Sucker Punch: The "Big Bitch" could bite fighting concert-goer

Christensen is clearly visible in this video — and he has more interaction with Gerhardt than the brief conversation mentioned in his police statement. He's just inches away while Gerhardt is being restrained by the white-shirted man, talking to him sternly and at one point pressing in against him. After Gerhardt tumbles to the ground, Christensen leans over to check on him and puts a hand on his back. As Gerhardt shakes hands with the Ozzy fan, Christensen calls out to him. The two face each other, exchange words, then go in separate directions. By the victim's account, the video ends about three minutes before the assault.

A lot can happen in three minutes. The third clip begins with the camera zeroing in on Christensen's bloodied face. A bystander, possibly the camera operator, laments, "How many fucking fights did I miss? I missed like six fights!" The assailants are nowhere to be seen.

One clip posted on YouTube captured Christensen confronting Gerhardt (back to camera, light shirt) about his conduct shortly before Christensen was "jumped in a tangle of bodies."

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VIDEO

Mayhem Festival clips capture events before assault

From the Westword archives:


Slide show: Rockstar Mayhem Festival at Comfort Dental Amphitheatre, 7/18/10

Update: Mayhem concert assault nets seven-year prison sentence

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• James Christensen
• Hal Swanson
• Eric Swanson
• Criminal Sentencing and Punishment
• Crime and Law

Gerhardt didn't respond to interview requests. Christensen couldn't be reached for comment. But in his statement to police, he expressed no doubt that one of his attackers was Gerhardt, the guy he'd just confronted.

Henry didn't see his client and his red shorts in any of the videos, not even after breaking down one clip into 700 still photos. He was annoyed that the investigation of the event hadn't been more thorough. "I got the officers to admit that they didn't look for blood splatters on Eric," he says. "They didn't look to see if he had bruised hands — the basic things police do after a fight. They said it was because they were just giving him a summons, but it should have been clear there was possible serious bodily injury here. The victim's nose was clear over to the side. There isn't one thing they did in this case that they should have done."

True, both Adkinson's daughter and the security employee who chased him down had identified Swanson as Gerhardt's accomplice. But Henry didn't regard those identifications as unassailable. The security man, for example, would later testify that he'd kept track of Swanson in the crowd by the tattoo on the side of his head; Swanson has no such tattoo. And there were other conflicting details — as there almost always are in eyewitness accounts.

Nearly a year after the incident, another witness surfaced. A man who delivered a pizza to Christensen's house recognized him as a guy he'd met at the Mayhem concert — and had been standing near when the assault went down. Christensen told police about the chance encounter, and they took a statement. The pizza man described a small group of people who were trying to start fights. Christensen, he said, "was jumped in a tangle of bodies." He saw two men on top of the victim, hitting him, but the fellow taken away by security — Swanson — wasn't one of them, he said.

In light of the video evidence and the contradictory statements, Henry thought the case against Swanson was weak — certainly weaker than the one against Gerhardt. The prosecution didn't see it that way, though. Not with his client's prior record, and the threat of the Big Bitch waiting in the wings. Although District Attorney Chambers's office files many more habitual-criminal cases than any other district attorney in Colorado, only about 5 percent of the cases actually go to trial; the Big Bitch is used primarily for leverage in plea bargaining, to extract sentences far in excess of what would result from the same offense elsewhere in the state.

The offer in Swanson's case was hardly a bargain: Plead guilty and take sixteen years — the maximum for an "exceptional circumstances" second-degree assault — or go to trial and get bitched for 64. Henry thought that was a bit steep.

"The purpose of the plea-bargain process is to look at the case in a fair and impartial way," he says, "but they don't do that. They know they've got you by the bitch."

The prospect of a long habitual sentence — and Arapahoe prosecutors' willingness to file habitual charges on anyone who's eligible — becomes a form of intimidation that warps the negotiations, he adds: "When you go to first appearance in Arapahoe, they have a waiver-of-preliminary-hearing form. And there's a paragraph in that form that takes more than a law degree to read. It basically says that if you waive the prelim, they won't pursue the habitual charge. But if you file a motion, raise any constitutional issues, the bitch is back on the table. They start out with the bitch, even though it has no relevance to the crime that's allegedly been committed."

Anne Kelly, the deputy district attorney assigned to Swanson's case, says that Henry didn't provide any mitigating information about his client that might have prompted a different outcome. "Mr. Henry argued only that I should dismiss the case," she explains in an e-mail to Westword. "To support his position, he provided me with information about the nature of a Mayhem concert and argued that the victim in the case 'assumed the risk' by attending the event."