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by Caitlin Rother


  On the morning of April 15, prosecutor Kristen Spieler let Michael Popkins know it was a go. Gardner’s attorney was pleased, but not surprised.

  “I’ve been doing this for thirty-four years,” he said. “I know when a case is going to settle and when it’s not.”

  The DA’s office called Moe Dubois at nine o’clock that morning and asked him to come in that afternoon. To protect him from a media onslaught, they told him to go to a downtown parking lot a couple of blocks away at 2:00 P.M. There, he, Rebecca Smith and Carrie McGonigle were picked up in a car with tinted windows and driven to a private lot under the courthouse. After the meeting, they were taken back the same way.

  Now that the Kings were on board, Dumanis was more in a position of telling the Dubois family rather than asking them about her decision. She told them the Kings had agreed, and that she was moving forward with the plea deal. They seemed to understand that this was really their only option.

  “They were grateful to the Kings and [seemed] to accept not going forward with the death penalty,” Dumanis said.

  Dumanis didn’t know how all of this would play out in the media, or even if they would make it through the hearing without Gardner changing his mind. She also didn’t know if there would be a backlash in the community for not going to trial. “People wanted severe justice in this case,” she said. But “I had to do this, regardless of whether there was a backlash or not, because I felt this was the right thing to do.”

  Popkins agreed. “I felt this was the appropriate result for this case, given the circumstances,” he said. “There’s always going to be some hotheads out there who want the death penalty, no matter what,” but in his view, this deal was good for the community. Chelsea’s classmates could go to the prom and start school in the fall without the court proceedings hanging over their heads. “People can move on.”

  John Gardner already had a status hearing scheduled for April 16. Not wanting to jeopardize the plea deal, the DA’s office gave no heads-up to the media that this would be a significant event. The prosecutor had quietly filed a new charge for Amber’s murder right before the hearing. So when Gardner stood up and entered his guilty plea, admitting to both murders, it came as a surprise to most everyone but the small group that knew about the deal. Sentencing was set for June 1.

  Coincidentally, the media had only just filed a motion objecting to the gag order, calling it “vague” and “overly broad in violation of the U.S. and California Constitutions” and “unnecessary to protect the right of the defendant to a fair trial.” And now that Gardner’s plea deal had been finalized, Judge Danielsen questioned the need for such an order.

  At this point, a shift change occurred in the parties that wanted to keep the gag in place, with the victims’ families now being the enthusiastic advocates. Their attorneys argued that search warrants, affidavits, autopsy photos and investigative reports should also be kept under seal because releasing them would violate Marsy’s Law, also known as the Victims’ Bill of Rights Act of 2008, which protected the memory and privacy of Amber, Chelsea and their families. As each judge who had issued multiple warrants was asked to release the related affidavits, some agreed, and a number of the warrants were unsealed.

  In light of the families’ concerns, Danielsen amended the gag order to allow Dumanis to hold a news conference on the plea agreement, but he kept it in place until the parties could discuss the matter further. At a hearing a couple of weeks later, he lifted the gag and ruled that all parties could discuss the investigation.

  Looking back on these rulings in 2011, Judge David Danielsen said, “There is nothing more fundamental to our society than freedom of the press.”

  After John Gardner’s plea was accepted, he said, the families were trying to prevent what he considered the inappropriate use of legitimate information, but it “was not the role of the court to predetermine what’s newsworthy and what’s important.”

  “That’s why you were our hero that day,” reporter Paul Krueger, of KNSD-TV, the NBC affiliate, told Danielsen at a bar association dinner.

  After the plea deal was formally accepted in court, Bonnie Dumanis held a news conference to explain her reasons for going forward with it.

  “The murders of Chelsea King and Amber Dubois have shaken the collective soul of our community and beyond,” she said, flanked by both families, prosecutor Kristen Spieler, Sheriff Bill Gore, Chief Jim Maher and Lieutenant Bob Benton. “San Diegans especially came together to wrap their arms and hearts around these families as they faced their darkest days. Today is an especially hard day as these families now face the reality of it all.”

  The decision to accept Gardner’s offer to lead them to Amber’s body, knowing the prosecution couldn’t use the information against him, was necessary “to end the anguish of the unknown for the Dubois family and to bring Amber home,” she said.

  A multijurisdictional task force and area crime labs had tried but failed to connect Gardner to Amber’s murder, she said. “We could not make a case. We kept the information about how we located Amber’s body secret to protect the integrity of the case. Unfortunately, we still do not have enough evidence to prove beyond a reasonable doubt, independent of the defendant’s cooperation, that would convict him in court. This means our office would not be able to pursue charges against Gardner for murdering Amber. In the case of Chelsea King, there were no agreements made.”

  By going forward with this deal, she said, “we are obtaining a conviction for the murder of Amber that we otherwise would not have been able to obtain... . While Chelsea’s case was moving down the path of a death penalty decision—most of us realize a death sentence at this time is a hollow promise in California. Even if death was imposed, Brent, Kelly and their family would have to endure a preliminary hearing, a trial, decades of appeals and the pain of reliving the murder over and over again.”

  Both families, she said, “understood that in the end, this was the best possible outcome we could hope for everyone involved. As a result of this plea, we will not be seeking the death penalty. But we do know that a sentence of life without parole means this defendant will die in prison... . Nothing can replace the lives of Chelsea King and Amber Dubois, but today is another step as their families come to terms with their loss. Our hearts go out to them—and to our community deeply affected by these crimes.”

  A somber Moe Dubois said he was thankful for the past year’s work by all parties involved to help forge “a resolution in the case and allowing us to have justice and closure for Amber’s case... . As you can imagine, this turn of events in the case came as a surprise to us when we were informed about the details yesterday.”

  Brent King said the decision whether to bless this plea deal was torturous, but he and Kelly decided to go along with it to help Amber’s family and their own, particularly their son, Tyler.

  “The Dubois family has been through unthinkable hell the past fourteen months,” he said. “We couldn’t imagine the confession to Amber’s murder never seeing the light of day, leaving an eternal question mark.”

  Not having to endure a trial that could span several years meant that Brent King and his family could focus on the legislative work they’d started to help protect other children. “While our unequivocal first choice is the death penalty, we acknowledge that in California that penalty has become an empty promise,” Brent said. “There is nothing satisfying about this moment. It is only one more unbearably painful day that we will have to carry in our memory as long as we live.”

  The community’s reaction to the plea deal was mixed. There was behind-the-scenes grumbling in some circles that Dumanis had made the deal too soon and that ending a murder investigation after just five weeks was premature. Gardner, they said, could have buried more bodies in the remote areas where his GPS bracelet showed he’d visited at odd hours, sometimes in the middle of the night. If given more time, witnesses or informants could have come forward with important details or evidence linking Gardner to Amber�
�s murder, details that would allow prosecutors to win a death sentence that many felt Gardner so richly deserved.

  Sheriff Gore said he was unaware of this criticism because no one had complained to him. “I can’t think of anything else we could have done,” he said in 2011. “Nobody on the law enforcement side was pleading with the DA, ‘Give us more time.’”

  Even though they all thought a death penalty case against Gardner for Chelsea’s murder would be a “slam dunk” conviction, he said, there was no doubt in his mind that “it was the right thing to do for that family, for the Dubois family, and for Tyler, especially.”

  EPD’s Bob Benton agreed, noting that with no links to Gardner other than his confession, this was almost the perfect crime.

  Jenni Tripp watched the news that day as Gardner had instructed. When he called her, as promised, her queries and his answers came in spurts during their hour-long conversation, because she couldn’t take too much information at a time.

  “Why didn’t you tell me?” she asked. “I could have saved Chelsea.”

  “I’m sorry, I don’t have a why,” he said.

  Later, Jenni recalled that he didn’t seem to be trying to downplay what he’d done, but she did notice that he never used words like “kill” or “murder.” He just said he was sorry he didn’t tell her “all this bad stuff.”

  Sometime in 2009, he’d told her he’d done methamphetamine, to which she said she “did my stern, ‘Don’t do that crap.’” He didn’t talk to her about his use of hard drugs until after his arrest, when he said, “he’d done Ecstasy and a couple of other things, and that he’d had a bad couple of weeks.”

  Hearing that, Jenni wondered if it was the drugs that had made him do the murders because he felt overwhelmed by his life, and “a week of bad, bad, bad, bad ... where he felt out of control and he thought, ‘I can control this.’”

  Jenni was devastated by learning what Gardner had done. “I just cried a lot because I couldn’t believe that the person I knew could do this to somebody,” she said.

  She reached out to Cathy and tried to comfort her as well, telling her she wasn’t “to blame for this. John made his own decisions. She’s his mother, not a doctor.”

  Jenni and Patricia Walker, Gardner’s other ex-girlfriend, have become friends throughout this ordeal. Who else would understand being the ex-girlfriend of a serial rapist-killer? (Although a 1998 federal law defined a serial killer as someone who has killed three or more victims, the definition was broadened after an FBI-hosted symposium of experts determined it should allow for the killing of two or more victims by the same offender in separate events.)

  Looking back in 2011, Patricia said, “I did know that he could be aggressive if provoked, but he never turned that against me—ever.”

  Patricia only saw him get really aggressive once. They were in the Disneyland parking lot for her Grad Night in 2000, when he punched a plywood fence because he believed she was going to break up with him over the molestation case. Once she told him she wasn’t, he went back to being the regular nice guy he usually was to her.

  Even after he’d pleaded guilty to the charges, she still wanted to marry him. That summer, they bought diamond-studded wedding bands, which she put on her credit card and for which he paid her in installments.

  Just before Gardner went to prison, he said, “I hope that you’ll wait for me, but I don’t really expect you to.”

  After the abortion, Patricia had lost all her friends but Gardner, who remained loyally by her side. And after he went to prison, she said, “My life fell apart. John was all I had.”

  She finally gave up and left town, got her dream job at Disneyland, where she’d wanted to work since she was a child. There, she met and began dating a young man to whom she soon got engaged. Patricia went to visit Gardner in prison once with Cathy. After deciding to get married, she wrote to let Gardner know about her impending nuptials. Her fiancé was in the U.S. Marine Corps, and he was a good man.

  When Gardner got out of prison in 2005, he tracked her down by her married name in North Carolina, where her husband was stationed at the time. Gardner was nice on the phone and invited her to come visit him, which she took as a hint that he was hoping to get back together. But she wasn’t interested.

  “I had a very stable life and that was not something I was willing to give up,” she said.

  Still, she held on to those wedding bands, which she only threw away a few years ago. “He did some horrible things [to those other girls], but he also did some wonderful things for me.”

  Today, she said, “he’s someone I don’t know and someone I don’t care to know.”

  Chapter 32

  Over the next few months, politicians and private citizens launched verbal attacks on the various dysfunctional components of California’s broken system. Multiple probes were demanded by lawmakers, including Governor Arnold Schwarzenegger, in response to the public’s demand for answers about what went wrong in this case.

  At issue was why Gardner spent only five years behind bars, why he was released from prison without a crystal ball assessment of the crimes he would commit, and why he was not returned to prison on the potential parole violations that were forced into the crosshairs framed by this case. To put it simply, there was plenty of blame to go around. The public was angry and wanted its government to explain how and why it kept allowing these senseless tragedies to occur.

  These failures angered Gardner’s mother, right along with all the folks who said they wanted to kill him for what he had done to Amber and Chelsea.

  “Not only did they fail to protect these girls, they failed to protect my son [from himself],” Cathy Osborn said, who agreed with critics who believed that the authorities who overlooked Gardner’s parole violations had allowed him to feel he could get away with breaking the law.

  Assemblyman Nathan Fletcher, R-San Diego, sponsored a bill called Chelsea’s Law based on findings in some of these probes.

  “It’s clear the system has failed,” he said, demanding a full and immediate investigation of the corrections department’s role in Gardner’s case. Amid this barrage of verbal outrage, Schwarzenegger did the same, asking the California Sex Offender Management Board to review sex offender laws and practices relating to Gardner’s parole and postparole management.

  The California Department of Corrections and Rehabilitation seemed to take the most heat for these alleged failings, including its policy to destroy parole agents’ field notes and “central files” on Gardner and other offenders one year after they were paroled, a policy that Schwarzenegger immediately reversed. CDCR spokesman Oscar Hidalgo defended this and other policies and decisions, including the choice not to return Gardner back to prison for what he characterized as minor parole infractions.

  “If we were to revoke and put a parolee in prison every time they have a low-battery alert [on their GPS bracelet] you ... would flood the system,” Hidalgo told The San Diego Union-Tribune.

  On April 12, 2010, the CASOMB issued a report with the goal of trying to prevent future crimes, using this case as an example of bad decisions and poor policy. Specifically relating to Gardner’s marijuana arrest, the board wrote it was a parole violation, regardless of how minor, saying that [Gardner’s] use of drugs while on supervision demonstrates that the offender is noncompliant with important parole conditions.

  Further criticisms and recommendations came in a June report issued by the state Office of the Inspector General, which reviewed Gardner’s GPS data at Fletcher’s request: The department failed to detect violations that could have returned Gardner to prison for many years.

  The report cited a number of new violations that occurred during the single year he wore the GPS bracelet, which included his two trips to Donovan state prison, his multiple trips to parks, playgrounds and his storage unit, as well as his breaking curfew 158 times—all with no penalty.

  The San Diego District Attorney advised us that had the department brought to her attention
Gardner’s criminal act of entering the grounds of a state prison, she would have charged Gardner with a third-strike felony, which, if Gardner were convicted, could have resulted in his serving a 25-years-to-life sentence, the OIG report stated.

  The report questioned why Gardner was given CDCR assistance to relocate to a residence in Escondido that was within a half mile of a middle school, and why his parole agent never questioned the thirteen trips he made to rural areas at odd hours or followed up on the seventeen GPS alerts that Gardner had lost his signal for more than six hours.

  These violations had previously gone unnoticed and unacknowledged, partly because parole agents were not tasked with monitoring parolees’ GPS bracelet behavior in real time, and also because these tracking results weren’t tabulated to reveal any patterns. The report stated that parole agents were too busy with paperwork to do real-time monitoring, resulting in 87 percent of the GPS data collected being routinely ignored for Gardner and other parolees on passive-monitoring status.

  Although his visits to remote areas did not violate his parole, they were suspicious and warranted further investigation, the report stated:

  We identified at least 13 locations that Gardner visited, several of which were situated in remote rural areas, which should have resulted in the parole agent closely questioning Gardner about his purpose for being in those areas.

  For example, at approximately 3:00 A.M. on July 5, 2008, Gardner travelled to a remote mountainous region east of Escondido. From the GPS data alone we cannot determine why Gardner went to this location. Gardner was transient during this time, with no fixed address, and the department should have been interested in his whereabouts. Furthermore, at about 7:00 P.M. that day Gardner travelled to another remote mountaintop location 30 miles away and stayed there for about 20 minutes. These unusual travels to remote locations should have spurred a parole agent to question Gardner.

 

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