44 For the Defense

Randy came to court for the first time a few days after his arrest. Cody argued that Randy should be released on a reasonable bail. The charge of murder, he said, was ludicrous.

Even if one took the most suspicious view of Randy’s behavior, Cody argued, the facts presented by Marilyn Brenneman could at most only warrant a charge of manslaughter, not murder.

And that was the worst case, he said; the facts assembled by the police were certainly ambiguous as to whether a crime had even occurred, let alone coldblooded homicide. The county medical examiner, Cody pointed out, continued to say Cindy’s death had been an accident.

Listening to Cody denigrate her case against Randy made Brenneman wonder: was Cody sending signals that Randy might be willing to plead guilty to manslaughter instead of standing trial for murder?

While that might save the state the large expense of a jury trial, if that was what Cody was up to, Brenneman thought, it was laughable. Even as she listened to Cody talk, she was sure she could convince a jury that Randy had killed Cindy deliberately, not accidentally, as Cody seemed to be suggesting.

The only real question was whether she could prove that Randy killed Cindy with premeditation, which was the difference between first degree murder and second degree murder. Brenneman might be prepared to consider Cindy’s death as the result of an outburst of rage on Randy’s part, which might conceivably have been unpremeditated, but manslaughter was a non-starter.

But if Cody was suggesting to Brenneman that his client was willing to enter a plea to a lesser charge, nothing ever came of the signal. After that one possible hint, Cody gave no sign of wanting to dispose of the case with a guilty plea. Instead, he told Brenneman that Randy would not waive his right to a trial within sixty days from the day of his arraignment.

That would mean Randy’s trial would have to begin by the middle of December. Brenneman happily agreed to the short time schedule.

But the following month, Cody discovered the vast amount of investigation of Randy that had been done by Peters and Mullinax—literally hundreds of interviews and thousands of documents, among them the “Randy hates” note written by Cindy before her death.

Cody said nothing as he carted the first installment of all this material out of the prosecutor’s office. But Mullinax, for one, formed the impression that Cody was shocked at the amount of work that had already been done to prove his client guilty.

As October turned into November, Cody realized that a second lawyer would be needed to help him prepare Randy’s defense. Brenneman and the police just kept churning out paper, thousands upon thousands of pages of the stuff.

All of it would have to be read and evaluated, Cody realized, and it was more than one person could possibly hope to do before the start of the trial. Suddenly, it seemed that the prosecution intended to overwhelm him rather than the other way around, Cody thought.

About the time Cody was reaching that conclusion, Brenneman returned to court with two new charges against Randy. In addition to murdering Cindy, Brenneman contended in the new charges, Randy had also stolen $28,500 by fraud from his insurance company in his 1988 burglary, which Brenneman and the police were convinced was faked; in addition, Bill Pierre Ford officials had identified the stuff found in the crawlspace under Randy’s house—the tools and car parts—as having been stolen from them. So, by the end of October, Cody was pretty sure his insistence on a trial within sixty days would have to be abandoned.

Early in November, Cody contacted another lawyer for help. John Muenster was, like Cody, forty-two years old. A graduate of Yale University and Harvard Law School, Muenster had defended nearly fifteen murder cases, including some of the most publicized cases ever heard in the Seattle area.

Muenster also had a reputation in Seattle as one of the brightest lawyers in the city. He saw his job as defending the Constitution. He was meticulous in the preparation of his cases, prolific in assembling briefs and arguments, painstaking in his efforts to force the prosecution to prove each and every segment required; for Muenster, a criminal trial was a form of mind combat in which no quarter was asked or given, and in which the stakes were the sanctity of the legal process as well as a person’s life. And as Cody and Muenster together looked over the state’s proposed evidence against Randy, Muenster was convinced that state was about to seriously break the rules.

As Cody and Muenster sorted through the thousands of pages of reports and interviews provided by the prosecutor’s office in November and early December, they began to develop a series of defensive entrenchments Brenneman would have to surmount before Randy could be convicted.

Almost all of these efforts would require fairly arcane legal arguments before a judge; but if the judge agreed with Cody and Muenster, Randy’s chances of walking free would be greatly enhanced.

The overall strategy of the two defense attorneys, as in most cases where there is no clear alternative guilty party, involved reducing the case to its minimum possible size, if not finding a way to make it disappear altogether.

The first defense by Randy’s lawyers centered on whether a murder had actually occurred. Muenster was convinced that under the so-called corpus delicti rule, the law required two things before a murder charge could go forward: that Cindy was dead, and second, that she had been murdered.

That Cindy was dead was beyond all dispute; but whether her death was a murder or an accident was very much in dispute.

Without an undisputed finding that murder had in fact happened, the court would have no choice but to dismiss the murder charge, the defenders reasoned. If that happened, Randy would be home free—possibly even able to collect at least half of the $385,000 in insurance on Cindy.

Cody and Muenster also knew, however, that Brenneman and the prosecutor’s office would point to Jan’s death as powerful circumstantial evidence that murder did occur with Cindy, that Jan’s death showed a pattern of Randy’s behavior making it more likely than not that Cindy was murdered.

To deal with this, they decided to erect a second barrier behind the first: all discussion about Jan Roth should be ruled irrelevant and therefore excluded.

Cody and Muenster knew this was where the most serious battle would be fought. If Jan’s death could be kept out, Randy’s chances of being found innocent would be greatly improved; but if it was allowed, Randy would probably be convicted. Jurors, they thought, would probably conclude that once might have been an accident, but twice was too suspicious.

How to keep Jan out? Muenster and Cody were convinced that Jan’s death, legally speaking, would have to be considered an inadmissible “prior bad act.” And if it was nevertheless allowed and Randy was then convicted, higher courts would require the conviction to be thrown out, and a new trial granted.

The “prior bad act” rule seemed clear: “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” In other words, just because Randy had acted like a creep many times in the past—and even if he had been the only person present when Jan fell to her death—it couldn’t fairly be used to prove he had killed Cindy.

The same objections could be applied to Randy’s fraudulent military career, his disciplining of the boys, the raft trip with Donna Clift, the murder committed by Randy’s brother Davy, the supposed faked burglary at Tim Brocato’s, the later one at Randy’s, the stolen Bill Pierre goods found at Randy’s house during the search, even the “Randy hates” note written by Cindy. All of this stuff should be ruled irrelevant by the judge, or if not irrelevant, more prejudicial than should be permitted.

Cody and Muenster now put a third barricade behind the Jan Roth issue, as well: even if Cindy’s death was legally a murder, and even if Jan’s death was admissible, all testimony about Randy’s behavior at the beach and at the hospital should be suppressed as opinion testimony.

The defense lawyers knew that all the descriptions of Randy unconcernedly deflating his raft while Cindy was dying would be dynamite, and also prejudicial, so all witness opinions about the propriety of Randy’s behavior should be kept out.

The major problem with allowing all this material, Cody and Muenster believed, was that taken together it might convince a jury that Randy was guilty of the murder of Cindy even if she had died by accident. That was the very definition of prejudice, they agreed. It would be a miscarriage of justice, Muenster later said publicly, if this evidence were allowed in the trial and Randy were thereby convicted of a crime that had really been an accident.

As a final obstacle, the defense lawyers wanted to have separate trials on the three charges so far filed by Brenneman; such “severance” of the charges each into their own trial would reduce the possibility that Randy would be found guilty of murder merely because of his possible guilt in defrauding his homeowners insurance company in the faked burglary, or his possession of the items allegedly stolen from Bill Pierre Ford.

Separate trials on each charge would also increase pressure on the prosecutors to plea bargain, because of the cost of bringing the separated cases to court.

To achieve these varied objectives, Cody and Muenster on December 19, 1991, filed a series of motions in King County Superior Court: first, a motion to dismiss the murder charge because there was no proof that murder had actually occurred; a motion to declare the search of the Woodinville house legally invalid; a motion to have separate trials on the three different charges; and numerous other motions to exclude testimony about the death of Janis Roth, Randy’s harsh disciplinary methods, his true military record, and anything to do with Davy Roth and his 1979 murder conviction.

If the motions weren’t granted, and if all that stuff came out at the trial, Cody and Muenster knew Randy would probably be sunk.

But there was an additional part to the “prior bad acts” rule, one which created an exception allowing such evidence. Even as Cody and Muenster were focusing on the first part of the rule, Brenneman was thinking about the second: prior bad acts were admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”

That meant if Brenneman could prove to the judge that there was some connection between the two deaths—indeed, to Randy’s other bad behavior—there was a possibility of getting the Jan Roth material into the trial. Randy and his lawyers were contending Cindy’s death was an accident; the law allowed Brenneman to present evidence to show that “absence of mistake or accident.” Jan’s death was just such evidence, Brenneman reasoned.

Where Cody and Muenster wanted to limit the allowable evidence, Brenneman, of course, wanted to get as much of the material before the jury as she could.

Her case depended on the jury’s understanding that Randy’s behavior constituted a discernible pattern—a continuing plan or scheme, as she saw it, to get money by cheating insurance companies—not accident, but a plan or motive for insurance fraud that had origins at least as far back as the “theft” of Jan’s Pinto.

To that end, the facts of Jan’s death were vital, as was the information about the faked burglary—burglaries, if one included the Tim Brocato caper, as Brenneman intended—as well as the various aspects of Randy’s behavior and demeanor, which Brenneman believed would demonstrate Randy’s calculating nature. Altogether, Brenneman believed the detectives had found nine different cases of insurance fraud or attempted fraud by Randy. It was the pattern of fraud that would tie all the issues together, she thought, and allow her to bring in the Jan Roth evidence.

Moreover, Brenneman guessed that Randy would be a witness on his own behalf. While defendants have the constitutional right not to testify in their own defense, and while juries are routinely instructed not to draw conclusions about guilt or innocence because of a defendant’s refusal to testify, Brenneman knew as well as Cody and Muenster that Randy’s refusal to give testimony would be seen by the jury as suspicious, particularly since Randy was claiming Cindy’s death had been an accident.

In Brenneman’s mind, virtually all of Randy’s prior bad acts were admissible as evidence of his “motive … plan … [and] absence of mistake or accident,” with the possible exception of his disciplining of children and his military lies. But even there, Brenneman thought, if the defense opened the door to those questions by presenting testimony about Randy’s character, she would be ready.