It was close to seven on a warm July evening in Greenwood Village, time for the suburb's more sedentary citizens to fire up their grills and televisions. But at the Comfort Dental Amphitheatre, the headbanging was just getting started.
On the main stage, Five Finger Death Punch was winding down its set with "The Bleeding," getting the 2010 Mayhem Festival fans amped for more monster acts to come, including headliners Rob Zombie and Korn.
Update: Mayhem concert assault nets seven-year prison sentence
While the sellout crowd roared, a steady trickle of less rapturous patrons made their way to the first-aid station on the west side of the complex, seeking relief from their own excesses. Too much sun. Too much booze. Too much dope. The occasional wound from a tumble while moshing or from a misunderstanding with another fan. It was the usual procession of casualties from the heaviest of all metal shows, and nothing that John Carr, a Greenwood Village police detective working the concert that night, hadn't seen before. But two new arrivals in the area quickly caught Carr's attention.
The first was a long, lean man in his mid-thirties, wearing red shorts and no shirt, bearing ample tattoos — including a swastika on his back — and a shaved head. The man struggled with the security guard who brought him to the police command shed; another officer promptly handcuffed the suspect to a bench.
The second, heavier man also appeared to be in his thirties, with a shaved head and short beard. He was wearing a Korn T-shirt. He came to the first-aid station under his own power, accompanied by a woman and two female juveniles, but he was bleeding from his mouth and nose and had numerous fresh bruises on his face and scrapes on his arm.
Carr approached the bloodied one, who identified himself as James Christensen. Christensen said that he and his girlfriend and the two girls had been watching the concert on the north side, standing on the walkway just above the fixed seats, when a small group of "Aryan Brotherhood" types — presumed skinheads with tattoos of swastikas or other Nazi symbols — began shoving people and trying to start fights. Christensen had told one of the men, a young guy in a gray T-shirt, to knock it off, that people just wanted to have a good time. He'd turned away to talk to his girlfriend, but the dude was back moments later, and then somebody else grabbed him from behind. He was punched, taken to the ground and kicked.
Christensen was certain that the man in the gray shirt was the instigator of the attack. He hadn't seen the one who grabbed him from behind. His companion, Malissa Adkinson, hadn't gotten a good enough look at the second man to positively identify him, either. But her eighteen-year-old daughter described a man with a shaved head and red shorts who'd put a "chokehold" on Christensen while the gray-shirted one punched him. They'd both punched and kicked Christensen while he was on the ground, she said, and then the man in red shorts had run away but was apprehended by a security guard.
Carr showed her the suspect sitting in the police shed. That's the man, the girl said.
The detective asked the man in the red shorts for identification and read him his rights. Eric Wayne Swanson, a 33-year-old electrician, declined to make a statement. Informed that he was being detained for investigation of assault, he told Carr he had the wrong guy.
Although the first-aid workers told Christensen he might have a broken nose, he declined a trip to the hospital. Carr gathered additional statements, issued Swanson a municipal summons for harassment, then cut him loose. But as Swanson was leaving, a younger man in a gray shirt approached him at the amphitheater's back gate. Christensen and Adkinson promptly identified the man as the other attacker. Unlike Swanson, this one — a 22-year-old named Jeramie Gerhardt — had cuts and abrasions on his face. Carr put him in handcuffs.
Gerhardt seemed bewildered that he was being detained. "I was trying to start a mosh," he told a police sergeant. "We're at a death-metal concert. Who doesn't mosh?"
But Christensen insisted there'd been no moshing going on where he was, just unsolicited attacks. (Moshing, Carr would later note in his report, "is an activity that occurs sometimes at rock concerts where people gather together, sometimes in tight groups and mostly in the area closest to the stage, and engage in pushing, slamming and fighting as a mutual type of activity and without hostility.") And the injuries displayed by both Gerhardt and Christensen didn't look like the kind of thing you'd pick up through incidental contact in a circle pit.
Like Swanson, Gerhardt was issued a summons and released. That's where the matter might have ended two years ago — as a ho-hum case in municipal court — except for two subsequent developments.
After sticking around for the headliner acts, Christensen decided to visit an emergency room in Thornton and get his injuries checked out more thoroughly. An examination determined that he had indeed suffered a broken nose, as well as heavy swelling about his face and fractures to the upper orbital bone of his skull. That made the case one of "serious bodily injury," or SBI. Under Colorado law, even a chipped tooth can be considered SBI, and the hurt inflicted on Christensen was much more serious than that. The medical report prompted Greenwood Village authorities to refile the complaint as a felony second-degree assault charge. Depending on whether the assault is found to involve "exceptional circumstances," it's punishable by up to sixteen years in prison.
That was bad news for Gerhardt and Swanson. But particularly for Swanson. Although this was the first time he'd been charged with a violent crime, he had four prior felony convictions from his early twenties, all of them drug-related. And he'd picked up this new charge in Greenwood Village, which happens to be located in Arapahoe County, where prosecutors routinely file sentence-enhancing habitual-criminal charges on every defendant who's eligible — meaning anyone who has two or three prior felony convictions.
In most of the state, prosecutors use considerable discretion in handing out the "Big Bitch," which can send away a three-time loser for four times the maximum sentence usually incurred by a particular offense. It's generally reserved for people who commit multiple violent crimes or for career crooks, who may be getting caught only a few times while committing dozens of burglaries or robberies. But 18th Judicial District Attorney Carol Chambers, whose purview includes Arapahoe, Douglas, Elbert and Lincoln counties, has been pursuing habitual charges at a rate that's exponentially greater than what's doled out by other DAs. As Westword reported last fall, her office filed 623 such cases in an eighteen-month period in 2010 and 2011, while Denver prosecutors filed 25 habitual cases in that same period ("Welcome to Arapahell," November 22, 2011).
It didn't matter that Swanson's previous crimes weren't violent ones. It didn't matter that, after a youth scarred by meth addiction and family turmoil, he hadn't picked up any new charges for nearly a decade. It didn't matter whether he started the fight, jumped in to aid a friend, or did or didn't strike or kick anyone. If it could be proven that he was involved in the assault on Christensen, a judge told him, he was looking at a possible sentence of 48 years in prison.
Swanson was speechless. "It was like getting socked in the gut," he says.
Later, after prosecutors calculated all the aggravating factors and exceptional circumstances involved in the Mayhem incident, the figure changed. What he was really facing, they told him, was a sentence of 64 years.
*****
Since its 2008 launch, the Rockstar Energy Drink Mayhem Festival has developed a reputation, deserved or not, as the bad boy of the national summer-tour circuit. Mayhem tends to draw a high level of security and liability premiums wherever it goes, on the theory that — as the name implies — the festival offers the kind of music that draws the kind of people who are eager to test their mettle, in the pits and elsewhere.
"We have more officers working at Mayhem than any other concert," says Greenwood Village Police Department spokeswoman Crystal Dean. "It's the nature of a hard-rock concert and the younger, rowdier crowd that it attracts."
Die-hard metalheads insist that the rep for violence is just so much hype and slurs, like the danger label often slapped on hip-hop shows — or, years ago, on punk. You can find troublemakers at a Justin Bieber concert, they point out. Not every metal band encourages moshing, and there's no shortage of people who feel comfortable bringing the kiddies to Mayhem, believing that a prehistoric thrash lineup of Slayer, Anthrax and Motörhead (this year's headliners) makes for a perfect family outing.
Others, though, come looking for blood. A growing subgenre of videos posted on YouTube consists of outbursts of spontaneous moshing and crowd fights at Mayhem concerts, recorded by aspiring Scorseses — and then commented on by other attendees. "Look at all the peeps that get broke, haha," one viewer responded to scenes of a circle pit at the Denver concert Swanson attended.
"Security had no chance of stopping the pits this time," boasted a veteran of the 2010 stop in St. Louis. "It was OUTTA CONTROL AND AWESOME!!"
When Eric Swanson's attorney, Tom Henry, began looking into his case, he was surprised to discover not one but three brief YouTube clips that appeared to have some bearing on the matter. Two captured critical seconds leading up to the assault from different angles, as if the combatants had their own personal videographers following them around. The third presented a glimpse of the immediate aftermath. None of them caught the actual attack on Christensen. But it was something else missing from the footage that most impressed Henry, a former federal prosecutor.
"Eric has a co-defendant who's all over these videos," he notes. "But there's not one video that has Eric in it."
Swanson had attended the concert with his then-wife, Tamra, and four other friends; Jeramie Gerhardt and his brother, Chad Buckner, each brought their own significant others. Two of the videos focus on the activities of Gerhardt and Buckner. In one, Gerhardt strolls past the camera, sullenly flipping the bird. Then Buckner is seen shoving another concert-goer, peeling off his shirt and acting aggressively. A few seconds later, a bare-chested Buckner plunges, swinging and pummeling, into a group of men, taking down a large, wispy-bearded fellow until he's pulled off him by several other meaty types. Then Buckner seeks out his adversary and embraces him, apparently making peace.
In the second video, there's a clearer look at what's going on nearby as Buckner makes his charge. A man in a white shirt has Gerhardt in a headlock, while others seem to be scolding him about his behavior. Gerhardt drops to the ground, dizzy or unconscious, around the time Buckner charges in, apparently coming to his aid. Then Gerhardt is up again, pulling people off Buckner. He gets into a momentary altercation with a short, thickset man in an Ozzy Osbourne shirt whom Buckner had been charging a few seconds earlier, then shakes hands with the man.
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.
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."
Henry says he requested a meeting with Kelly and Chambers in a last-ditch effort to avoid a trial and a possible habitual conviction. "I did my presentation and asked them to take the bitch off the table," he says. "I went through our evidence. Ms. Chambers said, 'Well, the guy has a broken nose, and I don't tell my DAs what to do. If anyone wants to change anything, I won't interfere. Nice of you to come in.' There was no discussion. No questions. Zero."
The case went to trial in March. Christensen testified that he still experienced headaches as a result of the beating. Swanson, who'd let his hair grow in since the concert, shaved his head mid-trial in order to demonstrate that he didn't have the tattoo on his head that the security staffer had described. But Henry declined to put Swanson on the stand, knowing that the prosecution could then ask about his prior convictions.
The jury listened to the witnesses, examined the evidence and deliberated for a few hours before finding Swanson guilty of second-degree assault.
*****
Sitting in the Arapahoe County jail, waiting to find out just how many years he's going to have to serve for what he claims wasn't his fight, Eric Swanson has plenty of time to reflect on what brought him here. It's not a pretty story, but he doesn't have any trouble telling it.
Yes, he says, he was a dope fiend once. Big time. Yes, he's been in prison and messed up on parole. Yes, there was a time when he bought into "the white-power thing," but not anymore. That's all past. Or he thought it was. The past, he's discovering, has a way of coming back and biting you in the ass.
Born in New Mexico but raised in the Denver area, Swanson remembers his childhood as being chaotic. His parents split when he was five. He bounced back and forth between them for years. Longtime friends of the family say he was exposed to drug abuse and violence from an early age.
"I've known him since he was five," says Shelley McMillan. "After his mom and dad divorced, his father was basically absent. His mom got involved in a string of abusive relationships. Eric was basically left to fend for himself."
Hal Swanson, Eric's father, describes him as easygoing, loyal to a fault — and, as a teenager, someone who frequently engaged in "repetitive, addictive, self-destructive behavior." The elder Swanson, a systems analyst at Children's Hospital, recalls getting a call from the police saying that Eric was selling LSD on school grounds at Arvada High School. Eric lived with him for a few months, he adds, "but it was quickly apparent that he was running drugs. I told him I can't have that."
Eric remembers first smoking meth when he was sixteen or seventeen — and soon getting in over his head. By the time he was in his early twenties, he had been arrested several times on drug charges and related cases, including a stolen credit card and a stolen car. The felony counts piled up in three counties. Finally, in 2002 he pleaded guilty to unlawful manufacture of a controlled substance — he was involved in a meth cook in an Adams County motel — and received a four-year prison sentence, to be served concurrently with a sentence for theft and forgery convictions out of Jefferson County.
"It took me a couple of years to come out of my fog," he says of his time behind bars. "I was a major drug user at that point, and my synapses were all screwed up."
He was 26 when he went to prison, 33 by the time he completed his parole in early 2010, just a few months before the Mayhem concert. He says he's been clean, for the most part, for the past decade. "I've had some slips," he admits. "It's hard to say no if I'm in the right environment, so I try to stay away from that environment."
His father visited him at the Sterling Correctional Facility and found him withdrawn. "My hope for him was that he would get his life together and gain an education," Hal Swanson says. "I wanted him to be self-sufficient and happy. But he has a history of not being able to break free of the wrong people."
At Sterling, Eric Swanson became affiliated with white gang members who cultivated the skinhead look and Nazi ink. He describes it as a logical choice, given the limited options for an incarcerated young white male in search of a safe place in the pecking order. "There's slim pickings as far as who you can kick with," he says. "You ain't gonna kick with the fags. You ain't gonna kick with the naks. It is what it is, man."
But allying himself with a white prison gang, he acknowledges, has cost him dearly over the years. His parole was revoked at one point because his parole officer found gang paraphernalia, including a swastika flag, at his residence. He had further parole problems over his association with another parolee, Tamra, whom he'd met through his prison connections. Swanson credits Tamra, now his ex-wife, with helping to steer him away from his old drug buddies.
At the same time, he adds, "I wish I'd never met her. She helped me get out of the meth, but she got me into another world, more than I already was: the skinheads."
Since his 2009 release, Swanson has worked in construction (including a job on the just-opened History Colorado Center) and pursued his journeyman electrician's license. He volunteers at his church, working with the homeless. He says he's "gotten away from that skinhead mentality" and now has friends "in all walks of life."
"I can't look at one person and degrade their whole race," he says. "People who use you and manipulate you to get what they want, they're the ones who are niggers to me. I've met more people in the white-power thing who are niggers than anywhere else."
Close friends, including Steve and Kim Roth, an older couple with whom Swanson has been living the past few years, say he's made a dramatic break with his past since his parole. "I have to admire him for making some difficult decisions about the people he used to hang out with," says Steve Roth.
Yet it's easy to see why people might be skeptical of Swanson's transformation. There's an occasional post on his Facebook page ("When folks are white with the world?! Life is so much more worth while!") that suggests he hasn't entirely shed his racist beliefs. And there's that swastika tattoo on his back.
"At this point, I don't want to get rid of it," he says. "It's part of me. Part of where I've been. Yeah, it's a target inside. But how you walk, how you talk — that's what matters."
Over the years, Mike Kirkpatrick has been Swanson's employer, confidant, mentor, surrogate dad — and at one point, when they were both homeless and desperate addicts, his fellow meth cook. He insists that the Eric he knows isn't a violent person or a gang member.
"For a while he embraced it, but he's not a skinhead," Kirkpatrick says. "There was a moment when he got himself tagged, and now he has to carry that with him and explain to people what was going on in his head."
But what was going on in his head the night Swanson went to Mayhem — and ended up facing a long prison stretch for an attack on a stranger?
The concert was the day before Swanson's 34th birthday. He and Tamra were still together at the time, and it was through her that he'd met Gerhardt and Buckner, who invited the couple to Mayhem as their guests. Swanson likes to mosh at metal shows, but he didn't join any pits at the concert. "To me, it's a fun way to get rid of aggression," he says. "But there's etiquette to a mosh, and that day I wasn't partaking."
Swanson says he had several beers that afternoon, went off to relieve himself, and was talking to another couple of friends in a different part of the amphitheater at the time the videos were taken of Buckner and Gerhardt getting into scuffles along the walkway: "They said I was part of this group that was causing havoc. I wasn't."
He returned to the area just in time to get mixed up in that "tangle of bodies" one witness described. "I was trying to find the wife," Swanson says, "looking up to see where she's at, and I got hit from behind. I don't know if it was a fight or what. I fell and grabbed hold of somebody, and then people are on the ground, getting hit. I got scared and tried to get out of the situation, and then this security guard grabbed me."
His account scrupulously omits any mention of Gerhardt — who lists his college on Facebook as the "busted knuckles school of hard learning."
Hal Swanson suspects his son is protecting his friend. "I think he had the perception that his friend was getting beat up, and he came to his aid," he says. "Sure, he shares some guilt in this. They were drunk, they were rowdy. But I don't believe he's deserving of a habitual-criminal conviction."
Swanson insists he's not responsible for Christensen's injuries. "If I had done this to the dude at random, okay, I could see them wanting to give me some time," he says. "But like this? I didn't hit him. I didn't kick him. That's why I went to trial."
But the jury found otherwise. The prosecution "painted a picture that wasn't me," Swanson insists. And now, with his sentence looming, he seems resigned to spending years of his life paying for mistakes past and present. "I don't think I should be going away for 32, 48, 64 years — whatever it is," he says. "But I've been at peace since I've been in here."
Last month Gerhardt pleaded guilty to a reduced charge of felony menacing in the Mayhem case. His plea arrangement calls for him to serve ninety days in jail and four years of probation — an entirely different outcome than what Swanson is facing for the same crime. Deputy District Attorney Kelly says that while she regards the two defendants as "equally culpable" in the attack, her office also considered mitigating information offered by Gerhardt's attorney, as well as his lack of prior felonies.
The disparity in possible sentences strikes Mike Kirkpatrick as absurd. Kirkpatrick is now in the final year of parole for his old meth life, for which he got nailed with a ten-year prison sentence. He's a painter, drywaller and carpenter and has supported a family without incident since his release. He's also finishing a degree in psychology and doesn't see why Swanson couldn't achieve just as much as he has.
"He's turned so much around, and it doesn't make sense for him to be facing a habitual sentence now," Kirkpatrick says. "I did have my own demons. I used meth to work long hours. Then I ended up getting into cooking it. That led me down a path of total darkness.
"I have learned my lesson. If anything like that comes up again, I'm looking at a life sentence. And I'm not going to flush my life down the drain. I can't be considered the person I used to be. And neither can Eric. He's not the person they accuse him of being."
On Monday, a court hearing to determine if Swanson can be sentenced as a habitual criminal was postponed for several weeks while his attorney and prosecutors continue to negotiate his fate. Whatever agreement they reach, Swanson fully expects he's going to prison. Like the tattoo on his back, his prior record is a target of sorts, one he can never erase.
A man is entitled to only so many bad moves. Especially in Arapahoe County, where payback's a bitch.
