47 “I Was Very Glad”

Randy’s trial had opened amidst a huge amount of news media coverage. Ever since his press conference in early August, the news people had been waiting for his arrest; now, with the trial underway, the coverage exploded.

At long last, Randy was at the center of the attention Brenneman believed he had always craved. Television stations flooded the courthouse hallway with bright lights whenever he appeared wearing his suit with hands shackled behind him, escorted by two uniformed jail guards. Photographers from the newspapers popped their strobes in his face.

From the news organizations’ point of view, the trial of Randy represented exactly the sort of story guaranteed to push ratings and circulation up: a white, neatly groomed, photogenic defendant, accused of coldbloodedly killing two pretty wives a decade apart to cash in on lucrative insurance policies, in the process turning two winsome boys into tragic orphans. It was a real-life made-for-television movie, fraught with opportunities for dramatic visuals.

As the boundary between drama and reality thus blurred, the case of State v. Roth began to assume the dimensions of a modern morality play, thirty seconds of good versus evil, where gray subtleties of character were washed out in the harsher light of the nightly news summaries, in which the worst that Randy had ever done was the order of the day.

In Washington State, trials may be televised. To exert some control over the circus, Sullivan permitted only a single video camera in the courtroom, which provided a feed to a monitor set up in the hallway outside. Each television station recorded the feed and edited it for later rebroadcast.

As a result, Seattleites would get a near-daily dose of Randy’s trial for almost seven weeks—usually, encapsulations of the day’s most sensational testimony, pared down to a handful of pithy seconds, backed by a standup summary from the on-camera reporter. However else he might feel about what was happening, at least Randy was the star of the show.

To protect both witnesses and jurors from the media, Brenneman and the defense agreed that their home addresses and telephone numbers would be kept secret. Additionally, Brenneman and Storey asked each witness whether they objected to being photographed while in the courtroom; if witnesses did object, Brenneman so informed the news people, who then removed the witness’ face from their broadcast tapes. The same procedure was followed for the seven-woman, five-man jury.

Organizing a trial expected to last for weeks, with more than one hundred witnesses and well over two hundred exhibits, obviously represented a logistical challenge. Brenneman and Storey had to estimate how long each witness might testify and make sure that the right witnesses appeared on the right day. It was a constant juggling act, made more uncertain by the difficulty of determining how long the defense might wish to cross-examine the witnesses. Brenneman and Storey moved to a temporary office in the courthouse with all their files and kept in near-constant contact with Peters and Mullinax, along with a paralegal and a victim/witness advocate, all of whom worked diligently to keep the witness list up-to-date. Meanwhile, both detectives continued following up leads even while the trial was underway.

Brenneman’s plan for the trial, despite the dimensions involved, was relatively simple. She wanted to establish the identity of the victims on the first day in order to acquaint the jury with what the trial was really all about.

Then, over the next five weeks, Brenneman would summon witnesses in near-chronological fashion, telling the story of Randy and his life in clear, almost visual terms. Presenting such a case was, she thought, somewhat akin to directing a movie, with the witnesses as the actors.

On the first day, for example, Brenneman called Hazel Loucks as a witness; she wanted Cindy’s mother to identify Cindy from her photograph, as well as to describe Cindy’s relationship with Randy. That way, Brenneman thought, the jury would know from the outset that there was a real person who had been murdered. She did the same with Louise Mitchell, Jan Roth’s best friend.

Then Brenneman began calling witnesses who had been at Beacon Rock on the day Jan was killed, starting with Shelly and Steve Anderson, the couple who had encountered a “crazy” Randy in the minutes immediately after Jan’s death.

Virtually all of the first two days were taken up with testimony of the Beacon Rock witnesses, including the rescue worker Bill Wylie and others who had looked for Jan’s body. The next day, Brenneman took the testimony of former undersheriff, now Sheriff Ray Blaisdale, followed by two critical witnesses: Jalina Miranda and Jan’s mother, Billie Ray.

Thus, by the end of the week, as Tim Brocato was taking the stand, Brenneman had been able to establish the contradictory facts about Randy’s story of Jan’s death, the insurance policy and Randy’s surprising call to the insurance agent the day after Jan died, Randy’s apparent heartlessness in taking the envelope from Jalina, and Jan’s second thoughts about the marriage to Randy.

By showing that Randy could have murdered Jan—indeed, that he had a motive to murder—Brenneman and Storey hoped to lead the jury to the conclusion that Randy had similarly killed Cindy, that he had a track record for just such a thing.

As Peters and Mullinax had foreseen, Tim Brocato emerged as one of the key witnesses against Randy. Brocato was on the stand for two days. He seemed nervous and soft-spoken the first day, particularly when it came time to admit that he had committed a crime with Randy.

But Brocato stuck to his story and was particularly devastating to Randy in recounting the Halloween night conversation he’d had with Randy about whether he could kill his wife and in telling about his talk with Jan on the weekend before the trip to Washougal, the time when Jan told him about her dream that she was going to die.

While Brenneman’s objective was to get the evidence of the witnesses before the jury in a chronological fashion in order to show the scope of Randy’s decade-long activities, the defense goal was to mitigate as much as possible the more damaging testimony.

This was a difficult maneuver, in that most of the witnesses summoned by Brenneman were ordinary people, well-intentioned, and certainly not imbued with any desire to even an old score with Randy.

Attacking that type of witness on cross-examination was dangerous; the jury might perceive the defense as being unfair to people who were, for the most part, just like them.

The defense strategy thus required close examination of the witnesses’ testimony in an effort to develop alternative, more innocent interpretations of the events. On cross-examination, the witness had to be asked to retell the story that had just been given to Brenneman, but with an eye toward inducing, as gently as possible, admissions from the witness that he or she might have been mistaken about certain facts, or that they might have reached unwarranted conclusions.

If uncertainty could thus be introduced, so possibly could reasonable doubt; but the downside of the strategy was that it allowed the witness to reiterate the salient facts all over again, which had the effect of reinforcing them in the jurors’ minds.

Worse, on some occasions, the defense lawyers inadvertently stumbled into areas they would rather have avoided.

In cross-examining Hazel Loucks, for example—an area fraught with potential for irritating the jury, if the questioning was seen as too harsh—Cody tried to have Hazel acknowledge that Randy had been “fairly emotional” about Cindy’s death while visiting the Loucks the day after the police had interviewed him on August 1.

“You indicated that at some point he did get fairly emotional about this whole situation; is that right?” Cody asked.

“Not real emotional,” Hazel said. “Maybe a couple of tears.” In trying to get Cindy’s mother to confirm that Randy was a caring person, Cody had instead obtained testimony that showed Randy in the opposite light.

And Cody’s question gave Brenneman a chance to next ask Hazel why Randy had been driving around all night before he came to visit.

“Well, yeah, he did talk about that,” Hazel testified. “For just dodging the police.” Thus, Brenneman was able to use Cody’s own question to bring out a new item of suspicious behavior on the part of Randy.

Later, in questioning Tim Brocato, Cody tried to suggest that Tim was lying when he testified that he had repaid Randy the money he owed him because he was afraid of Randy.

“Let me get this straight, Mr. Brocato,” Cody said. “You hadn’t had any contact with Randy Roth in at least a year going back to 1991. You called him up out of the blue. You had been remarried by that time to another person. You called him up out of the blue, said you wanted to get together with him and pay him some money, and that was done because all of a sudden, you got up that morning afraid?”

“No,” Brocato said. “I was fearing Randy for years.”

All that did, of course, was reinforce the image of Randy as a violent intimidator.

Then Cody, trying to recover, asked Brocato sarcastically, “Were you perhaps in some kind of counseling at that time for these phobias of yours?” Brenneman objected to Cody’s argumentative question, but she needn’t have bothered, because the jury well understood how Cody had damaged his own case.

Even worse for the defense, this exchange now allowed Brenneman to get into the area of why Tim was afraid of Randy—his boasts about his “war record.”

“Counsel’s questions,” she said to Brocato, “suggest you have no reason to be fearful of the defendant. Did you have a reason to be fearful of the defendant?”

“Yes, I did,” Tim said.

“What was that reason?”

“There are a few reasons. Do you want them all?” Brenneman had already told Brocato no questions would be allowed about Randy’s military career unless the defense opened the door to the subject. Brenneman believed that Cody had just done so, and wanted to have Tim testify to what he believed about Randy’s war record. “Go ahead,” she said.

“Randy had told me that I should never turn my back because …”

“Go ahead,” Brenneman encouraged.

“… that he would … he said you don’t—first of all, Randy said that he had killed somebody, okay, in the service.”

“Okay,” said Brenneman.

“Okay. And also he had talked … about his brother.”

Too late, Cody realized where Brenneman was headed. Now the jury had reason to believe, based on Tim’s testimony, that Randy had killed before he ever met Jan. Additionally, there was this mysterious reference to Randy’s brother, which obviously had something to do with violence or killing. Further questions along the same lines were sure to elicit even more damaging information.

“Your Honor, I’m going to object to this,” Cody said. And while Sullivan sustained the objection, which had the effect of foreclosing further questions from Brenneman on the subject, there was no way of retrieving the black eye Tim had just given Randy.

Throughout the second week, Brenneman and Storey tried to build up a picture of Randy’s life and personality, relying on the testimony of his neighbors Ben and Marta Goodwin, his coworkers, and most telling, the stories of Donna and Judy Clift, and Mary Jo Phillips.

Donna Clift told about finding Jan’s ashes in the closet and about the raft trip that had almost ended in disaster.

Asked why she didn’t want to ride any further with Randy in the raft, Donna said, simply and directly, “I was afraid of him.” Asked why she had divorced Randy—over repeated objections from Muenster—Donna said, “I just was not happy. I just had to get away from him. I didn’t feel safe.”

Judy Clift gave her version of the raft trip and added that she had told her husband Harvey not to let Randy’s raft out of sight.

“Why did you do that?” Storey asked her.

“Because I was afraid my daughter would not come off the trip alive,” Judy said.

That question and answer outraged Muenster. Later, during a recess, he once more asked Sullivan to declare a mistrial. The testimony from Judy Clift, he said, far exceeded the rules of evidence because it allowed the jury to improperly hear an opinion about Randy’s character.

“I believe that the testimony had the effect of introducing the witness’s opinion that the raft trip was a case of an attempt to cause her daughter Donna’s death,” Muenster said. “And I believe the witness’s opinion in that regard is of extreme prejudice in this trial, as the state is alleging that Mr. Roth caused Cynthia Roth’s death in Lake Sammamish.”

Indeed, said Muenster, much of the testimony that had so far come in was prejudicial to Randy’s right to a fair trial.

“I must say that I believe the prior rulings in this case in which this man, while on trial for something that happened in 1991, is being run through the wringer regarding allegations over the past ten years that very few of these people saw fit to complain about until, all of a sudden, he finds himself charged with Cynthia Roth’s death.

“And frankly, from their point of view, one wonders how they spent any time with him. And yet they all liked him and spent time with him, but miraculously, attitudes have changed.”

Sullivan denied Muenster’s mistrial motion. The state, he said, was entitled to have Judy Clift testify as to why she had told her husband not to let the raft out of his sight.

Much of the next few days was taken up with testimony about Randy’s 1988 burglary; Brenneman and Storey wanted to establish that Randy had faked the break-in to collect on his insurance. The Goodwins testified about seeing things in Randy’s house and garage that had supposedly been taken in the burglary months after the burglary had taken place; even more damaging to Randy, his coworkers testified that he had previously bragged to them about staging the burglary himself.

By the middle of the second week, the prosecutors were up to the relationship between Randy and Cindy. Stacey Reese took the stand and testified about her conversations with Randy before and after Cindy’s death; the prosecutors wanted to establish that Randy was eager for Cindy to be out of his life.

Then Stacey told how Randy had invited her to go to Reno with him the week after Cindy’s death—on the tickets Cindy had paid for. Cody tried to blunt the effect of Stacey’s testimony by suggesting that she had been a police plant and therefore capable of making up stories about Randy. But the more Cody tried to shake Stacey from the details of her story, the more vivid the details became.

Later in the week, Brenneman began to set the stage for the lake witnesses. She called Kristina Baker, the woman at Lake Sammamish who had been watching Randy and Cindy in the raft because she was worried that it might get run over by all the powerboats.

Kristina Baker was the closest to an eyewitness of Cindy’s drowning that the prosecution could produce. Brenneman, in fact, had come to believe that when Kristina Baker saw arms flailing as Cindy swam away from the raft, what she was actually seeing was Cindy waving for help as she tried to get away from Randy.

“Something was going on out there,” Brenneman said later. “She didn’t want to be near him.” Possibly Randy had already tried once to drown Cindy and Cindy was trying to escape. But somehow Randy had convinced Cindy to go back to the raft, and that was when the drowning occurred, Brenneman believed.

Now, at the trial, Brenneman had Kirstina tell her story to the jury. Kristina’s version of the events was detailed and seemed to indicate that she had indeed been closely watching the raft for some time.

Most importantly, Kristina said she never saw the raft flip over. Nor, she said, did she ever see Randy motion to any other boats for help. It took Randy, she said, about twenty minutes to row into shore.

To counter this damaging testimony, Cody tried to shake Kristina’s insistence that she had watched the raft as closely as she claimed.

Just exactly when had she first seen the raft? What direction was it going? Had she really watched it steadily for over an hour, as her testimony seemed to indicate? Cody wanted to show that Kristina Baker might not have seen the raft flip over because she wasn’t watching it all the time.

But the more Cody tried to find inconsistencies in Kristina’s account, the more details emerged to buttress it.

By week’s end, the state had reached Randy’s actions on the beach. For the next four days, a parade of witnesses came forward to describe Randy’s behavior, including Alicia Tracy, who had marveled at Randy’s cool demeanor but then was sick to her stomach over his behavior toward the boys; the paramedic Patti Schultz, who had tried to save Cindy’s life, and who then rode to the hospital with Randy, Tyson and Rylie; the Redmond police and firefighters who had taken Randy’s initial statements; and the hospital social worker, D’Vorah Kost, who had believed Randy was uptight and sullen after Cindy’s death.

Kost provided more damaging details about Randy’s behavior while at the hospital. “Do you remember,” Storey asked her, “whether he shed any tears?”

“No,” said Kost.

“He definitely did not?”

“I don’t remember any tears.”

Had she observed Randy trying to comfort Tyson and Rylie after the doctors had pronounced Cindy dead?

“I didn’t observe any comforting behavior. I didn’t observe any sense of reassurance, or I don’t remember any physical contact between the defendant and the boys. It was more like the three of them [were] sort of moving in their own little spaces, not a lot of interaction.” Randy’s behavior, she said, was unemotional, controlled and constricted.

By the fourth week of testimony, Brenneman and Storey were ready to go into the twin questions of whether the raft had flipped over, and if it hadn’t, just how Cindy might have been drowned instead.

To do this, the prosecutors and police had hired two expert witnesses to assist them with two more videotaped reenactments.

The first expert, a man who had once worked as a consultant on drowning deaths to former Los Angeles County Coroner Dr. Thomas Noguchi, testified that the Roth raft—actually, an inflatable boat, the expert pointed out—was designed to maximize its stability even in the open ocean. The raft was like a leaf, he said, bonding to the water as it rode over swells; it was impossible for the raft to have flipped over as Randy maintained.

Nor was it possible for a wave to have hit Cindy in the mouth from fifty to one hundred yards away; by the time the wave arrived, the expert said, it would have been nearly flat and far more likely to have buoyed Cindy higher in the water instead. There was little the defense could do to counteract the first expert’s testimony, other than point out that Randy was never very clear in his initial statements about the proximity and direction of the speedboat that supposedly had created the wake.

The second expert was a professor and swimming coach at the University of Oregon. It was very unlikely that a cramp could have caused Cindy to drown by herself, the expert said, at least in the time and under the circumstances as described by Randy. The only way Cindy could have drowned so quickly was if she had panicked, and the most likely explanation for the panic was because someone was holding her under the water.

The expert brought a videotape of an experiment by two students, in which a male student about Randy’s size and weight attempted to keep a female student close to Cindy’s size and weight under water until panic set in. Cody and Muenster vehemently objected to the introduction of the tape, saying it was a powerful suggestion to the jury that Randy had done the very thing depicted.

While Sullivan ruled that the expert would not be allowed to say that he believed Randy had killed Cindy in that manner, the judge did allow the tape to be played for the jury. The impact of the tape was obvious: it was possible that Randy could have drowned Cindy suddenly and without sustaining a scratch to either himself or her.

Brenneman and Storey had saved some of their most powerful testimony for the end of their case. On Thursday, April 2, they called Lori Baker, who told the jury about her conversation with Randy, in which Randy had complained that Lori’s claim of the boys had ruined his “scenario” and about the empty safe deposit box. Lori’s mother confirmed the scenario statement. Then Brenneman called her two star witnesses—Tyson and Rylie.

Brenneman’s motive in calling the two boys was more than just their appeal to the sympathetic instincts of the jury. Granted, the two little boys were spectacular witnesses in terms of their emotional impact. In addition, the boys were capable of providing graphic testimony about what happened on the beach the day their mother died.

But Brenneman also knew that both boys had vital evidence.

Tyson, for example, validated the contents of the sacks that had been in the raft, as well as others’ observations about Randy’s behavior in the immediate aftermath of the drowning.

But it was Rylie who applied the crusher on Randy. In a way, it was only fitting.

For the better part of a year, Randy had derided and abused Rylie, calling him “dummy,” sneering at his piano lessons, generally making life miserable for him, to the point where Rylie tried to spend hours alone in his room to keep away from his new stepfather. Now it was Rylie’s turn.

Brenneman, trying to draw on her own experience of raising four boys, tried to reassure Rylie by being warm and supportive. Bit by bit, gently, she took Rylie through his story about the events at the beach.

Rylie responded with vivid descriptions that had the courtroom transfixed and on the edge of tears. Rylie told of seeing his mother lying blue in the bottom of the raft, and Randy’s indifferent behavior, then the ride to the hospital.

“When you got to the hospital, where did you go?”

“We went to the … I don’t know what type of room it was. It was just a room,” Rylie said. “Then there was another room. It was really small. And the lady took us and was talking to us. And then the doctor came in and told us that she wasn’t alive anymore.”

“Well, what did you and Tyson do when you heard your mother wasn’t alive anymore?”

“Cried harder.”

“What did the lady do?”

“She tried to comfort us a little, but there wasn’t much she could do.”

“What did the defendant do?”

“He just stood there. Same look. Sat there. Same look on his face. And the detective came in and he was talking to him and he said …”

Rylie’s voice began trailing off. Brenneman encouraged him. “I need for you to speak up, Rylie.”

“Okay. And he was wearing really dark glasses, sunglasses. And he said, ‘I’m not wearing these sunglasses to hide anything from you,’ and the detective didn’t remark or anything like that.”

Rylie went on to describe the trip home, and Randy’s telling him to be quiet. “I tried my hardest,” he said, “but—I tried not to be loud, but tears still fell down my face.”

“What did the defendant say then?”

“He said, ‘Where do you guys want to go eat?’”

Now Cody committed a serious tactical error. Rylie’s testimony had been so devastating that Cody resolved to try to show that Rylie had a motive to be angry with Randy. It was a dangerous gambit and had to be done skillfully so the jury didn’t form the impression that Cody was being abusive toward the boy.

After a preliminary question about Rylie’s relationship with Greg, Cody turned to the subject of Randy.

“How did you get along with Randy?” he asked.

“Not very well,” Rylie said. “Not very well at all.”

Cody asked several other questions that implied Rylie didn’t like Randy because he had married Rylie’s mother. He also implied that Rylie liked Lori much better than Randy, and that by describing Randy in unfavorable terms, Rylie was trying to please his guardian.

But in Brenneman’s mind, Cody’s question opened the door to further inquiry as to why Rylie and Randy didn’t get along.

“Were there some reasons for that, Rylie?” she asked.

“Yes.”

Cody, guessing what was coming, objected. Sullivan sustained the objection, but Brenneman asked to be allowed to argue why she should be allowed to pursue the matter. In the end, despite Cody’s objections, Sullivan changed his mind and agreed with Brenneman.

“Rylie,” she said, “can you tell us why you didn’t get along with the defendant? You can tell us.”

“I was afraid of him,” Rylie said, and in so saying, echoed Tim Brocato, Donna Clift and a long string of others who had previously testified to their fear of Randy.

“Why were you afraid of him?”

“The things that Greg had told us, the stories and—”

Cody objected again. “Just tell me what you personally observed, Rylie,” Brenneman persisted. “What made you afraid of him?”

“Just what I had seen.”

“The way he treated you?

“Yes.”

“And the way he treated Tyson?”

“Yes.”

“And the way he treated your—”

Cody objected once more. “Your Honor, this is leading [the witness].” It was, Sullivan agreed.

“And what were some of the things that happened that made you afraid?”

Rylie told the story about the boys being made to do squat-thrusts at night in the winter under the hose.

“I never got under the hose,” Rylie added, “but Greg and Tyson had.”

“And you watched that?”

“Yeah. Well, I didn’t watch, because I was looking at the ground, doing mine as fast as I could.”

“So you didn’t have the hose on you?”

“Because if you did them slow, you would get the hose on you, so I was doing them as fast as I could.”

Brenneman now turned to the subject of Lori Baker. “When Lori told you that you could live with her instead of going back to live with the defendant, what was your reaction?”

“I was very excited,” Rylie said. “I was very glad.”

Brenneman rested her case.