Second-Degree Burn (Part I)
The pen moved across the page as though guided by someone else's hand, leaving fragmented thoughts and raw emotions. Sometimes it seemed that writing was the only thing that kept her sane. Rhonda Edwards had filled several notebooks with such bits and pieces since her daughter, Cher Elder, had disappeared in March 1993.
Now, three years later, the man who killed Cher by pumping three bullets into the back of her head had just been found guilty of second-degree murder. Thomas Edward Luther, 38, was likely to spend the rest of his life in prison
Rhonda knew she should be happy that Luther had been convicted, at least feel some sense of relief. After all, nailing him for Cher's death had been no sure thing. That morning, when it became apparent the jury was deadlocked, she had feared the worstEthat man, that smirking, laughing monster who sat at the defense table like a choirboy, might not be held accountable for Cher's death at all.
"I feel anger, rage, and resentment. I have lost a piece of myself," Rhonda wrote as she sat in a friend's living room, waiting for the evening news. "I know I will never be the same as I was before her death, some sorrows leave deeper scars than others. A mother's loss of her child is a deep scarE"
Justice seemed hollow, as empty as the hole into which they'd lowered Cher's casket almost two years to the day after she'd been murdered. Executed, Rhonda thought, by a man who raped and attacked young women because they looked like his abusive mother. Pretty. Small. Dark hair to the shoulders.
"Cher didn't get a fair trial," Rhonda wrote. "Our justice system can be twisted, because of one person who cannot see that execution by three bullets to the back of the head is deliberate murder." One juror, a 65-year-old woman, had held out for second-degree murder even though her eleven colleagues believed Luther was guilty of murder in the first degree. Then Jefferson County District Judge Christopher Munch had invoked a little-used Colorado law by telling the eleven jurors it was their duty to compromise and find Luther guilty of the lesser charge.
After the verdict was announced, many of the jurors met with Cher's family, apologizing through their tears. Now there would be no death-penalty phase. No public hearing to air the real truth about Luther to counter the whitewashed version that had been presented in court.
No equal payment for what he had done to Cher.
Rhonda held together just long enough to get out of the courtroom. She hadn't wanted him to see her cry. Luther was smiling and hugging his attorneys like he'd won, actually talking about how he now could get back in shape in the prison weight room.
Her hand was moving again. "There is a vacuum that can never be filledEa terrible emptinessEto be able to talk to your child you have to go to a cemetery and visit a cold stoneEit is the most heartbreak a mother can have."
The trial that began January 16 in Judge Munch's courtroom was never going to be an easy one for prosecutors. For all the debate about the holdout juror, it could have been lost at several points along the way. There was no physical evidence putting the gun in Luther's hand; no one who'd seen him shoot Cher Elder. Two of the prosecution's three key witnesses were criminals and habitual liars who had worked out deals in exchange for their testimony; the third was Debrah Snider, Luther's former girlfriend turned reluctant betrayer, and no one knew for sure how she would react.
Defense lawyers Lauren Cleaver and Michael Enwall would certainly do their best to paint the prosecution witnesses in the worst possible light, while prosecutors Dennis Hall and Mark Minor would be prohibited from referring to Luther's criminal past.
The prosecution had been dealt a severe blow before the trial even began, when Munch ruled in December that evidence of Luther's history of "bad acts" and "prior similars"--chiefly the brutal rapes of two women in 1982 and 1994--should not be presented to the jurors. Hall and Minor would have to tiptoe around Luther's prior convictions, even though he'd been in a West Virginia jail serving time for the 1994 rape when a Jefferson County grand jury indicted him in March 1995 on two counts of first-degree murder for the killing of Cher Elder.
Even Luther's comments to other inmates that he would kill the next girl he sexually assaulted and then hide her body would have to be sanitized for the jury, removing any reference to prison and the fact that Luther had been found guilty of attacking other women.
Munch's ruling blew any chance the prosecution might have had of proving the second count of the indictment: that Luther had raped Cher, then killed her to cover up the crime. After two years in a shallow grave in the mountains, Cher's remains carried no physical evidence of rape. At trial there would be only Luther's own comments that he and Cher had engaged in consensual sex and that, after someone else killed her, he had buried her nude body. (In fact, Munch would dismiss this second count for lack of evidence after the prosecution's presentation at trial.)
That left the prosecution with the task of proving the first count: that Luther had killed Cher and that her murder had been premeditated. But after Munch's decision, the prosecutors could no longer present what they believed to be the truth about Thomas Luther's motive--that he is a serial killer who lures a woman into a false sense of security, then rapes and attempts to kill her. Both of Luther's rape convictions had been for particularly violent crimes; he's also a suspect in the murders of several other women.
It is not necessary to prove motive in order to obtain a murder conviction. "But it's only human to want to know why someone would do something like that," Hall says. With Luther's prior history inadmissible, the prosecution had only hypothetical explanations for why Cher might have been killed--because she was going to tell police about the criminal activities of her boyfriend, Byron Powers, or because she had gotten into some sort of an argument with Luther after accepting a ride with him to Central City.
Munch, a former prosecutor, wrestled with the issue long and hard before making his December ruling, according to a source at the Jefferson County court. Without question, the judge knew such a ruling would damage the prosecution's case.
But in the end Munch said he was not entirely persuaded by the prosecution's theory as to Luther's motive. Although the judge noted that the victims' appearances were "extraordinarily" similar, the horrific nature of the attacks could not help but unfairly prejudice Luther's right to be tried only for the crime of killing Cher Elder.
Hall had warned Cher's family that the judge might rule against the prosecution. But that did not make Munch's decision any easier to swallow.
"It was just another example of how the system puts a criminal's rights ahead of the rights of everybody else," says Cher's father, Earl Elder. "Jurors are supposed to be intelligent people. I think they needed to know that he has a history of violence that maybe directly related to what he did to Cher. If they didn't think it was important, they could have ignored it."
Adds Rhonda, "I couldn't understand why the system went to such lengths to protect repeat offenders. All those other girlsEbut nobody was going to let the jury know just how bad he really was."
Early Sunday morning, March 28, 1993, Rhonda Edwards sat upright in bed at her new home in Grand Junction. She had no idea what had awakened her in such a panic.
She looked at the clock--3:05 a.m.--and made a note of the time on the pad that lay on her nightstand. She and Van, her second husband, liked to compare notes about dreams; Rhonda also had an old habit of jotting down thoughts in case they ever proved to be important.
Sometimes they meant nothing. But often enough to make Rhonda a believer, there would be some problem with a family member. Or she'd learn that Van, a long-distance trucker, had been thinking about her at the same time she was thinking about him.
Something felt wrong. Rhonda lay awake, waiting for the telephone to ring.
The call didn't come for three days. Then her daughter's landlady in Golden phoned to say that Cher's boss at the Holiday Inn had called because Cher hadn't shown up at work for several days. And a counselor from Barnes Business College, where Cher was supposed to start attending classes that Monday, had called, too: Cher hadn't appeared at school, either.
Rhonda phoned Earl Elder, her first husband and Cher's father, who still lived in Golden. Rhonda and Earl had divorced when Cher was two; both had soon remarried and Cher had bounced back and forth between the two families--often at her own insistence. She was a happy kid, full of life, but she needed a lot of love. Rhonda sometimes thought Cher was so needy because of the insecurity of having two homes.
She'd last seen her daughter in January, when she and Van dropped Cher off in Golden on their way back from a trip to Illinois, where Van's children from his first marriage lived; the kids in both families had always been close. When Rhonda had last spoken to her daughter in mid-March, Cher had said nothing particularly noteworthy, made no mention of any new boyfriends. She'd just talked about her excitement over starting college.
Earl called Rhonda back that night. He'd talked with Cher's friends and then gone to the Lakewood Police Department to file a missing-persons report. As far as he could tell, Cher had last been seen in the Central City casino where her childhood friend, Karen Knott, was a cocktail waitress. Cher had been with a gray-haired man in his forties. Karen was worried about Cher, too. The two young women were constant companions, and if they didn't see each other every day, they were certain to talk on the telephone. But now Karen hadn't heard from Cher in four days.
Detective Scott Richardson of the Lakewood Police Department was assigned to the missing-persons case. At the end of April he told Cher's family that he believed she was dead. Richardson had caught Cher's boyfriend, Byron, in numerous lies, including denying that he knew the gray-haired man pictured with Cher on the casino's videotape. The man's name was Thomas Luther, Richardson told the family, and he had a history of attacking young women.
Still, Rhonda and Van refused to give up hope. Maybe Cher had just gotten fed up and gone somewhere to think things through. Her parents called all the friends she had made in different parts of the country--California, Missouri, Illinois. They made up posters, some of which Van tacked up in truck stops during his cross-country journeys.
They'd occasionally get calls, but the leads never panned out. As the weeks stretched into months, Rhonda would call Richardson to scream or yell or cry. She knew it wasn't his fault that the investigation seemed to crawl along. Sometimes she'd even call his office at 3 a.m., when she knew Richardson wasn't there. "I just wanted to hear his voice without bothering him," she says. "It was good to know he was out there."
Rhonda was riddled with guilt. Maybe she had raised Cher to be too trusting. "Did I contribute to her death?" she asked in her diary. "Was I too busy at work? Did I listen enough?" She wondered what would have happened if she had allowed Cher to marry her high-school boyfriend.
In September, Richardson called and said there might be a breakthrough. Byron Powers had been arrested for attempted murder; maybe now he could be persuaded to reveal what he knew about Cher's death. But it would be another year before Byron talked.
In the meantime, Rhonda was haunted by dreams. One frequent vision involved a gingerbread-style house, like those she'd seen in the mountain town of Idaho Springs. Other details were more difficult to recall, except for the vague feeling that the dreams had something to do with Cher. And when Rhonda woke in a cold sweat, the clock would almost always show 3:05 a.m.
There was nothing vague about the dream she had on the night of October 10, 1993. In the dream she--or was it Cher? she couldn't tell--was in a car traveling down a long, dark mountain road. Her head lay to one side, her eyes watching a full moon rise above the treeline. The car rolled to a stop at a creek. She was looking at the moon when suddenly she heard an excruciatingly loud bang and felt pressure on the left side of her head.
"Instantly, I close my eyes as the light grows bright and there is a sudden, heavy warmth that runs through my bodyEI shrink into nothing," she would write in her diary that night. But when she first woke from the dream, she lay in the dark afraid to move. The sound and the sensations had felt so real. "I wondered if He had come back to earth, and I was witnessing the end of the world," she remembers. "Or was I seeing death as Cher saw it?"
When Rhonda finally reached for her notepad, she checked the time. It was 3:05 in the morning.
Richardson was sure that Thomas Luther had killed Cher sometime after leaving Central City early on the morning of March 28, 1993. But Rhonda couldn't let her daughter go. For more than a year she and Van played detective, going over all the clues. Maybe if she kept her brain busy, she could keep her emotions and fears in check.
Van was getting worried about her. On holidays, once a cause for large celebrations, Rhonda hid in her room. She threw herself into her work with the city of Grand Junction as though burying herself in the everyday troubles of her fellow citizens could erase her own horror. But then she'd come home and cry for hours. Van would find her outside at night, looking up at the stars and asking plaintively, "Where are you? Where are you?"
Sometimes he would wake up and she would be gone from their bed. One night he found her sitting at the kitchen table, staring at a cup of coffee, smoking a cigarette, repeating over and over as she cried, "I just want to find my baby. I just want to find my baby."
She wrote in her diary, "I don't want Cher to lay in some shallow grave forever."
In the fall of 1994, Byron Powers was sent to prison for assault, having been sentenced to 24 years. Richardson called Rhonda to say that he was working with an FBI psychologist; he was going to wait sixty days, let Byron think about spending his youth in prison and then talk to him again before he got too comfortable with his new inmate friends. Richardson was sure Byron knew where Cher's body was and what had happened that night. They might have already worked out a deal if Byron's lawyers hadn't kept getting in the way.
At one point that fall, Cher's family was brought into the discussion of whether to bring Luther to trial without a body. The danger was that if Luther was acquitted and the body later found, Luther couldn't be retried.
The family also knew going to trial without a body meant the search would end and Cher might never be discovered. "We said don't do it unless you're sure," Earl Elder remembers.
Frustrated by the pace of the police investigation, Earl, a big man, had begged to be told Luther's whereabouts so that he could "question" the suspect himself. Richardson refused his request, and Earl's independent attempts to locate Luther were unsuccessful.
Like his former wife, Earl was on a wild emotional ride. He'd been in the process of divorcing his second wife when Cher disappeared; Debbie, like Van, had known Cher most of her life and was devastated by the loss. Earl suffered through days, even weeks, of severe depression when he didn't want to talk to anyone.
He alternated between raging around the house and weeping. When he saw a young mother with her children, he'd recall how Cher had wanted a big family and start crying.
Richardson told him that the police had found Cher's car in a grocery store parking lot three weeks after she disappeared, "I felt sick," he remembers. "That's when I knew for sure that we were not going to find her alive. Still, you keep hoping. You think, 'Maybe she took off for Mexico for a few weeks.' But that wasn't CherEshe would have told her family and friends."
The new year came and went, and it was coming close to the second anniversary of Cher's disappearance. Rhonda felt ready to crack. "How long do I have to wait?" she wrote in her diary on February 21, 1995.
Not long, as it turned out. On February 27, Rhonda was at work when the victim's assistance counselor from the police department came to see her. "They found Cher," the woman said gently. Rhonda nodded and gathered her coat for the drive to the Grand Junction police department, where she'd wait for Richardson's call.
She called Van at home.
"They found Cher," she said.
"Is she alive?" he asked.
Surprised by his words, she reacted with anger. "No, Van, of course not," she said, and immediately felt ashamed. Van had just asked what the rest of them had been keeping in the back of their minds.
"There had always been that tiny spark of hope," Rhonda recalls. "We thought we were prepared to hear this. But we weren't. I fell apart."
Richardson called again in early March with the news that a Jefferson County grand jury had indicted Thomas Luther on two counts of murder. As soon as he could get the paperwork finished, he'd be going to pick him up from jail in West Virginia, where Luther had recently been convicted of rape.
Rhonda was slowly learning the details of her daughter's death. Cher had been found near Empire, a small mountain town with a few Victorian buildings. She had been shot in the back left side of the head. Recalling her apocalyptic dream, Rhonda shuddered. She had felt fear before; now she was almost paranoid. When a car slowly drove by where she was walking, she shrank back until it passed.
She tried to calm herself by planning Cher's funeral, which was postponed several times because the autopsy was incomplete. Rhonda picked out a bronze casket, then a headstone. She sent Cher's high-school graduation gown to the coroner, as well as a favorite teddy bear. She filled out a funeral-home questionnaire that asked who she wanted as pallbearers. There was Van and his brother, and Cher's step-brother.
Suddenly, Scott Richardson's face popped into her mind. Over the past two years, he had become like family. He had spent thousands of hours gathering evidence to bring Cher's killer to justice, enough to fill eighteen three-inch notebooks and the detective had always made time to listen to her. Once he'd confided that he knew Cher so well it was like investigating the murder of one of his own children.
"You know my daughter better than I do," Rhonda had told him. "You're the brother I never had."
Now she wondered what he'd say if she asked him to do one more thing for Cher.
She called and asked. There was a pause on the other end of the line, and she feared she'd overstepped her bounds. Then Richardson, in that deep, Texas drawl of his, softened and said, "I was going to ask if you'd mind if I attendedEYou just made me very, very happy."
They laid Cher to rest in the Grand Junction cemetery on March 24, 1995. Rhonda knew her daughter would like the trees and the high red cliffs of the nearby Colorado National Monument. On the stone were words Van had suggested: "Until we meet again."
On day three of Thomas Luther's trial for the murder of Cher Elder, Byron Powers took the stand.
The courtroom had filled quickly each morning. Cher's family sat behind the prosecution table; most reporters sat behind the defense. The rest of the room was filled with detectives from other jurisdictions interested in Luther, court personnel and curious onlookers, including two women who brought their children nearly every day for a civics lesson, part of their home schooling.
Pains had been taken to ensure that the fifteen members of the jury--six men and nine women, including three alternates--would not know Luther was incarcerated in the Jefferson County jail. He was allowed to change from the orange jail jumpsuit into civilian clothes: casual shirt over his broad shoulders, blue jeans and cowboy boots. And he was always brought into the courtroom before the jurors arrived, his handcuffs removed before they could see them.
Everyone else in the courtroom knew that Luther was already a prisoner serving 15 to 35 years for the rape of a West Virginia woman. Once, when Luther draped his arm around the back of defense lawyer Cleaver's chair, a female spectator gasped. "How can she stand to sit so close?" she asked.
Luther rarely glanced at the people behind him in the courtroom. He usually looked at the witness on the stand ten feet straight ahead and occasionally scribbled notes on a pad on the table in front of him. The defense lawyers frequently engaged their client in amiable conversation, and Luther would smile and laugh.
In contrast, the prosecutors often looked tired, even though things had gone fairly well for them up to this point. Karen Knott had testified that she'd seen her friend Cher with Luther in Central City. She denied that the pair had been drunk when they left or that Cher had driven Luther's car--as he'd told Detective Richardson nearly three years before. Cher wasn't the sort of girl to have casual sex with a man nearly twice her age, Karen said, again contradicting Luther's claims. She held up well under cross-examination, then left the courtroom and burst into tears.
Enwall, a former Boulder County judge who handled nearly all of the defense questioning at the trial, had made it clear in his opening remarks that the defense strategy would be to implicate Byron Powers and Dennis Healey, a drug-dealing friend of Luther's, as Cher's killers. But he'd gained no real ground with Healey, who testified that Luther had called him early March 28, 1993, to say he had "fucked up and killed a broad." After that, Healey said, he'd acted as a lookout when Luther went to bury Cher.
Justin Eerebout, one of Byron's step-brothers, had taken the stand and testified that he'd given Luther a stolen .22-caliber handgun--the sort that had been used to kill Cher Elder, a ballistics expert would testify.
Twenty-three-year-old Byron Powers was called to the stand to explain how he'd overheard Luther talking about a body that needed burying. Luther had threatened to kill Byron's family if any of them talked, Byron said, and also told him that he had cut Byron's ring off Cher's finger and would use it to frame Byron if it became necessary.
But then prosecutor Hall asked how Byron's family had gotten to know Luther--and Byron let it slip that his stepfather had gotten out of prison shortly before Luther, his cellmate.
The jury now knew what Munch had forbidden that they hear: Thomas Luther was a convicted criminal who'd served time.
The jurors noticed the slip. "I heard that and said to myself, 'Whoops, I don't think we were supposed to hear that,'" recalls one juror who asked to remain anonymous. "But we didn't know what it was forEit could have been drunk driving or it could have been murder. So I just put it out of my mind, and from what I could tell, so did everyone else."
But Enwall immediately asked for a mistrial, and Munch said he'd consider his request overnight. The jury was sent home.
A shaken Hall slumped into his seat. "I'd told him a million times not to talk about it," he now says. "I don't think it was intentional. You have to remember that these kids had known Luther for more than ten years because he was their father's cellmate in prison."
Richardson, who sat at the prosecution table throughout the trial unless he was testifying, tried to console Cher's distraught family members. If there was a mistrial, he said, they'd come back in a few months "with an even stronger case."
The next morning, Munch denied the motion for a mistrial. But he also instructed the jury to ignore the slip-up. While it was human nature to assume that because a person had been convicted of a crime he was likely to commit another, the judge said, that assumption was unreliable and "often wrong." Therefore, it was the jurors' duty to ignore the reference to Luther's prior incarceration.
Byron then returned to the stand, where Enwall attacked his changing stories, painting a picture of a liar with much to lose if Luther was acquitted. And then he accused Byron of killing Cher himself.
Without missing a beat, without raising his voice, Byron Powers looked him in the eye. "I did not kill Cher Elder," he responded. "Thomas Luther killed Cher Elder."
"Enwall was pushing and pushing," a juror remembers. "But Byron just sat there and said, 'I did not.' I believed him."
Although Cher's family also believed Byron hadn't killed Cher, they considered him guilty of at least accessory--after all, he'd concealed what he knew of her death for two years. But the deal with Byron was the sacrifice that got Cher's body back--and Thomas Luther brought to justice.
Earl Elder understood the reasoning, but it still galled him. "Byron Powers gives me a headache," he said outside the courtroom after Byron's testimony.
Particularly irritating was Byron's response when Hall asked why he'd followed Luther to the grave. "This may sound stupid," Byron testified, "but I wanted to find out where she was buried so that I could slip a note under the Elders' door so they could have their daughter's body back."
"What a crock," Earl says. "It was hard to sit and listen to thatEif he was so concerned, what took him two years to lead us to the grave? I wanted to stand up and yell, 'Cut the bullshit and just tell the truth. We all know that's a lie.'"
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