By Joel Warner
By Michael Roberts
By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
No one has ever given the statute the kind of workout that Chambers is giving it. "As far as I can tell, they've done away with all the case-by-case review," says Richard Bloch, a former Arapahoe deputy DA who's now a defense attorney. "It's an 'If you can be bitched, we'll bitch you' policy."
In his own years as a prosecutor, Bloch says, the bitch was reserved almost exclusively in the 18th for burglary and violent crimes, including sexual assault. "I remember authorizing one case where a person was charged with theft," he says. "It wasn't a lot of money, but the person had something like twelve prior theft convictions."
Now defense attorneys in the district are seeing the bitch coming down on drug cases and walkaways, vehicular eluding and criminal impersonation. One woman, a domestic-violence victim with a string of drug and forgery convictions, was offered eighteen years on her latest check-fraud case; she ended up taking a deal for twelve years rather than risk habitual counts. LeRoi describes a mentally ill client who was picked up by police because of his incessant crying; they found stolen compact discs in his backpack, enough to trigger a felony theft charge. He has prior drug convictions from six years ago, so the DA is filing habitual charges on him.
"He's looking at 24 years for taking CDs out of a car," LeRoi says.
Attorney Lisa Moses recently got appointed to defend a woman with three prior felonies who walked away from a halfway house. The offer, she says, is nine years -- or face the bitch. "I have a problem as a citizen when someone who has violent priors commits another violent offense," she says. "But these cases -- I don't believe other jurisdictions file habitual charges as frequently or as indiscriminately. I don't want to spend my money to support this girl for nine years."
Once the bitch counts are proven, Kaplan notes, the judge has little say on the length of sentence imposed. "It's really disheartening," he says. "If you don't exercise discretion, you have no justice."
Bloch, who was an Eva Wilson supporter in the primary, says he tried to talk to Chambers about her new policy: "I got the politician's speech -- ŒWell, Richard, things have changed; we're tougher on crime now.' I did this for twenty years, and I know we were not soft on crime. In my opinion, it's simply a way to force irrational plea bargains."
Bloch describes the policy as "bully tactics" designed to get defendants to rush into a too-hasty guilty plea. But Chambers says she's serious about taking habituals to the mat. It's too early to tell how many of the cases her office has filed in recent months will actually go to trial, but it's clear that she's put a higher priority than other DAs on check fraud, identity theft and related economic crimes. She argues that those cases are often connected to methamphetamine rings.
"If somebody has four priors for possession of cocaine, I'm not really going to get all that excited," she says. "That's not going to get one of my tougher offers. If somebody has four priors for meth, you bet. I think meth is the scourge of the community. Studies have shown that that if you make this a place where meth users are dealt with severely, they'll move someplace else. If they move to Denver, I'm sorry, but then Denver needs to be tough on them. There is a deterrence effect to this."
At the same time, Chambers insists she's not applying the statute as indiscriminately as her critics claim. She reviews every case, she says, and has made rare exceptions when she finds a "mental health issue." She also says she's "sympathetic to the idea that men can be unfairly charged with domestic violence." And, she adds, her deputies have the authority to dismiss the bitch counts if they are presented with sufficient mitigating information.
But defense attorneys question whether deputies have any incentive to oppose Chambers on the bitch cases and how they're investigated before filing. "It's being done in the intake unit now instead of being left up to the discretion of the deputy who'll be handling the case," says LeRoi. "They're just getting a criminal history, finding out if they have two or three priors, and going from there."
LeRoi says he has no problem with repeat violent offenders -- or burglars, for that matter -- being slammed with bitch counts. "What bothers me is when you have someone who's forty, and when they were a lot younger, they made some mistakes," he says. "Now they get busted for passing a bad check or giving someone else's name when they get stopped. There has to be some discretion. How long ago were the priors? Is this offense of a similar nature? Were the other crimes violent? You have to judge it on a case-by-case basis. The low-level cases I'm getting appointed on now leave me scratching my head."
Kaplan believes the specter of the bitch count not only pressures defendants to take plea offers that may be excessively punitive for the crime at hand, but it also limits their ability to exercise their rights to challenge the charge. “If you litigate your motions, the deal is off the table,” he says. “You don’t even get to discuss the draconian amount of time involved in the offer, or the offer goes away. If your guy is facing 64 years, you can plead to 32. And if you litigate on, say, the admissibility of evidence, you can forget about that offer.”