Five Surprises About Cold Cases from a Previously Practicing Lawyer
Guest Post by Stephanie Kane,
When Betty Frye’s murder was reopened in 2005, I’d practiced law for more than twenty years. I spent most of that time as a corporate lawyer in a big firm, but towards the end I’d done criminal defense work. My biggest surprise was how little any of it prepared me for the cold case that followed. Five things I didn’t know:
The justice system is human and error prone. Mundane decisions, court dockets, and downright sloppiness torpedo cases—not just in 1973, but now.
Asking a cooperative witness to come to the station to make a formal statement instead of interviewing him on the spot gives him time to rethink his decision to cooperate. Here, after a forty-minute drive alone down a mountainside, talking on his cellphone to his wife on the way, a key witness clammed up.
Priceless evidence is lost when simple equipment malfunctions. When cold case cops wired Betty’s sister to surreptitiously tape a conversation with the killer’s sister who’d come forward with his confession, the recorder failed. And when that witness found out she’d been recorded, she never trusted Betty’s sister, the cops or the prosecutor again.
Detectives who are poor listeners or take sloppy notes can cause you a world of hurt later, when you’re cross-examined about things you never said. No matter how minor the detail, to a defense lawyer the only question is who’s the liar: the cop or you.
The cold case defense strategy is to run the clock until all the witnesses are incompetent or dead. Stall long enough and maybe the judge or prosecutor will be forced off the case too. And if the new prosecutor is too lazy or risk-averse to bring the new judge up to speed (say, by putting a crucial elderly witness back on the stand), years of appeals are guaranteed.
Murder makes an indelible impression.
In 1973, Betty’s 13-year-old son’s best friend rang her doorbell within moments of her being murdered inside the house. The killer—her husband Duane—answered the door. That morning, a carpenter in his 20’s was installing siding on a house with a bird’s-eye view of the Frye backyard. He saw Betty briefly, right before she was killed. Soon after, a man matching Duane’s description emerged from the house and fiddled with a gate to make it look like the killer was a burglar. More than thirty years later, those witnesses remembered Duane’s appearance and gait in 1973 like it was yesterday. And they were more than willing to testify.
Trying cases doesn’t prepare you to be a witness, it just makes it worse.
Nobody wants to be in court. Courtrooms are soundless and artificially lit; arguing and examining witnesses from the well of the court, you stay sane by focusing on the judge and jury. But being on the stand yourself is different. Because if you’re a lawyer, you know the end game.
Traps are being set and you don’t know where, so you think twice about every word you utter. Simultaneously protecting and exposing yourself, your right brain madly tries to sync with the left as you endeavor to tell the truth in the face of an all-out attack. Afterwards, I blanked it out. Even now I have to go back to the transcript to know what I actually said.
Being put in a mental straitjacket makes it impossible to write.
The catalyst for Betty’s cold case was , my fictionalized version of her murder that was published in 2001. Contacted by cold case cops in 2005, I told them and Duane’s lawyers all I knew. After I testified at a grand jury and Duane was indicted for first-degree murder, I knew speaking to anyone else could jeopardize the case. What I didn’t realize was that the defense would subpoena my notes, correspondence and all twenty of ’s drafts, or that the threat of subpoenaing anything else I wrote would put me in a mental straitjacket for eight years.
I write to figure out what I think, so this was a big deal. Thanks to a great lawyer of my own, and the expert testimony of an English professor who convinced the judge that while all fiction is based on fact, that doesn’t fiction fact, my notes and drafts were ultimately protected. But for all that time, I was creatively paralyzed. Not only could I not process what was happening by discussing it, but for fear of my notes being subpoenaed I couldn’t write anything at all. In 2013, when the case was finally over, I got ahold of the file. I glutted myself on transcripts and police reports and the freedom to write again. But the whole experience had changed me. I’m not the same writer anymore.
Knowing what happened is enough.
I always wanted to know what really happened to Betty. At various times, I felt guilty about this; if I cared about her, didn’t I want her killer punished or brought to justice? In 2019, I spoke with Howard Morton, who’d founded Families of Homicide Victims and Missing Persons (FOHVAMP), after his own son was murdered. (That crime is still unsolved.) I asked Morton what families of victims in cold cases wanted. Closure, justice—revenge? His answer surprised me.
FOHVAMP families don’t want closure; the word itself is offensive because an unsolved murder never heals. And for most, bringing a killer to justice is an impossible dream. They want something more basic and profound: to know what happened and why.
You need that to move on.
About the author:
Stephanie Kane is a lawyer and award-winning author of six crime novels. Born in Brooklyn, she came to Colorado as a freshman at CU. She owned and ran a karate studio in Boulder and is a second-degree black belt. After graduating from law school, she was a corporate partner at a top Denver law firm before becoming a criminal defense attorney. She has lectured on money laundering and white collar crime in Eastern Europe, and given workshops throughout the country on writing technique. She lives in Denver with her husband and two black cats.