1. Evidence up to the time of the murders, the Defendant's presence in Grand Junction.
In order to convict the Defendant, the prosecution first had to show that he could have been in Grand Junction at the time of the murders. This involved both an estimate of the time of death and evidence of the Defendant's trip to Ouray. The time of death was difficult to fix precisely, both because of the lack of witnesses and the length of time the bodies were in the river before they were discovered.
a. Patricia Botham was last seen around 9:00 p.m. Friday, August 22, 1975. At approximately 8:00 p.m., Reverend O. J. Holler, pastor of the church to which Ken and Pat belonged, and a friend of the Botham's, went to their house to pick up a record changer he had first called about. When he first arrived Pat was not home so he drove around a few minutes and returned. Pat and the children were home and fine. He stayed only long enough to get the record changer. While there, he did not see any dishes on the table and did not smell any food cooking. A little after 9:00 p.m., Timothy Earl Tyree, an old friend of Ken's, and his wife stopped at the Botham house. The children were awake, and Thayer answered the door. Pat was munching on a cookie Tyree thought she had just baked. Tyree talked with Pat for five or ten minutes and left.
b. Linda Miracle was last seen around 11:30 p.m. Friday, August 22, 1975. Norman Wilhelm had been dating Linda Miracle for most of the summer of 1975. He did not think Linda had been seeing anyone else at that time. During the week proceeding August 22, 1975, Mr. Wilhelm had given Linda a large sum of money to pay for an abortion, which she had on August 20th. Wilhelm had taken Linda to the hospital for the abortion, where she had registered under a different name.
Linda had invited him to come for dinner on the 22nd. When he arrived around 7:00 p.m., Linda was fixing a spaghetti dinner. He had driven to the house in his green Porsche. Troy and Chad were running in and out of the house, playing. When Linda and Wilhelm sat down to eat around 8:00 p.m., she first dished out small portions for the children, who went into the living room to eat. Sometime before 9:00 p.m., the children may have returned to the table to get a little more to eat.
The children went to bed around 9:00 p.m., and Linda and Wilhelm moved to the living room. During the time he was at the house, the two consumed approximately two-thirds of a half-gallon bottle of wine. As reported by the Grand Junction Daily Sentinel, January 14, 1982, Wilhelm said on the witness stand referring to that night, "I wasn't drunk or anything. She wasn't drunk. She was high. I was high. We just had a good time."
Linda received two phone calls while Wilhelm was there. The first, which came at 10:00 or 10:30 p.m., was from a friend of Linda's named Don. The second call, at 11:00 p.m., was long distance from her estranged husband Delbert.
Although Wilhelm had been in the habit of spending the night at Linda's house, he left that night at 11:30 p.m. because he was tired. Linda had been in a particularly happy mood and had asked him to stay, but he chose not to do so. He made plans to see Linda again on Sunday. When he left, Linda was wearing a blue jumper-type pantsuit with a white shirt underneath.
Ned Crawford, a neighbor of the Bothams and Linda Miracle, arrived home at 11:30 p.m. on the 22nd. There was a little green car parked in front of Linda's house. He had seen that car on prior occasions. It was a very noisy vehicle. Crawford was awake for awhile before he went to sleep, but he did not hear that vehicle leave.
Wilhelm stopped at a 7-Eleven after he left and then went home. His roommate and Linda Miracle's brother, Jim Cunningham, did not return home until a little before 2:00 a.m.
c. Autopsies and The Time of Death. When the bodies were discovered, they had apparently been in the river for over one month. Dr. Canfield, the doctor who performed the autopsies, attempted to fix the time of death by analyzing the contents of the victims' stomachs. This could only be done for three of the victims, as Mrs. Miracle's body was too badly decomposed to support such an analysis. The best estimate came as to the two Miracle boys because Mr. Wilhelm was able to give evidence of the time of their last meal. He testified that the boys had eaten spaghetti sometime before 9:00 p.m. on August 22, 1975. When Dr. Canfield performed the autopsy on Troy Miracle, he found 100 c.c.'s of partially digested red, mushy material in Troy's stomach. At the time of the autopsy, Canfield had stated Troy's stomach was full. He had also stated that the material was consistent with spaghetti and did not deny having said that he could identify both spaghetti and red sauce.
During the autopsy on Patricia Botham's body, Canfield found 150 c.c.'s of semi-digested material in her stomach (some of which he could identify as corn, beans, and partially-digested meat).
The average human stomach takes two to four hours to empty. Drugs, fright, fear, disease, and inordinate amounts of food can effect the length of time for emptying, but there is no evidence that any such conditions were present, at least until the time of the murders. Sleep also slows down the digestive process somewhat, and the boys did go to sleep sometime after they ate.
Digestion occurs through the body's secretion of hydrochloric acid, which reduces the stomach contents to a semi-solid material which is then propelled to the small intestines where the actual digestion occurs. Once death occurs, the stomach stops secreting enzymes and acids. After death, however, there are three things which cause the breakdown of foods to continue. First the enzymatic activity already occurring in the food continues. Second there is a residual effect of the gastric juices already present in the stomach at the time of death. Third is the bacterial action of the bugs that start growing in the stomach after death. In this case, the fact that the bodies were in cold water for some time after death would have slowed this further breakdown, but it definitely continued. Without question, by the time of Canfield's autopsy, the food in the stomach had broken down to a greater degree than had been true at the time of death.
Canfield would not give a specific opinion as to how long after eating these three people had died when he testified at trial, but he did admit that during the autopsies he might have said that he felt death had occurred within one to one and one-half hours after eating. Additionally, Larry Hall, a lab technician with the Grand Junction Police Department, Milo Vig of the Sheriff's Office, and Felipe Armendarez, a Mesa County deputy sheriff, were all present during the autopsies. Hall and Vig were present during Mrs. Botham's autopsy and testified that Canfield specifically estimated the time of death at one to one and one-half or two hours after eating. Armendarez testified that during the autopsies on the Miracle boys, Canfield estimated the time of death at one to one and one-half hours after eating.
Dr. John M. Woods, a pathologist who is a coroner for Arapahoe County, reviewed the autopsy reports for Troy Miracle and found that the evidence as to food in Troy's stomach was consistent with death occurring one to two hours after eating, and was not consistent with death four to six hours after eating.
Again, although Dr. Canfield had made the above estimates during the autopsies as to how long after eating the two boys and Pat Botham had died, trial he would not testify to an opinion on this question.
Without question, the evidence presented as to time of death, taken in the light most favorable to the prosecution, supports an inference that death occurred by 11:00 p.m. or earlier. It does not support an inference that death had occurred at midnight or later, as this would be more than three hours after their last meal, and two to three times as long as Dr. Canfield's original estimate.
d. The Time Table as declared by the Prosecution for the evening of August 22, 1975. The prosecution argued that the time of death was about 1:30 a.m., Saturday August 23, 1975 in order to give the Defendant time to drive from Ouray, Colorado.
Obviously, the prosecution had to prove that Mr. Botham could have been in Grand Junction at the time of the murders. There was no question but that Mr. Botham was in Ouray, Colorado during the evening of August 22, 1975, as was evidenced by the records of Polly's Motel and the testimony of the owner and several different guests. The evidence showed that he arrived some time shortly after 9:00 p.m. and checked in. After unloading some of his gear for about one-half hour, he returned to the lobby and spoke to the owner.
Steven Norris
testified that he spoke to the Defendant in
Ouray sometime
A
sheriff's officer timed the drive from Ouray to Grand
Junction and found it to take two hours.
Thus, if Mr. Botham returned to Grand Junction the evening of the 22nd, as the prosecution tried to prove, rather than spending the night at the motel and leaving early in the morning for the high country, as Mr. Botham maintained, the very earliest he could have arrived in Grand Junction, if he would have left at 10:00 p.m. directly after speaking with Mr. Norris, would have been midnight, and possibly .5 to 1.5 hours later (from Mr. Norris's estimations anywhere from 10:00 to 11:30 p.m.).
As discussed earlier, the only reasonable inference from the autopsy evidence was that the victims were killed around 11:00 p.m.
In an attempt to overcome what was, at the least, an inconsistency in the evidence discussed above, the prosecution called three neighbors of the Bothams and Miracles to tell of what they heard that night.
1. Cora Heiner had lived next door to the Bothams at 1926 Ouray for three years. Mrs. Heiner testified at the trial that she went to bed at approximately 9:30 p.m. on August 22, 1975. She finally fell asleep at about 10:30 p.m. She did not look at the clock but guessed that it was around 1:30 a.m. when she was awakened by the Botham's dog barking eight or nine times. Twenty-five to thirty minutes later (2:00 a.m.), she heard two sharp pops that came directly from the Miracle house. She got up to see what the disturbance was but everything seemed calm. She started back to bed but instead went to the kitchen and took a couple of Anacins because she had a headache. When she had first looked at the Miracle house after she heard the pops, the porch light was on and bright lights in the house were on. There is a big window in the front of the house, and the curtains were open. When she returned from the kitchen to the bedroom, she looked out the window and saw a man's head. He was bending down looking at the floor. She went back to bed and approximately thirty minutes later (2:30 a.m.) she heard a car start up either in front of the Botham's house or directly across the street. When it drove up and turned, the lights shone in her driveway and she thought it was her son coming home. She got up and went into the front room. The light was not in her driveway but there was a car in the Miracle yard, with lights on, and it was backed up close to the porch. The vehicle had a square back, and looked like a wagon. It resembled the Botham's car.
She stood looking out the window for a few minutes and finally saw a big tall man come out of the house carrying a big heavy bundle. The object being carried was wrapped inside a robe or rug-looking piece of material. The man carrying it was more than six feet tall and was thin. He had a long, thin face and short cut hair. When the man stepped down off the porch, she saw his leg from just below the knee down. He was wearing a pair of brown pants that were rolled up a little at the bottom and he was wearing black walking-type boots. Mrs. Heiner thought that she had seen a similar looking leg on Friday, August 22nd when Mr. Botham was kneeling down working with something on the ground.
When asked to identify Mr. Botham in court, she looked around the courtroom and immediately picked out Captain Joseph Earl Hicks of the Mesa County Sheriff's Department.
Mrs. Heiner's ophthalmologist, Dr. Frederick Schumann, testified that on August 22, 1975 Mrs. Heiner was suffering from glaucoma, cataracts, and senile macular degeneration of her left eye. She was also, under the best possible conditions, legally blind according to two different standards of measurement. In August, 1975, Mrs. Heiner was taking various medications prescribed by Dr. Schumann. Some of the drugs were myotic-causing the pupil of the eye to contract to allow less light to enter the eye. The side effects of Mrs. Heiner's medication included nausea, diarrhea, constipation, weakness, nervousness, dizziness, and confusion. Mrs. Heiner had had four operations to correct her vision problems by the time of trial.
Approximately one week after August 22, 1975 Mrs. Heiner talked to law enforcement officers about the night the four people disappeared. She told them she had gone to bed at 11:30 p.m. (not 9:30 p.m. as testified) and was awakened later by a dog barking. She did not reveal any of the other details to which she testified in court.
Milo Vig, an investigator with the Mesa County Sheriff's Department, interviewed Mrs. Heiner on November 4 and November 5, 1975. On November 4th, Mrs. Heiner told Mr. Vig that she had been awakened at 11:00 p.m. by a dog barking. Then at approximately midnight, she heard two blasts which she characterized as possible gunshots. She then looked out the window and saw a vehicle start up and back in and saw someone loading something into it. The vehicle left after about twenty minutes. During that interview, she stated that the reason she had awakened in the first place was because she had seen car lights and thought it was her son coming from Utah, not because of any gunshots.
On November 5th, she contacted the police and said she wanted to clarify certain things in the statement she had made the day before. On that date, she said that she had heard two blasts sometime around midnight and that was prior to the time she had heard the dog barking. She made a particular point of that because she was worried that there might have been confusion the previous day. Vig's notes from both of those conversations reflect that Mrs. Heiner had described the vehicle as a station wagon or a pickup truck. Also, at no time during those two conversations did she make a point of the Defendant looking like the person she saw that night. In fact, she gave no descriptions of the person she had seen.
While
it is very difficult to decide which of Mrs. Heiner's
stories was most favorable to the prosecution, one thing is
clear: Mrs. Heiner was very confused about that night, and
it is impossible to tell from her testimony when she was
awakened, why, and what she saw.
2. Michael Larson lived with his parents on Ouray Avenue next door to the Bothams. He returned home at approximately 10:00 p.m. on the night of August 22, 1975 and watched television until approximately 1:15 a.m. when he went to bed. After he went to sleep, he was awakened by a scream. This was fifteen or twenty minutes after he went to bed at approximately 1:30 a.m. He got out of his bed and looked out the window in the direction of the Botham house, which is where he thought the scream had come from. He was, however, half asleep and was incapable of pointing out exactly where the noise came from. He saw that there was a light on in the front bedroom window of the Botham house but could not see anybody inside. Larson went back to bed and approximately ten minutes later there was another scream. This scream sounded more like that of a woman. Mr. Larson did not get up again.
3. Margie McConnell lived at 513 North 19th Street on August 22, 1975. The Miracle house was three houses and 275 to 300 feet from the McConnell's. While there were trees in front of Ms. McConnell's house, they did not obstruct her view down Ouray Avenue. There were no street lights between her house and the Miracle's house.
At approximately 1:00 or 1:30 a.m. on the morning of August 23, 1975, Ms. McConnell saw a vehicle without any lights which seemed to be stopping in front of the Miracle house. She knew the time because she was waiting for her son to come home and had been looking out of the window. She saw a man get out of the car and walk around it. He had either a blanket or a coat in his hands. When he got out of the car, he walked in front of the vehicle and started toward the Miracle house. The man in question was over six feet tall, was slightly built and had short hair. He had the same type of build as Mr. Botham. It was dark, however, and she could not see his features. As she watched, her son arrived home and the vehicle without any lights drove away.
After Ms. McConnell's son arrived home, she went to bed. She had been dozing off and sometime afterwards an awful sound woke her up. She jumped so hard, she woke her husband. It sounded like somebody hollered, "Oh, no." Both Ms. McConnell and her husband looked out the window but could not see anything. They watched for a while but then went back to sleep.
Ms. McConnell described Defendant's Exhibit 3 as a photograph of the Botham and Miracle houses taken from just in front of her house looking east down Ouray. The photograph fairly and accurately depicted the view one would see from in front of her house looking down Ouray Avenue. There is a figure in the picture which she estimated as being a little past the Miracle house. Although she stated that she could not estimate the height of the person in the photo, the court ordered her answer stricken. The photograph in question was taken during daylight hours, and Ms. McConnell's observations on the morning of the 23rd were taken when it was dark out. Ms. McConnell agreed that at the preliminary hearing in January of 1976 she said nothing about the man's haircut and only testified that she had seen a male who was tall and slender.
The
question to be answered in looking at this evidence is
whether the jury could reasonably infer from it that it was
the Defendant who committed the murders. There is no
question that someone was at these houses that night
and that someone killed these four people. But these three
witnesses offered no testimony from which the jury could
infer that it was the Defendant. Mrs. Heiner obviously could
not see very well, was confused, was guessing at the time,
and even after her four eye operations could not identify
the Defendant from ten or fifteen feet away. Ms. McConnell
was looking from 300 feet away, and the photograph taken from the McConnell house to the Miracle
house shows how impossible it is to estimate
a man's height. Cora Heiner originally described the vehicle she saw
as a stationwagon or a pickup truck, and Ms. McConnell, four
days after the disappearance talked to police and referred
to a pickup with a short bed.
It should also be noted that Linda Miracle's
stationwagon was in her driveway during this period. No
inference that the Defendant was the person seen can be
drawn from this evidence.
2. Physical evidence allegedly linking the Defendant to the crime
a. The gun. The prosecution introduced certain physical evidence in an attempt to tie the Defendant to the murders. The two boys died as a result of gunshot wounds to the head. No bullets were recovered. The prosecution's pathologist, Dr. Canfield, estimated that a .22 caliber handgun was used, but admitted that the shots could also have come from a .25 caliber weapon.
Canfield's conclusion that the gunshot wounds in the boys came from .22 caliber guns was based on four factors. The first is that the entry wound was not large enough to hold any caliber bullet larger than a .22 caliber. The second and third reasons were that there was lead filings along the edges of one wound and lead fragments of the bullet in the other wound. A metal jacketed bullet would not leave any lead fragments or traces of lead, inferring that there is no such thing as a metal jacketed .22 caliber round. Canfield had never seen a .25 caliber lead bullet but allowed that someone might be handling his own ammunition and thus making such a bullet. A hand-loaded .25 caliber bullet could make the same fracture patterns as those found in the two Miracle boys. Fourth, Canfield believed that the exit wound was consistent with a .22 caliber bullet. However, it is possible that a .25 caliber bullet could make such an exit hole.
John Brandt, who owned the Botham's house, rented it to his brother, Steven Brandt, on December 1, 1975 after Ken Botham was in jail. Steven went down into the crawl space under the house on December 25, 1975 to fix the plumbing. Shining his flashlight around he saw a gun. He immediately called the police. The police felt the .22 caliber gun had slipped out from behind a piece of insulation.
Mr. Botham admitted that the gun in question belonged to him and that he had hidden it under the house. He did so because he knew it was stolen and not because he knew it to be the murder weapon in this case. Mr. Botham had paid thirty dollars for it from an employee of the Steven's Sporting Goods store. The man's name was Mike Tell, and he verified Botham's allegations. Mr. Botham bought the gun in September, 1967 in Grand Junction, eight years before the murders.
There was, however, no evidence to
show this gun, rather than any other .22 or .25 caliber
weapon was the murder weapon. Were this shown to be the murder weapon, the jury
would have been able to draw inferences of guilt from his
actions. But as there is not even proof that that it
was the murder weapon or that it is the same
caliber as the murder weapon, guilt cannot be inferred from
it.
b.
The wire and wire cutters. The
prosecution also introduced the wire taken from around the
bodies and Mr. Botham's wire cutters, along with testimony
that some of the cuts had been made by this tool, virtually to the
exclusion of all other tools in the world. Mr. Botham
testified to having had wire very similar and possibly
identical to that found around the bodies in his yard and
shed. But, more importantly, the Colorado Bureau of
Investigation could only make positive matches with one cut
end on two of the pieces of wire, a close match on the
third, and none on the fourth. Certainly it is not unusual for a person to cut their own
wire with their own wire cutters. And even given the
evidence presented, some tool other than Mr. Botham's
cutters had to have been used by the murderer to cut the
pieces to the size he or she desired. The police also took
possession of numerous pieces of rope and wire from Mr.
Botham's home and compared all of the knots in these ropes
and wires with those on the wire taken from the bodies.
Not
one of the knots from the wire around the body matched any
of the various knots found on the rope or wire taken from
the Botham house. Had Mr. Botham not been otherwise involved
with the victims, the mark of his wire cutters on the wire
would have been devastating. But given that the wire came
from his home, the mark of his wire cutters cannot be the
basis for an inference of guilt.
In the first trial, the experts said there was a conclusive match. However, in the second trial the experts weren't quite so sure. As well, in the first trial there was no mention of tests on wire cutters belonging to Linda Miracle, but in the second trial the lab personnel testified that tests on Linda's wire cutters were also inconclusive. Unfortunately, the defense, who was unaware of Linda's wire cutters, did not have time to do independent tests. Also in the second trial, testimony of small wire shards found in the jaws of Botham's wire cutters that allegedly came from the braided layer in the coaxial cable were analyzed. Prosecution experts testified those shards matched the wire on the bodies, defense experts testified those shards did not match.
c. Railroad iron pieces. James Groves, a special agent for the D. & R. G. railroad, was asked to look through the piles of discarded railroad irons which were in plain view from the road to the Bridgeport bridge, and had been so since at least May 1, 1975, to try and find broken pieces which might match the weights on the bodies. On October 4, 1975, Groves took a broken piece to Dr. Canfield. It was the mate to the weight taken from Chad Miracle's body.
d. The blood evidence. C. B. I. agents testified for the prosecution that two spots of Type A human blood were found on a mat in Mr. Botham's car. One of the Miracle boys had Type A blood, while Mr. Botham, his sons, and the other Miracle boy had Type O blood. There was no further evidence to link this blood to the Miracle boys, but there was evidence that the police had thoroughly searched Mr. Botham's car, including the mat in question, on October 6, 1975. They were looking for evidence of foul play, particularly blood. The rubber mat in question was there, but it was not taken as evidence (as were many other things from the car) because the officers found no blood stains. After the Defendant's arrest, on November 13, 1975, they did take the mat because of the possible blood on it. Obviously, if there is any inference to be drawn from this evidence, it is that the blood got onto the mat between October 6th and November 13th, during almost all of which time Mr. Botham had full use of the vehicle. Mrs. Kamen, C. B. I. blood expert who tested the blood for the prosecution, could only state that it could have been as much as six months old in November, 1975 when she tested it.
Cordell Brown, C. B. I. tool and markings expert for the prosecution, microscopically examined the blades of Mr. Botham's wire cutters when he first received them. He found a red spot which he delivered to serologist Marion Kamen. Mrs. Kamen determined it was blood but could not tell what species it had come from. The Defendant testified that these wire cutters, as well as a rag under the seat, were in the vehicle and used to cut and remove porcupine quills from his dog as she would find porcupines on a regular basis while they were out in the mountains.
Brown also removed some white material about one-third the size of a match head from the blades. Using a gas chromatograph, he determined that the material from the blade had the same organic chemical composition as the white insulation taken from the wire around Pat Botham's body. There were, however, differences in the charts for the two samples which could be explained either by contamination of one or both of the samples or by the fact that the two samples were of similar but not identical composition.
After the bodies were discovered, the Bridgeport bridge nearby was inspected. Investigators found a six-inch darkened area on the planks near the center of the bridge and another of like size on the railing support. They chiseled off samples of these spots. There were also two parallel series of small dark spots which started from where the wooden planking began. At the very beginning of the bridge they found some hairs which were sent to the C. B. I, along with hair samples from all the bodies.
Nelson K. Jennett, a C. B. I. expert in hair, textile, and fiber analysis for the prosecution, concluded that one of the hairs found on the bridge could have come from Linda Miracle's head, and another could have come from Chad Miracle.
Marion Kamen tested the wood chips from the bridge and found that all were examples of human blood. As a result of her attempt to determine the blood groupings, she concluded the blood was either from group O or that the characteristics of the other groups had been destroyed by exposure to the weather.
Looking at Mr. Botham the day after the murders, August 23, 1975 when the Defendant had called the police reporting his wife missing, Police Department Investigator Doug Rushing saw a small, fairly fresh nick on the right side of his face just below his right sideburn. He also had a small gash on his left index finger and there appeared to be a small speck of blood on his right earlobe. Ken told him that he had caught his finger on the tailgate of his car, the other facial nicks from shaving as his habit was that he used a straight razor.
In 1975, DNA testing was not yet useful and was not utilized in this case.
3. Evidence of the Defendant's activities after the crime allegedly showing the actions of a guilty man
The
third sub grouping of evidence was that showing various
activities
of the Defendant between the disappearance and the arrest,
which the prosecution tried to characterize as the actions
of a guilty man.
First, the prosecution made a big show of the fact that when he was questioned on October 31,1975, Mr. Botham mentioned that he knew the bodies were wrapped in wire, while the police had decided when they discovered the bodies that the wire would only be referred to as a ligature. The inference they tried to draw was that the only way Mr. Botham could have known of the wire was if he was the murderer.
However, both
Sheriff Williams and Milo Vig, the chief investigator,
testified that they sent officers all over Mesa County
with pieces of the wire trying to match it.
Albert
Casario, who discovered the bodies, testified that he
Sheriff Williams also testified that he did not tell the press that they believed the children had been shot with a .22 caliber weapon. (See the numerous newspaper articles, the majority of which are documented here) Then evidence was introduced to show that Mr. Botham was aware of the significance of .22 caliber weapons because he had turned over only four .22 caliber weapons when asked to submit all of his weapons. Evidence was also introduced, however, to show that Officers Montgomery and Silva went to Mr. Botham's house on October 4,1978 and specifically asked him for all his .22 caliber weapons and only his .22 caliber weapons. Even Mr. Vig admitted that it would have been logical for Mr. Botham to conclude that a .22 caliber weapon was thought to be the murder weapon, when the police came and asked him to turn over only guns of that caliber.
Finally, a number of witnesses testified to having seen Mr. Botham wash his car on at least three separate dates shortly after the disappearances [Georgia Lemarr; Patsy Miracle; Vince Jones; and Doug Rushing].
Georgia LeMarr, neighbor to Marie Griffin, gave a statement to police on November 14, 1975, after she was aware that Mr. Botham had been arrested. She stated that on August 24, 1975, Mr. Botham arrived at Marie's house at 11:00 a.m. (9127) At approximately 1:30 p.m.; she saw Ken and Marie washing his car. But on Sunday, August 24, 1975, Mr. Botham attended morning church services from 9:15 a.m. to noon. As the Botham children were staying with Reverend and Mrs. Holler, they invited Ken to stay and have lunch with the boys. He stayed at the Holler home until 3:00 p.m. and then returned for the evening service at 5:00 p.m. Also, Marie Griffin was contacted by the police at 4:00 p.m. on August 24th. She had not known that anything was wrong until the officers asked if she was aware that Pat Botham and the Miracles had disappeared. She told police that she had not known about the disappearance and had not seen Ken since Friday at work, nor had she heard from him over the weekend.
On August 28, 1975, Patsy Miracle, Linda's sister-in-law, and Vince Jones, an ex-FBI agent who had been hired by the Miracle family to investigate the disappearances, were at Linda Miracle's house. Ken Botham drove up in front of his house and got out of his car. As Ken walked toward his house, he was met by his St. Bernard dog. Ken continued toward the house, and the dog ran to the back of Ken's car and began sniffing the rear bumper and leaping around. Ken came from the house and started hosing down his car, starting with the rear bumper.
The Grand Junction police apparently had Mr. Botham under intermittent surveillance. The first day of this tailing was September 8th when Officer Rushing followed Ken to a car wash where he washed his car. Then he went to Marie Griffin's house. Mr. Botham's testimony showed that the St. Bernard dog had had eye surgery the first week in September at the veterinarian, who didn't have a kennel large enough to house the dog overnight. Mr. Botham immediately took the dog home, in the back of the Toyota, and she scratched the incision open, spattering the entire rear area with blood. Mr. Botham also carried firewood during this time period.
Washing one's car, especially after having
driven it in the mountains, does not link one with murder.
4. Evidence of the Defendant's past activities either showing motive or linking him with the murders
Much
of the rest of the evidence presented discussed various
aspects of Mr. Botham's past. Some went to developing a
motive, while the rest went to tying him in with the crime.
To establish a motive for the murders
Evidence
was introduced through various witnesses to show that Mr.
and Mrs. Botham were having trouble with their marriage and
that Mr. Botham had been having an affair with Marie
Griffin. None of this was ever contested. Ms. Griffin did,
however, testify that Mr. Botham had never discussed
marriage with her. To whatever extent marital problems are generally
seen as a motive for murder, the jury could have drawn such
an
Without more, however, this is hardly sufficient to convict someone of murder.
(footnote:
It should be noted that the Defendant requested that the
jury be
To establish a link to the murders
Other
evidence was introduced relating to an incident which
occurred in June, 1975 and involved Mrs. Miracle and Mr.
Botham, in an effort to show prior violent contact or
dislike (this is not clear). Mr. and Mrs. Crawford,
neighbors to the Bothams, testified
to having heard a woman scream on the night of June 15,
1975. After going from window to window, they saw the
Defendant carrying Mrs. Miracle into his house and a rescue
vehicle arriving. No one actually saw who attacked Mrs. Miracle.
The
If
there is any inference to be drawn from this evidence taken
as a whole, it is that Mr. Wilhelm, and not Mr. Botham, was
the attacker.
The
final evidence to be discussed, introduced through Timothy
Tyree and Dwain Jackson, showed that Mr. Botham was familiar
with the section of the river where the bodies were found, that
he and Mr. Tyree had seen the pile of railroad iron from
which the weights were taken early in the summer of 1975, and,
from Mr. Jackson, that in 1971 he and Mr. Botham had had a
casual conversation in which they had discussed the
Bridgeport bridge as a good place to dispose of bodies.
Mr.
Jackson had suggested that the bodies should be weighted and
tied with wire because it would not decompose.
Obviously not only Mr. Botham and Mr. Tyree were
familiar with that area, and with the railroad iron, since
the Bridgeport bridge was apparently a favorite place for
people to launch rafts and boats for trips down the Gunnison
River. And the conversation with Dwain Jackson four years
earlier would seem to be somewhat remote to be evidence of a
plan, scheme, or design.
When
all of this evidence is analyzed, it becomes clear that,
taking it as a whole and with the inferences which
reasonably could be drawn from
The only reasonable inference to be drawn from the evidence of time of death is that the murders occurred well before midnight on August 22nd. And the only conclusion which can be drawn from the evidence as to Mr. Botham's whereabouts is that if he did return from Ouray on the night in question he could not have arrived in Grand Junction until midnight or after and thus could not have committed the murders. Further, all of the rest of the evidence, taken as a whole, is not enough to overcome this conclusion. Any reasonable jury, affording the Defendant the presumption of innocence, and drawing only those inferences, and all of those inferences, which naturally arose from the evidence presented could not legally have found the Defendant guilty beyond a reasonable doubt.
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