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Second-Degree Burn (Part II)

After Byron Powers's slip, the court wasn't going to chance Debrah Snider making the same mistake when the prosecution called her to the stand.

Debrah had met Luther in 1990 when she was a nurse working at the state hospital in Pueblo and he was a prison inmate. She'd worked to get him released early from prison even after she realized he was serving time for the brutal 1982 rape of a Summit County woman.

Luther got out early in 1993 and went to live near Debrah and her family. A few months later he told Debrah that Cher Elder had been killed and that he had buried the body. Because he'd been seen with Cher in Central City, he said, he would be a suspect in her disappearance.

Now the prosecution needed Debrah to pull the puzzle pieces together. But although Debrah had testified against Luther the year before at his West Virginia rape trial, she was a risk. Emotionally fragile, she would be testifying against a man she still professed to love, and she was angry that the judge's ruling prevented her from telling the whole truth.

A series of mishaps marked the start of the Friday she was to testify. Debrah had been left at her motel without transport, and when she finally got to the courthouse, the security guards gave her such a hassle that she blew up and had to be escorted from the building. Informed of the altercation, Munch asked the lawyers if they wanted to have Debrah come in without the jury pres-ent so that she could be reminded not to mention Luther's past.

Defense attorney Cleaver nodded. "We happen to believe this next witness is... bizarre," she told the judge. "And she's been told that we intend to portray her as a 'vindictive bitch.'"

Munch sent for Debrah, who marched up to the bench and tore into him. "If I'm not respectedEwell, I don't mind going to jail," she told the stunned judge.

Perplexed, Munch looked at the lawyers. "I've never had a witness to whom I was just going to explain the rules tell me I was going to have to put her in jail for contempt," he said.

As Debrah remembers it, "I was just saying to the judge, 'Look, you son of a bitch, you're forcing me to lie, but I don't have to like it. If you won't see that my rights are respected, you can toss me in jail now because I'm going to tell the truth.'"

Instead, Munch gave Debrah the weekend to cool down, a move that may well have saved the prosecution's case.

That, and a gamble by Richardson.
The detective knew the trial could hang on Debrah holding together in front of the jury. If she acted unstable, it would make her that much less credible.

"I talked to her Friday evening," he remembers. "I said, 'We've worked together for three years and all along you've told me you wanted to do the right thing. Now, I'm tired. If you want Thomas Luther to walk away a free man--and honestly, you're going to have to reach down into your heart and make the decision yourself--then don't show up in court on Monday.'

"It was a huge gamble," he says. "It gave her an out. Without her, I didn't expect we'd win the case...but I wasn't sure she was going to show up until I saw her Monday morning."

Debrah says there was no doubt she would be there. "I owed it to everybody," she says. "This wasn't about Tom and me. This was about the Elder family. This was about Richardson...he cared so much about that family, about right and wrong."

Debrah Snider walked into the courtroom Monday morning wearing a Western-style dress with fringes and a large silver buckle, a white feather tied into her long gray-brown hair. She'd bought the dress to wear for Luther when he was still in prison; her husband had told her it looked like a bathrobe, but Luther had liked it.

"I wore it because I wanted him to know that I still cared for him and supported him," she says now, "but like I once told him, I wouldn't lie for him."

Debrah remained calm through her testimony. In his closing statement, Enwall called her the prosecution's only credible witness.

Richardson took Debrah out to dinner the night before she returned to West Virginia. "I feel sorry for Debrah," he says. "Thomas Luther manipulated her for all those yearsEshe lost all those years of her life. Imagine dealing with that kind of stress for three years. Now here she was about to testify against the man she loved, a man she considered her common-law husbandE what she said might send him to death row.

 

"She'd made up her mind to do the right thing, and then she was told that she couldn't tell the truth about Thomas Luther."

When he was assigned to Cher Elder's case, Detective Scott Richardson thought it would be routine. In most cases, so-called missing persons were back home by the time police officers started their investigations.

But Richardson soon realized that Cher was more than missing. During the first few days of questioning, Cher's boyfriend, Byron, lied several times--including when he was asked if he knew the man in the video with Cher.

Why lie about a missing person's case? Richardson wondered. He'd seen a preliminary report about a rape Luther had committed in Summit County; on his way to Fort Collins to interview Luther, Richardson told his partner, "If he raped her and then killed her, the first words out of his mouth will be they had 'consensual sex.'"

Those weren't his first words, but they came close. Luther told Richardson he and Cher had stopped on Lookout Mountain on the way back from Central City. There, he said, they'd engaged in a "quick little intercourse thing."

They had laid the driver's seat back, Luther said, pointing out a stain on the backseat of his car where Cher had thrown up. Although Luther's story was meant to describe a jealous girlfriend who'd had too much to drink and had sex with another man to get even, Richardson was thinking that vomiting was also a symptom of a severe head injury. (Further examination showed that with the seat laid back, Cher's vomit could not have reached that spotE which indicated that she was in the back of Luther's car when she threw up.)

Richardson played cat-and-mouse with Luther. The detective had gotten Byron to call Luther by saying he was going to give the videotape to the television stations. Now he started using Debrah Snider, whom he figured would serve as a two-way street passing information between him and Luther.

An FBI profile suggested Luther could be tricked into returning to Cher's grave, so Richardson suggested to Snider that coyotes would dig up a body if it wasn't buried deep enough. Snider mentioned that to Luther, who indeed went off to rebury Cher.

Bit by bit the pieces were falling into place. Each piece was a small, seemingly insignificant thing, but he knew that the small things could add up to a conviction. For example, Cher's car was discovered only five blocks from Byron's apartment, which suggested it was dropped off by someone operating alone. "Otherwise, why not drop it off miles away?" Richardson asks. "Sometimes it's a good thing these guys are lazy as well as stupid."

If the situation was hard on Cher's family, Richardson was going through his own emotional wringer. "Some of these police officers will tell you that a homicide doesn't bother them," he says. "I don't believe it. It's got to bother you or you're not human.

"And Cher was the purest victim I have ever met. She was just looking for love and, unfortunately, thought she found it with Byron."

Enwall's closing arguments centered on the prosecution's witnesses changing stories and telling outright lies. Detective Richardson had blinders on, he said. He had them on for the noblest of reasons--to find Cher's body--but they were blinders nonetheless, Enwall argued.

Byron Powers and Dennis Healey were the real killers, he said. Convict Tom Luther and "you will have convicted the wrong man."

Then Enwall threw the jurors a bone. If Luther didn't look entirely clean himself--after all, he'd buried the body--the jurors should convict his client of accessory to murder.

It was a clever move: A juror could have doubts about the murder charge and still put Luther in prison.

Snitches are considered to be the lowest form of life in prison, and Luther was being "stupidEand macho" because he didn't want to rat on the real killers, Enwall explained. "That's the only reason he's sitting in this courtroom."

Enwall's explanation broke the old Perry Mason rule: You don't put someone else in the defendant's seat unless you can prove he's the real culprit. Instead of alluding to some anonymous killer, though, Enwall chose to pick on Powers, who had an alibi, and Healey, who just didn't seem the type to be a murderer and whose own .22 handgun was the wrong sort of gun. And instead of saying that Luther didn't want to rat on some anonymous friend, Enwall was saying that Luther didn't want to rat on two guys who were ratting on him.

Hall saw that weakness in the defense's argument and ran with it. Would Thomas Luther really be willing to face the death penalty rather than be seen as a rat? the prosecutor asked.

 

Several jurors nodded. "I had been thinking that all along," says one. "There was all this stuff about Tom not wanting to rat, but I was thinking, 'Hey, why wouldn't you rat on these guys who were ratting on you if you could?'"

The jury got the case at 11:30 a.m. Wednesday, January 31. At first the jurors were evenly split, but by late Thursday afternoon eleven were ready to vote for first-degree murder, which requires a unanimous verdict.

They had decided premeditation not so much on what witnesses said as on the forensic evidence. All three bullets had entered Cher's skull in close proximity, indicating that Cher was unconscious or unable to move when she was killed. That meant she wasn't fleeing or even struggling.

"She was executed," says a juror. "And that took premeditation."
But one woman didn't agree and stuck with second degree. "She said she thought he acted knowingly but not deliberately," remembers another juror. "We tried to get her to explain what she meant, but she wouldn't and then she just stopped talking."

The deliberations went into Friday. Cher's family was growing frantic. Richardson and the prosecutors tried to assure them that the delay indicated the jurors were being careful and reviewing all the evidence. But privately they had misgivings.

"I was starting to worry," Richardson admits. "They could have come back with accessory to murder."

"There were a lot of small pieces the jury was going to have to put together," Hall agrees. "I thought we had put together a pretty convincing case for first-degree murder. But they could have gone for accessory."

All day Friday, the eleven jurors kept after the one holdout. "She turned her back and said she wouldn't discuss it anymore," says one juror. "She even threatened that if we didn't leave her alone, she was going to vote for accessory. If she had just been willing to explain herself, I could have respected that. But we felt she was refusing to follow the rules."

When the juror said she needed time to think, the jury voted to go home for the weekend. But on Monday the holdout returned with a brand-new romance novel in hand and announced that she wasn't going to budge. Then she turned her back on the rest of the jurors and opened her book.

The other jurors sent a note to the judge that they were hopelessly deadlocked. Munch tried to move the proceedings along by sending the jurors an instruction that they legally were not allowed to refuse to deliberate. But they were at an impasse.

Finally, the judge called the jurors in and told them that if they were truly deadlocked it was their duty to find Luther guilty of the lesser charge.

While they were back in the jury room considering the alternative, Munch brought up another sticky issue. Usually lawyers ask that the jurors be polled after rendering a verdict. But in this case, if the judge asked eleven of them if the second-degree verdict was their true opinion, they'd have to lie or say no, which had the potential to cause a host of legal complications. The lawyers got the hint and said they wouldn't ask for the jurors to be polled.

Less than a half-hour later, the jurors--eleven of them reluctantly, and some in tears--returned to announce their verdict. Thomas Luther was guilty of second-degree murder.

The holdout juror was the first to leave the jury room--although no one but her fellow jurors knew that she'd been the holdout. Others also swept by, their faces set and angry. But many jurors remained behind, talking to the family and the media.

"We're very sorry," juror Chris Peiffer said, wiping away tears when she saw Richardson standing outside the room where Cher's friends and family had gathered.

Earl Elder came out to face the forest of cameras and microphones. The holdout juror was a coward who shirked her duty, he said.

When a television reporter asked if having Luther off the streets forever wasn't enough, Earl responded angrily. "Was it enough for my daughter?" he shot back. "She's dead. He's not. He's still living and breathing. That's not right...The system is screwed up. We give too many rights to criminals and don't think about the victims enough."

"We'd have rather had a mistrial," added Cher's eighteen-year-old half-sister, Beth, her face and eyes red from crying. "Another jury would have convicted him of first-degree murder."

The subject of the holdout juror would be the rage of the media for several days. Jurors were invited onto talk shows, where they said if the truth about Luther's past had been known--they'd learned of it only after returning to their normal lives--even the holdout would have come around. The holdout refused all interview requests.

 

Among those who did talk were two victims of Thomas Luther's: Mary, the woman he raped in Summit County in 1982, and Heather Smith, who has identified Luther as the man who stabbed her five times in Denver in April 1993, two weeks after Cher Elder disappeared. While the jury was out, Heather had worried herself sick. "I saw him getting out of prison in fifteen years," she says. "I was afraid."

Mary had hoped to testify against Luther during the death-penalty phase of the trial. "I wanted to be there for all victims to say, 'You can go on. You don't have to let men like this ruin your lives,'" Mary says. "I wanted to look him in the face and let him know that he didn't win." She'd spent fourteen years putting her life back together after that night of torture at Luther's hands. In 1982, without her consent, he'd been allowed to plead guilty to a lesser-degree sexual-assault charge because he had raped her with a hammer instead of his body. A year later, Mary testified before the state legislature, which subsequently voted to change the law: Rape was rape.

Earl Elder and Rhonda Edwards have launched their own campaign to get a late bill introduced at the legislature, one that would change the law requiring a unanimous jury verdict for a first-degree murder conviction.

"When it comes to deciding the death penalty, then yes, I think it should be unanimous," Earl says. "But last time I looked, we were a democracy where the majority still rules. Eleven said he was guilty of first-degree murder, but they had to give in to the one...Where's the justice in that?

"It's affected all of our lives," he says of Cher's death. "I can't tell you how Jacob [her half-brother] feels, he won't discuss it...Beth was cheated out of her childhood. At a time when ideally the worst thing she should have had to worry about was who was going to take her to the prom, she was wondering if her sister would ever be found."

After the trial, Rhonda returned to Cher's grave and said she was sorry. She feels that somehow she let her daughter down. "But maybe if we can get the law changed," she says, "her death will have meant something. Now, I've got to find a way to go on."

In her diary, Rhonda wrote, "I see his face and I see Satan...I see miracle stories everyday on TV...I wish my daughter had had a miracle."

Debrah Snider arrived back in West Virginia to find her cabin ransacked. Lamps and photographs had been knocked from a table in the living room. In the kitchen, a radio and toaster were on the floor.

Retribution, she thought, for what I did in Colorado. But by whom? Luther's family was in denial about his guilt, and his sister and brother-in-law lived in the area...did they consider her a traitor? Or could it have been one of Luther's friends? Were they still around?

It turned out the vandal was a squirrel. But Debrah knew she would never get over her fear.

She also knew she would never get over her love for Tom Luther.
"I'm glad he didn't get the death penalty," she says. "That would have been too hard. Remember, Jesus took the murderer with him to heaven, not the thief, because he asked for forgiveness. I hope Tom will someday ask for forgiveness. I'm still angry at him for what he did to those girls. And I'm sorry...but I still love him."

In his office, Richardson looks at a photograph of Cher taken when she was three years old. Rhonda sent it to him in 1993 with the notation, "All I want for Christmas is to find her."

It bothers him to have come so close to putting his enemy away forever. He has his own doubts about the death penalty, he says, but if there was ever a person who deserved it, Luther fit the bill.

Now he is someone else's problem. On April 5, Luther will be sentenced for Cher's murder--and could receive up to 48 years. In May, he will go on trial for the assault of Heather Smith. Luther is also a suspect in the unsolved 1982 murders of two young Summit County women, and police agencies in several other parts of the country where Luther is known to have lived are investigating whether he is linked to murders or missing women there.

 

Richardson's frustrations with the lone holdout juror are tempered by the realization that the verdict could have gone much worse. "It really is pretty incredible that we were able to get second-degree murder without any physical evidence or witnesses to the murder," he concedes.

"Dennis Hall did an amazing job of putting all the pieces together so the jury could understand...I'd go to trial against the Devil with Dennis Hall."

Richardson pauses to think about what he just said, then laughs. "I guess we just did."

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