Stanley Gene Ellis, long known as John Doe, took the witness stand at 10:30 a.m. on March 12, 2008. Deputy District Attorney Trish Kelliher called her primary witness against Philip Arthur Thompson to testify. Ellis stood about 5’8” tall with a slight paunch. He sported a moustache and beard consisting of white-blond hair mixed with traces of brown. He took the stand wearing a reddish brown shirt and blue jeans.
DDA Kelliher began by having her witness draw a diagram of the apartment where Betty Cloer lived. Ellis testified that in June of 1971 he and his wife lived in an apartment downstairs from Cloer’s at the Los Palmas apartment complex in Sacramento, California . He said he believed he drove Ms. Cloer to a bar the night of June 18, 1971, but was not sure. He said was waiting in Ms. Cloer’s apartment where she lived with her roommate at 1:00 a.m. because he thought she would call him for a ride. His wife Margaret was also there with him at that early morning hour. Ellis said that he did not have a telephone in his apartment. Suddenly, Ms. Cloer arrived with a man. The man stood in the doorway, while Ellis sat on a chair in the living room watching the man. Ms. Cloer went to her bedroom to change her clothes. Ellis testified that he had very little conversation with the man but looked at him and especially observed the side profile of his face. Ellis emphasized that he told Ms. Cloer not to go out with the man. He testified that when the man left, he looked out Ms. Cloer’s bedroom window to try to see the license plate of the Lincoln car the man drove but he did not get it.
Ellis then testified that in the spring of 2005 he happened to read an article in the newspaper while incarcerated at Sheridan Prison in Oregon. The article said that a DNA hit had connected Phillip Arthur Thompson to the murder of Ms. Cloer. Mr. Ellis then contacted his federal public defender Brian Lessley and investigator Toni Pisani who then contacted El Dorado County Detective Rick Fitzgerald. Ellis told Fitzgerald that he could identify Thompson as the man who left with Cloer at 1:00 a.m. the last time she was seen.
On November 15, 2006, Ellis met with Detective Fitzgerald, Detective Rich Strasser and Deputy D.A. Joe Alexander. Fitzgerald showed Ellis six photographs and he was asked if any of them depicted the man who left with Cloer that night. Ellis picked out a photograph of Thompson and wrote his name on it. Ellis testified that on August 25, 2006 defense attorney Dain Weiner and his private investigator Fran Trunzo visited him while he was in Victorville, California federal prison. He said Wiener had an internet article in his hand and Ellis testified that Weiner told him the article said that Thompson killed his enemies. Ellis said he could not read the article because he did not have his glasses on. Ellis said he felt threatened by Weiner because of the article he read and because Weiner had somehow obtained an “attorney visit” with him and if other inmates saw “suits” interviewing him they might think Ellis was a snitch.
At 2:27 pm Judge James Wagoner excused the jury and counsel argued about Elli’s prior convictions. Ellis was convicted in January 2004 of being an armed career criminal in Federal District Court in Oregon. The underlying offense was “felon in possession of a firearm.” Judge Wagoner ruled that the words “armed career criminal” could not be used because that was a mere sentence enhancement. Instead, the judge would allow Ellis to be impeached only with the words “felon in possession of a firearm”. The Judge also ruled that he would not allow Weiner to walk the defendant through all the stages of the federal proceedings against him that would show that originally Ellis was facing a life term, then a sentencing recommendation was made, and finally Ellis was sentenced to 22 months less than the sentencing recommendation.
The jury was brought back in and DDA Kelliher elicited from Ellis that he had been convicted of being a felon in possession of a firearm in 2004. Ellis admitted he had been convicted of two robberies on August 8, 1972. He was convicted of forgery on April 21, 1980 and he was convicted of bank robbery on December 6, 1987. Finally he was convicted of theft in the first degree on January 22, 2001.
Kelliher closed by asking Ellis why he had sought out Detective Fitzgerald in 2005 to give him information regarding Ms. Cloer. Ellis answered, “I thought I had information he could use. I knew Betty. I knew what happened. She was a 25-year old woman with a four-year old son. His life depended on her. I was the one taking care of him when we found out his mother was murdered. I am the only witness to see his mother with the man that night. As far as I know I am the only one with something to offer and I owe her to do that.” Ellis then identified Ms. Cloer from a picture presented to him by Kelliher and the picture was entered into the record as Exhibit 270.
On cross-examination defense attorney Dain Wiener went over the visit to Ellis that he and private investigator Fran Trunzo had made to the federal prison in Victorville, CA. Weiner established that Ellis was facing 15 year to life on the “felon in possession of a fire arms” charge. It was established that Ellis was interviewed by Detective Fitzgerald and then within 3 days of the interview Ellis sought a delay in his sentencing. Ellis testified that on July 26, 2007 he was sentenced to 15 years and 8 months, which was 22 months less than had been recommended by the US Attorney and federal probation officer in his case. . Ellis testified he did not obtain any deal or benefit for having testified against Thompson in the murder trial.
Then Wiener had a breakthrough on cross-examination. He asked Ellis if he had told the police who interviewed him the day after the murder, that the man who left with Ms. Cloer was 3 or 4 inches taller than himself. Ellis admitted this. Weiner then walked up to the witness and stated, “I am 5’8 or 5’9” tall. Is that your height?” Ellis said, “yes.” Wiener then walked back to the defense table and Phillip Arthur Thompson stood up. His full height is about 6’6” and he is sometimes referred to as a giant. Wiener said pointing to Thompson. “Is this man the height of the man you saw that night?”
DDA Kelliher objected, stating, "Thompson has shoes on.” Thompson began to take off his flat rubber prison-issued shoes.
Judge Wagoner sustained the objection
Why Wagoner sustained the objection was never put on the record. However, the jury had clearly seen that the defendant towered over Ellis and could not have been the man he identified to the police as 3 or 4 inches taller than himself the day after the murder.
The Jury was excused for the day at 4:30 p.m. The next day Weiner continued his cross-examination of Stanley Gene Ellis. Weiner elicited testimony from Ellis that he reported the conduct of Dain Weiner during the August prison interview to the SIS, the federal prison’s Special Investigation Services. Wiener countered by introducing documents from SIS that showed they had never received any such report.
Ellis again testified he received no consideration for his testimony. Then Weiner dropped a bomb. He showed Ellis a letter Ellis had written to Detective Fitzgerald dated March 23, 2007. In the letter Ellis stated that he was concerned because Thompson now knew where he was and that, as a result, he had a dilemma. That dilemma was maybe that the prosecutor would not consider his testimony necessary or important. However, if Ms. Kelliher considered his assistance critical he needed some help. He stated that if his testimony was of “substantial assistance” in this case he would ask for an 85% reduction in his sentence through a 35.B federal motion. In the alternative Ellis asked for sentence reduction sufficient to allow him to go to a “camp”. Ellis said in the letter that he wanted to do the right thing but he needed some help. Weiner asked Ellis if a camp was a facility with better living conditions and he acknowledged this. Dain Weiner then asked Ellis if camps had sports facilities such as tennis courts. At this point DDA Kelliher objected and the Judge Wagoner sustained the objection
The testimony of Ellis now stood out as a blatant attempt by a serious offender to obtain a deal.
The letter also implied that the lead investigator on the Philip Arthur Thompson case seemed open to making a deal with a convicted armed career criminal. That possibility remained because no letter from Detective Fitzgerald to Ellis was ever produced showing that Fitzgerald rejected Ellis’ plea for help in exchange for his testimony.
On re-direct, Kelliher tried to rehabilitate her witness by eliciting testimony that Ellis never received any help from Kelliher and that she told him she would not give him any benefits for his testimony. At this time she also tried to explain that the accent which Ellis testified the man he saw with Cloer had that he had identified as a South African, British or New Zealand accent was really an oddity in Thompson’s speech and not a specific accent.
At 11:00 a.m. on March 13, 2008, DDA Kelliher called Bryan Lessley to the stand. He testified he was the federal public defender who had represented Ellis in the federal case in Oregon where Ellis was eventually found to be an armed career criminal. Lessley testified that the delay in Ellis’ sentencing in 2005 had nothing to do with any deal, but involved a technical matter regarding the impact of a Supreme Court case on the sentencing. He stated that he and the U.S. attorney needed more time to present the matter to the court so they continued the sentencing date. Lessley testified that he never attempted to obtain any benefit for Ellis in exchange for his testimony in the Betty Cloer murder case.
Finally the anticipation of the prosecution’s prize secret witness, formerly known as John Doe was over. It turned out that the anticipation of the testimony of Stanley Gene Ellis was far greater then the realization of what he had offered in the Betty Cloer murder trial.
In the late morning hours DDA Kelliher called former detective Daniel E. Patton to the stand. He explained the collection of evidence that he had conducted at the murder scene in 1971. Patton gave testimony about each and every item of evidence collected at the scene. He confirmed his tag, his initials, date and case number that he had placed on each item. He could not, however, identify who collected the bra from the victim at the autopsy. He said that all the items he collected were placed in paper envelopes and then placed into Detective Mike Mergen’s locker, which was Mergen’s file cabinet. He did this because it was Saturday and the official Property Manager for the sheriff’s office was not working.
Detective Mergen had testified he wrote down on a piece of paper a license plate which he observed on a credit card slip that was located at the Texaco gas station. This slip was created by an employee who wrote down the license plate number but the actual credit card slip no longer exists. According to Detective Patton, the license plate number matched that of a car Phillip Arthur Thompson drove. The gas station is where Betty Cloer and her friend Karen Chappel Hulse stopped to use the bathroom and where they first saw a man who followed them to Ms. Cloer’s apartment. Earlier, on direct examination, Ms. Hulse testified that Thompson is not the man she observed that night at the gas station who followed them home.
This week, it is expected that DDA Kelliher will wrap up the prosecution’s presentation and it is anticipated that next Tuesday, March 25, 2008 defense counsel Dain Weiner will begin the defense portion of the case.
These questions remain: (1) Will DDA Trish Kelliher convince the jury there is proof beyond a reasonable doubt that Thompson committed this crime? [or] (2) Will defense attorneys Dain Weiner and Robert Blasier successfully point out the many flaws in 37-year-old DNA stored in file cabinets with the defendant’s DNA sample and a case built on testimony from people seeking self-serving deals?
Kathryn Joanne Dixon © 3/18/08
PO Box 217
Fremont, CA 94537