If Colorado experiences an increase in the number of prisoners on death row, the condemned may have convicted killer Thomas Luther and a recalcitrant juror to thank.
Eleven of the jurors who in February convicted Luther for the 1983 murder of Cher Elder stood together this past Friday, many of them in tears, in a Jefferson County courtroom to say that justice had not been served. But this time they planned to do something about it, by working with Elder's family and state legislators to change the law that saved Luther from the death penalty.
The eleven jurors had wanted to find Luther, a twice-convicted rapist, guilty of first-degree murder. But the twelfth juror held out for second-degree murder. (Jurors say the 65-year-old woman read a book for two days rather than join in deliberation of the evidence.) Colorado law demands a unanimous verdict, and District Court Judge Christopher Munch told the majority that, given the holdout, it was their duty to give in and convict Luther of the lesser crime.
"We know that this is a legal verdict, but it is not a just verdict," one juror read from a prepared statement at Luther's sentencing Friday as the others stood behind her. "We are all so strongly united as a jury in this opinion that we are now in direct contact with our senators and legislators, who are also concerned, to change the existing laws to allow for a conviction based on a majority vote."
Legislators are trying to decide whether the law can be changed through a bill or whether it will require a constitutional referendum by voters. Currently, a half dozen states do not require unanimous verdicts in capital cases.
"Maybe if we can get the law changed, Cher's death will not have been in vain," Elder's mother, Rhonda Edwards, said shortly after the verdict. But last Friday, she and other family members, along with one of Luther's past victims, left it to the jurors to announce the effort to change the law, while they described with choked voices the effect of her death on them.
Mary, whose real name is not being used here, spoke after the jurors. In 1982 Luther raped her with the handle of a hammer and beat her so severely that he broke her neck. Before Luther's trial for Elder's death, Munch ruled that his past attacks on other women could not be brought into evidence.
"Fourteen years ago," Mary told a rapt audience, "Luther, a man charged with attempted murder, rape and kidnapping, pleaded not guilty by reason of insanity, was found sane, and then changed his plea to not guilty. His defense lawyer prevented me from telling my story, to avoid undue emotional influence on a jury, and then trivialized both the events and their effects in a court of law. The district attorney and a defense lawyer, in guise of protecting me, plea-bargained the case without ever asking my opinion.
"A system of justice that protects the accused at the expense of present and future victims, that hides the truth to avoid emotion, that plea-bargains and paroles to clear the prisons, must share responsibility for Cher Elder's death."
Luther stared at the table or straight ahead as the testimony continued. Cher's eighteen-year-old sister, Beth, said, "I have never seen a person touch as many lives as Cher didEnot until I met Tom Luther. But when he touches anything, it shatters."
The victim's father, Earl Elder, pointed out that "Cher was not the first woman that Thomas Luther brutalized, just the first that he has been convicted of murdering. My feeling is and always will be that Thomas Luther should now reside on death rowEWe, Cher's family, are faced with a lifetime of grieving, sorrow and heartache. We have all been given a life sentence because Thomas Luther decided to execute Cher."
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Earl Elder, like those who spoke before him, asked that Munch sentence Luther to the maximum of 48 years to run consecutively with a 15- to 35-year sentence he received in 1985 for the rape of a woman in West Virginia.
Luther, reading from a statement, blamed the police and district attorney for ignoring any evidence that didn't point to him as the perpetrator. He blamed the sons of a former prison cellmate for killing Elder.
Luther, who faces another trial in Denver starting May 6 for the attempted murder of Heather Smith, ended his comments by saying, "I hope to see you all in heaven." That drew derision and tears from Cher's family and friends.
"I don't think we have to worry about that," said one.
Saying Luther showed little remorse and had not even attempted to help the family find Cher's body--which he had buried in a shallow grave--for two years, Munch sentenced Luther to 48 years, to begin after he serves the West Virginia sentence.