14 Going to the Prosecutors

Shortly after eight o’clock on Wednesday, August 7, 1991, Peters and Mullinax sat down with Lee Yates, a senior deputy prosecutor in the King County Prosecutor’s Office, and asked him to file a murder charge against Randy Roth.

Yates, a diminutive, trim man with a precise way of speaking, was in charge of the prosecutor’s filing unit, which screened most police cases before charges were filed. Yates had made a career of prosecuting criminals, and had long experience with the legal demands of developing and presenting complex cases. But on this particular morning, he had a lot of doubts about the adequacy of any case against Randy Roth.

Peters and Mullinax sketched the case they thought they had against Randy: a man who far too casually rowed into shore with a dying wife, and who never tried to summon help; a man who showed absolutely no emotion as violent efforts to resuscitate Cindy commenced; a man who stood to gain at least $365,000 in insurance with the death of his wife; a man who had lost a previous wife to a recreational accident, and who had collected a substantial insurance payout on that incident a decade earlier. Further, the detectives told Yates, Randy was a man who seemed to have an outside-the-marriage love interest in Stacey Reese.

Finally, the detectives said, there were all the lies Randy had told: the Vietnam war hero who never was, the noble brother serving time for a get-even murder that was really just a hideous crime, the bizarre tale about the mother and sister who died so tragically, but really hadn’t, and all the evasions about insurance and wills and other financial affairs.

Even Randy’s many versions of what happened at the lake and at Beacon Rock ten years earlier seemed in conflict. Randy Roth, said the detectives, was a man who somehow murdered his wife and now stood to gain substantially from his actions.

Well, said Yates, what does the Medical Examiner’s Office say? Was Cindy Roth deliberately drowned? Can that be proven? Were there, for example, marks and bruises that seemed to show violence before death?

That was a problem, Peters and Mullinax admitted. The Medical Examiner’s Office had conducted a quick autopsy and was so far classifying the case as a probable accident. Now the body had been cremated, so it wasn’t possible to develop any new information on that front. The best the medical people could say was that there was no way to say for sure that it hadn’t been murder.

Yates understood perfectly well what the detectives were saying; based on their description of the events, he too shared a suspicion about Cindy’s death.

But he was responsible for deciding whether to commit substantial public resources to the prosecution of the case. The worst thing that could happen, he knew, would be to bring a criminal charge that could not be proved; in that case, if Randy were acquitted, he could not be charged again with the crime, because of constitutional guarantees against double jeopardy. It would be far better to make sure the case was airtight before issuing a charge, Yates said.

Besides, Yates continued, there are some potential legal problems in your theory of the crime.

It’s likely, for example, that you’ll never be allowed to bring up the death of the earlier wife. Roth’s lawyers would be sure to claim that the first death and the insurance payoff would have no relevance to Cynthia Roth’s death. The law, Yates told Peters and Mullinax, provided only narrow grounds for allowing evidence on possible wrongdoing that wasn’t part of the actual charge.

Any actual charge on the earlier death would have to be made by Skamania County, Yates said, which had the only legal jurisdiction. They’d already declined to prosecute, Yates pointed out.

In a trial on the death of Cindy, any evidence about Randy’s involvement in the first death would be considered a “prior bad act,” as the lawyers called them. The law prevented prosecutors from using earlier negative events as evidence if they were likely to prejudice a jury against a defendant, and thereby make a fair trial impossible.

The only way the death of Janis Roth could be used in a trial about Cindy Roth, Yates continued, was if there were some sort of obvious connection between the two deaths; just getting money from insurance probably wouldn’t be enough, he said.

Much the same reasoning would apply to Randy’s lies, like his non-existent Vietnam, experiences, or his burglary conviction, or his physical abuse of the children; none of this would be relevant to the charge of the murder of Cindy, and so would have to be excluded.

That also goes for most of what happened at the lake the day Cindy drowned, Yates continued.

Just because Randy acted like a cigar store statue while paramedics worked feverishly on his dying wife didn’t mean anything, at least under the law, Yates advised. Previous cases had already held that such “demeanor testimony” couldn’t be allowed, particularly since the testimony usually represented the opinion of witnesses, who had no expertise to discuss the “proper” range of emotion under traumatic circumstances.

Roth’s lawyers would therefore try to knock testimony about Randy’s behavior out, too, and in Yates’ opinion—he had prosecuted just such a case that had been reversed on appeal—the defense lawyers would be successful.

That didn’t leave much, Yates said. You can establish that Cynthia Roth drowned, and that Randy Roth stood to gain a substantial sum of money from her death. But because the medical examiner can’t establish with certainty that Cindy drowned at the hands of another, you lose. Right now, you need a lot more information before we can file anything, let alone a murder charge. But as matters stand now, once you knock all this stuff out, most of your case is demolished. Sorry.

Peters and Mullinax were badly dejected as they left the prosecutor’s office. It didn’t seem right that, because of the technicalities of the law, Randy Roth might go free, and even possibly collect more than a half-million dollars while thumbing his nose at all of them.

But when Peters and Mullinax got back to their office, Peters learned that Randy’s best friend, the firefighter Tim Brocato, had returned her call. Maybe, Peters thought, that will jar loose some new information. Peters called Brocato. Brocato sounded nervous and reluctant on the telephone, but agreed to meet with Peters and Mullinax the following day.

Meanwhile, Sergeant Frank Kinney, Peters’ and Mullinax’ supervisor, began to consider some other options to Deputy Prosecutor Yates’ lack of enthusiasm. Kinney discussed the matter with his counterpart at the police department’s criminal intelligence section, and a decision was made to ask another lawyer in a different part of the King County Prosecutor’s Office to take her own look at the case.