On February 19, 2008 defendant Philip Arthur Thompson heard opening statements while sitting quietly at the defense table as he stood trial for the 1971 murder of Betty Marie Cloer. Thirty-seven years ago Thompson would have been twenty-nine years old and Betty Cloer was just months short of her twenty-second birthday.
The defendant has been in jail on this charge since October 2003. Following Thompson’s arrest it took over four years to bring the case to trial.
Prosecutor Trish Kelliher and defense attorney Dain Weiner had labored over composing the jury questionnaire during the week of February 11, 2008. The jury was selected between the February 19th and February 21st. Finally a jury equally composed of men and women who appeared to range in age from 30 to 65 years of age were seated in Judge James Wagoner’s courtroom on the second floor of the historic courthouse in Placerville, California.
February 27th was an eventful day of opening statements and testimony from the prosecution’s first witness Karen Chapell Hulce. Ms. Hulce’s testimony was interrupted just before the noon break when prosecutor Trish Kelliher caused a subpoena to be served on this reporter as I entered the courtroom. Following a hearing after lunch Judge Wagoner allowed my presence in the courtroom of the duration of the trial provided I follow proper courtroom decorum and not interact in any way with the witnesses.
The next day on February 28, 2008, Deputy District Attorney Trish Kelliher called William A. Duncan, former El Dorado County Lieutenant Sheriff and Chief Deputy Coroner to the stand. He had worked for the El Dorado Sheriff’s Department from 1961 to 1972. Mr. Duncan is now in his seventies. He is about 6’3” tall, dressed casually in blue jeans and a nice shirt. He is dignified and, like the defendant, he has aged in the 37 years since the crime was committed. He now has a full head of hair that has turned gray and a gray mustache and beard. When he speaks he projects his answers with a deep bass voice and he is polite to both the prosecutor and the defense attorney.
Dr.Jones, the pathologist in the case had testified at the preliminary hearing. However, his doctors advised the court that he could not attend the trial due to ill health. So, while Dr. Jones’ testimony might be read in later, in his place the prosecution has chosen former Sheriff’s Lt. William A. Duncan, the Chief Deputy Coroner at the time of the murder to testify now. This is the crime scene diagram drawn by Chief Assistant Coroner Lt. William A. Duncan, upon which his testimony and the crime scene investigation is based. Click.
The prosecution’s scenario of the Cloer case is that Phillip Arthur Thompson is the man who first met Ms. Cloer on June 19, 2007. The two allegedly met by accident at a Texaco gas station when Karen Chapell (now Hulce) was driving Betty Cloer home and stopped to use the gas station’s rest room. This important first witness had provided the transportation for her friend Betty Cloer to and from Fromas, the Sacramento bar they visited that evening. The prosecution and Ms. Chappell/Hulce both state that the man the two women encountered briefly at the gas station followed them to Ms. Cloer’s apartment. Once they arrived at Cloer’s apartment complex Betty left her friend’s car and walked back toward the stranger’s car while her driver continued on to her home. It was the last time Ms. Chappell/Hulce saw Cloer alive.
Prosecutor Kelliher then believes that Cloer went to the area of Cloer’s apartment where several people heard and/or saw the stranger. Cloer borrowed some clothes, arranged for the overnight care of her young son and said that she was going to accompany the man to Lake Tahoe. The two left shortly after 1:00 a.m.
The prosecution asserts that on the way to Tahoe, the man turned off Route 50 onto Cambridge Road and engaged in some type of sex act with Ms. Cloer. She jumped out of his car. He chased her and then shot her three times and bludgeoned her head in a grassy area off the road.
An All Points Bulletin (APB) issued by the El Dorado Sheriff on June 19, 1971,stated that Ms. Cloer was 5’7 inches tall, 155 pounds, blonde, DOB 12/19/49. The APB states that the suspect is a white male, 5’11 inches, 165 to 170 lbs., dark brown or black hair full head of hair, but not long hair. Age is approximately 19-21 years.” Was this the man Karen Chappell Hulse identified as the man she and Ms. Cloer first saw at the Texaco station and who then followed Ms. Cloer back to her apartment that night?
Another possibility for the Texaco stranger is a man known only by the first name of “Richard” who had danced with Betty Cloer that night at the bar. The two had talked and Betty had introduced him to Karen Chappell Hulse. Richard was described as about 5’9 ‘ or 5’10 inches and with a slight frame.
Yet another man with a slight frame was Stanley G. Ellis who is 5’9” and thin. Ellis stated in one report that he saw Ms. Cloer leave her apartment with Thompson that night, even though no one else saw Ellis at the apartment complex that evening. Ellis admitted being friendly with Ms. Cloer prior to her death.
Each of these men should have been investigated as a possible suspect or perhaps one could have been the stranger the women saw at the Texaco Station.
The only certainty is that when defense attorney Dain Weiner asked Philip Arthur Thompson to stand up next to him and then asked witness Hulce if this was the man she saw at the gas station, she said it was not Thompson.
Details of the prosecution's crime scenario are set forth in The Prosecution’s Response In Opposition to its 1101(b) motion, Supplemental, dated February 2, 2007 by Deputy DA Trish Kelliher:
While no evidence of trauma to the pelvic area was found by the pathologist, sexual assault examiners agree, and routinely testify to the fact that forcible sex acts can occur without any physical findings. Therefore, the lack of physical findings does not negate non-consensual intercourse. It should be noted that in the instant case, the pathologist’s observation were made strictly with the naked eye. No magnifying instrument (such as a colposcope) was employed.
Further, the clear evidence of violence at the scene renders a reasonable inference that the sex act was non-consensual. There is evidence of a struggle by virtue of the locations of the victim’s body and her clothing. Clearly the victim moved away from the roadway, got to a point where her scarf, wig and blouse were removed. [Footnote: The scarf was still tied and had some blood, cuts and tears. The blouse had tears or cuts and blood around the collar. There were tears in the front portion of the blouse and a few blood spots on the lower portion of the blouse. The wig had no blood on it.] The victim then moved back toward the roadway. She was eventually found there with bullet holes in her head, breast and right forearm and a crushed head. This evidence would suggest that the victim was attempting to flee her assailant, was caught in the area where her wig, scarf and blouse were found, ran back toward the road and was felled by bullets.
In fact, the evidence is inconsistent with anything other than a non-consensual sex act. If the act was consensual, why would the struggle and violence as depicted by the crime scene have taken place?
However, even assuming, arguendo, that no non-consensual sex act took place, the evidence is still relevant and admissible pursuant to Evidence Code Section 1101(b). The evidence still shows that the defendant took Ms. Cloer to the ultimate location and performed a sex act. Moreover, the evidence shows the defendant took Ms. Cloer to the ultimate destination and committed acts of physical violence upon her. Whether or not we can conclusively prove that the sex which took place was consensual or not is not fatal to the analysis and should be given that the circumstantial evidence suggest it as not.
Furthermore, the Prosecution’s Response, which contains a diagram prepared by Detective Daniel E. Patton and referred to extensively by Chief Assistant Coroner William Duncan, states in regard to the items depicted on the diagram (Click.) that:
The victim’s pants and jacket were located approximately 5 yards off the roadway. Det. Patton, who was one of the crime scene investigators, noted that the pants and jacket appeared to have been thrown from the roadway to their locations. The victim’s panties and shoes were found at about the same distance off the roadway but south of pants and jacket. Det. Patton noted that those items, also, appeared to have been tossed from the same location, however, the lighter weight panties did not carry as far as the shoes.
The victim’s body was found approximately 30 yards from the road, and her scarf, blouse and wig were located approximately 15 yards from the body, further away from the road (approximately 45 yards from the roadway.) An expended cartridge was found in the road itself. One expended and one loaded cartridge were found near the victim’s body.
The sequence of events the prosecution intends to prove beyond a reasonable doubt by circumstantial evidence, based on the preceding document filed with the Third District Court of Appeal and on Ms. Kelliher’s opening statement are, in this reporter's opinion, as follows:
First, the perpetrator pulled his vehicle up to a location on Cambridge Road. According to Detective Burt Trask’s testimony on February 28, 2008, an empty expended .32 caliber shell casing was found in the roadway, just off the shoulder in short weeds and grass, 15 feet from the center of the road. There were tire tracks near the shell casing. The reasonable inference is that a shot probably went off at this location. However there is no blood on the roadway to show that the victim was shot there at close range. The victim could have been shot long range from this position, but the rest of the prosecution’s scenario makes that seem unlikely.
The victim’s red sweat pants and brown plastic jacket were located approximately 5 yards off the roadway toward the location of the expended cartridge. The victim’s yellow panties were found some distance south of the pants and jacket, about 5 yards off the roadway. Her shoes were found some distance further south near the panties, also about 5 yards off the roadway. The prosecution alleges that the pants, jacket, shoes and panties were tossed from the same location about 5 yards off the roadway. However they landed at different places. The panties and shoes found some distance from the pants and jacket. Obviously, a woman’s sweat pants must be removed before her panties can be removed.
There was also a trail of depressed wild grass, which was 2 to 3 feet high, but pressed down. The trail supposedly ran from the roadway to some location near where the body was found.
Ms. Cloer, with her panties, shoes, sweat pants and jacket having been left at two locations near the roadway, somehow got out of the car and moved to the location where her scarf, blouse and wig were found, 45 yards from the roadway. Apparently the blouse has no bullet hole in it which corresponds to a bullet hole found in the left side of the bra which matches the bullet wound to the left breast just below the nipple. Apparently, the sleeve of the blouse does not have a bullet hole to correspond to the bullet hole in the victim’s right forearm. Apparently, the wig does not have a bullet hole in it that corresponds to a bullet hole in the victim’s head behind the left ear. Therefore, it would be logical that these items were removed before the victim received these three bullet wounds. However these items did have blood stains on them. A possible source of this blood is a scrape wound on the victim’s left ring finger. The pathologist found no other serious wounds besides the three bullet holes and the scrape wound to the left ring finger.
Next the prosecution contends that the victim, having left behind her blouse, wig and scarf, moved 15 yards back toward the roadway, where she was found dead. Her body was flat on her back, with her legs spread slightly, and her left arm out perpendicular. Her right arm was bent at the elbow with the forearm and hand pointing upward. The location of the body was 30 yards from the roadway. She was found dead with three bullet wounds and her head bashed in with a blunt object.
The questions are 1) who is the suspect? 2) what, where, when and why did this crime occur? [and] 3) who was the victim? These are the five “Ws” a reporter tries to answer.
However, during the trial, Det. Duncan testified that, contrary to his diagram, the distance from the road to the body was 40 feet east of the roadway.
The duties of the Sheriff/Coroner are to ascertain the cause of death and the manner of death. Manner of death is determined by the circumstances by which the cause arose. Doing so requires meticulous attention to the evidence at the scene of the crime.
As stated by former Los Angeles Deputy District Attorney Marcia Clark in her book Without a Doubt about the O.J. Simpson case:
I mean the assignment of a criminalist, the technician from the police crime lab who bags and tags the evidence at a crime scene. A prosecutor’s fortunes at trial rise and fall on the strength of the criminalist’s work. If evidence is overlooked, mishandled, or destroyed, you can never recoup your loss. A great criminalist is both paranoid and anal-retentive. He’s suspicious of a pebble if it looks out of place. He seizes more rather than less. He makes sure everything is meticulously packaged, precisely labeled. He goes to Jesuitical lengths to ensure that the chain of evidence is intact. That’s the ideal, anyway; unfortunately, most of the technicians at the police crime lab fell short of it. The decent ones moved up in the department or out of it. The bad ones unfortunately stuck like barnacles on the hull of the county bureaucracy.
See photographs of how items of evidence were tagged and photographed and measured in the O. J. Simpson case. (Click.)
According to Shiya Ribowsky, former Director of Special Projects at the New York City Medical Examiner’s Office, in his book Dead Center:
New York Police Department’s Crime Scene Unit usually requires at least a couple of hours to process a scene because a surprising amount of work is involved. First they must photograph the scene and the body, then measure all the dimensions of the crime scene and create a sketch of it, indicating on the drawing the position and location of the body and of any other evidence they might have noticed. Then they dust for fingerprints, and finally they collect evidence such as weapons, shell casings, spent rounds, drugs, drug paraphernalia, and so on. Only when all of this has been accomplished can the body be examined by the Medicolegal Investigator.
These two authors stress the importance of a meticulous crime scene investigation. While forensic sciences have made great advances since the 1970s, the primary outcome of any trial begins and ends with the detail and the care executed by the crime scene investigators. Therefore it is crucial to carefully examine the testimony of William Duncan.
Mr. Duncan testified that around 2:00 p.m. on June 19, 1971 he was dispatched to a dirt road just south of Highway 50 in Cameron Park.. When Duncan arrived at the scene Deputy K. C. Shane was already there and pointed out the body. Duncan testified that he stood at the roadway and observed a body which was 40 feet east of the roadway. Duncan later testified that he prepared the diagram of the crime scene which states the body was found 30 yards or 90 feet from the roadway. The discrepancy is glaring. Duncan looked at the diagram he made of the scene and stated that all the items of clothing he labeled were within 40 feet of the body. This statement also contradicts the diagram the witness drew.
However the longer the witness testified the stranger the situation became. It was revealed by Duncan’s testimony that neither he nor his deputies took any measurements of the crime scene using tape measures or rulers. The diagram shows the body is approximately 30 yards east of Cambridge Road. At one point, on cross-examination, attorney Dain Weiner asked Duncan if he had paced or stepped off the distance of the trail of depressed grass leading from the road to the body and Duncan said no. However, Mr. Weiner did not ask any questions about using measuring devices.
Dr. Henry Lee, the famed forensic expert, has said, “only opinion I can give under the circumstance –something’s wrong.”
Using his coroner report to refresh his memory, Duncan said the scarf and blouse were 20 feet from the body. Duncan said he found a .32 caliber bullet and a .32 caliber empty casing near the victim’s head. He found a set of keys near the left shoulder of the body. He found red pants and a jacket 20 feet from the body. Photographs were taken of these items, but there are no measuring devices in the photographs to determine the dimensions and locations of the items.
Duncan found the body laying face up nude, except for a bra, in a field of wild grass. He did not see blood around the body. None was shown on any of the photographs. There was no pooling of blood near the body. Under the victim’s head and body there was seepage of blood into the ground. In fact there was no blood found on the road way or on the “trail” or anywhere else. The only blood was found under the victim’s head and body and the blood traces found on some items of clothing. The victim’s head was completely bashed in above the eyes and backwards over the skull so that her hair was matted with blood and grey matter which extruded from her head. Only her nose and mouth were still discernable. The gruesome pictures indicate that the blows to the head were vicious and relentless.
Because there was no trail of blood apparent, it is reasonable to infer that the victim was not bleeding or not bleeding much as she allegedly ran from the car on the roadway for approximately 45 yards to the place where her scarf, blouse and wig were found. It is also reasonable to infer she was not bleeding when she ran back toward the roadway to the place where she was found dead.
The pathologist Dr. Jones identified the cause of death as a head wound. Witness Duncan also attended the autopsy. No mention was made of any finding of gunshot residue or stippling on the skin or clothing to indicate whether the gun shots were at close range from one to three feet. Duncan did not mention the trajectory of the bullets. Duncan stated that Dr. Jones opined that the bullet wound to the head behind the left ear killed the victim. Duncan did not address whether the bullet wound to the left breast penetrated the heart or lung. Its trajectory is unknown. The trajectory of the wound to the right forearm is unknown. Therefore, it is nearly impossible to tell where the shooter was positioned when each of the three shots were fired.
There is no blood trail between the road to the body’s location or to the place where her scarf, blouse and wig were found. It is apparently the prosecution’s theory that the victim was shot three times, almost simultaneously, where the victim was discovered. Her head was crushed by a blunt object at about the same time in the same place.
Witness Duncan testified gave the official cause of death as BOTH the massive head wound and the shot to the head. Yet Duncan admitted that Dr. Jones opined that the shot to the head was the cause of death, although there were also massive head injuries.
Duncan also did not discuss the time of death. Ms. Cloer was last seen alive at about 1:00 a.m. on June 19, 1971. She was found dead by two girls horseback riding in the area sometime prior to 2:00 p.m. No measurement of rigor mortis or observations of lividity were reported by Mr. Duncan in his trial testimony. Defense attorney Weiner did not address these issues in his cross-examination of the witness.
Former sheriff’s Lt. Duncan testified that he had a Coroner’s Receipt showing that most of the items of clothing and the bullet casings and bullets were placed securely in the Coroner’s Locker. He also testified he could not recall if he took the bra found on the victim’s body into custody after the autopsy. At the preliminary hearing, he had testified that he taken the bra it and put it in a manila bag. Yet witness Duncan did not have the bra in the Coroner’s Locker and he also did not have the yellow panties in the Coroner’s Locker. He stated that they were discovered by Det. K. C. Shane and they were collected by Det. Dan Patton. Duncan testified that there are also “Investigators’ Lockers” where investigators secure some of the evidence when they are working on a case. It was unclear whether each investigator had his own locker or whether there was just one “Investigator Locker”. The chief detectives in the case were Don Patton and Mike Mergen. Duncan testified that the yellow panties, allegedly containing Thompson’s DNA and Ms. Cloer’s blood, somehow were located in the Bureau in Sacramento about 30 days after June 19, 1971.
The chain of custody of these items of evidence – the bloody bra and the panties - is the center of the prosecutions’ case. District Attorney Kelliher’s questioning of her witness Wm. Duncan did not show on direct examination a clear progression of the chain of evidence so that the jury could understand it. Why is it apparently so difficult to establish the manner in which law enforcement handled these two vital items of evidence? A simple diagram or chart would have demonstrated that the bra and panties were handled properly. Proper handling would have eliminated all doubts about the DNA allegedly found on the panties.
Why do all these details matter in the over all picture of the murder of Betty Cloer? Why is it necessary to worry about feet or yards? Why are accurate measurements necessary? Why does the location of blood or the trajectory of the bullets fired at the victim matter? Why is it important that the jury be told how, when and where the victim was disrobed?
The answer is simple. The answers are the basis for determining what really happened at the crime scene. What really took place that night 37 years ago when a man and a woman had a fatal encounter on a dirt road in Cameron Park, California? Did Ms. Cloer really flee the car because she felt fear of violence or was she fleeing from a sexual assault? Did her assailant physically strip the clothes from her body by force or did she toss her own sweat pants, shoes and panties away as she fled her attacker? According to Dr. Jones’ autopsy, there were no visual signs of rape. There was no injury to the vaginal area and no evidence of semen on or in the body. But it is the prosecution’s contention that the perpetrator performed an unwanted sexual assault on the victim and that was the impetus for her violent death at the hands of another
Det. Duncan found keys on a stone key chain near the head of the body and an expended cartridge and a loaded cartridge. Was Ms. Cloer clutching her keys which dropped out of her hand when she fell dead? It appears one shot by the killer failed.
Did the man get out of the vehicle and chase her down the “trail” to where she was killed? Or did she die at the location where her body was found? Finally, witness William Duncan testified that Det. Patton did not use plastic gloves when picking up the items containing possible biological evidence, in this case the panties and the bra. Duncan said “There was no DNA back then.” Thus, the biological evidence, if any, contained on these items of evidence was certainly subject to contamination.
It is difficult to prove a 37-year-old murder case. The jury must find defendant Philip Arthur Thompson guilty is “beyond a reasonable doubt” or render an acquittal. The fact that a chain of evidence has not yet been proven for the key pieces of evidence does not bode well for the prosecution. However prosecutor Trish Kelliher is only just beginning her case in chief and she has more evidence and more witnesses to present. Defense attorney Dain Weiner did not aggressively cross-examine key witness William Duncan in order to weaken the prosecutions’ theory of the crime. Consequently the prosecution has floated a barely plausible theory to the jury without serious challenge from the defense.
The only living witness who clearly saw the stranger at the Texaco gas station that night and who clearly saw the man named Richard dancing with the victim did not identify defendant Philip Arthur Thompson. Before the prosecution concludes her case and before the defense opens its case, Ms. Hulce's testimony is the most important single piece of evidence that has been presented.
Kathryn Joanne Dixon © 3/4/08
PO Box 217
Fremont, CA 94537
Click. Crime scene diagram drawn by Chief Assistant Coroner Lt. William A. Duncan.
Click. Crime scene evidence collection techniques in the O. J. Simpson trial.