53 No Blueberry Pie

As the trial neared the end of its second month, fatigue was starting to get to Marilyn Brenneman, along with everyone else. After each day’s session concluded, Brenneman returned to the trial team’s fifth-floor conference room to prepare for the following day. In addition to preparing questions for witnesses, Brenneman and Storey had to anticipate the roadblocks the defense was still attempting to erect.

The prosecutors spent hours in the office after work, poring over witnesses’ statements, formulating questions and trying to line up new witnesses to rebut Randy’s testimony. Well after normal closing hours, Brenneman found herself walking down to the Seattle ferry terminal to catch the late boat back to the Puget Sound island where she lived with her husband and youngest son.

At home, Brenneman’s husband cooked all the meals and kept care of the house, while Brenneman closeted herself in her study with a yellow legal pad, trying to plan ahead. On one occasion when Brenneman returned a bit earlier than expected, her husband turned to their son and asked him wryly, “Who is that strange woman?”

On the weekend before closing arguments were scheduled, Brenneman decided enough was enough. Outside, a party in progress was suddenly enlivened by a boisterous water balloon fight. Brenneman put down her legal pad and rushed outside to join the combat. Clutching a bulbous balloon in one hand, she began chasing one of her older sons amid shrieks of laughter. Just as she was about to let fly, Brenneman stepped in a hole in the ground and severely twisted her ankle. Later that afternoon at the hospital, the doctor advised her to keep off her feet. Despite the pain, Brenneman and her husband burst out laughing. Staying off her feet was going to be the one thing she could not afford to do over the next few days, when thinking on her feet was going to be her most important challenge of the trial.

A lawyer’s closing argument is just that—an argument, an attempt to persuade, to convince. It is not evidence, but it is more in the nature of a summary of information, assembled in a particular order to establish the likelihood of events. In the case of a criminal trial, it is the prosecutors’ job to establish that likelihood beyond a reasonable doubt. As Brenneman commenced this effort on April 21, 1992, hobbling around the courtroom with her new crutch, she knew it would be necessary to go over once again all the disparate pieces of Randy Roth’s life.

“The testimony you’ve heard, the exhibits which have been admitted, has been substantial,” she said. “They’re like the pieces of a giant puzzle. But the picture before you is now clear. And it is that the defendant did indeed murder his wife, Cynthia Roth, and he did it cold-bloodedly and making it appear to have been an accident. He did it for $385,000 in insurance proceeds, her separate property, assets, and Social Security benefits.

“In this case, the evidence is overwhelming. While the defendant walked into this courtroom seven weeks ago with the presumption of innocence he was entitled to, the evidence that has been presented has proven beyond any reasonable doubt that he has committed the crimes with which he’s charged.”

For the next three and a half hours, Brenneman reviewed the key events in Randy’s life, beginning with the marriage to Jan and ending with Randy’s last illegal act, the attempt to get Social Security benefits after Cindy’s death. Brenneman talked all the way to the trial’s afternoon recess, endeavoring to cement all the pieces into a coherent whole. “The state,” she concluded, “believes the evidence in this case is overwhelming, and the law, as applied to that evidence, should result in a verdict of guilty on all counts.”

Now it would be Cody’s turn.

The evidence, Cody said, simply didn’t stand up to the standard of beyond a reasonable doubt. Yes, there were things that Randy said and did that might seem different from many other people. But the jury had listened to Randy on the stand for more than a week, and they should know by now that was just the way Randy was.

“There is a pattern here, that’s true,” Cody told the jury. “There is a pattern here of Randy Roth raising his young son Greg by himself, as a single parent himself, constantly looking for the kind of circumstance that may provide a family setting. That’s about the only pattern I think you can see. And at times it’s led him to have relationships with people that just simply didn’t work and probably weren’t going to work from the first time he considered the possibility.”

Cody went on to discuss the testimony, working to point out inconsistencies, often small differences of timing or recollection. He talked for most of the rest of the day before the trial was adjourned and returned to his attack the following morning.

“Now, I suppose,” he said, “if you presume guilt, you could paint every one of those pieces together as something sinister and something that indicates an intent to make certain that Cynthia Roth died. If you presume innocence, you look at that and you say, what about it actually proves that Randy Roth drowned his wife in the middle of the lake?

“And then what about going to the shore and acting on the shore like somebody who is not trying to cover up what they had done by acting grief-stricken, but, apparently, to try and call all the attention possible to [himself], acted in some other fashion.

“I think you know by now—and he spent a week on the stand in front of you—that in all those circumstances, Randy is Randy.

“Randy is here in part because of all the evidence that’s been brought in about things that don’t go directly to the death of Janis or to the death of Cynthia. He didn’t react at times and places the way other people would say they think that they would.

“On the day of Cynthia Roth’s death, you’re talking about somebody dealing with the unique situation of going through for the second time in ten years the same occurrence, not the second murder, but a second death.… I don’t know how I would react or anybody would react in that circumstance, whether they would do all the ‘right’ things or make all the ‘right’ moves. If you presume guilt from that, I think you’ll get it. If you presume innocence, I don’t see how it means anything.…

“Now in this country, we don’t allow the police to decide who is guilty of a crime. And we don’t allow the state and the prosecutor’s office to decide that. We have a jury to decide that.”

Cody now gave a homily about the pitfalls of circumstantial evidence, telling the jury about a blueberry pie that a farmer had presumed a puppy had eaten, based on the circumstance of finding the puppy next to an overturned, empty plate, when in fact a child had eaten the pie.

“The very next day,” Cody said, “the puppy went back to the pound … because that, folks, is what it’s like to be convicted on nothing but circumstantial evidence.

“But the state, with its presumption of guilt, has hung a cloud over Randy Roth for many months now … and suggested to you and everybody else that he has killed two wives and that everything about his life is representative of the idea that that’s all he’s made of. And it ain’t there. It’s just not there.”

Now Brenneman had the last shot.

“This case doesn’t involve a blueberry pie,” she said. “And it doesn’t involve a neighborhood boy who frames a small spaniel. Nobody framed Randy Roth. No witness came in here … and deliberately lied to you about Randy Roth.

“The defendant wanted to make sure that when he tired of the relationship he could profit from it.

“Just like, when he gets tired of an automobile, he sells it or strips it. Because he thinks of these people just like he thinks of automobiles. It’s clear that’s how he talks about them. They don’t slip or fall, they break traction. They don’t get hurt, they’re ‘not badly damaged.’ That’s the character that was revealed to you on the witness stand.

“Now, Mr. Cody has a job to do. And in doing that job he’s tried to take the puzzle apart. It’s my job to impress upon you the importance of putting it back together.

“Now, Cynthia Baumgartner Roth’s death on July 23, 1991 was witnessed by only one person. The same person that witnessed Jan Roth’s death ten years before in 1981. And Mr. Cody’s argument to you is that because no one else saw the defendant kill her, you can’t find him guilty.

“Let’s not cover it up. That’s the argument. That, just because you didn’t see it, there is always going to be reasonable doubt. That’s a frightening thought. Because what that means is unless the state has a confession or an eyewitness, no matter what the evidence, a person can’t be found guilty. But that’s not true.

“There’s an old saying that if you fooled me once, shame on you. If you fooled me twice, shame on me. And that’s the situation were in here today. Skamania County did an investigation and it didn’t result in charges. But this isn’t Skamania County. And if he fools us now, shame on us.”

The fate of Randy Roth was up to the jury.