By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
His testimony is devastating.
Mike Bernays trots out the prosthetic-glove theory during his cross-examination of Wertheim. The expert says it's possible, at least in theory, for a person's fingerprints to be transferred to a glove and then be placed at another location.
But Wertheim tells Bernays that the hypothesis doesn't work in this case, because forged prints look, well, forged.
Debbie Luster takes the stand to tell jurors about her July 1987 meeting in Newport Beach with the man calling himself Gordon Phillips. Prosecutor Bill Culbertson walks Luster through the fateful meeting.
"I was scared," Luster says in a lilting drawl that reveals her rural Arkansas roots. She is a delicate, auburn-haired woman in her mid-40s.
"It was sort of a growing concern I had during the conversation . . . When he tried to go, all of it came over me and I was very, very upset. I [told my mom] that something was really wrong with this man."
Mike Bernays faces a challenge on cross-examination. He can't beat up on the victim's daughter, but--a rarity in this one-sided case--he has the chance to score some points.
Like his co-counsel, Bernays is a former public defender who loves criminal-defense work and is good at it.
"Isn't it true," Bernays asks Luster right off the bat, "that you would characterize yourself as having a very vivid imagination?"
"No," she replies calmly.
Bernays then shows Luster a copy of a September 1989 interview with police in which she'd said just that.
Bernays asks Luster to recount photo lineups that predated a December 1996 live lineup during which she identified Butch Harrod as Gordon Phillips.
In each photo lineup, Bernays points out, Luster chose someone as most likely to be Gordon Phillips, and each time she was wrong. Before Butch Harrod's arrest in September 1995, police showed Luster photographs of five men, including Harrod. Luster picked the subject next to Harrod.
After the trial, several jurors assess Luster's testimony as flawed, but honest.
A progression of Butch Harrod's former in-laws and other witnesses tell jurors that Gordon Phillips sounds like Butch Harrod. Prosecutors ask one of Anne Costello's brothers, Mark, why he didn't call the police after he saw and heard the Unsolved Mysteries broadcast.
"I wasn't 100 percent sure it was his voice," he says, "and I didn't want to believe it was him."
Paul Ahler asks Mark Costello to listen to the actual Phillips tape.
"This is much more clear [than the television show]," Costello says.
"Who do you believe that to be?"
Finally, it's Anne Costello's turn to testify against her ex-husband. She's in her late 30s, with blond hair that she wears with bangs. Her frightened eyes dart around the room as her testimony begins, and she has a hard time sitting still.
What she will be allowed to say on the stand already has been decided by Judge Reinstein. At a pretrial hearing, prosecutors asked Reinstein to override Arizona's marital-communications privilege law so Anne could testify about what Harrod told her about the murder.
The privilege protects confidential statements made by one spouse to the other.
They argued that "an outdated testimonial privilege should not obstruct justice or the state's search for truth in this first-degree murder case. . . . This court must not encourage other would-be criminals to enlist their spouses in an effort to prevent justice from being served."
Reinstein didn't buy it. He ruled that Anne Costello could only testify about what she saw and did around the time of Jeanne Tovrea's murder, but not what Harrod may have said to her.
Though Anne is an important prosecution witness, Paul Ahler keeps his distance, not wanting to cozy up to someone who did nothing to stop a contract killing.
First, he gets what he needs from Anne--testimony about Fed Ex packages of cash arriving from Hap Tovrea before and after the murder, and other key facets of the alleged plot.
"On March 31, 1988, do you have a recollection of that evening?" Ahler asks her.
"Yes, I do."
Trembling, Anne describes how Harrod left home around 9 p.m.
"Who else was at home besides you and your husband?" Ahler asks.
"Just myself," she answers, weeping. "He was wearing a black sweat shirt and he had a green Army jacket on. He was carrying a duffel bag . . . I don't know when he came back."
"When was the last time you saw him [that night]?"
"In the foyer."
"After he left, what did you do?"
"I, I, uh, um, I stood in the living room and, just stood there actually, thought for a while, and I went to grab the telephone, and I held the telephone."
"Did you make any phone calls?"
"No, I didn't."
"So what did you do?" Ahler asks, not expecting the answer he gets.
"I, I, um, I, I, I prayed is what I did."
Anne describes how she looked in Harrod's home office and saw that his guns were missing.
And what did Anne do then? She says she went to her bed and fell asleep.
When she awoke, apparently briefly, about 2 a.m., Butch wasn't home.
"When I woke up the next morning about 5 or 6 o'clock, I looked over and he was there."