Eric Swanson is still headed to prison for an attack on another concertgoer at the 2010 Mayhem Festival. But the length of his sentence won't be anything like the mountain of time -- up to 64 years -- he had been facing in the case. Acknowledging that his codefendant had received a relatively light sentence in comparison, today an Arapahoe County prosecutor voluntarily dropped habitual criminal charges that had been filed against Swanson in the unusual case.
"The People have struggled with the issue of proportionality of sentencing in this case," deputy district attorney Anne Kelly told District Judge Carlos Samour Jr. in court this morning. Kelly announced that her office had reached an agreement with Swanson's attorney to seek a sentence in the range of seven to fifteen years and asked the judge the dismiss the habitual criminal counts. Samour did so.
Swanson, 35, and friend Jeramie Gerhardt, 24, were charged with assault after one of several brawls that broke out at the 2010 Mayhem metalfest at Comfort Dental Amphitheatre. As recounted in our May 24 cover story "Sucker Punch," videos posted on YouTube from the concert show Gerhardt and another member of his party -- but not Swanson -- getting into altercations with other fans during the set by Five Finger Death Punch. In one video, a man in a Korn T-shirt, later identified as James Christensen, can be seen chastising Gerhardt for his behavior while another man has Gerhardt in a chokehold.
A few minutes later, no longer on camera, Christensen suffered a broken nose, skull fractures and other injuries after being attacked by at least two men. Witnesses identified the attackers as Gerhardt and Swanson.
Kelly told Westword that she considers the two defendants "equally culpable" in the attack. But Gerhardt, who has no prior criminal record, was allowed to plead guilty to a lesser charge of felony menacing; in June he was sentenced to 75 days in jail and four years of probation.
But because he has prior drug and theft convictions -- nonviolent felonies that occurred more than ten years ago -- Swanson faced what's known in legal circles as "The Big Bitch." District Attorney Carol Chambers's office routinely files sentence-enhancing habitual criminal charges on defendants with two or three prior felonies on their record, a policy that's been much criticized by defense attorneys and became a burning issue in the Republican primary race this summer for DA of the 18th Judicial District. (Leslie Hansen, a top Chambers aide who defended the policy, lost the primary battle to outsider George Brauchler.)
Last spring a jury found Swanson guilty of second-degree assault in the Mayhem case. Tom Henry, Swanson's attorney, says prosecutors didn't offer his client any kind of plea arrangement before trial of less than fourteen years -- and even that offer was taken off the table well before trial. But since Gerhardt's sentencing, negotiations have apparently resumed; Kelly even met with members of Swanson's family to learn more about his efforts to turn his life around since his prior convictions, an unusual move for a prosecutor. In court, Judge Samour observed that Kelly seemed to be saying that her office wouldn't be "proceeding with the habitual criminal counts because we don't think a sentence that severe is appropriate."
The judge ordered a pre-sentence investigation report and scheduled Swanson's sentencing hearing for November 1.
More from our Follow That Story archive: "Video: Mayhem Festival clips capture events before assault."
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