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.
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.
"Sometimes it seems like I've been in a coma for four years," she says. "I lost that part of my life, even after the trial, and I can never get it back again."
But today she's finally moving on. She isn't as self-conscious about the scar that runs down her chest, made not by Luther but by the doctors who had to open her up to save her. And when she talks about Luther, it's with disdain, not fear. He's in prison, and she helped put him there.
"I still get afraid, especially at night," she says. "And I still don't trust people, especially men, like I used to. But I can feel myself getting stronger all the time."
Heather's friends used to describe her as the "Princess of the Ball." But Heather no longer feels she has to live up to that billing; that girl was shortsighted, self-absorbed. The woman Heather is today is wiser, more interested in things that last: love, friendship, family. "Now I'm the queen of the ball," she says, and laughs.
After Judge Christopher Munch ruled against introducing Luther's past, the prosecution worried that Cher Elder's case was lost before the trial even started. Usually in a death-penalty case, the prosecution is more confident of getting a conviction than it is of getting a death-penalty sentence. But this time, the prosecutors felt the opposite.
"We knew our case was weakened," prosecutor Dennis Hall says. "But if we got a first-degree conviction, with Luther's past then fair game, we believed the death penalty would have been a slam dunk."
When the jury deadlocked, though, and Munch asked the attorneys if he should give the jury the Lewis instructions, Hall agreed. In doing so, he went against the advice of his boss, Dave Thomas, who wanted to hold out for first-degree and the death penalty or go for a mistrial and try the case all over again.
Hall was worried that another trial might not result in a murder conviction at all, since the witnesses were of questionable character and reliability. Reluctantly, he told the judge to give the instructions.
After the trial, Hall said the fact that a single juror could overrule eleven others was a flaw in the system. But that doesn't mean the verdict was flawed, he says today. If that juror truly believed that Luther was only guilty of second-degree murder, then she was right to stick to her guns. What troubles Hall is that the juror refused to deliberate or give a reason for her position. And if she talked to her priest about the trial, that was a violation of the rules.
"Justice is in the process, not the result," Hall says. "If the process isn't followed, then the whole thing goes down the drain."
After the Luther case, his first death-penalty trial, Hall couldn't bring himself to take another murder case for nearly a year.
And to this day, he's blocked some aspects of the trial. For example, he can't remember what he planned to say to the jury if the trial went to the death-penalty phase. "I just remember thinking how strange it was to ask jurors to decide to put someone to death," he says.
Tom Luther once complained to Debrah Snider, a nurse who fell in love with him while he was in jail, that he always gets blamed for more than he's done.
But many law enforcement agencies wonder whether he's been blamed for enough.
Luther's trail leads through a number of jurisdictions where a police officer thinks he might have killed some young woman. In most instances, though, the trail is too cold to know the truth--unless there is a confession.
In Vermont, police officials can only speculate about a young woman from Stowe who disappeared two decades ago and was found dead in the woods; Luther was reported to have lived in the ski town at the time. And Luther's former friends in his hometown of Hardwick, Vermont, still worry about the blond hitchhiker he showed up with in the fall of 1993, after heading east from Colorado. When they asked about her a few days later, Luther said she'd left for West Virginia. The next day Luther himself left town.
In Pennsylvania, Corporal Les Freehling of the state patrol considers Luther his prime suspect in the attacks on two women. One, whose body was discovered in a remote wooded area near Newport on December 10, 1993--beaten, strangled, and raped--has still not been identified. She was a transient often seen hitchhiking near the construction site where Luther worked during that time, Freehling says; blood found on her sweater matches Luther's blood type.
Karen Denise Wells, a 21-year-old model, disappeared from Newport without a trace in April 1994. Her car was found five miles from where the other girl's body was discovered; Luther was still working in the area that spring.
An unhappy coincidence? Freehling notes that the coincidences stopped after Luther was arrested for rape in West Virginia in September 1994.
With Luther in prison, apparently for the rest of his life, there has been no urgency in pursuing the two cases, although Freehling keeps them open and at hand. The task of making a more thorough comparison of Luther's blood to the blood on the unidentified victim's sweater is still incomplete.
In Denver, homicide detectives remain stymied by the June 1994 case of a woman who was found stabbed to death in her apartment. She had been sexually assaulted, and her body had been covered by an American flag. Detectives have only a single, gray curly hair discovered on the body, a hair microscopically similar to Luther's, and the word of a former Jeffco inmate who claimed that Luther had told him details of the murder that only the killer could have known.
In Summit County, blood found on one of Bobby Jo Oberholtzer's mittens was tested for DNA--and came back negative for Luther. Luther remains on Detective Richard Eaton's short list of suspects, and the detective follows each new lead as it appears. He's tried to trace a report that a California airline stewardess, who sold Luther the truck he was driving in 1982 when he raped a Summit County woman, was later found beaten to death. But so far, it remains a rumor.
In the meantime, Eaton is looking more closely at another convicted killer from Idaho, who was known for shooting his victims in the back--as both Bobby Jo Oberholtzer and Annette Schnee were. There is no evidence, however, that the man was ever in Colorado.
Initially, Eaton was troubled that Bobby Jo and Annette were executed with a gun: Luther had attacked his known victims with a hammer and his hands. But then Luther was convicted of shooting Cher Elder and stabbing Heather Smith.
Today violent crime is more common in Breckenridge than it was back in 1982. Common enough, in fact, that Eaton is too busy to devote much time to the murders of Bobby Jo Oberholtzer and Annette Schnee. But he still pulls over whenever he reaches the summit of Hoosier Pass, where Bobby Jo was murdered; when his travels take him to Alma, he still stops by the small white cross beside the stream where Annette's body was found. "No one stops being a suspect until I got the guy who did it," he says.
Although they're not his cases and he keeps a discreet distance, Lakewood Detective Scott Richardson remains convinced that the murders of Bobby Jo Oberholtzer and Annette Schnee are Luther's work. Murders were rare in the area back then, he points out, and they stopped when Luther was arrested for the rape of the third woman.
"Luther is an opportunistic killer," he says. "It's only in television and the movies that a serial killer always kills the exact same way. Luther'd take a trash can and shove it down your throat if that's what he had. On the night Cher died, he just happened to have a gun in the car because numbnuts [Powers and his half-brother] had given it to him a couple days before."
When Luther's appeals are over--and assuming they're unsuccessful--Richardson plans to visit his archenemy in West Virginia. He hopes to then learn the whole story of what happened to Cher Elder and, perhaps, what happened to the other women linked to Luther.
Cher's case took a toll on Richardson, both emotionally and physically, and he hopes to never have another one like it.
Before Luther's trial, he returned to the spot where Luther had buried Cher and replaced the rocks with which Luther had covered the grave. Richardson says he did it so that a hiker wouldn't stumble into the grave; those who know him believe the act had more to do with seeking closure of his own.
Richardson, who was asked by Cher's family to be a pallbearer when her remains were reburied in Grand Junction, returns often to that lonely spot outside Empire. And while the photographs of other victims have come and gone from his office walls, Cher's pictures, including one of her as a three-year-old, still hang beside those of his family.
If a case can ever be made against Tom Luther in Summit County, the prosecutor there may find it easier to introduce evidence of his past crimes. In Jeffco, the judge was swayed by the argument that Luther hadn't used a gun during the two crimes for which he'd been convicted and that the victims of those two assaults had survived. After Cher Elder, though, that argument won't wash.
Forensic psychiatrist John Macdonald, who's spent years studying criminals and their habits, interviewed Luther in 1984 after his conviction for sexual assault in Summit County. During that interview, Luther said that he was a lion and the victim had come into his territory.
Luther went on to murder Cher Elder. Before the trial in that case, Macdonald was contacted by both the prosecution and defense teams. He declined to testify, saying he had not spent enough time to diagnose the suspect.
At various times in his criminal "career," Luther has been diagnosed as having personality disorders. And although Macdonald won't discuss Luther specifically, he will discuss personality disorders in general.
"Everyone has personality traits," he says. "It's what makes people individuals. For instance, some people are outgoing, others are introverts. There is nothing wrong or dangerous about either, unless taken to extremes. Personality traits become disorders when they interfere with a person's ability to function normally and legally within society...
"People with personality disorders know the difference between right and wrong," he continues. "They just don't care, or they believe they're right and society is wrong. They can assist with their defense. In fact, they tend to be above average in intelligence, which is why they can appear 'normal' when they want to...why these guys always seem to have wives and girlfriends who don't have a clue who they're living with. Ted Bundy was like that."
The FBI defines a serial killer as someone who has killed three times in incidents separated by time and distance; a mass murderer simply goes on a spree. But Macdonald says it's not the number that matters but the fact that once started, the serial killer will murder over and over until he is stopped.
The diagnosis most often applied to Luther is sociopath--the most dangerous of the lot, because although the sociopath knows killing is wrong and doesn't care, it is also what makes him feel good or powerful. "And getting away with it only increases its pull," says Macdonald. "Most serial killers are sexually motivated and sadistic. They get sexual pleasure out of causing pain, humiliation and death."
Sociopaths mimic real people, Macdonald continues, and conform their behavior to get what they want. Serial killers often were sexually abused as children and witnessed violence in the home. That describes Luther's past, according to his own accounts. His Summit County victim reminded him of his abusive mother, "especially when she screamed," he told Macdonald.
"As abused children, they learned to disassociate themselves from their bodies," Macdonald says. "As adults, they disassociate themselves from their actions."
Debrah Snider lives in West Virginia, where she followed Luther after he left Colorado to get away from the pressure being applied by Scott Richardson. She wound up testifying against him at his rape trial there, saying Luther had admitted to her that he'd "done it again." She later testified against him at the Cher Elder and Heather Smith trials.
Debrah raises exotic animals, including wolves, in whose wild, predatory nature she found a parallel to her lover.
"Wolves are animals," she wrote Westword in December. "They have been studied for hundreds of years. The only time a wolf is dangerous is when one expects a wolf to not act like a wolf.
"If one understands a wolf and expects wolf behavior, there is little margin for error or accidents...I don't trust them to act like anything else; I treat them like wolves, and I maintain them in a controlled environment.
"I felt the same way about Tom. He was a wonderful man to me and for me precisely because I knew him. I knew what to expect of him, and I knew he was dangerous under some circumstances.
"Perhaps I was a bit naive regarding just how dangerous he could be, but it became clear to me in a very short time that he was someone who needed to be maintained in a controlled environment, just like wolves in captivity.
"But that's unethical and illegal with a human being until after he or she has hurt or killed someone. You don't trust wolves with small children, and you don't trust Tom Luther with women!"
A month later, Debrah wrote again, this time reflecting on the mixed feelings that always haunt her thoughts about Luther. In the summer of 1994, Debrah says she heard a voice telling her to take Luther to church. She had found strength and support in the Catholic church earlier, when she'd been imprisoned for theft; believing that Luther was on the prowl again, she asked him to attend with her. He agreed but later backed out. A short time later he raped the woman in West Virginia, which ultimately led to his downfall in Colorado as well.
"I feel if we had heeded God's warning that day and gone to church, everything would have been different," Debrah wrote. "There would be nothing that we could have done to have changed the things that had already happened, but I believe that God would have changed Tom, and Richardson would never have gotten his man.
"God would have helped the Elders and Heather Smith to heal in a different way, Bobby Jo would never have been assaulted here, and Tom and I would be happy in a relationship together.
"I know that's a fairy-tale ending, but something inspires people to believe in fairy-tales, and to write them, and there are a lot of people who live fairy-tale lives, who have done horrendous things that only they and God know about. But they asked for forgiveness and God forgave them and changed them.
"Many of us cannot understand God's forgiveness. We want it for ourselves, but we resent it sometimes when it happens to others...Sometimes I don't understand it myself, but I believe in it, and I try to practice it."
There are not many others willing to forgive Thomas Luther. Not on this side of life and death.
Cher's family and friends continue to mourn her death. "Christmas and birthdays are still the hardest," says Rhonda Edwards, Cher's mother. "That's when I cry. Or when I go through her things and think about all the plans she had for the future and realize there is no future."
It was Rhonda's husband, Van, who had known and loved Cher since she was a child, who erected the memorial outside Empire.
The greatest fear of Luther's victims--those who survived and the families of those who did not--is that somehow he will win an appeal and be let out on the streets again.
After the Jeffco verdict, lobbyist Marilyn Lang joined forces with Earl Elder and Rhonda Edwards to try to win support for overturning the unanimous verdict requirement.
They knew it would be difficult. Many in the legal system, including some prosecutors, believe that a unanimous verdict protects innocent people from going to prison. And even among those who want to change the law, there are differences. Some say the majority should rule--or, at least, a single juror shouldn't; others say that a judge should have more leeway in replacing a juror--not because he disagrees with the majority, but because he refuses to participate in the process.
State senator Dick Mutzebaugh promised that in the 1997 legislative session, he would at least issue a resolution calling for a study of the law and of states that have already dropped the unanimous-verdict rule, Lang says. "We kept hoping right up to the last minute," she adds, "but we ran out of time."
Now Mutzebaugh, who has indicated that he wants to run for attorney general, isn't willing to get involved with such a controversial topic, according to Lang. (Mutzebaugh did not return Westword's calls.)
Now Lang and Earl Elder are counting on Representative Russell George, who represents the area in which Cher's paternal grandmother, Mary Elder, lives. "It's been on my calendar," George says. "I spoke to Mary and affirmed that I would do what I can."
But there are more pressing issues at the legislature, he adds, and gathering support will be a long and arduous task.
Earl Elder isn't holding out much hope that the law will be changed. "Too many of those guys are up for re-election or looking for another position to want to take this on," he says.
Too many people have no idea what he's gone through--not that Earl would wish his experience on anyone else.
After Tom Luther was sentenced for his daughter's murder, Earl joined a support group for parents of murdered children. But he doesn't go to meetings much anymore. The others there dwell more on the past; he'd rather remember his daughter in peace.
"We were lucky," he says. "We had Scott Richardson. I was struck by how many people in the group had bad experiences with, and even blame, the cops and the system."
But Cher's killer is in jail. And Earl Elder wants to see that he says there. "I'm determined," he says, "that I will live at least long enough to make sure that Thomas Luther never leaves prison again, except in a box."
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