Judge Wagoner’s court conducted the murder trial on Tuesday, Wednesday, and Thursday of each week with the exception of one Thursday, when the courtroom was dark because Judge Wagoner had a confidential matter to handle. The triers of fact considered seventeen days of continuous testimony with a wide variety of witnesses and several days of technical discussions about DNA that recreated a picture of the 37-year old murder. That picture convinced each and every jury member that the 62-year old defendant had killed the young mother.
The last day of the Thompson trial contained a classic “Perry Mason moment” when a man with the nickname of “Kimo” took the stand. A quote from Beck Jolly explains that type of a moment.
The days of trial by ambush are long gone. In this day and age, a true “Perry Mason moment” is a rare thing for prosecutors and defense attorneys alike.
By “Perry Mason moment,” I mean that climactic instant during a trial when you have just done something fantastic and everyone in the courtroom knows it. Your brilliant question or some stunning admission you coerced from a witness has left the opposing lawyer reeling, his mouth agape, and jurors amazed and entertained. The case is won; the rest of the trial is a formality....
Perry Mason moments have become especially few and far between in an age when both sides know in advance what the witnesses are going to say. Yet, every now and then, one comes along.
When defendant Thompson took the stand in his own defense and testified to having consensual sex with the Betty Cloer, his story included a detailed account of a party thrown by a man named Ron Williams. Thompson said he attended the barbeque because his Hawaiian-born friend “Kimo” had wanted to meet a girl at that party. Thompson painted a believable scenario that wove his friend tightly into the picture. “Kimo” and his girlfriend allegedly took off in Thompson’s Ford Ranchero shortly after they arrived at the celebration for an un-named helicopter mechanic who was leaving for his second tour in Vietnam. Thompson recalled falling asleep in a hammock in the back yard and waking up when a couple of young women offered him a beer. One of the young ladies returned a little while later. The two talked and then had sex in a tent nearby. When some dogs poked their noses into the tent, the woman dressed and went to the front yard. Thompson said he followed shortly thereafter and saw the woman standing under a tree under lights talking to other people. At just that juncture someone dropped “Kimo” and his girl off. Thompson alleged that “Kimo” had wrecked his truck and Thompson said he had “to take care of that”.
During cross examination by prosecutor Trish Kelliher the defendant was asked if a police report had been filed about the accident involving his truck. Thompson stated that he did not think so because the incident had taken place on private property. Kelliher continued to pursue a paper trail, asking Thompson is he had insurance on the truck and if he had collected on any insurance covering the vehicle. The respondent stated that he was not sure, but he did not think so saying that he didn’t think insurance was required at that time.
Clearly Philip Arthur Thompson had made the man known as “Kimo” an integral, vital part of his explanation of why his DNA had been identified 37-years later on the panties law enforcement said belonged to Betty Cloer.
But who was “Kimo” and what was his real name? On Wednesday, April 3, 2008 prosecutor Trish Kelliher answered that question by calling James Hynde Hempstead Jr. to the stand during her rebuttal. Hempstead, owner of Kimo’s Electric Works in Palo Alto, California was not difficult to find. To the best of this reporter’s knowledge, Thompson had not requested anyone to locate this witness on his behalf.
The prosecution kept this key witness on the stand for just over 15 minutes. Mr. Hempstead acknowledged that “Kimo” was a nickname his parents gave him because he had been born in Hawaii, remaining there for his first year of life. “Kimo” said that he knew Philip Arthur Thompson during 1970 and 1971. He had met the defendant through a job he took in Sacramento and was friends with him for about 18 months.
Trish Kelliher asked her witness if he had ever been driving a vehicle of Thompson’s that had crashed. Hempstead answered in the affirmative explaining that he had gone through a red light, collided with another car and the vehicle landed on its side. Ms. Kelliher then asked “How were you driving the vehicle at that time?” At this point, defense attorney Weiner objected and his objection was overruled by Judge Wagoner.
The witness continued his testimony saying that he had been a passenger in the vehicle with a person he identified by the first name of John. John had been driving and saw a girl riding a bicycle. John pulled over and was talking with the girl when a man came out of his house and told the girl that if they were bothering her she could come onto his property. “Kimo” said that John told him “it was none of his business and to go back inside.” Hempstead said that the man went into his house and when he came back out he pulled a gun and shot John a couple of times. Hempstead said he loaded John into the vehicle and was rushing to the hospital when he ran a red light and crashed at an intersection. The witness concluded his direct testimony by saying that he had suffered a slight concussion. Apparently someone else got John to the hospital.
At this point “Kimo” said that he was driving a light colored, newer model, pick up truck. He could not recall the date of the accident saying only that it occurred during the warm months of summer. Trish Kelliher handed her witness a report asking him if this report refreshed his memory. Ms. Kelliher asked if this “refreshed” his memory about the truck’s description and the date of the accident. Although the report apparently contained information about both subjects, Hempstead answered that it did not refresh his memory. Surprisingly the dogged prosecutor did not follow up by asking the date or the description contained on the report.
Key witness Hempstead concluded his direct testimony by stating that he did not recall attending any party thrown by someone named Ron Williams. He said that he left Sacramento for Lake Tahoe just before the winter in 1971. He recounted that he had been in Sacramento since 1969 when he was going to American River College and that he knew Thompson in 1970 and 1971. Finally he disputed Thompson’s testimony about Hempstead’s parents living in Roseville, California stating instead that they lived in Minnesota.
Dain Weiner began his cross examination of “Kimo” at 11:57 am. By the time, he concluded his questioning of the witness at 12:05 pm it was apparent that his client had not given him the ammunition necessary to counter Hempstead’s devastating testimony. However, it was also obvious that Wiener could easily supply John’s last name. The defense attorney’s first question was, “What did John Mays do when you saw the girl riding the bicycle on the side of the road?” Immediately the prosecutor was out of her seat objecting on the basis that the issue was irrelevant. Her objection was sustained. At that point the “cat was out of the bag” and Hempstead never denied that his wounded passenger was John Mays. The passive acknowledgement that John Mays was shot seriously enough to be taken to the hospital stuck in the listener’s minds. It also raised the question, “How could Philip Arthur Thompson have just forgotten the fact that his employee and friend had been shot and his friend “Kimo” had been in an accident rushing Mays to the hospital?”
At 12:02 pm Dain Weiner asked Hempstead to describe the truck he was driving. Hempstead said it was a full size, long bed, pickup truck. He also stated that it was not an El Camino or Ranchero. Wiener had nothing further and the witness left the stand subject to recall.
After the lunch break prosecutor Kelliher continued her rebuttal by calling a former Sacramento deputy to the stand to counter Thompson’s testimony about having interacted with Stanley Gene Ellis in the Sacramento County Jail in 1972 and again in 1976. At 2:45 pm Kelliher recalled the man who had reopened the Cloer cold case in 2002, investigator Hal Lamb. Lamb went over issues involving which picture of Betty Cloer he had shown Thompson in Solano prison in 2003 and where Lamb made notes of the visit that he later turned into a formal report.
A fifteen minute break concluded at 3:25 pm but the jury remained out until 4:15 pm when they re-entered the courtroom to hear the excerpts from the transcript of El Dorado county deputy sheriff Dan Patton read into the record.
Then a series of stipulations were read to the jury. The most important agreement made by the defense and the prosecution was that the date of accident James Hempstead Jr. and John Mays were involved in was September 21, 1971.
At 4:30 pm Dain Weiner recalled Philip Arthur Thompson to the stand. The defendant would remain on the stand just fifteen minutes. Thompson’s testimony was weak and appeared to be coming from a different individual then the one that wove a fascinating story about consensual sex with Betty Cloer. The witness said that there were two completely different trucks. Then he testified that he thought “Kimo” had wrecked the Ranchero truck at the party. Thompson later said that he had forgotten about the other truck. But he said that “Kimo” did not wreck both trucks. He said he must have been confused. After all, he said, it had been over 37 years ago and even back then his company, P & M Transmission Exchange, had only owned the truck a short time.
Defense attorney Weiner then led his client through a few more quick questions designed to counter witness testimony presented by prosecutor Kelliher during her rebuttal.
At 4:45 pm the jury was dismissed and the most stunning day of the Betty Cloer murder trial ended.
The next day would bring a brilliant closing argument by prosecutor Trish Kelliher and a good defense argument by defense attorney Dain Weiner. The events in the courtroom on the final day of the trial, April 3, 2008, will be covered in a separate article.
However, on April 2, 2008 this reporter left the historic courthouse in Placerville feeling as though she was fighting through smoke and running into mirrors. I am, after all, a devotee of the Queen of Conspiracy Mae Brussell and I believe her when she said if you can explain an event with the words “coincidence and conspiracy” always choose the word “conspiracy” and you will be right. I am also a fan of television’s Judge Judy who says, “If it doesn’t make any sense it is not true.”
Virginia McCullough © 4/8/08