June 19, 2008 will mark the 37th anniversary of the unsolved murder of 21-year old Betty Cloer. The killing took place in El Dorado County in a remote lover’s lane area off Cambridge Road in Cameron Park. The killer shot Ms. Cloer three times with a .32 caliber hand gun and destroyed her young face with crushing blows from an unidentified weapon. At the time both law enforcement and pathologists stated that there was no indication that there was any sexual assault on the victim. In fact the intensity of the assault indicated that there might be other motives for the brutal murder.
The media coverage of the case disappeared quickly from the pages of the newspapers and for many years little reference to this strange killing could be found. Then on May 15, 2002 El Dorado Sheriff Detective Sgt. Hal Lamb submitted a bra and panties retrieved from the Cloer crime scene to the Department of Justice laboratory as part of California’s Cold Case program.
In the early weeks of January 2003 several reporters ran stories saying that a cold DNA hit had been made involving an unidentified man. These reporters wrote of the first indication that the crime would be ‘reconstructed’ by the El Dorado County Sheriffs to fit the alleged DNA match. Although the suspect was not identified the “rebuilding” of the case has already begun. For example on January 10, 2003 the Sacramento Bee reported the following:
In 1971, former El Dorado County Sheriff Ernest Carlson said medical tests showed that Cloer had not been “sexually molested” but the new DNA evidence collected may prove to the contrary.
Lt. Kevin House, spokesman for the El Dorado County Sheriff’s Department, said Thursday the DNA was obtained from a pair of woman’s underwear.
“It’s entirely possible that she may have been sexually assaulted, and we couldn’t determine that back then,” House said.
Then, in October 2003, it was announced that a man who had been linked to the murder of Betty Cloer through an alleged DNA was named Philip Arthur Thompson. He was immediately arrested and moved to the El Dorado Jail to await trial.
On November 3, 2003 the Register-Guard in Eugene, Oregon reported about Cloer’s family reaction to the news of Thompson’s arrest:
The family has waited since January for the arrest that finally came last week. It took that long for Lamb to rebuild the investigation tracking down retired detectives and witnesses who had long since moved away.
When the time came, Thompson wasn’t hard to find - he’s currently an inmate at the California State Prison in Solano, where he’s serving an 18-year-to-life sentence for a series of kidnappings and rapes in the early 1980s, Lamb said. He was up for parole the day his arrest warrant was issued, Lamb said.
The quotes attributed to Det. Sgt. Hal Lamb regarding the charges that resulted in Thompson’s imprisonment were false. Thompson had never been convicted of rape and, in fact, when accused of this crime had been found innocent in a jury trial. However, the inflammatory nature of rape fit far better in the re-creation of the 1971 Cloer murder case. It was understandable that investigator Lamb, who was close to retirement, would not want to leave an unsolved homicide on the books when he left the Sheriff’s office.
From October 2003 until the present day Philip Arthur Thompson would remain in jail without bail. Three different attorneys would act as Thompson’s defense counsel and three different judges would hear various aspects of his case. The trial would be delayed again and again. The trail was last scheduled to begin October 2007 and once again was delayed.
A new trial date was set at February 19, 2008. By this time the brutal killing had become a case saturated with overtones of sexual assault and implications of rape as the motivation for the murder. The investigators on the case, first Detective Sgt. Hal Lamb and later Rick Fitzgerald, had worked hard to ‘reconstruct’ the crime to better explain the alleged DNA match to defendant Thompson.
During the period of four long years the case had taken on the appearance of a Star Chamber proceeding. Reporters had been denied access to Betty Cloer’s autopsy and coroner’s report. The fight to keep these documents secret had been fought all the way to the 3rd District Court of Appeal and El Dorado County lost the battle. It did not matter because the reports remain ‘under seal’ with the County claiming they must be protected because they are part of an ongoing investigation.
Secrecy also dominated the courtroom of Judge James Wagoner who repeatedly complied with the oral requests of Deputy District Attorney Trish Kelliher. Kelliher fought desperately to keep the names of her witnesses who would testify for the prosecution a secret from the media and from the public.
This reporter finally succeeded in revealing the true name of “John Doe” when she filed papers that demonstrated to Judge James Wagoner that Doe’s true name, Stanley Gene Ellis, had been placed in the court documents by both the prosecution and the defense before any sealing had been ordered. Newsmakingnews.com ran several stories outlining the background of Stanley Gene Ellis who had been convicted in Federal Court as an armed career criminal. (Click. Introducing Stanley Gene Ellis, aka "John Doe", the prosecution's main witness,
Click. Was Stanley Gene Ellis given a deal to testify against Phillip Arthur Thompson?
Click. The Betty Cloer murder case -- is it just too old to bring to trial?)
As soon as the stories ran revealing prosecutor’s Kelliher’s star witness a new witness was apparently chosen by Ms. Kelliher. Again there were numerous “in camera” meetings between only Prosecutor Kelliher and Judge James Wagoner as the rules were drawn allowing the name or names of any new prosecution witnesses to remain under seal or secret from the public and the press. Ms. Kelliher went so far as to request of Judge Wagoner that he not even allow the defendant to know the name of any new witnesses claiming such radical action would be necessary for the protection of the witnesses. The most recent hearing was reported by Eric Laughlin of The Mountain Democrat in his story dated January 30, 2008. (Click.)
In Introducing Stanley Gene Ellis aka "John Doe", this reporter addressed the successful attempt by the prosecution to introduce old, unproven charges filed approximately 37 years ago against Philip Arthur Thompson. The article explained the nature of People’s Motion to Admit Uncharged Acts Pursuant to Evidence Code Sec. 1101(b) filed 11/10/06. However on November 10, 2006, Judge James Wagoner sealed this motion and completely redacted it. He also redacted the Defendant’s response and further documents pertaining to it. On February 20, 2007, the defendant's attorney Dain Wiener filed a petition for a writ regarding this motion to the Third District Court of Appeal. That Court did not did not seal the matter. The documents pertaining to this Writ mention Stanley Gene Ellis.
The Writ filed at the Third District, which contains complete copies of the moving and opposing papers regarding the prosecution's 1101(b) motion filed in the El Dorado Superior Court, pertains to two female witnesses against Thompson. One of these witnesses, Sharon Strain, was actually deceased (a fact the El Dorado District Attorney did not reveal to the Third District Court of Appeal). The prosecution wanted to call these witnesses to testify to the prior bad acts of the defendant, namely that he allegedly had sexually assaulted them around the time of Betty Cloer’s murder. One problem the prosecution had regarding the alleged prior bad acts in its 1101(b) motion was that the defendant had actually been acquitted of the assault on Ms. Strain. Another problem is that the charge of sexual assault on the other female, Melinda Montgomery, was dropped by the prosecution.
In spite of these concerns, Judge Wagoner ruled that the testimony of both witnesses was admissible, including the testimony of the deceased witness Sharon Strain. Her testimony was to be read at Thompson's trial from a preliminary hearing transcript dated 1971. Wagoner made this ruling despite the fact there was no evidence that Betty Cloer was sexually assaulted by the killer. This rendered testimony about alleged sexual assaults of the two female witnesses irrelevant to the modus operandi of the killer.
The prosecutor demonstrated that she considered it crucial to prove a past history of rape if she were to convict Thompson of the Betty Cloer murder. But, at the same time, Ms. Kelliher made it very clear that she did not want the defense, public or the press to know anything about the witnesses she would call at trial. Judge James Wagoner agreed to seal material pertaining to the 1101(b) paperwork.
On March 8, 2007, defendant Thompson's petition for a writ to review Judge Wagoner's ruling was denied summarily.
This reporter knew that the records sealed in El Dorado County by Judge James Wagoner would still be available for public review at the Third District Court of Appeal in Sacramento. It was very possible that the names of the prosecution’s new mystery witnesses would be found in those records. On the afternoon of January 31, 2008 this reporter reviewed and copied the records at the Third District Court of Appeals and found two possible witnesses that might be mystery or “ringer” witnesses the prosecutor will present at the trial of Philip Arthur Thompson.
What is a “ringer witness”? A “ringer” is a contestant entered into a competition under false pretenses. A “ringer”, in the animal kingdom, is a horse that is not entitled to take part in a race, but which is still allowed to fraudulently participate. In law parlance, a “ringer” witness is one brought in at the last minute. A “ringer” is introduced so late in the court proceedings that the opposing party has little or no time to test the witness’ credibility. If the judge in a proceeding rules that the “ringer’s’ identity and his or her location can be kept secret from the defendant and the defense, the judge aids the prosecution and handicaps the defense in the upcoming trial.
The records at the Third District Court of Appeal reveal that the two uncharged acts which DDA Kelliher wants to bring in at trial to convict Thompson involved (1) the alleged rape of Sharon Strain by Philip Arthur Thompson and Mark Allan Masterson in 1970, and/or (2) the alleged rape of Melissa Montgomery by Philip Arthur Thompson and James Aaron Allen in 1972.
The records show that on July 10, 2006, El Dorado County Deputy District Attorney Joe Alexander in the People’s Motion to Admit Uncharged Acts Pursuant to Evidence Code Section 1101(b), stated:
On or about December 2, 1970, defendant [Thompson] and Mark Masterson encountered Ms. Strain. Ms. Stain was driving in Sacramento, running errands, and had become lost. Defendant got into Ms. Strain’s car, promising to help her find her way home. Instead, defendant drove Ms. Strain’s car around Sacramento, ignoring her suggestions that they make various turns she felt would take her home, followed by Masterson. Defendant then drove Ms. Strain to an isolated location at the end of Prairie City Road, off Highway 50, in El Dorado County. Claiming the car was stuck in some gravel, defendant and his crime partner Masterson, lured Strain from the vehicle and ordered her to undress. When she refused, defendant struck her violently and repeatedly about the head and stomach while Masterson held her arms. Defendant and Masterson proceeded to sexually assault Strain, taking turns raping her in the back seat of her car. Defendant forced Ms. Strain to orally copulate him and was the first to rape her. Defendant threatened to shoot Ms. Strain, grabbed her around the neck and said if would not cooperate he would kill her. Both defendant and Masterson threatened to kill Ms. Strain and dump her body 'in the river' if she continued to resist. At one point just prior to the sexual assault defendant asked Ms. Strain if she was a virgin. She told defendant that she was, he responded, 'Well, I've never killed anyone before - there's a first time for everything.'
Defendant and Masterson were subsequently arrested and charged, inter alia with kidnap, rape and sexual assault. Defendant was scheduled to begin trial on or about June 21, 1971; just two days after Ms. Cloer's murder (Footnote 1). The case was continued, however, and eventually the defendant was tried by jury and acquitted in the fall of 1971(Footnote 2).
Footnote (1) The June trial date was continued and it is unclear whether defendant knew that the trial was being continued as of June 18, 1971. At a bare minimum, however, defendant was certainly aware that he had rape and kidnap charges pending in Sacramento County when he killed the victim in the present case because he had been arrested, charged, arraigned and through a live preliminary hearing as of the date of Ms. Cloer's murder.
Footnote (2) The case file obtained from the Sacramento DA's office is incomplete and as of the date of this Motion it is uncertain when defendant was tried in connection with the kidnap and rape of Ms. Strain, although it appears that the trial began October 27, 1971.
While there are many inaccuracies in the recitation of the event by DDA Alexander, he accurately provides the name of the co-defendant accused with Philip Arthur Thompson in the alleged rape of Ms. Strain that occurred December 2, 1970.
So it is possible that one “ringer” witness could be co-defendant Mark Allan Masterson. If this man is the “ringer” that DDA Kelliher has fought so hard to conceal, there might be problems with any testimony he might offer.
According to the People’s Motion in Limine filed June 15, 2007, the prosecutor obtained an uncertified carbon copy of the transcript from the Sacramento District Attorney’s criminal file in Case No. 8952F in the Strain case. The court reporter’s certification is photostatic and unsigned. A copy of the trial transcript has not been obtained by the prosecutor. However, on July 23, 2007 Judge Wagoner ordered that the preliminary hearing transcript will be allowed to be read to the jury if the proper foundation is laid.
The other uncharged act which the DDA Kelliher wants to introduce at trial is an alleged sexual assault by Philip Arthur Thompson and co-defendant James Aaron Allen upon Melinda Montgomery.
On July 10, 2006, DDA Joe Alexander in the “People’s Motion to “Admit Uncharged Acts Pursuant to Evidence Coe Section 1101(b) stated:
2) Defendant's 1972 Kidnap and Rape of then 17-year-old Melinda Montgomery
On or about March 9, 1972, (Footnote 3) defendant and James Aaron Allen were driving towards Sacramento when they picked up two hitch-hikers, John Dahlgrud and 17-year-old Melinda Montgomery. Allen, who was driving the car, turned off the freeway onto Garden Highway and stopped at an unknown location to urinate. While Mr. Dahlgrud was still outside of the vehicle, Allen and defendant sped off, leaving Dahlgrud behind and taking Ms. Montgomery with them. Ms. Montgomery began to scream and fight. In response, defendant pulled out a handgun and told her to shut up.
Footnote (3) Although occurring after the murder of Ms. Cloer the other acts evidence offered by the People is admissible pursuant to 1101 (b). See, Brown v. Smith (1997) 66 Cal. App. 4th 767.
Allen and defendant took victim to an apartment in Sacramento. Both Allen and defendant forced Ms. Montgomery into the apartment, striking, choking and physically gagging her. Once inside, Allen took her to a bedroom where he rapped her. Allen reminded Ms. Montgomery that defendant was armed and that Ms. Montgomery had 'better do what he said. After Allen was finished raping Ms. Montgomery, defendant, defendant took her into a bedroom where he also raped her. Allen and defendant then took Ms. Montgomery to Memorial Auditorium and when she ran towards some friends, defendant and Allen fled the scene.
Defendant and Allen were arrested and subsequently charged with kidnap and rape. Defendant denied any involvement in the rape and as part of a negotiated disposition pled guilty to a single felony court of 245(a), 'Assault with a Deadly Weapon,' as a reasonably related offense within the definition of PC Section207.
In his opposition to the Prosecutor’s motion, Thompson’s lawyer Dain Weiner reveals that the first name of the accomplice in the Montgomery case is James. According to Mr. Weiner:
Defendant [Thompson] and James Allen were arrested and charged with rape and related charges. The case proceeded to trial. After the jury was picked, the victim changed her story, now claiming that only the black man had raped her. Thereafter, the Prosecutor offered to drop all sex related charges against defendant [Thompson] if he would plead to a violation of 245 PC. The plea specified that defendant was not armed at the time of the offense. It was further stipulated that the eight month sentence would run concurrent with a sentence defendant was already serving. Defendant accepted the offer. All sexual assault related charges were dismissed based on insufficient evidence.
On September 7, 2007, Judge Wagoner ordered that Melinda Montgomery currently living in the State of Minnesota appear at the jury trial. In his “Affidavit for Attendance of Out-of-State Witness”, Chief Assistant District Attorney William M. Clark stated:
6. It is requested that the Certificate include a recommendation that the witness, MELINDA LEE MONTGOMERY be taken into immediately custody by the duly authorized authorities, to be released to an officer of the State of California to assure the witness’ attendance in this State.
From Chief Assistant District Attorney Clark’s tone, it appears he is not confident that Ms. Montgomery wants to appear at the trial of Phillip Arthur Thompson. Therefore it is possible that the second mystery “ringer” will be James Aaron Allen called as a prosecution witness in the Thompson trial.
According to Eric Laughlin's 1-30-08 article in the The Mountain Democrat, Judge James Wagoner again sealed the name of a witness on January 28, 2008 at the oral request of DDA Kelliher and this time cited “public safety” as a rationale.
Who is the new mystery witness? Is it a ringer named Mark Allen Masterson or a ringer named James Aaron Allen or is it yet another ringer not identified in any public records?
Kathryn Joanne Dixon © 2/6/08
PO Box 217
Fremont, CA 94537