Reported by Grant Houston
On its third day of deliberations, Thursday, October 3, juror numbers in the Fred Mueller Second Degree Murder trial in Broomfield, Colorado, dropped to nine men and four women, including one alternate, after an ill jury member was excused from duty.
Prior to his release, the male juror told presiding District Court Judge Francis Wasserman that he felt able to continue serving despite lung congestion and cough but feared he might infect other jurors.
Judge Wasserman continues to closely monitor trial decorum and scheduling, repeatedly admonishing jurors not to discuss the proceedings with friends and family, or even among themselves, and on Thursday warning journalists attending the murder trial that they would be barred from the Broomfield Courthouse if they made any attempt to approach a jurors. “Stay a respectful distance from the jury or you will not be in this courthouse,” he said.
The Judge’s comments to journalists was prompted in part by a report late Thursday that Mueller family members had been chased by cameramen attempting to film them. “I have great respect for the Fourth Estate,” he said after the jury retired late Thursday afternoon, “but I have an even greater respect for members of the jury.”
Tempo is also a key focus of this, Fred Mueller’s second trial for the alleged murder of his wife, Leslie Mueller, near Lake City in May, 2008. Mueller’s first trial on first degree charges continued in Gunnison District Court in excess of five weeks in January and February this year; Judge Wasserman appears determined not to replicate that scheduling and has on several occasions expressed exasperation when trial testimony appears repetitive or overly drawn out.
After prosecution attorneys entered a succession of Cottonwood Creek enlargement photos as evidence on Tuesday afternoon, and with jury members excused, Judge Wasserman admonished counsel to “move this along, I’ve seen this picture 18 times before.”
“It’s cumulative,” he declared, “and, frankly, it’s a waste of the jury’s time.”
As a further divergence from Mueller’s first trial in Gunnison earlier this year and his second trial now taking place in Broomfield, Judge Wasserman cited the trial’s “complexity” in explaining why questions from the jury will not be allowed. At earlier deliberations in Gunnison, jury members were allowed to submit written questions at the conclusion of each witness’ testimony.
Also speedier in the current proceedings are the minimal number of sidebars conferences during which testimony ceases and legal council for both prosecution and defense confer with the presiding judge in hushed tones. At the earlier trial in Gunnison, proceedings slowed with literally hundreds of sidebars; to date sidebars in the current trial average just three to four a day.
Deliberations are being held in Courtroom Three on the second floor of Broomfield’s modern courthouse; courtroom attendees are obliged to first pass through security on the ground floor, after which family and audience jockey for position in a narrow public area comprised of three hard and unforgiving 15′ benches which are arranged on either side of the entrance aisle. The actual courtroom proper is windowless and somewhat deep, with jurors seated in a semi-enclosure to the left against one wall and Judge Wasserman presiding from his elevated bench situated in the far corner at right. Various court personnel are seated at desks adjacent to Judge Wasserman, with table for prosecution to the left of the aisle adjacent to the jury, and defense with a virtual library of information in thick 3-ring binders filling the space to the right of the aisle.
Due to proximity to Defendant Mueller, seated at the defense table, public seating to the right of the public area is continually occupied by members of the Mueller family and friends, Mueller’s present wife, Wendee Walker Mueller, his daughter, Amanda, and parents in front row, and other relatives/friends in succeeding rows; public seating to the left of the aisle is generally occupied by members of the prosecution, media, and other members of the public.
Witnesses testifying in the trial are seated on a slightly elevated platform to the side of the judge and adjacent to the defense area on the right side of the courtroom.
Technology is somewhat more advanced in the Broomfield courtroom as compared to its district court counterpart in Gunnison, with a variety of visual aids, including built-in video monitors for the jury on which photo exhibits are displayed. A profusion of flatscreen monitors are arranged in the prosecution and defense areas, with public area spectators left to view photo exhibits on an old fashioned, pull-down/pull-up screen located near the witness stand.
Although relatively deep, the small amount of remaining open space in the courtroom proper quickly became congested with the introduction of a succession of large-scale exhibits, the first of which unveiled on Tuesday being a detailed, 50″-long table-size three-dimensional model illustrating Cottonwood Creek canyon and stream on a scale of 1″ equal to 100′. Added to this model in ensuing days were pins with white labels identifying key sites such as the location of the last photo where Mrs. Mueller fell, the trailhead, and a succession of two interim semi-public campsites located along the 4-wheel drive access route.
Further crowding into the courtroom later in the week were other large-scale exhibits: the 4′ section of partially submerged log under which Mrs. Mueller’s body was found, and a clothed mannequin which was used by investigators in reenacting how a body reacts after being placed in Cottonwood Creek. The mannequin was first displayed to jurors at the first trial in Gunnison earlier this year; although referenced at the earlier trial, the section of log makes its first physical appearance at the Broomfield trial. Also new to the second trial is the three-dimensional Cottonwood canyon diorama. Large blowup photographs depicting overviews and various particular segments of the creek were also introduced at the Gunnison trial but appear to have proliferated for the start of the second trial.
Testimony by prosecution witnesses thus far in the second trial appears streamlined and somewhat compacted from similar testimony which was delivered during the first proceedings. Prosecution’s “good faith witness list” furnished prior to the start of proceedings on October 1 listed a total of 28 prospective witnesses who may be called to the stand, with the caveat “However, the People reserve the right to call other endorsed witnesses as needed.”
Through Friday afternoon this week, a total of 17 prosecution witnesses had testified in court, each introduced and questioned by either Ryan Brackley or Matthew Durkin, and in turn cross-examined by Pamela Mackey or Roger Sagal for the defense. For a majority of the witnesses, brief re-direct then occurred by Brackley or Durkin.
At the earlier first degree murder proceedings in Gunnison, prosecution called to the stand a total of 29 witnesses, eight of whom who were declared as experts; a total of 15 witnesses, including four experts, testified for the defense at the Gunnison trial.
Following are brief accounts of testimony made by witnesses on behalf of the prosecution through Thursday, October 3:
Oregon residents Justin and Jennifer Sparks, Marcia Connell from Florida, Michael Golob from Bend, Oregon, and Bob Burden and Hinsdale Coroner and EMS Director Jerry Gray, both from Lake City, all testified concerning what Fred Mueller told them occurred early evening May 3, 2008. Although initially misdescribed as Cataract Gulch, Mueller stated that he and his wife, Leslie, spent a portion of the day in Lake City, including Mass at the local Catholic Church. After returning to their upper Lake Fork cabin, they had snacks and wine, and their son, Alex, declined joining them on a short hike up Cottonwood Creek.
In Mueller’s uniform account to all the witnesses, the couple parked near a snow blockade at the trailhead and proceeded to hike up the Cottonwood Creek 4-wheel jeep road in search of a picturesque waterfall which they had glimpsed on an earlier visit. They took pictures of one another at a point above Cottonwood Falls, then walked to a lower vantage point on a ledge directly in front of the falls. After Mueller took a final picture of his wife crouched on the ledge with the couple’s dog, Gracie, he reported that a blue-colored bird distracted the dog, the dog and Mrs. Mueller became entangled, and Mrs. Mueller fell backwards off the precipice. She landed on her head and shoulder with a “sickening thud” at the base of the precipice, after which he said he watched as his wife slid into Cottonwood Creek and floated out of sight.
Mueller stated he scrambled through underbrush on the mountainside attempting to keep his wife in sight, went down the 4-wheel drive road to access the stream and unsuccessfully search for his wife at a lower location, then concluded to return to his jeep at the trail head and seek assistance.
Justin and Jennifer Sparks testified Mueller appeared panicked and kept repeating “My wife, she fell on her head and I think she’s dead” after pulling up at their upper Lake Fork residence. Mr. Sparks accompanied Mueller to search for the missing woman up Cataract Gulch and felt initial misgivings when Mueller instead directed him up Cottonwood Creek.
Wading and running up the creaked, it was Sparks who first sighted Mrs. Mueller and her lime green jacket, the woman facedown with her head beneath a partially submerged log, legs pointed upstream and arms at side. Sparks extricated the body in the hope she might be revived. He said he felt resistance in moving the body, recalling she rested in part on subsurface gravel in water that ranged in depth from a few inches to just below his knee caps.
Sparks was closely questioned by Pamela Mackey during cross-examination, Mackey recounting that in interviews after the event, he had variously described the body as “head under log and remainder of body floating on top”” and “half-in, half-out of water.”
Mackey also questioned both Justin and Jennifer Sparks on the extent to which Mr. Mueller’s clothes were wet when he arrived at their house, Mackey reminding Justin Sparks that he initially told Sheriff Ron Bruce Mueller was wet from the knees down. Mrs. Sparks testified she recalled Mr. Mueller’s jeans were wet from the crotch downward.
Physician’s Assistant Michael Golob testified Mrs. Mueller’s body and clothing was in “pristine” condition when he arrived at the scene in Cottonwood Creek, the only apparent injury being a “goose-egg” contusion on the forehead. Based on earlier reports, Golob said he was prepared to treat trauma injuries resulting from a fall but that after seeing the body a “paramount” change in attitude occurred as he switched tracks to deal with a drowning victim. Golob was aided by EMTs Marcia Connell and Becca Ayres, and his wife, RN Jeana Golob, performing CPR; other medical procedures included airway intubation during which a front tooth was damaged, and Cricotracheotomy during which an incision was made in the throat to insert a breathing tube.
Golob recalled he and other emergency responders were shaking and cold as they administered aid to Mrs. Mueller in the creek bed. After being extricated by Justin Sparks, the woman’s body was hauled partially out of the water onto a slanted flat rock under a overhang on the stream bank.
Golob also testified that in initially arriving at the scene — he was hurriedly driven up the Cottonwood Creek road by Mueller and then dropped off — he noticed what appeared to a “breadfruit trail” of personal items which had been left along the road at intervals, including a shirt, then a camera case, and a flannel shirt at the last stop where Mueller stopped and let Golob out, saying “this is it”.
Prosecution witness Marcia Connell told court the injury to Mrs. Mueller’s forehead was a goose bump similar to hitting one’s head on an object; during time spent with Mr. Mueller, Connell described him as being emotionally “flat”. In cross-examination, defense attorney Mackey recited Connell’s 2008 Colorado Bureau of Investigation interview in which she attributed the forehead goose bump as possibly the result of a “tumble into the creek.”
On the witness stand, former Hinsdale County Undersheriff Bob Burden described the route down to the creek near where Mrs. Mueller’s body was found as “steep but not overly dangerous.” He recounted Mrs. Mueller’s clothing in good condition, including a zippered jacket pocket containing a red leash. In an exchange with Mueller in the sheriff’s vehicle, Burden recalled Mueller struck his fist on the dashboard, declaring, “It’s my fault, I shouldn’t have been taking pictures so close to the edge.”
Burden recounted that after Mrs. Mueller’s body was found and she was declared dead, he accompanied Mueller, Coroner Gray and EMT Connell on a walk-through back up the falls where Mrs. Mueller reportedly fell, during which time Gray sighted and retrieved Mueller’s digital camera from rocks near the creek at the base of the precipice. Water in Cottonwood Creek at the time was characterized by Burden as running slowly and not in great volume. Burden and Deputy Justin Casey then accompanied Mueller back to his Lake Fork cabin as he informed his son of his mother’s death.
The following day, Burden returned back to Cottonwood Creek and discovered the Muellers’ dog, Gracie, who had slept overnight on a blue pullover shirt which had been left above the trailhead snow berm. Water in the creek the following day was “substantially the same,” Burden said, perhaps an inch higher than the previous day. Burden’s testimony also referenced water depth and conditions at a series of three waterfalls and pools extending down the creek from the point where Mrs. Mueller fell to the body recovery site; also discovered the following day above the fall site ledge were a pair of Mr. Mueller’s eye glasses, one earpiece separated and partially imbedded vertically in the ground, and nearby broken vegetation and scuff marks on the soil surface.
On cross-examination, Mackey noted that the exact position of the Mueller camera near the base of the precipice was not recorded, and that water depth was not measured with a yardstick but rather a wood stick to arrive at a “guesstimate” of depth. No attempts, she stated, were made to measure the velocity of the water on either May 3 or 4.
Jerry Gray testified that on May 3 he arrived on Cottonwood Creek in search mode for the missing woman. While riding up the creek with Mueller on the search, Gray said that he observed Mueller had a series of facial scratches which Mueller attributed to receiving after going through brush and tree branches while searching for his wife. The scratches, according to Gray, were uniform 1/8″ wide, 1/8″ apart and parallel on both sides of his face, uniform depth, red and raised, and all vertical.
Gray was present as Mrs. Mueller’s body was removed from the creek bed in a stoke’s litter and CPR continued as the woman’s body was transported to ambulance at the trailhead. A heart monitor in the ambulance resulted in flat lines and what Gray termed “not a salvageable rhythm,” at which point Mrs. Mueller was declared dead. Gray said he then switched to coroner mode and, after extending condolences, asked Mueller to return to the scene of the fall for a walk-through. It was at this time he spotted the digital camera and quickly accessed it via a series of natural stone “steps” leading down from near the ledge.
During his return to the scene the following day, on May 4, Gray said the camera was repositioned and photographed; dog footprints were observed in a snowbank above the ledge where Mrs. Mueller fell; near the snowbank, Guy Corder was the first to locate the broken eyeglasses and scuff marks. In his role as county coroner, Gray said Mrs. Mueller’s body was transported to ambulance barn in Lake City later on the evening of May 3; still later that same evening, he transported the body to Montrose Memorial Hospital in advance of an autopsy on May 5.
Mackey in cross-examination received an affirmative from Gray after asking whether the fact he was a trained long-distance runner might have accounted for why he found it easy to access Cottonwood Creek via the series of stone steps. Gray responded that he and other members of the investigative team had also accessed Cottonwood Creek by the same stone steps, Mrs. Mackey replying that neither Gray nor other team members “had just watched their wife fall off the ledge, did they?”
“No, Ma’am,” Gray replied.
In her cross-examination, Mackey suggested the route used by emergency responders down into the creek bed to reach Mrs. Mueller’s body represented the “only logical way” to reach the creek. Gray responded that this was one of several upstream locations where the stream might be accessed.
On re-direct from Brackley, Gray agreed that on the walk-through, Mueller had repeatedly pointed to a specific flat rock with adjacent V-shaped depression at water’s edge where he indicated he saw his wife land after she fell from the ledge.
Testimony for the prosecution from 31-year Colorado Bureau of Investigation investigator Jack Haynes continued both Wednesday afternoon, October 2, and Thursday morning, October 3. His involvement with the case began with a request from Hinsdale County Sheriff’s Office the day following Mrs. Mueller’s death, on May 4, 2008, and continues through present. He testified on seven photographs which were taken from the internal hard drive of the Mueller’s digital camera, the first of which — Mr. Mueller posed smiling, wearing plaid shirt, blue pullover, jeans, eyeglasses — was taken at 6:01.37, and the last — Mrs. Mueller with dog, crouched with Cottonwood Falls in background — at 6:10.49. It was noted 28 minutes, 11 seconds elapsed between the time of the last photo and the emergency 911 call which was made from the Sparks’ residence, a distance of between 1.6 and 1.8-miles from the trailhead.
Agent Haynes was the first to introduce the large, three-dimensional scale model of Cottonwood Creek canyon, his other evidence entered by prosecution including a Google Map flyover depicting Lake City in relation to the upper Lake Fork Valley drainage, with emphasis on Cottonwood Creek, and aerial video from an unmanned drone in July, 2012, illustrating the geographical relationship of the ledge from which Mrs. Mueller fell to a succession of three downstream waterfalls and pools, ending with an overview of the log where her body was found.
Mackey objected to a series of enlargement photos of Cottonwood Creek which were entered as evidence, defense counsel repeatedly stating the photos were “cumulative” and “not representative.” Judge Wasserman allowed the exhibits to be entered while encouraging prosecution to “move this along.”
Haynes also testified on other case specifics, including the fact that from the ledge where Mrs. Mueller posed, a 5′ sloping distance exists before point of vertical precipice. The distance from the ledge where Mrs. Mueller posed to the flat rock where her husband stated she impacted after falling is 19′, Haynes sated, and the distance from the rock down stream to the log where Mrs. Mueller’s body was recovered is a straight distance of between 130′ and 135′, Haynes stated. On cross-examination by Mackey for the defense, Haynes affirmed that no tests were conducted to determine whether a body falling over the precipice could land in the water.
During re-examination, Durkin asked Agent Haynes why a body reenactment off the precipice didn’t take place, Haynes responding, “we didn’t have a human who volunteered to go over the cliff.”
Haynes also testified that hairs which were collected from near the scuff site above the ledge where Mrs. Mueller fell were tested at CBI laboratory and determined to be canine. In reference to the section of log which was the location where Mrs. Mueller’s body was found, Agent Haynes said the 4′ section was cut on May 9, 2008, with the expectation it would exhibit trace evidence. The contour of the log where Mrs. Mueller’s body was found has been described as “hockey stick”-shaped angling down into the creek, then split with the foot of the stick more parallel with the creek bottom.
After removing the submerged portion of log from the creek, Haynes reported he and Justin Casey winched the remaining portion of log back into approximate location with the goal of minimal disruption of the creek bed and adjacent rocks. In cross-examination later in the week, defense’s Mackey and Sagal repeatedly contended that the repositioned recovery log with missing section adversely impacted results of an early August, 2009, body-in-water test in which both a living person and mannequin were placed in the stream in an attempt to replicate movement of a body as described by Fred Mueller.
Prosecution witness Eric Berg, San Miguel County Undersheriff and an expert in swift water rescue, first visited the Cottonwood Creek site at the request of Colorado Bureau of Investigation after Mrs. Mueller’s death in May, 2008, and agreed to conduct body-in-water testing with the requisite that water conditions in the creek at the time of the testing would be as identical as possible in terms of water level and velocity as the date when Mrs. Mueller died.
Dr. Carolyn Mitchell, then a professor at Western State College in Gunnison, was selected for the live-person test based on the fact her weight and stature were similar to Mrs. Mueller; in addition to Dr. Mitchell — who was placed in the creek helmeted and in wet suit, and at times with mask and snorkel, was weighted for varying degrees of buoyancy — Berg also coordinated testing with a mannequin with varying degrees of weight to assess how water current impacted the mannequin.
Berg’s August 4 and 5, 2009, body-in-water testing was videoed and then reduced to an 80-minute segment which was viewed by jurors on Friday, October 4. In the video, Berg with assistants including Mike McGuire, are seen repeatedly positioning Dr. Mitchell on the rock and V-shaped depression at the fall site attempting to replicate Fred Mueller’s description that his wife was caught in the current and washed down stream.
Despite incrementally advancing Mitchell’s body from beside the stream out into the channel, Berg told jurors the current showed no indication of dislodging Mitchell and “flushing” her downstream. The pressure line attached to Dr. Mitchell’s chest as a safety precaution remained slack at all times, according to Berg.
Berg’s testing focus was on the series of three small waterfalls, each pouring into pools, which are located in the 150′ distance between the point where Mr. Mueller said he wife fell and the downstream location where her body was found. In addition to the three waterfalls and pools, Berg also conducted body-in-water tests with the weighted mannequin and live Dr. Mitchell at the body recovery site. The mannequin was clothed near-identical to Mrs. Mueller with sweater and outside parka, jeans, gloves, socks, and shoe.
The rescue mannequin, according to Berg, was specifically weighted to approximate Mrs. Mueller’s weight in water — a female her weight and height equating to between negative six and negative eight pounds underwater. For a majority of the testing, Berg told jurors he felt the weighted mannequin was in fact more buoyant than the actual Mrs. Mueller would have been.
Berg placed the mannequin at the start of each of the three waterfalls, maneuvering the mannequin in each instance to flow over the falls and down into the connecting pool; in each instance, the mannequin either immediately sank to the bottom of the pool or was briefly drifted by the water current until settling to the bottom, mid-pool at right. Also interesting in the video was the fact underwater photography showed the mannequin’s clothing first billowing and then gradually being removed by the subsurface current.
For live body testing with Dr. Mitchell at the body recovery site, Berg said Mitchell sank and failed to move in the water at negative buoyancy but did drift about a bit when she was made positively buoyant. In these instances she was caught by branches extending down into the creek at a “strainer” tree immediately up stream from the log where the body was found. Under questioning, Berg said non-moveable strainers such as the tree account for the majority of drowning deaths as victims are ensnared in the object with water rushing over and past them. Branches such as those on the strainer tree on Cottonwood Creek have the potential to damage flesh or rip clothing.
When caught on a log such as the tree log where Mrs. Mueller’s body was found, the water current typically pushed the body to a horizontal position.
In cross-examination, Sagal asked Berg whether any of the investigators knew precisely when Mrs. Mueller drowned and became negatively buoyant. He stated the in-water body tests were incomplete because positive buoyancy was a allowed for in the mannequin/live person tests only a portion of the time.
Sagal also called Berg’s attention to the fact Sparks and Golob as first witnesses on the scene referred to Mrs. Mueller’s body as floating, and stated testing failed to take into account the body at point of entering the creek was not stationary but instead described by Mr. Mueller as in movement, “sliding” into the fast moving current after the fall. He also suggested a body might more easily enter the water and pass down stream over waterfalls as a result of snow and ice, and wet rocks.
Berg agreed with Sagal’s assessment that Cottonwood Creek constitutes a “dangerous place” requiring safety precautions when it comes to in-water body testing. “You didn’t want to let reality get in the way of testing,” Sagal said, “the reality being she [Dr. Mitchell] could get really hurt.” From Berg’s report, Sagal emphasized that the first live-body test with Dr. Mitchell above the first waterfall was ended after Berg detected instability in her body “and feared she could go over at any moment,” Sagal said.
Sagal expressed skepticism over results of Dr. Mitchell at the body recovery site because of the fact the actual log had been altered by the removal of the section, together with changes in the streamed which would alter the current.
On re-direct with Durkin, Berg estimated that when he was at the body recovery site in 2009, the water’s depth was mid-ankle, an estimated 3″. “My assessment was that the water was so shallow that there was no way a body could float on top of it.”
As a wrap-up to the first week of prosecution testimony in the Mueller murder trial in Broomfield, jury and court heard clarifications and new testimony which had not been part of the first first-degree murder trial in Gunnison.
Returning to the stand late Thursday, October 3, Jefferson County Sheriff’s Dept. blood hound expert Allen Nelson answered questions and provided narrative as a video was shown depicting Nelson and his hound, Georgia, on Cottonwood Creek six days after Mrs. Muller drowned. Deputy Nelson and the blood hound video had also been featured at the earlier Gunnison trial during which a dramatic development was his statement that the dog had to be restrained for fear she might leap over the precipice’s edge following Mrs. Mueller’s scent.
During last week’s testimony under cross-examination by Sagal, Nelson clarified that Georgia’s tail was held high as she detected “pooled scent” on the flat of the precipice where the last photo was taken. Nelson said the dog then tracked scent at the same elevation 20′ to 30′ downstream to another ledge where he restrained the hound with its leash as it followed the scent right to the edge of that ledge.
Brackley received an affirmative response from Nelson on re-examination when asked if it would be incorrect to state the dog had followed scent over the precipice at the last photo point where Mrs. Mueller fell.
On Thursday, additional new testimony came from prosecution witness Jeanne Barnes who worked as an assistant to Mr. Mueller in the 16-18-member Mueller Metals Co. office from September, 2005, until she was abruptly terminated in June, 2011. During this time her starting salary was increased from $40,000 to $75,000 and for a time starting in fall, 2007, was the recipient of a large number of cell phone texts and emails from Mr. Mueller.
Brackley for the prosecution repeatedly referred to an interview which CBI agent Rosa Perez conducted with Barnes after Mrs. Mueller’s death, specifics of which Mrs. Barnes testified she now does not recall. Asked whether she told Perez at the time that the volume of after-work communications seemed inappropriate or perhaps leaning toward sexual harassment, Barnes testified she had no recollection of making those statements. Barnes acknowledged that the extent of emails and texts had created a strain in her marriage but was adamant in stating she could not remember the wording of any texts which had made her feel uncomfortable.
During a car trip with Mueller, she testified the topic of divorce had come up, together with opinions expressed by Mueller that his marriage had become “stale and boring,” and that while he preferred vacations on the beach, Mexico, and Las Vegas, his wife preferred Colorado. According to testimony, she also loved horseback riding, while Mr. Mueller said he merely “bought the hay.”
On gentle cross-examination by Mackey, Barnes’ responded “yes” when asked by Mackey whether at times during the murder investigation she felt attacked and unfairly treated. Barnes also agreed to Mackey’s suggestion that her initial interview with CBI Agent Perez followed her sudden termination with Mueller Metals and may have reflected the “hurt” she felt at the time. Barnes continued by stating “no” when asked whether she ever had a sexual affair with Mr. Mueller, provided sexual favors, or was approached sexually in any way, “no, he did not.”
Pressed again during re-direct testimony, Barnes said she could not recall why she stated in earlier testimony she felt sexually harassed in some of the texts which she received from Mueller. “You can’t remember or you don’t want to tell the jury?,” Brackley continued. “I don’t remember them,” she reaffirmed.
Another personal Mueller acquaintance testifying in both Gunnison and Broomfield was close family friend Amie Hajovsky of San Angelo who met her future husband — Brad Hajovsky,long-time Mueller family friend and Mueller Metals employee — while vacationing with Fred Mueller and others in Mexico. Mrs. Hajovsky provided what was essentially the same testimony from the stand last week, recounting that both Mr. Mueller and his deceased wife had been upset when Mr. Hajovsky and his former wife divorced. In that context, Mrs. Hajovsky said Mr. Mueller stated he would never put his children through that ordeal, nor would he ever allow a woman to dictate when he could and couldn’t see his children. In the conversation, Mrs. Hajovsky recalled Mr. Mueller stated he and his wife intended to work on their marriage to avoid a similar situation.
Mrs. Hajovsky is a slightly-built woman comparable in stature to Leslie Mueller. At conclusion of re-direct, Judge Wasserman denied defense attorney Durkin’s request to have Mrs. Hajovsky to stand side-by-side with the more powerfully built and taller defendant. In making the surprise request, Durkin suggested that in his present condition, Mueller has perhaps lost weight.
October 6, 2013
One of last week’s most volatile exchanges came late in the week — shortly before court proceedings were recessed for the weekend on Friday afternoon, October 4, during cross-examination of bodies in water expert Andrea Zaferes by Pamela Mackey for the defense.
Prior to the intense cross-examination, Zaferes’ testimony was reminiscent of her earlier testimony for the prosecution in Gunnison, the water death investigator relating that despite conceptions to the contrary, dead and drowning bodies almost invariable sink beneath the water. Drowning is a quiet event, she said, as water enters the body and makes crying out for assistance impossible; sinking in fact takes place at an accelerated rate in cold, heavily aerated water, while depending on water temperatures, a drowned body will not resurface by floating until weeks or months later after decomposition gases form. In extremely cold and deep water, Zaferes said some bodies never resurface.
In water with temperatures 28 to 32-degrees fahrenheit, Zaferes said a person will lose consciousness within 15 minutes.
While Zaferes’ exchange with defense attorney Durkin was relatively calm, that element abruptly changed with cross-examination by Mackey repeatedly challenged Zaferes, at several points reprimanding her for volunteering information beyond responding to specific questions. “Are you that eager to help the prosecution?,” an exasperated Mackey demanded.
Mackey’s cross-examination questions drew directly from Ms. Zaferes’ published line of questions used in determining whether a drowning is accidental or intentional. One of those basic tenants used by Zaferes is whether evidence at the scene corroborates the determination an intentional drowning took place. Mackey challenged Zaferes that she had ignored her own criteria by concluding in her report for the prosecution that Leslie Mueller’s death was not the result of an accidental drowning.
Mackey continued by forcibly contending Zaferes had chosen to ignore earlier testimony by both Justin Sparks and Michael Golob which described Mrs. Mueller’s body as “floating”. Also disregarded in Zaferes’ report conclusions, according to Mackey, was the fact Mrs. Mueller’s well-clothed body may have been protected her from greater injury as she was carried down rocky Cottonwood Creek, together with the fact instances are known in which fast-moving mountain streams are capable of transporting bodies great distances. Furthermore, Mackey challenged Zaferes that there is no way to specifically know at what point in the creek that Mrs. Mueller succumbed to drowning.
Zaferes responded that after over 50 hours’ reviewing case material and touring Cottonwood Creek, she said she believes the actual drowning took place at the log where the body was discovered. Furthermore, Zaferes said she does not believe the body travelled any distance down the creek based on water conditions at the time. In fact, she added, “I have no idea how she even got into the water from the fall point.” She acknowledged that bodies can be propelled significant distances in streams in specific instances in which the lifeless body is in a life preserver and is not caught up in eddies and strainers.
Mackey also referenced Zaferes’ earlier testimony that she feels it was a physical impossibility for Mrs. Mueller’s body to have arrived at point of discovery — head submerged beneath log, arms at side and feet pointed perpendicular up stream — by natural circumstance. In Gunnison last January, she testified “someone had to have placed her there.” At last week’s trial she was equally adamant, saying with a “reasonable degree” of certainty, Mrs. Mueller “could not have gotten from the fall site to the recovery site under the log in that position.” Zaferes said she can understand how those first on the scene, Sparks and Golob, might have incorrectly described the body as “floating” based on their observation that part of the woman’s back protruded out of the water while resting on the shallow creek bed.
Mackey again challenged Zaferes that this conclusion ignored key physical evidence, including the fact no tracks were found at the body recovery site and the blood hound Georgia had tracked no scent of Mrs. Mueller over land to the location where her body was found. The only scent detected by the blood hound was up stream on a ledge down from the area where the last photograph was taken.
Zaferes responded that in her view the up stream scent in which the dog appeared to want to go over the edge might have signified the area where Mrs. Mueller jumped over the ledge and into the water in an attempt to escape. At this point Mackey briefly conferred with co-defense counsel Sagal, after which cross-examination abruptly ceased.
Further repercussions from the Zaferes testimony occurred when court reassembled without jury after a 15-minute break, when prosecution attorney Durkin addressed Judge Wasserman to report an event which took place during recess and which was witnessed by several high school student observers in the hallway outside of the courtroom. Durkin stated defense attorney Sagal confronted Zaferes, got within 2′ of her nose and demanded, “you have no idea how many lives you have ruined today with your lies.” Ms. Zaferes was reportedly shaken by the confrontation and was then escorted to her hotel room. Durkin asked Judge Wasserman to censor and admonish Sagal for the altercation, “there is no justification why an attorney should ever treat a witness like that.”
Judge Wasserman expressed concern whether any juror might have inadvertently overhear Sagal’s exchange with Zaferes and, after the jury returned, queried them in general terms as to whether they had overhear the interaction. Court continued after assurances from jury members that they had heard nothing, having immediately gone downstairs to the jury room and shut the door during the recess.
Judge Wasserman indicated he would address the reported infraction in court at a later date. Sagal, who has served as a key member of Mueller’s defense at both the Gunnison and Broomfield trials, appeared visibly shaken as the matter was discussed in court.
“I am so sorry,” he told Judge Wasserman, “I let my emotions get the best of me.”
Other testimony from prosecution witnesses late last week: two returning witnesses who had earlier appeared at the Gunnison trial were Cynthia Kramer, an expert in DNA analysis who works out of the Colorado Bureau of Investigation lab in Grand Junction, and former FBI trace evidence examiner Sandra Koch, an expert in hair and fiber analysis. Mirroring earlier testimony, Kramer testified DNA evidence found on certain key exhibits was limited. Blood stains found on Mrs. Mueller’s knit sweater proved a positive match with Mrs. Mueller’s DNA. Samples taken from other items found at the site — man’s green and white plaid shirt, blue pullover — were inconclusive, while Mrs. Mueller’s gloves with exterior palm nubbins did have hair fragments which were determined to represent both human and non-human origins. The fragments were too small, however, to provide a DNA match.
Kramer also testified she collected hairs which were found to be both human and non-human from the segment of log taken from the body recovery site. Mr. Mueller’s broken eyeglasses were also analyzed, DNA testing suggesting the glasses were worn by a male, while a substance on the exterior of the left lens was uninterpretable but apparently human female in origin, Kramer said.
Hair and fiber expert Sandra Koch analyzed a 5″ long light blonde hair taken from the log sample and concluded it did not match Fred Mueller. The man’s blue pullover was found with a horizontal tear below the front zipper. Koch said she closely inspected the tear and said it was most closely replicated elsewhere on the cloth by inserting the tip of scissors and then using the scissors to cut and tear horizontally across.
Water-related testimony last Thursday included expert hydrographer Gerald M. “Jerry” Thrush, a 23-year employee of Colorado Division of Natural Resources, who returned to familiar territory as he went into detail in describing a naturally occurring solid rock weir which exists across the river channel just above the point in the river where Mrs. Mueller reportedly fell. A portion of the rock weir — consisting on one side of a water-worn trough or channel through which the bulk of the creek water passes, immediately adjacent to which is a series of slightly elevated rock ridges or “ribs” — is visible behind Mrs. Mueller in her last photograph. The trough portion of the weir serves as a naturally occurring “partial flume,” according to Thrush; during periods of higher water, water cascades over the rock ribs on the opposite portion of the weir, although the ribs appear merely wet in Mrs. Mueller’s picture. The weir, he said, basically serves as a “gauge.”
By comparing the water passing through and around the rock weir, Thrush said he is able to estimate the extent of water passing through Cottonwood Creek at the time of Mrs. Mueller’s death at 10 cubic feet per second. The natural rock weir, he said is a stable, unchanging geological feature which services as a reliable gauge from year to year. He acknowledge that Cottonwood Creek is a “dynamic” stream which annually transports a considerable amount of cobble rock and gravel; based on the volume of water passing through the weir’s narrow channel and its approach in a pool immediately above it, Thrush said these areas are naturally “flushed out” with no cobble build-up to alter water flow.
In addition to closely analyzing the naturally occurring rock weir in the creek above the fall site, Thrush began measuring water depth and flow on a regular basis starting in late July, 2009, and continuing through spring runoff in 2013. Comparing actual in-stream measurements and photos of the rock weir, Thrush said Cottonwood Creek was flowing 81.2 cubic feet per second on June 5, 2013; 59.8 cfs on June 13; 27.3 cfs June 19; 22.6 cfs June 21, with the water cascading over ribs on the rock weir; 17.5 cfs June 24, with the rock ledge ribs beginning to appear; 15.0 cfs June 29; and, finally, July 5, 2013, when water flow was 10.5 cubic feet per second and the rock weir structure appeared “very similar” to the manner in which the weir appeared during Thrush’s first observations in 2009. By comparison, an 8.8 cfs reading which he took on Cottonwood Creek at the fall site on July 10 this year showed water passing through the weir comparatively “much lower.”
Thrush was cross-examined by defense’s Sagal for nearly 30 minutes, Sagal emphasizing that investigators recorded no specific water measurements immediately following Mrs. Mueller’s death in May, 2008, and instead are now placed in the position of reconstructing documentation in part using such unscientific methodology as visual landmarks like the rock weir. As a dynamic stream, Sagal said Cottonwood Creek “carried an extraordinary amount of debris” such as rock and gravel. “if the stream changes from year to year,” Sagal told Thrush, “your measurements will change from year to year.” Sagal remained skeptical that the rock weir and the impoundment pool just above it had not been significantly changed by runoff in succeeding springs following Mrs. Mueller’s death, particularly 137 percent of average runoff which occurred in 2008, and anther high runoff in 2009 — both prior to Jerry Thrush starting his measurements at the weir. Asked whether he had checked the rock weir and pond above it for the presence of cobble in 2008, Thrush responded, “No, I was not there in 2008.” He acknowledge the actual flow of the stream cannot be determined by looking at a photo from May, 2008.
Thrush was followed as a prosecution witness on the stand by Metro State University adjunct professor Thomas Bellinger who retired as principal hydrologist with U.S. Dept. of Interior after 27 years. Bellinger said he reviewed water data for the region, including looking at pertinent data from gauges at Gateview on the lower Lake Fork and the Slumgullion Pass SnoTel site which, due to distance, must necessarily be generalized in terms of streamflow specific to Cottonwood Creek. While unusual, Bellinger termed the rock weir identified by Thrush as a “reliable tool” in determining waterflow. “It shows reproducibility,” he said, in providing consistent data over an extended period of time.
Cross-examined by Sagal, Bellinger acknowledged that Cottonwood Creek is a different stream in 2013 compared to what it was in 2008. “It does change over time,” he said. He said no attempt was made to determine whether cobble might have existed in the approach to the weir in 2008 and maintains his assumption the pool feeding the weir “did not change significantly between 2008 and 2013.”
Hinsdale Undersheriff Justin Casey was the final prosecution witness late Friday afternoon, October 4, prior to recessing court for the weekend. In his 30-minute testimony and cross-examination, Casey explained aspects of a short videotape which he made showing stream conditions on Cottonwood Creek upstream from the body recovery site the day following Mrs. Mueller’s death. Casey was accompanied by his brother, James, who waded upstream past the succession of waterfalls and pools. He informally used a wood walking stick to gauge the depth of the stream at certain locations.
In addition to the videotape, and without the aid of a measuring tape, Casey estimated the width of Cottonwood Creek at the body recovery site to be 14′ across from rock face to rock face, and roughly 1′ deep, while further upstream at a strainer tree, the creek depth was estimated 2-1/2′ and, above that, a pool which he estimated at 5′ deep or greater.
On re-direct by Durkin, Casey said the walking stick was intended for a “broad understanding of the stream’s width and depth, while stick measurements at particular locations were “eyeball estimations.”