Murderer's Row

Two years ago, a deadlocked jury saved Thomas luther from the death penalty. But the legacy of his crimes continues.

Earl Elder loaded a small artificial Christmas tree into his car and drove west into the mountains. Six miles past Idaho Springs, he exited the interstate onto Highway 40, which passes through the town of Empire before it runs up and over Berthoud Pass. But Earl didn't intend to go that far. A couple of miles beyond Empire, he pulled onto a short gravel turnoff, then stopped and got out.

Earl reached back into the car for the tree and the bag of ornaments he'd brought to decorate it. Turning, he trudged up the nearest hill, following a path that ran alongside a shelf of gray rock. The path was obscured by snow, but he knew the way. He could never forget it.

At the top of the first incline, the path forked. Earl veered left through the pine trees. Twenty or so yards farther on, the forest drew back, and he walked into a small, bowl-shaped clearing.

The clearing was still, as quiet as a woodland chapel. The rock shelf, which formed one side of the bowl, muffled the sounds of the occasional car passing on the highway below and of Clear Creek murmuring just beyond.

Earl stepped quickly past an oblong depression. Filled with large, gray rocks, it no longer held the remains of his first daughter, Cher, who'd disappeared in March 1993. It had taken two years to find her body and then another year to convict Thomas Edward Luther of murdering her and burying her in a shallow grave.

Two years later, the pain of losing Cher--and the knowledge of how she died--still threatens to overwhelm Earl Elder. And Cher's murder remains an open wound, not just for her parents, but for the Lakewood detective who brought Luther down and the eleven jurors who considered his fate. A twelfth juror, who may have followed her conscience but didn't follow the law, prevented Luther from getting the death penalty for killing Cher.

Another divided jury, the jury that prevented Terry Nichols from getting the death penalty, is capturing all the attention these days. But Luther's story isn't over yet. The Colorado Court of Appeals is currently reviewing Luther's complaints that he did not receive fair trials in Jefferson County or in Denver. Police agencies across the country question whether Luther was responsible for the deaths of women who disappeared from their jurisdictions--or whose bodies were found there. And Earl Elder and his wife and their supporters wonder what happened to the state legislators who promised to do something about the law that subjugates the will of the majority to the wishes of one person--the law that kept Luther off death row.

One cold day in December, Earl Elder set up his Christmas tree near a small memorial whose plaque reads simply, "Cher Elder 1973-1993."

It wasn't much: a tiny plastic tree in a forest full of real ones. But it was his way of sharing Christmas with the daughter he will never see again.

Cher Elder, a pretty twenty-year-old from Golden, disappeared in March 1993 following an argument with her boyfriend, Byron Powers. She was last seen in Central City--by her best friend, Karen Knott--in the company of Tom Luther, a friend of Powers's stepfather.

Luther had only recently been released from prison after serving eleven years for the brutal February 1982 rape and beating of a young woman in Summit County; he was still a suspect in the January 1982 murders of two other women in Summit County, Barbara "Bobby Jo" Oberholtzer and Annette Schnee. While in prison, where he met Powers's stepfather, Luther had told other inmates that his next victim would not live--nor would police find her body.

Lakewood Detective Scott Richardson was handed Cher's missing-persons case on April 1, 1993. The trail led quickly to Luther, who admitted having had "consensual sex" with Cher but claimed he brought her back to Powers's Lakewood apartment. Her car was later discovered in a grocery-store parking lot five blocks from that apartment.

Richardson soon came to believe that Luther had murdered Cher, probably after raping her, soon after the pair had left Central City. But it took almost two years for him to convince Powers and a former inmate friend of Luther's, Dennis "Southy" Healey, to separately lead the detective to Cher's gravesite beyond Empire. Powers and his half-brother claimed to have followed Luther when he went to check on the grave; Healey told Richardson that he had acted as Luther's lookout when he first buried Cher.

Cher's body was exhumed; she had been shot three times in the back of the head. In March 1995, Luther was indicted for first-degree murder, and Jefferson County District Attorney Dave Thomas announced that the prosecution would seek the death penalty.

In the meantime, Luther had already been convicted of another brutal rape, this one in West Virginia, and sentenced to a minimum of fifteen years. As information passed between police agencies, Luther also became a suspect in the December 1993 murder of one Pennsylvania woman and the April 1994 disappearance of another.

Extradited and brought back to Colorado by Richardson, Luther went on trial in January 1996--but not before his defense attorneys had convinced Judge Christopher Munch to prevent the prosecution from introducing evidence of Luther's prior attacks on women. At trial, the defense attorneys tried to blame Cher's murder on Powers and Healey.

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