By Michael Roberts
By Michael Roberts
By Michael Roberts
By William Breathes
By Jonathan Shikes
By Michael Roberts
By Jonathan Shikes
By Michael Roberts
As the moment of his sentencing approaches, Tristan Gilmour sits petulantly in an Arapahoe County courtroom. His put-upon attorney, deputy public defender Justin Bogan, wants him to read a pre-sentencing report, but Gilmour is having none of it.
Cuffed and clad in jailhouse orange, Gilmour is a baby-faced 21-year-old with thinning hair and a pile of theft and check-fraud charges collected over the past three years. In the past he's wound up with probation and short sentences in community corrections, but now his situation is complicated by his unexcused absence from a halfway house. Just walking away from community corrections can result in a new felony charge for 'escape,' but Gilmour doesn't seem to grasp the full gravity of his situation. He sprawls in his chair, staring blankly ahead, detached.
'Please read this,' Bogan insists, waving the pre-sentencing report at him.
In another jurisdiction, Gilmour's walkaway might result in a year in prison, then another crack at a halfway house. But this is Arapahoe County. The escape charge, on top of his prior felonies, means he's eligible for habitual-criminal status -- the 'bitch,' as convicts call it. Habitual charges can triple or quadruple the maximum sentence for a felon's latest offense. And Carol Chambers, the district attorney of the 18th Judicial District -- which includes Arapahoe, Douglas, Elbert and Lincoln counties -- has been bitching walkaways like they were serial rapists.
'Read this,' Bogan says. 'If we don't resolve this today, they will file habitual criminal charges tomorrow. That's 48 years. You will die in prison.'
Gilmour frowns. He sits up and begins to read.
What are you going to ask for?" "That's a good question."
Another day, another Arapahoe County courtroom. Defense attorney Jim O'Connor and Deputy District Attorney Steven Fauver shuffle papers, getting ready for the sentencing hearing of Frank "Junior" Vasquez, another halfway house walkaway.
The two confer over how many prior felonies Vasquez has. O'Connor insists his client, who's 52 years old, has only three "F5s," or low-level felony convictions.
"And one F3," Fauver responds.
"No," O'Connor says. "You're talking about the one that was deferred."
"That he failed to complete."
"No. He did. Look at the bottom of page three."
Fauver studies the pre-sentencing report. "Yeah, you're right," he says. "I'll probably ask for the middle."
The middle, in the case of People v. Vasquez, is eight years in prison. Initially, prosecutors had demanded that Vasquez take a plea deal for sixteen years or face a possible 48-year stretch as a habitual criminal. Like Tristan Gilmour, Vasquez was urged by his attorney to plead guilty to the escape charge, which carries a sentencing range of four to twelve years, before the district attorney's people got around to filing the habitual charges that could quadruple his sentence. This way, his fate is in the hands of the judge, not the DA.
Judge Valeria Spencer takes the bench, and the hearing begins.
"This kind of case is very troublesome to me," says O'Connor, who heads the public defender's office in the 18th. "Since at least 1988, escapes such as these, walkaways from community corrections, have had a very standard result: one year on the first escape, two years on the second.... Judge, I'm asking you to apply some equity here."
Vasquez's three prior cases, convictions for criminal trespass and a previous escape, all stem from his crack addiction, O'Connor explains. His client has "life management skill issues," but he'd been doing well at the halfway house for six months before he stumbled. He was working and paying his bills. He was tested for drugs nineteen times, and all the tests came back negative. Then he hit the pipe again, didn't report back to the halfway house, and was arrested thirty days later. The prosecution's "draconian policy," he suggests, could discourage other wavering offenders like Vasquez from ever giving themselves up.
Wearing a belly chain and the usual jail scrubs, Vasquez stands meekly by his attorney. When it's his turn to speak, his voice trembles. "Your honor, I'm ashamed," he says. "I'm very, very scared. I know what I did was wrong. I've made a shambles of my life.... I know I have to go back to prison. I'm just asking that the court have some mercy and compassion on this sentence. All I ask is that you don't see me as a lost cause."
Fauver isn't budging. He wants eight years. "The district attorney in this jurisdiction has determined that certain cases need to be looked at harder," he says. "I take exception to the argument that we have a draconian policy."
"We've got a man who walked away from a halfway house for thirty days," O'Connor replies. "They wanted to give him 48 years. That's more than a year for each day. It's draconian. It's mean."
A former prosecutor herself, Judge Spencer agrees that, in her experience, a walkaway like Vasquez would get a two-year sentence. Eight years, she tells Fauver, "is way too much for someone who walked away with a non-violent criminal history."
She sentences Vasquez to four years in prison -- the minimum she can give him, absent any mitigating factors in his escape. That's double what he probably would have received in a plea-bargain deal in Denver, but it beats the lock-him-away-until-he's-dead rap the DA was trying to hand him. He embraces his lawyer and shudders with relief.
Vasquez dodged the bitch. So did Gilmour, who ended up with six years. It's not uncommon for district attorneys to threaten a chronic offender with habitual charges when plea negotiations break down; the prospect of a huge sentence for a minor felony becomes a form of leverage. But Arapahoe prosecutors are now filing habitual counts earlier in the process, in an effort to force more of the cases to trial or extract ever-stiffer plea arrangements. In DA Chambers's hands, the ultimate sentence-enhancer is no bluff.
"The only reason to plea-bargain many of our cases is because we do not have sufficient courts available to try them," Chambers wrote in an e-mail to her chief deputy last summer. "If we have trial weeks that are unused, we should be trying as many habitual offenders as we can. Please keep the offers on these cases tough and encourage them to go to trial."
And more of the cases are being filed than ever before. In 2006, the 18th Judicial District filed habitual criminal charges in 232 felony cases, far more than any other DA's office in the state. That's ten times as many bitch cases as Denver handled last year, and four times as many as the 18th itself filed in 2005.
Informed of these numbers, DA Chambers expresses only mild surprise. The Draco behind her office's draconian new policy thought there would be more.
"I guess we have fewer habitual criminals than I thought," she says.
There's nothing subtle or tentative about the way Carol Chambers approaches the law. No hedging, no hesitation and no second-guessing about what the voters wanted when they made her the most powerful law-enforcement official in the metro area's sprawling southeastern suburbs. There's just her view on what is right and wrong, and let the chips fall where they may.
Her towering sense of confidence in her own judgment was on display last fall in a Denver courtroom, during a disciplinary hearing in which the DA found herself in the role of the accused (see story, page 20). Acting on a grievance filed by Jonathan Steiner, the state Office of Attorney Regulation Counsel had charged Chambers with several ethics violations: lying, using her office to threaten criminal charges in a civil matter, and engaging in conduct "prejudicial to the administration of justice" -- all because of one phone call she made early in 2006 to Steiner, a collection attorney who was engaged in a dispute with an Englewood city official over $320 in bounced checks.
Another prosecutor might have looked sheepish in her place, having to explain why she'd bothered to insert herself in such a petty wrangle. But Chambers didn't project the slightest note of apology. Not even when confronted with the voice-mail message she'd left for Steiner, telling him she'd had "a lot of complaints from victims of identity theft that you are pressuring them" and was "looking at investigating this with the grand jury." Asked why she'd left such an ominous message -- when, in fact, she'd had just one complaint about Steiner -- Chambers just shrugged. She was referring to complaints about the collection industry in general, she explained.
Then why bring up the grand jury at all?
"I meant to get his attention," she said.
Since her upset victory in the Republican primary in 2004, Chambers has been getting a lot of people's attention. No other rookie DA in memory has cut such a wide and acrimonious swath through the state's criminal-justice system, discarding or ignoring long-established protocols and taboos. She's filed grievances against defense attorneys she considers unprofessional and purged her own staff of elements she considered disloyal. She's berated the county commissioners over her salary and criticized cops freely. She's even taken on the bench in Arapahoe County, complaining of bias and unnecessary delays, and ordering her staff to time the judges' breaks -- an extraordinary step that incited a small mutiny among her deputies.
"Carol wanted to go in there and shake things up," says Christopher LeRoi, a former judge and prosecutor who left the DA's office one year into the Chambers regime. "She wanted to be a fly in the ointment. She's said she's fine with being a one-term DA."
While Chambers says she will run for a second term, she's not trying to curry favor, either. "My objective has never been to make everybody like me so that I'm re-elected," she says. "If you're going to do the things that need to be done, you're going to generate controversy. I'm going to do what I was elected to do."
She has described herself as an activist, on a mission to bring more accountability to the system -- particularly to its wrongdoers. In an age when justice is often delayed and attenuated, the message has its appeal. Two weeks ago she was widely praised after becoming the first DA in the state to obtain a first-degree murder verdict in a road-rage case: Jason Reynolds, whose maniac behavior on E-470 resulted in the deaths of two other drivers, now faces life in prison without parole.
Yet the crusades she seems to care the most about have also led to some of her most bizarre moves. As she tells it, it was her zeal to advocate for victims, particularly those who are "revictimized by the system," that prompted her involvement in Steiner's bounced-check case. Last December, the three-member disciplinary hearing board cleared Chambers on the charges of making false statements and misusing her office, but ruled that she should be publicly censured -- the first Colorado DA to be so reprimanded in sixteen years.
Her response was to hold a press conference and dispute the panel's findings -- even while admitting that the decision "was as favorable to me as it could have been, short of being a dismissal." She didn't file an appeal in the case before this week's deadline and will pay $1,600 in court costs out of her own pocket. Defending Chambers through the ethics investigation cost her office $60,000 in legal fees -- almost double what the Boulder District Attorney's Office spent last summer to arrest and then clear John Mark Karr in the JonBenét Ramsey case.
The most troubling development of the Chambers era, though, isn't the Steiner embarrassment. It's her decision to start filing habitual-criminal charges in a vast array of cases. The shift in policy has caused consternation around the courthouse but received almost no scrutiny elsewhere. Given the long sentences her office is now seeking, and the way the policy seems to be affecting plea deals even in cases where the defendant avoids getting bitched, it may be her most lasting legacy.
Defense attorneys, including some former prosecutors, complain that the policy is being applied too broadly. It sends chronic but low-level offenders away on absurdly long and costly sentences, they say, at a time when the prison system is overloaded and rehab programs are grossly underfunded. In most cases, habitual counts are a slam-dunk to prove, but they tie up the courts in other ways.
"They're trying to take away the discretion of the judges to treat a property crime like a property crime," says Tom Farrell, a former prosecutor in Adams County and Grand Junction. "When you give someone an offer that encompasses the rest of their life, you're challenging them to a trial. No defense attorney can say, 'Oh, good, we'll accept that.' A non-winnable trial goes on for a week, and it takes two prosecutors, at least one court-appointed defense counsel, if not two, plus a judge, a jury, sheriff's officers -- it's an incredible showtime waste of prosecutorial resources."
O'Connor, the district's chief public defender, points out that the long-term costs are much greater. "Seeking these kinds of sentences on drug users and walkaways is a gross, irresponsible use of resources," he says. "It costs $26,280 a year to keep someone in prison. Do we want to spend over a million dollars to keep someone like that in prison for 48 years? Even with the offers they're making, do we want to spend a quarter of a million dollars on someone who walked away from a halfway house? He's worth more than educating half a dozen young people? The economic aspect of this is something that needs to be talked about."
Chambers says the policy is putting resources where they can do the most good, taking repeat offenders off the streets and sending a strong message to others in similar situations.
"If I do this for two years and see no result, maybe I'll say this isn't a good approach," she says. "But when you're talking people with seven, eight, nine felonies -- we should question whether it's appropriate to plea-bargain with those people at all. I want to see as many of these cases go to trial as we can take."
Many prosecutors find their calling right out of law school. Not Carol Chambers -- but then, little of her career path has been typical. An Ohio native, she traces her empathy for victims back to her work as a nurse in the emergency room of Denver General in the early 1980s, where she encountered the devastating effects of violent crime up close. "The horrible things that happen to people, you would see on a daily basis," she recalls.
Although she enjoyed nursing, she also knew she wanted to do something else with her life. She worked at DGH for seven years while going to law school. She clerked at the Colorado Court of Appeals and went into private practice, mostly insurance and medical malpractice defense work, before deciding she wanted to learn more about litigating by becoming a prosecutor. "I didn't want to be handling multimillion-dollar cases and not know how to try them," she says.
In 1990, at the age of 34, she became a deputy DA in the 18th District. From the start, she was hooked. She took on a host of difficult assignments, including prosecuting child-abuse cases, and eventually headed the office's special-victims unit. Yet her decision to run for district attorney in 2004, when Jim Peters was term-limited out of the job, took many of her colleagues by surprise. Some considered her too reserved to have a shot at such a high-profile position.
The smart money around the water cooler was on her primary opponent, Eva Wilson, a veteran chief deputy who'd handled several death-penalty cases. But Chambers had been a prosecutor almost as long as Wilson, and she presented herself as a reformer who would make the office more efficient and give deputies more discretion over what cases to bring to trial. Under Peters, every deputy was required to take four cases to trial every year; Chambers thought the system produced too many weak prosecutions and contributed to the district's surprisingly dismal conviction rate: The prosecutors of the 18th were losing more than half their cases.
Another factor in the low success rate, Chambers contended, had to do with the judges' conduct, which she planned to challenge.
"We had a domestic-violence perpetrator who was given a low bond, left to kill his significant other," she recalls. "We had a trial where the prosecutor objected, and the judge's response, loud enough for the jury to hear, was 'Bullshit!' Through demeanor, through rulings, judges were influencing the outcome of our cases. There's a lot of rulings I don't agree with, but when you have blatant problems with temperament, that's my business."
Battling breast cancer at the time, Chambers scarcely campaigned. She narrowly petitioned her way onto the ballot yet still managed to upset Wilson in the primary, then cruised to victory in the general election in the heavily Republican 18th. The triumph had a spiritual aspect to it, in Chambers's view. She has described herself as a "profoundly religious" person who prayed mightily during the campaign; she and her husband, Nathan Chambers, a minister's son and prominent attorney who once defended Oklahoma City bomber Timothy McVeigh, are members of the Cherry Hills Community Church. At the time of her primary victory, she told a reporter, "I know I am watching God at work."
Chambers had little time to savor her victory. Before taking office, she told the county commissioners that she wanted to be paid $147,000 a year, the same as Jim Peters. The commissioners decided that since she lacked Peters's experience in the post, she would receive $120,000 -- a 12 percent raise over her previous salary, but not enough to placate her. She pointed out that she would be the lowest-paid DA in the metro area, despite having the most populous district, and suggested that the commissioners take pay cuts of their own.
Sharp words for other officials soon followed. She'd barely taken office when the rape rampage of Brent Brents erupted into headlines. The DA's office, the Aurora Police Department and other agencies scrambled to explain why Brents wasn't already in custody on a child-molestation case that had occurred months earlier. The volleys Chambers fired over the botched police investigation generated hard feelings on the force -- and so did her long-running feud with Brian Saupe, an Aurora sergeant whose credibility she'd publicly questioned.
Chambers had unsuccessfully pursued perjury charges on Saupe as a deputy; now that she was district attorney, she notified defense attorneys of adverse information in his personnel file and even announced that her office would decline to prosecute cases in which Saupe was a witness. Fearing for his job, Saupe went to court to try to stop her campaign -- and lost. The battle alarmed other cops, some of whom still grumble that Chambers is making them toe lines they never had to toe before.
The district attorney admits that she's added to the police workload. "I wanted to emphasize better investigation before we file charges," she says. "I saw that people were being arrested who shouldn't be -- for example, in cases of identity theft. We have an ethical obligation not to prosecute people unless we have proof beyond a reasonable doubt."
Wiping out dubious police work was only part of Chambers's agenda. When Peters was DA, his office had maintained a cordial, if not exactly chummy, relationship with the district's public defenders. Shortly after Chambers took over, her office filed three grievances against attorneys on the other side. None of the cases apparently made it past the intake stage, but Chambers was soon on the warpath against another target, one that most prosecutors would never dare to criticize in public: the judiciary.
Calling the judges in her district "a very dysfunctional group," Chambers ordered her deputies to conduct a time-management study in the courtrooms. She wanted to break the logjam that left victims and witnesses waiting in hallways for hours. She wanted to know who the worst offenders were, which judges started late, declared lengthy breaks and otherwise bogged things down.
The study was ill-conceived and simplistic, critics say. In some cases, if judges are in chambers rather than on the bench, it's because they're dealing with search warrants or other matters brought to them by the DA's office. And many delays are caused by attorneys or absent witnesses, not judges.
"The dockets were just a mess," says John Portman, the district's chief public defender during the Peters years, who stepped down in 2005. "You'd go to court, and you'd continue stuff -- a lot of the time it was because the prosecution wasn't ready. There was a culture of continuance, and I don't think you can say it was the judges' fault."
Portman calls it "absolute garbage" to argue that the judges in the conservative 18th District were somehow prejudiced against prosecutors. "There was never a situation where the district attorneys were unfairly treated by the judges," he snaps. "They pretty much got what they wanted. In the rare instance that they didn't, they would attack the judges. The reason they were losing more than half their cases is that those cases weren't very good."
Several of the DA's own deputies had misgivings about the wisdom of clocking judges who would be ruling on their cases. "A few of us refused to do it," says Chris LeRoi. "I thought it was inappropriate for us to be doing that. We were informed that there would be retaliation internally, in terms of assignments and performance reviews."
LeRoi is now a defense attorney. He won't comment on why he left the DA's office, but he acknowledges that the fallout over the time study was a problem. "I had been on the bench, and I had an allegiance to the judges, who I considered to be my friends," he says. "I was put in an extremely difficult position, and it proved to be untenable. It got to the point where Carol didn't respect a lot of the judges and many of them didn't respect her."
Some judges indicated they might "retaliate against our office for documenting what was going on in a public courtroom," Chambers says. But she maintains that the effort made the judges more conscientious about how they managed court time: "I don't think there's a problem anymore. The news got out, not only to the judges, but to the news media, that we were doing this. There was at least one reporter who had a hidden camera in one of the courtrooms."
The district's judicial lineup has undergone some turnover in recent months, and Chambers says the working relationship has improved. Last fall she was one of only two district attorneys who publicly supported Amendment 40, the failed attempt to impose term limits on judges. "I think term limits have been good for the executive branch," she says. "You bring in new energy, some sense of idealism, creativity. What we end up with are people who stay on the bench for twenty years to get their pension. They may have burned out at year eleven, but they're still there."
Whipping cops, commissioners, defense lawyers and judges into shape seems to be only the first phase of the Chambers revolution. She talks about devoting more resources to the prevention side of the crime-fighting equation, beefing up juvenile-diversion programs and using grant money to fund more research into what works and what doesn't. She was in the process of launching a foundation for crime victims, inspired in part by the Brent Brents horror, before she was distracted by the pesky ethics complaint over her phone call to Jonathan Steiner. And she touched off another firestorm in October by proposing that victims be offered consoling spiritual texts, drawn from various religions, when they're summoned to the courthouse. Such an arrangement might violate the constitutional separation of church and state, but Chambers calls it a matter of principle.
"I'm going to do the right thing in any given situation," she says.
Colorado's current habitual-offender law dates back to 1993. It's part of a wave of get-tough sentencing measures that swept the country in the early 1990s, including California's notorious three-strikes law. The effects of such legislation on crime rates has been much studied, with no clear conclusions. Some experts believe it may be responsible for as much as one-fourth of the reduction in crime over the past decade, largely by keeping a hard-core criminal class incarcerated longer, while others contend its deterrent effect has been negligible.
Less debatable is the impact such laws have had on the prison system and state budgets. Longer sentences boost the prison population overall and raise the median age of that population, which raises prison health-care costs. The incarceration boom also tends to sap funds from drug-treatment programs and other services that are supposed to help prisoners re-enter society, as states get into an endless cycle of building more prisons to keep up with the growing tide of inmates. With prisons full and a 25 percent jump in the inmate population expected over four years, Colorado officials are once again shipping prisoners out of state and seeking $730 million for new prison construction.
The 1993 law singles out violent criminals for particularly stiff punishment. Anyone with three prior felonies who commits a crime of violence can be eligible for a minimum forty-year sentence before parole eligibility. But the law also allows for offenders with two previous felony convictions in the past ten years -- even fairly minor ones, such as check fraud -- to be hammered with three times the maximum sentence for their latest offense; those with three priors can get four times the maximum, even if their latest crime is a laughably low-rent felony.
Of course, these penalties weren't intended to be automatically imposed. It's up to the district attorney to decide when habitual charges should be filed. "When these laws come up, what the district attorneys say to the legislature is, 'Trust us, we will exercise discretion,'" says David Kaplan, who headed the state's public-defender system for seven years. "Pretty consistently, that trust is not warranted."
Most prosecutors reserve habitual counts for violent offenders and career crooks, such as burglars, who may be getting caught only a few times out of dozens of scores. Even in those cases, habitual counts are often dismissed by the DA before they ever get to trial; they're used as a club to obtain plea deals that are anything but a bargain, as far as the defendant is concerned. Until the new policy took hold in the 18th, Colorado Springs prosecutors filed more bitch cases than anyone -- more than a hundred a year -- but they did it chiefly as a threat that would be withdrawn if a satisfactory deal was reached.
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.”
Chambers says her short expiration date on plea offers isn’t designed to discourage valid suppression-of-evidence motions, but to cut through the usual maneuvering that ties up her deputies. “There are so many boilerplate motions in every case,” she notes. “We don’t want to waste time on that.”
But with a client’s next few decades at stake, Kaplan sees the tactic differently. “Is efficiency everything?” he asks. “You know, Mussolini made the trains run on time, too.”
Former public defender Portman doubts that bitching drug users and chronic halfway-house washouts has much of a deterrent effect in the long run. “When people go out and smoke a joint and decide not to go back to the halfway house, they’re not thinking about the habitual-criminal filing,” he says. “They have poor impulse control, and that’s why they end up in the criminal-justice system.”
Chambers insists that going after meth users chases them out of her community. And going after walkaways seems to be having an impact, too. Some halfway houses in her district have even posted signs about the new policy, letting residents know what they’re in for if they screw up.
“We have found that the change of policy has dramatically decreased our walkaways,” reports Dave Cutler, director of the Arapahoe Community Treatment Center, the facility from which both Gilmour and Vasquez absconded. “They’re down more than 50 percent in the last six months. Guys know they could get ten years or sixteen. It’s had an effect.”
But even Cutler has some reservations about the policy. “I think they should do it case by case,” he says. “Some of the guys have no intention of doing the program. They skip after the first couple of days. [The DA] should hammer those folks. But the guys who have mental-health issues or other problems…we get a lot of offenders who’ve been down a long time. They need time to figure it out.”
Frank Vasquez is still figuring it out. When they hauled him into a courtroom last summer and the lady prosecutor was talking sixteen years or we’ll bitch you for 48, he just about lost it. He walks away from a halfway house, and the lady wants to put him away forever. This is it, he told himself. I’m done.
“Why does she hate me so much?” he asked the public defender.
“This isn’t about you anymore,” his lawyer told him.
Sitting in the visiting room at the Arapahoe County jail, waiting for his transfer back to prison on the escape charge, Vasquez knows he’s one of the luckiest losers in the 18th District. He’s been given a fourth strike, a fifth down — pick your metaphor. Four years for his latest screwup, he can do that. With good behavior, he’ll be out in thirty months or so and, at 55, he might still be employable. But the time the DA was trying to give him — 48 years, even sixteen — that would have been a death sentence for Frank “Junior” Vasquez.
When he was born in La Junta all those years ago, his name was Frank Vasquez Jr. But somewhere along the line, the “junior” got transposed in his records, and now the courts know him as Junior Vasquez. No matter. Call him Frank.
Frank was one of five kids. His parents divorced when he was ten. Frank stayed with his father. Frank Senior was a hard-drinking man, but his son loved him. Frank Junior drank, too. He was topping onions at twelve and hitting the booze at thirteen, a morose, skinny kid who had nothing but shame and the courage he could drain from a bottle.
He joined the Army at eighteen. Frank Senior died two years later, at the age of 38, choking in his sleep. Frank Junior went on a drinking binge. He was AWOL for 200 days. Hello, dishonorable discharge.
Frank came home to take care of his little sisters and a brother. He worked in a copper-fittings plant for eight years, and life was good. Then he got fired for stealing candy out of a machine. He drifted into construction work. At 33, he had his first snort of the devil’s dandruff and started dealing in his spare time.
“I was doing lines every morning before I went to work,” he recalls. “Finally, I said, ‘Screw this job. I can make more money by accident.’ I was a total mess.”
One of his customers taught him how to cook crack. Frank was always looking for a better high, and he ran with it. Jobs came and went. In 1988 there was a deferred judgment over a situation involving his common-law wife, her new boyfriend and Frank trying to get his stuff back, and a similar case nine years later, when Frank broke into his girlfriend’s trailer to get a camera to pawn. Judging from the court records, the primary victim in each instance, the one upon whom Frank Junior inflicted substantial harm, appears to have been Frank Junior. He screwed up the probation, then community corrections, resulting in his first escape charge. He couldn’t stay clean.
In 2004, another dispute with another girlfriend got him another criminal-trespass beef, a few months in prison and his latest stint at the Arapahoe Community Treatment Center — where, everyone agrees, he was doing so well. He quit smoking and drinking. His urine was clean. He had a good job. Six months, no problems.
But he still had the cravings. He’d go to the drug classes, and all he’d hear was a bunch of war stories about people doing Tony Montana-sized mounds of coke. He begged to be excused from the classes. One day he went to see a girl, who offered him a party if he’d buy the crack. He agreed.
And took his first hit in many, many months.
“That was the start and the finish,” he says. “I screwed up everything I worked for. I let everybody down.”
Goodbye job, halfway house, freedom. They picked him up a month later, shoplifting at a dollar store. The shame soon gave way to fear — fear of the bitch, coming at him out of the pit of his own failures. Forty-eight years! Twenty-four! Sixteen! Even eight would have finished him, he says.
“Not too many people will want to hire me at sixty,” he says. “But at 55, I can still get a job. And I’ve always worked my butt off.”
In jail, Frank met other prisoners facing the bitch. None of them can imagine doing such a glacier of time. They talk about killing themselves, buying a big bag of heroin in prison and tucking in. Frank doesn’t blame them. He had similar thoughts. “If I got 24 years, I was going to beg my son to send me seventy dollars,” he says. “That’s what it would take. I’d do it all in one whack.”
Carol Chambers talks about the need to evaluate crime differently. More has to be done on the prevention end, and habitual offenders need to be dealt with severely. But even among the habituals, she says, there are times when the law should show mercy. “Cocaine and crack are used by people who have a sense of hopelessness,” she says. “You should not always uniformly hammer people, even if they’re chronic offenders.”
But there were no allowances for hope in the way her office hammered away at the Vasquez case. When the defense rushed to plead guilty to escape with no deal in place, the prosecutor objected to the plea because the habitual counts hadn’t yet been filed. It’s only blind luck — and a reasonable judge — that has left Vasquez contemplating a future that doesn’t include a bag of heroin, done all in one whack.
The prospect of the bitch, and of the heroin to follow, stayed with him in his cell right up to the day of his sentencing, deepening the furrows beneath his eyes. “Last night was probably the first time I’ve slept more than an hour or two in six months,” he says. “It felt good.”