Golden – On Halloween six years ago, Gerald Tesch pulled up his chair and, pressing his face within six inches of Kenneth Botham, Jr., accused him of murdering four Grand Junction residents.
Until then the six-hour interrogation by the Colorado Bureau of Investigation had skimmed over a variety of subjects. Some were minor, like the personality of Botham’s St. Bernard, Florence; some were major, like Botham’s guess at who committed the crime.
But this was the moment the CBI investigator was waiting for.
“Why can’t you tell me” he pressed. “Did you shoot them[?]”
Botham, until then talkative, paused. Then he asked, “If I told you, what would happen to my boys[?]”
“They’d be taken care of,” replied Tesch.
“But I’d have to go to jail,” said Botham.
“Hell yes, you would. Hell yes.” said Tesch.
Botham fell silent.
Tesch was the second witness Friday, the fifth day of testimony in the retrial of Botham of Grand Junction on charges of murdering his wife Patricia, 25, his neighbor, Linda Miracle, 25, and her sons, Chad, 5, and Troy, 3.
Botham was originally convicted of the Aug. 22, 1975, crime in 1976. His conviction was overturned by the Colorado Supreme Court in 1981, in part because of pretrial publicity, and is being retried in Golden District Court.
Tesch’s testimony was a highlight of the prosecution’s case, which is expected to conclude by noon today.
Tesch, who has testified in hundreds of criminal cases, spoke directly to the jury, pausing to casually blow dust off his glasses or inspect his fingernails. He smoothly told of his interrogation of Botham Oct. 31, 1975, for the CBI.
Botham that day spoke about his trip to Ouray the night of Aug. 22, about finding his two sons playing alone in their yard the day after his wife was murdered, and about the guns he owned.
Botham also told Tesch he’d never considered killing his wife, but if he did, he would do it by pushing her over a cliff. And he talked, nervously, Tesch told the jury, about the wire cutters found in his Toyota Land Cruiser.
But it was the final exchange between Tesch and Botham, which Tesch called an “admission,” that stirred the court Friday.
Defense attorney Lee Foreman, became agitated and visibly angry in his cross-examination. Hadn’t Tesch, previously in that interview, asked Botham whether he committed the crimes and hadn’t Botham simply fallen silent, asked Foreman. Yes, replied Tesch, several times.
“And why,” asked Foreman, “did you not include Botham’s response in your formal report, even though you now say it was the most significant part of the interrogation” Tesch said he didn’t know.
The defense was particularly disturbed that Tesch repeatedly used the word “admission” in describing Botham’s answers.
Foreman later asked District Judge Winston Wolvington for a mistrial. “It’s quite intentional that he used those words,” said Foreman, “but there was, in fact, no admission, no confession.” Wolvington denied the request.
Meanwhile, Botham’s defense attorneys scrambled to block another prosecution move. Mesa County District Attorney Terrance Farina wanted to introduce a statement by Botham in his previous trial that there was wire missing from his shed.
Wolvington ruled the testimony was inadmissible because it would violate Botham’s constitutional right not to testify against himself. Bothams’ previous testimony may only be brought up if he decides to testify in the current trial.
The four bodies were found tied with white-rubber coated wire and weighted down in the Gunnison River, south of Grand Junction near Bridgeport.
Wolvington did allow, however, testimony from the day’s third and final witness for the prosecution, whose case is built entirely on circumstantial evidence.
Firearms and tool-markings expert Claude Cook told the jury the wire cutters found in Botham’s vehicle had cut the wire that wrapped the bodies.
Cook, a retired CBI agent, said it took him 60 hours to examine the tiny, red-handled cutters, two-thirds the length of a ball-point pen.
In cross-examining Cook, Foreman spent an hour challenging his credentials and the certainty with which he identified the cutters.
The subject of wire will come up again today when the prosecution is expected to introduce photographs of wire samples the defense has not examined. Foreman said he expects to ask for a recess to give his tool expert time to examine the new samples.
Wolvington denied such a request Friday, but indicated Foreman may again ask for a recess when the prosecution concludes its case.
Police investigations in the Botham case were again described earlier in the day by Mesa County Sheriff’s Detective Mike Smith.
Botham was arrested on Nov. 8, 1975, driving south on U.S. Highway 50 near Bridgeport with his girlfriend Marie Griffith. Smith had been following Botham and made the arrest after being notified by phone that a judge had signed the arrest warrant.
Both before and after Botham’s arrest on Nov. 8, 1975, Smith joined in searches of Botham’s vehicle, office and Grand Junction home at 1914 Ouray Ave. Smith identified for the jury some physical evidence taken in those searches, including hair, blood stains, the wire cutters and a wall calendar on which “Ouray” was written over the dates Aug. 22 and 23.
The defense tried to show that Smith’s investigations were inconsistent, if not slipshod. Foreman implied during cross-examination that Smith did not properly log all of the evidence he gathered or send all of the material samples to the Colorado Bureau of Investigation for testing.
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