"Harry and His Ugly Little Bitch Vivian"

"As [prosecuting attorney Jim Anderson] gave me his theory about [Vivian Cercy's] story, it was typical of his blunt style.  He began, 'Harry and his ugly little bitch, Vivian,' and conjectured that she told this tale, prompted by Harry Shorman, her boyfriend, one of the founders of Rainbow Village.  If she became a material witness, she would be housed and protected by Alameda County, perhaps at the nearby motel on the Marina, far better digs than living in her car."  (Berkeley Marina Murders, p. 101)

"A small group of people congregated outside [the Courthouse].  One, a slightly disheveled woman [Vivian], with tousled brown hair, between 25 to 30 years-old, quickly made her way over to speak to me.  She began, 'I'm sorry about Mary.  I told her to come in my car if she was afraid but she said no, she'd be okay.'  I realized then I was standing before the woman who had a radically different picture of what happened that terrible night.   I thanked her and quickly excused myself.  I did not want to get caught up with her story at this time." (Berkeley Marina Murders, p. 108)

Before I discuss Vivian Cercy's testimony, I want to make the reader aware of the fact that, a few days after the murders, a local filmmaker named Mel Vapour interviewed people at Rainbow Village about what had happened.  One of the people Vapour interviewed was Vivian Cercy, "who insisted that they not show her face because she was fearful of her life.” (Thomas v. Wong, p. 20) It’s reported that the account she gave to Vapour was consistent with the one she gave in court.  Both Vapour's videotape and his testimony were introduced during an evidentiary hearing in 2002.  This was not reported in Dead and Gone.

Nor does the podcast address a glaring problem with Cercy's testimony.  She testified that, at around 0130, she drove up to the dumpster across from the gate to Rainbow Village.  She saw two men and a woman standing near an orange and red van.  One man was tall, blond, and skinny.  The other man had dark hair and a beard.  The dark-haired man resembled Greg and the woman resembled Mary.  The woman seemed upset.  And from here I'll quote from People v. Thomas:

"The blond man held an object in his hand and asked, 'Do you think she's seen anything?' The dark-haired man replied, 'No, she couldn't have.' They placed the object (which looked like a long stick) against the side of the car. Cercy testified that the stick could have been a rifle, but at the time she did not think of it as such. The woman said to the blond man, 'You have to give it back.' He replied, 'This could mean money to us, we need this.'

The woman said, 'I don't want any part of this, I'm going.'

The woman began to walk down the hill and passed Cercy's car. Cercy invited the woman to stay the night in her car with her and her two daughters. The woman refused, saying, 'No, I'll be all right.'

The woman continued down the driveway. The blond man told the dark-haired man, 'I'll take care of this.' He walked down the roadway.

Cercy drove back to her parking spot and prepared her children to go to sleep. About 15 minutes later, Cercy heard three noises that sounded like firecrackers." (People v. Thomas p. 7)

So what's the problem here?  A timeline of events based on court documents shows that all of this couldn't have taken place around 0130 because Mary wasn't at Rainbow Village at this time.  She’d accompanied Jim Prew, Paul Harter, and International  to drop off Chris Campbell and get burritos and beer.  Greg may have been at the Village around this time because he didn't ride along.  We know from Payne Lindsey's second interview with Weston Sudduth that a tall, thin, blond man named "Bo" may have been in the Village around this time too.  But Mary wasn't.  So there's a problem with Cercy's testimony.  Either she got the time right, but didn't see Mary, or she got the time wrong and did see Mary.  Some would have us believe that the latter must be true because their theory about who committed the murders requires Cercy to have gotten the time wrong.  But what if she didn't get the time wrong? (This could have been the case.   As the record states, "Cercy drove back to her parking spot and prepared her children to go to sleep.")

So, let's consider the possibility that Cercy got the time right and witnessed what she witnessed, but didn't see Mary.  We know that Thomas was away from Rainbow Village and his car for about an hour while he accompanied Jim Prew and the others on a beer and burrito run.  This means that he was away from his rifle for about an hour, perhaps giving somebody who'd seen and/or heard him shoot at Harry Shorman's Canadian flag an opportunity to steal the rifle from the car.  It would seem that this would not have required a lot of time and skill, as the interior of Thomas's Opel Kadett was easily accessible through a broken window.  So, a tall, thin, blond man may have been standing there with a just-stolen rifle, and a woman other than Mary may have told the blond man he needed to give it back.  And what happened next happened as Vivian Cercy testified it happened.  We can then assume that, after the other two walked away, at some point Greg walked down to University Avenue where he was picked up.  If Jim Prew's van was not red and orange and there was a van other than Prew's that was red and orange, then this story seems somewhat plausible, but if Prew's van was red and orange, then it's not plausible because it was in Berkeley—not in Rainbow Village.  And Vivian got the time wrong.

Now let’s consider the possibility that Cercy got the time wrong, but got everything else right. Interestingly, her testimony nicely fits one of the prosecution’s theories about the sequence of the murders.  As Justice Mosk noted in his dissent, at trial “…the prosecutor argued that defendant intended a sexual attack on Gioia, and killed Kniffin when Kniffin came to Gioia's aid.” (People v. Thomas p. 32) Not only did the prosecution lack strong evidence to show this sequence and the motive for both murders, but it also lacked evidence that the two had been apart after they left Prew’s van.  Vivian Cercy’s testimony tells us that they were apart, after Mary walked away from Greg and the tall, thin, blond man.  What’s more it tells us that blond man followed her after saying, “I’ll take care of this.”  The two may have walked away and Greg may have eventually followed them and found the two near the earth grader, beside which the shootings almost certainly were carried out.  What’s more, the testimony seems to give evidence of acquaintance among the three.  This is supported by what Vivian heard, specifically the dark-haired man’s response to the blond man, “No she couldn’t have” and the blond man’s response to the woman, “This could mean money to us, we need this.” [my emphasis]  This then suggests a prior relationship among the three, which could then point to motive.  Finally, if Cercy got the time wrong, but got everything else right, then she (and not Vincent Johnson) was more than likely the last person (other than the murderer) to see Greg and Mary alive.  And this means that she may in fact have offered Mary the kind of aid that Patricia Gioia wished Vincent Johnson had offered Mary and Greg when he saw them with Thomas.

I firmly believe that what happened that night, and what she learned the next day, frightened Vivian Cercy.  And it's clear that, being a mother herself, Vivian had the humanity and the decency to offer her sympathies to a grieving mother outside the courthouse on that day...