Murderer's Row

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

During deliberations, the jurors quickly decided that Luther had murdered Cher Elder. After seven hours, eleven of those jurors agreed that Luther had premeditated and deliberately murdered Cher, which meant they considered him guilty of first-degree murder and eligible for the death penalty.

Colorado law, however, requires a unanimous verdict. And the twelfth juror, a 65-year-old woman, wouldn't budge off of second-degree murder.

When asked by the other jurors to explain her position, the woman demanded that they leave her alone. If they didn't, she said, she wouldn't vote for murder at all. She then refused to deliberate further, even though the judge urged the jury to work things out.

After several days of deadlock, the judge gave the jury what are known as the "Lewis instructions," named after a Denver case in which a jury was hung up not over guilt or innocence, but on the degree of guilt. Lewis instructions essentially require a jury to agree on the lesser degree of guilt.

In Luther's case, those instructions forced eleven outraged jurors to bend their views to that of the holdout juror.

They delivered their verdict in tears and anger, later apologizing to the family, Richardson and prosecutor Dennis Hall for their "failure." They felt "coerced" by the judge's instructions, several jurors complained.

The eleven jurors met just before Luther's sentencing in April 1996 to rehash what had gone wrong "and try to make sense of it," says Jackie, who hosted the gathering and asks that her last name not be used. (Even two years later, she fears reprisals from Luther's friends.) By then they had learned of Luther's past, and they were angry that information hadn't been allowed in court. "We were sure that if we had known, even the holdout would have voted for first-degree," says Jackie.

The jurors took the unprecedented step of asking to speak at Luther's sentencing. And there they criticized the system that had allowed one juror to dictate their verdict, voicing their belief that "this heinous individual" should receive the maximum sentence. Judge Munch then sentenced Luther to 48 years, the maximum allowed by law, to be served after his West Virginia sentence.

"The hurt went deep," Jackie says. It cut deeper still after Richardson told the jurors about an anonymous call he'd received. The caller claimed to know the holdout juror, a Catholic, and said she had gone to her priest during the trial and was told not to do anything that would expose Luther to the death penalty. If that story is true, the juror violated the judge's orders and her oath as a juror not to discuss the case with anyone except the other jurors, and then only during deliberations.

Even before Luther was sentenced, some of the jurors had met with Earl Elder to discuss eliminating the requirement of a unanimous verdict. Together they approached state legislators and asked that the law be changed. For a time they believed they had the support of Senator Dick Mutzebaugh and Representative Russell George.

"But the ball was dropped," Jackie says. "The emotions burned out."
The jurors stayed in close contact with each other for a while. Some still stay in touch, although during their sporadic conversations they prefer to talk about everyday matters rather than the trial or its aftermath.

Luther took away the feeling that she was safe in her quiet little corner of suburbia, Jackie says; the holdout juror took away her belief in the system. For that, Jackie will never forgive her.

"I wasn't very comfortable with the death penalty myself," Jackie says. "But I would have followed the law, because that's what I had sworn I would do. If she decided in her heart that she couldn't, she should have asked the judge to remove her, and everyone would have understood. But I think she lied to get on the jury, and she certainly lied when she said she could follow the law."

As for Luther, "he preys on my mind," she says. "It's an unclosed wound, and it will be until he dies in prison."

A month after his sentencing in connection with the murder of Cher Elder, Luther was again on trial, this time for the attempted murder of Denver resident Heather Smith on April 12, 1993.

That evening, Heather was showing her car to a stranger who'd responded to a classified ad. Suddenly he attacked, stabbing her five times. A neighbor's screams chased the man away, but Heather nearly died.

For two years Heather wondered whether her assailant would ever be caught. It wasn't until she saw Luther's photograph in the newspaper--following his arrest for Cher Elder's murder--that she recognized the face of the man who'd attacked her.

At that trial, Luther waived his right to a jury and placed his fate in the hands of the judge. Describing Heather as an "exceptional historian," the judge found Luther guilty of attempted murder and assault. Using habitual-offender provisions, the judge sentenced Luther to an additional fifty years on top of what he had already received for the West Virginia rape and Cher's murder.

For Heather, the sentence was vindication. But it wasn't the end of her struggle. Until late 1997 she was fighting with lawyers, insurance companies and doctors over responsibility for her medical bills. In the process, Heather lost her home and her credit was ruined; she put her life on hold while the mess was sorted out.

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