and brother.
It angered Cher’s family and others like Heather’s father that Luther got to sit there, looking like an overgrown Boy Scout, while the integrity of the prosecution witnesses, including Richardson, was attacked.
Everyone else in the courtroom knew Luther’s real story. Waiting for the jury to be brought in that morning, Luther suddenly draped his arm around the back of defense lawyer Cleaver’s chair. When the defense attorney made no move to separate herself from her client, a female spectator gasped loud enough to be heard throughout the gallery, “How can she stand to sit so close?”
Luther looked back and smiled, but kept his arm in place. Otherwise, he had rarely glanced at the spectators during the trial. He usually looked at the witness on the stand ten feet straight ahead or scribbled notes on a pad on the table in front of him. The defense lawyers and the young law students, who Richardson noted didn’t seem to do anything but provide female companionship for Luther, frequently engaged him in conversations, especially when the jury was present.
In contrast, the prosecutors often looked tired, even though the trial had gone well to this point. Healey was a star, and Enwall was making no headway against Richardson, but Minor, who mostly handled questioning the expert witnesses, looked tense. Hall often sat in his chair with his head in his hands.
Before the jurors were brought in or Richardson called back to the stand, Munch ruled on the statements from the day before. The statement that included a reference to his West Virginia case was out. But he was going to allow the other statement in its entirety, in part because it might even help the defendant. “The statement could be interpreted that he made the statement about being convicted not because he thought he was guilty but because he felt he was being ‘railroaded’ by Richardson and others.”
With that out of the way, Richardson retook the stand. Enwall produced a transcript of the statements Munch had just ruled on. He handed Richardson a copy to read. “Ironically, I would like to play you and have you play Mr. Luther.”
“The transcript,” Enwall said, “starts with you saying, ‘Like what?’ ”
“Yeah, you kiss my ass, that’s what you do. Just take me back to my unit,” Richardson read. He disliked playing the part of Luther, it made him feel dirty. Meanwhile, Luther was smiling, apparently enjoying the little play.
“Okay. Don’t want to talk to us?” Enwall said, playing Richardson.
“Fuck, no, I don’t want to talk to you,” Richardson read. “You know I don’t want to talk to you. I don’t even know why you even fucking come here. I ain’t got nothing to say to you.”
Enwall read the statment about Richardson having worked the case for two years. “And now it’s over.”
“You ain’t worked no case,” Richardson read. “I ain’t no fucking serial killer. I’m an angry bastard, but I ain’t no fucking killer, ya know. I ain’t a fucking rat.”
Enwall concluded his cross-examination by again questioning Richardson’s tactics. Why did he believe Healey? Why had he dropped Byron Eerebout as a suspect? Maybe he’d put blinders on and now wouldn’t admit that he was after the wrong man?
Throughout the attack, Richardson remained calm and polite. He answered each question with as little emotion as possible, while Enwall grew more sarcastic and accusatory. And at last, Enwall called it quits.
Hall rose to ask a few questions raised by the defense attorney.
“There was a lot of testimony with Mr. Enwall about the ‘deal’ Dennis Healey got,” Hall said. “Could you summarize that deal for us?”
“He was told we were only interested in the person who actually murdered Cher Elder,” Richardson replied. “If he did not perjure himself or lie in his testimony, we would not pursue any accessory after the fact murder charges on Dennis Healey for watching out during the night of the burial.”
“Did we give him anything else in return for his truthful testimony?”
“Nope,” Richardson replied, the
n he paused and smiled. “I bought him a pack of cigarettes one day on this trip because he didn’t have any.”
“You explained to Mr. Enwall that Healey originally gave you a story about going to the grave with Byron and Tom Luther, and later he said he lied.”
“That’s correct,” Richardson said.
“Did he explain why he lied?” Hall asked.
“Yes,” Richardson nodded. “He was scared and he didn’t want me to know he was actually watching for the cops while Luther went to the grave. And he wanted the Elder family to have the body.”
With Richardson off the stand, the prosecution case had reached its most critical juncture—the Eerebout brothers.
J.D. Eerebout was missing. They’d heard that he was with his father, Skip, but the two had disappeared so that he couldn’t testify. There was a nationwide warrant put out for his arrest, but they’d not been heard from.
Hall called Tristan Eerebout, 16 years old, to the stand. His testimony, his “itty bitty piece,” was that he stole a .22 Baretta which he then gave to Luther.
Then, 25-year-old Byron Eerebout was called to the stand. Tall and lean, with his red hair cut close to his head and a smirk on his face, Byron swaggered to the witness stand while both Luther and Earl Elder glared at him.
Hall took a deep breath as he looked over his notes one more time. On his own, he knew that Eerebout’s testimony would have been laughed out of court. He was exactly what the jury was going to see, a smirking, not terribly bright, petty criminal. But together with the other testimony, what he had to say fit the prosecution puzzle and was crucial.
Hall’s biggest concern was that Eerebout would slip and say something about Luther having been in prison. He’d warned him against it dozens of times and tried to prepare his questions in such a way to minimize the possibility. But he still needed to establish that Luther was a friend of the family, someone who had given and received Byron’s trust. And there was the danger.
It was late afternoon when Eerebout took the stand. It was snowing outside and the roads were getting slick. Before allowing Hall to proceed, Munch told the jurors that he would let them go a little early because of the weather conditions.
Hall began by leading Eerebout through a series of questions about his background, including his stint in the Army and stationing in Saudi Arabia during the Gulf War. While there, Eerebout said, a storm came up, there was a fire outside the large tent in which he was living, and then he felt a heavy blow to the back of his head from a collapsing tent pole. “Now I can’t taste or smell and I have a problem with short-term memory loss. I forget things but sometimes a key word will make things come back to me.”
“Do you have any felony convictions?” Hall asked.
Yes, Eerebout replied. A forgery. A theft. And the three assault accounts against him for the incident in September 1993.
In March 1993, he recalled, he was living in an apartment with his brother, J.D. “Tom Luther stayed with me occasionally,” he said. “Cher never stayed the night, but she was there.”
Eerebout said he met Cher at a party. “We saw each other off and on. It was a casual relationship until we had sex.”
“And at some point in your relationship, did she end up with your ring?” Hall asked.
“Yes, she did.” She’d found it in the bathroom and began wearing it. “I believe it was on her wedding finger,” he answered. But it was not a serious relationship. “I didn’t consider us boyfriend or girlfriend.”
Hall moved into more dangerous waters. “You also know Thomas Luther?”
“Yes, sir.”
Hall nodded to remind Eerebout to take it slow. “How long?”
“Since I was a kid.”
Good. He’d stayed away from visiting Luther and his father in prison. “Would it be fair to say that Tom Luther is a pretty good friend of your family?”
“He was a good friend of my father, yes, Jerry Eerebout. He had a good relationship with me and my brothers. With Mom it was off and on.”
Hall began to relax; they had moved past the most dangerous area, while establishing that Luther was a friend of the family. “Now, did there come a time in the spring of 1993 when Tom Luther began to socialize with you and your brothers down here in the Lakewood/Golden area?”
“Yes, my father was released from prison before Tom was, I believe. I’m—”
A hush had fallen over the courtroom. Eerebout turned red as Hall visibly blanched on his feet. Everyone knew something was wrong, even if they didn’t know what.
The silence lasted only a moment. Then Enwall leaped to his feet. “Your honor, may we approach the bench, please?”
Munch sighed. “Sure.”
Luther smirked and smiled as he leaned over to whisper to Cleaver, who nodded.
After a brief conference, the attorneys returned to their places. Hall tried to salvage the day. “Byron, do you mean that your dad was released from prison before you began to socialize with Tom Luther back in the spring of ’93?”
Eerebout, whose face remained crimson, nodded. “Yes.”
Munch frowned. “Counsel, I take it you’re going to be moving on to another area.”
Hall, who seemed to still not have recovered, blinked. “Yes, judge.”
Then Munch thought better of it. He turned to the jury. “We’re going to go ahead and and break for the evening. Remember what I’ve told you. Don’t discuss the case. Avoid the media. Keep a free and open mind.”
After the jurors were escorted out, an angry judge turned on Byron. “Mr. Eerebout, would you step down and go into the witness waiting room.” He then turned to the attorneys and asked for their responses.
Enwall demanded that Munch declare a mistrial. Eerebout’s statement, he said, had caused “irreparable prejudice” to Luther’s defense. “I’m sure he was repeatedly instructed not to do what he just did. Why he did it, we don’t know, but it was just clear as a bell, and I’m sure it rang a bell for the jury. There’s no unringing that bell.”
Munch turned to Hall, whose color had still not returned to his face. The prosecutor held his hands up. “I specifically told him to avoid that a number of times. I don’t think he did it on purpose.”
Still shaken, Hall retreated to the prosecution table where he buried his face in his hands. Everything to that point had gone perfectly. The defense had made no ground on the witnesses, but he could never expect to do so well again. A mistrial would be a disaster.
Munch said he would take the matter under advisement and hear arguments in the morning before rendering a decision on Enwall’s demand.
Out in the hallway, Cher’s family was in tears. Earl Elder looked dazed, like someone had clubbed him in his sleep. Richardson tried to console them. “If there’s a mistrial, we’ll come back in a few months with even a stronger case,” he said.
Rhonda Edwards blinked back her tears and looked at him hopefully. He prayed she couldn’t see the despair in his eyes. “Hey,” he said putting an arm around her shoulders. “You’ve trusted me this long. We’ll do it, we’ll get him.”
To himself he said, We’re fucked.
January 26, 1996
The next morning, with the jurors still out, Hall offered to do what he could to mitigate the damage. He, Minor, and Richardson had stayed up the entire night, digging up case law that might apply to unwitting slips by witnesses. Perhaps by asking leading questions that would turn the jurors’ attention away from the previous day, he suggested.
Otherwise, he argued, the slip was unintentional and made after every effort had been taken to see that it didn’t happen. Case law, he pointed out, held that if a witness misstepped but it wasn’t the prosecution’s fault, it would be unfair to hold the prosecution accountable.
Enwall argued that the damage was done. The defense team had worked long and hard to keep Luther’s criminal background out of the trial, and the judge had ruled in their favor.
However, Munch agreed with Hall. It wasn’t the prosecution’s fa
ult. There had been no mention of what sort of crime Luther was in prison for. “We’ll go forward from here.”
First, though, he had Byron Eerebout called to the stand and warned him not to slip up again or face the consequences. The young man swallowed hard and nodded.
Then, rather than pretending the slip had not occurred, Munch brought the jury in and told them to ignore the remark. “It’s only human nature to assume that because a person committed one crime that they will commit another. But that’s simply not true and you can’t rely on that. You’re to consider only the evidence relating to this crime. Is that understood?”
The jurors nodded. “Fine,” Munch said, and nodded for Hall to resume questioning Byron Eerebout. Which he did by asking about the events of March 1993.
Eerebout said he explained to Gina that he and Cher were not boyfriend/girlfriend. She was upset, he added, but it was no big deal.
Early Sunday morning, while it was still dark out, he said he was awakened by a woman yelling in his apartment. “I thought it sounded like Cher. But I just laid there. Then I heard what sounded like my front door and I got up.”
Looking out, Eerebout testified, he saw Tom Luther and Dennis Healey just leaving the apartment. When he got up the next morning, Tom was asleep in the apartment.
He first learned Cher was missing when her family and friends started calling. He wasn’t exactly sure when he first heard from Richardson, but he admitted that he lied about not knowing the man with Cher when the detective showed him the videotape. “I drove straight back to the house, contacted Tom to let him know that they had a picture of him up in Central City with Cher. Tom said, ‘Thanks, I’ll take care of it.’ That was it.”
“When did you first suspect that Tom Luther was involved in her disappearance?” Hall asked.
Eerebout said he overheard a telephone conversation while visiting Luther at Debrah Snider’s ranch. He presumed Luther was talking to Southy when he heard him refer to a body that was stinking and needed to be taken care of.
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