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| Chapter 12 Stories Of Violent Women And Abused Men In Colorado |
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Stories used here are reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
Assistant U.S. attorney backs over her boyfriend, twice
Boulder woman attacks boyfriend and police
1999 DV arrest haunts Thornton city council candidate in 2009
Arapahoe County man successfully defends himself against charges of violating a restraining order
Arapahoe deputy sheriff attacks live-in boyfriend, shot fired
Wife sets husband's newspaper office on fire in Nucla
Paid escort claims her 'boyfriend' threatened to kill her
Woman sentenced to ten years in jail after pleading guilty to assault and felony menacing after stabbing husband in back at U.S. Air Force Academy
Waging perpetual battle against parole
Ex-wife stabs former husband
FBI agent hits her husband with shovel and bloodies his nose
Multimillionaire Colorado Rockies pitcher may still face deportation after pleading guilty to harassment
State representative accused of domestic violence
Camp Pendleton Marine free after false spousal-rape conviction tossed out
Prosecuting marital rape radical feminist rules
What was the evidence for such a draconian sentence?
Rape charge based primarily on redfem attorney's report
The court of appeals found that within the four corners of this case:
Admission of improper expert testimony otherwise known as redfem ideology and dogma
Now allow an incompetent witness who wasn't even born when the "rape" occurred
Unreasonable delay for review
A decade later Sgt. Foster is free and back in the Corps
Police assume tubal pregnancy must be domestic violence
Woman found dead in Colorado Springs after repeatedly being convicted of domestic violence and drunk driving
The January 7, 1999, issue of the Denver Post reported that an assistant United States attorney, Stacey L. Ross, age 34, was charged with first-degree assault for allegedly running over her live-in boyfriend twice . Her 26-year old partner suffered a lacerated liver, dislocated shoulder, and other injuries. Apparently he tried to stop her from leaving because he didn't think she was in any condition to drive after an argument on New Years Eve.
He was standing behind the car when she backed over him the first time. He was then on his hands and knees in a daze in the driveway when she backed over him again. Sheriffs deputies found him pinned beneath a Mazda driven by Ms. Ross.
Her defense attorney claimed he was threatening her, that she was terrified, and trying to get away. One may reasonably ask if that were so, why did she back over him the second time?
Ms. Ross, who had been with the U.S. attorney's office since September, 1997, was reported to be on leave from her job.
A Boulder, Colorado woman was jailed on February 1, 1999, after she threatened her live-in boyfriend with a knife and hit him in the face with a heavy wooden object causing at least a bloody nose. When police arrived the woman attempted to run past an officer, punching him in the process. She was booked for suspicion of felony menacing, third-degree assault (domestic violence), assault on a police officer, and resisting arrest. (Denver Post, February 2, 1999)
Abstracted from July 2, 2009, story by Monte Whaley., The Denver Post
In early 1999 Brian Thornton was 19, married and living in Boulder with his wife, who was 17 and using methamphetamine.
She disappeared once for two days before being found with her dealer, Thornton said. The two then moved back to Nevada, where they had met in high school.
Not long after they left Colorado they began fighting. Thornton said his wife hit him with a heavy vase and he responded by pushing her against a wall.
Both were taken to jail by police. She had bloody knuckles and bruises on her arms; Thornton had cuts on his face.
As is far too common in such cases, he was the one charged and convicted of misdemeanor domestic violence despite his injuries. He served his sentence and attended domestic-violence-prevention classes.
Following that incident the two split up and moved on.
Thornton moved back to Colorado, met his current wife and told her of his brush with the law. He also decided to run for the council seat in 2009 in hopes of bringing more economic development to northeast Thornton.
So far, prospective voters have responded positively to revelations about Thornton's past, he said.
"I'm sure there will be some people who will not vote for me because of it," he said. "But I think most people appreciate the honesty."
There is no prohibition against someone convicted of a misdemeanor serving on the council, said City of Thornton spokeswoman Lisa Wilson.
In January, 2000, a 42-year old Arapahoe County man was found not guilty of violating a restraining order in a trial before a male judge. The defense centered on service of process and notification. The court found that the restraining order had not been issued during a temporary orders hearing in his divorce, but was signed and issued at a later date. He was never notified of their actual existence and was never served and never waived service.
However, it was claimed he had violated the terms of the restraining order when he sent a settlement letter to his former wife attempting to recover property of his she had taken. But since the restraining order had not been served, under due process he could not be convicted for violating the order. Because of the legal principle involved, the option of a trial by a judge was used. In his opinion, he: "Didn't want a renegade juror trying to interpret the law on such a fine point and acting emotionally against another wife-beating, court-threatening man."
While he won the trial, the judge nonetheless reprimanded him severely for asking for his property back, and for declaring his intentions to his ex-wife of defending himself in court.
His saga with the issue of domestic violence charges began in mid-February, 1999. After three-and-one-half years of verbal, physical, and sexual abuse from his wife, he made a decision to get out.
His wife had attempted suicide on two occasions during the marriage, attempted to kill him twice, once by tossing a brass candle stick holder at his face from three feet away, and the second time by smashing a telephone over his head. At the time they separated, she was on Prozac and had taken other 'mood-stabilizing' narcotics prior to that. Among other problems, including alcoholism, she has been diagnosed as having multiple personality disorder and most recently as bipolar personality.
She had a total hysterectomy in January, 1998, and her husband describes life as going to hell in a hand basket after that, though he says things weren't much fun before. Her father had died when she was 10-years old and she was raised by her mother.
She had been married twice before. Both of her previous marriages were rife with violence and anger, and ended bitterly.
He was married once before for 20 years with no incidents of violence. He felt they just married too young and were staying together only for the kids sake. His first marriage breakup was bitter and painful, but there was general cooperation between them in resolving issues.
Prior to the incidents with his second wife, he had never had a physical confrontation since he was 15 years old.
The day he separated from his second wife, he recalls going their house to retrieve his clothing. She was not at home but had left six vile messages on the answering machine. From these he knew that she was drunk and hanging out with her lesbian girlfriend. Before he finished packing, she kicked the living room door to announce her presence and came in.
She was frantic with fear of abandonment and pleaded desperately to prevent him from leaving. Instead, he went back to the bedroom to get his bags. She then leapt on him and began clawing his face.
He pulled her off and walked towards the door. His wife blocked the exit and started poking at his eyes. He repeatedly told her to stop and called her a lunatic. She slapped him across the face, and he slapped her right back. She jumped up and said something to her girlfriend about him hitting her. He turned and walked out the door with his bags when she moved out of the way.
The next day a voice mail message was left at work by his wife saying that she had reported him to the police for hitting her. He understood from that message the Aurora police were going to arrest him at work if he didn't call them and surrender. He then went to Aurora and turned himself in and was charged with assault and battery involving domestic violence. Apparently both his wife and her friend had lied to the police, claiming he beat her up. He told the police that she had, instead, assaulted him and that he was defending himself. Of course they didn't care what he had to say and were not the least bit interested in what had happened to him. [You are better off not to make any statement to the police.]
He was released on bail and retained an attorney. At a pre-trial conference, his side of the story was given to a female Aurora assistant district attorney. Following standard practice, the D.A. agreed to reduce the charges to harassment involving domestic violence in return for a guilty plea. [We don't recommend accepting such offers.] At that point he didn't want the expense and mental anguish of a court trial, and didn't want to degrade his wife in public for her mental and alcohol problems. [He now admits this was a mistake.]
As a result of his guilty plea, he was given a deferred sentence, one year probation, and 36 weeks of domestic violence counseling in March, 1999.
He filed for divorce, and during that process a temporary orders hearing was held in June, 1999. In the interim she had absconded with everything he owned to Louisiana. He asked the court to order the return of his property. He also agreed to a mutual restraining order.
The court ruled that the paperwork for the restraining order was not submitted and until it was, and the court had signed it, they were not in effect.
About a week after the hearing, a settlement proposal was sent to her attorney with no response.
By mid-July there was still no word on the property settlement nor the restraining order. He then wrote a polite letter trying to spell out a possible settlement agreement. She then called the Aurora police, claiming the letter was a violation of a restraining order.
A female Aurora police officer called and told him he could turn himself in, or they could issue a warrant. He wisely turned himself in.
As a result of his mistake in pleading guilty to the first charge, he was now in the precarious position of being on probation and charged with violating a restraining order.
He would go to jail if convicted.
And now he was employing two lawyers, one for criminal defense, and one civil for the divorce.
This time the criminal case was handled by Arapahoe County. The assistant D.A. was once again female and he had a female probation officer. Is it any wonder he felt much as a black man must have felt in Georgia circa 1880 facing the courts on charges of raping a white woman?
In such cases it would be unusual for a district attorney to offer any further compromises. Lacking any options, he took the case to trial and won.
At present he has completed the court-ordered counseling and his record will be cleared when his probation is completed in March, 2000. However, he will remain on the CBI database, and would be well advised not to try and buy a gun.
On Monday, March 1, 1999, the Denver Post reported that Dorothy E. Daley, 42, an Arapahoe County deputy sheriff, and a five-year veteran, was arrested for investigation of attempted first-degree murder and menacing. Both of these charges are felonies. According to the Post, Ms. Daley was living with a captain of the Arapahoe County sheriff's detentions division. The couple began arguing the previous Saturday and Ms. Daley reportedly pulled a handgun, threatening to shoot her live-in partner. During a resultant struggle Daley fired one shot into the ceiling before she could be disarmed. While she was arrested, the captain was put on paid administrative leave even though it was determined he had not committed any criminal acts during the incident.
March 12, 1999 (States News Service) The wife of the owner of a Nucla newspaper pled guilty to criminal mischief for setting a fire that destroyed the newspaper's office last October.
48-year-old Donnene Culver was co-owner of the San Miquel Basin Forum when she set fires inside the newspaper office after an argument with her husband. Damage was estimated at $190,000 dollars from the blaze. Roger Culver now has full ownership of the small newspaper.
She faces up to six years in prison and up to $100,000 from fines when sentenced. A first-degree arson charge was dropped as part of a plea bargain with the district attorney's office.
In the spring of 1999 a woman guest called the police from a Beaver Creek hotel near Vail claiming her intoxicated boyfriend had threatened to kill her. When officers arrived they found the man, visiting from Kentucky, passed out. They awakened him and charged him with domestic violence and harassment. In Colorado an arrest is mandatory in such cases.
However, further investigation showed that the woman was a paid escort from out of state, and that the pair were not involved in an intimate relationship. Charges against the man were dismissed several days later. Likely he won't want to visit Colorado again.
Portions of the following are taken from the
© The Gazette, November 30, 2000, p. Metro 3
and Saturday, May 5, 2001, p. A1 & A7
Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
A 49-year-old Colorado Springs woman, Hassania Miranda, pled guilty November 28, 2000, to second-degree assault and a crime of violence nearly two years after she stabbed her former husband in the back at the Air Force Academy on May 5, 1999.
On Friday, May 4, 2001, she was sentenced to 10 years in jail by El Paso County Judge Steven Pelican.
Looking at the bent kitchen knife she had used to stab her husband, the judge told her: " To bend that knife the way you did in your husband's back needs to be punished...This is not an isolated incident, it had been going on for a long time, and you need time to think about it."
The prison sentence is the end of a quarter-century ordeal of domestic violence against her sons and husband. During their marriage she had repeatedly hit and kicked him and, at least once, threatened him with a shotgun. Diamond gifts were flushed down the toilet, she pelted her husband and sons with a variety of objects, and chased them with knives.
According to court documents the incident for which she was sentenced began on May 5, 1999. On that date Hassania Miranda went to the Air Force Academy, where her former husband, Gerard Miranda, worked. During an ensuing argument she suddenly put a kitchen knife to his face. Co-workers tried to subdue her but she was able to stab him twice in the back during the fight. The knife struck his shoulder blade, bending it, but fortunately causing him only minor injuries. Gerard Miranda was taken to a hospital, where he was treated and released.
When police arrived she told them she was wired with a bomb. Surrounding buildings were evacuated and the academy's airport was closed. She also claimed to have planted bombs at his home. She was ultimately arrested and charged with attempted murder and other felonious acts. The attempted murder charge was dismissed in the plea bargain whereby she pled guilty to second-degree assault and a crime of violence.
Miranda's co-workers at the Air Force Academy testified that after her attack Hassania's notoriety was such that buildings were routinely locked down whenever she posted bail and on the anniversary of the attack. Police told Miranda his was the worst case of domestic violence they had ever seen.
On May 4, 1999, the day before she stabbed her husband, police say Hassania Miranda had also forced her way into her former husband's northern Colorado Springs home and pulled a gun on two people who were visiting him. Despite a restraining order barring her from his residence, she trashed the house as well. She also pled guilty to felony menacing as a result of that incident.
Hassania told the court she committed the crimes because she was abusing alcohol, depressed, and on medication. The stabbing and menacing occurred after her husband had filed for divorce when he could take no more.
The case gained public attention after the Colorado Springs Gazette reported that Gerard Miranda had to pay alimony to his estranged wife while she was in jail accused of stabbing him. Hassania Miranda used the $585 a month from her husband's military retirement pay to bond out of jail.
Gerard Miranda, also known as Jerry, has since become an advocate for men who are victims of domestic violence. His story was featured on national television on the CBS program '48 Hours' on March 5, 2001.
During their marriage she also abused her two sons, threatening one of them with a knife at least once. The sons said they lived in fear of her during in the CBS '48 Hours' documentary. Her son Joseph told the court that: "This little lady you see in court is nothing but a household terrorist. I'm afraid of my mother and I'm hoping this nightmare comes to an end."
Gerard Miranda said he wanted to tell his story to let others know how damaging domestic violence can be. He also wants others to know how difficult the criminal justice system can be for male victims of domestic violence.
"It is a big relief for my entire family that this matter has drawn to a close," Gerard Miranda said. "I believe that when women are the perpetrators in domestic violence matters, the court views the issues differently because society views women as non-violent."
According to the July 19, 2002, issue of the Colorado Springs Gazette (p. Metro8) Hassania is seeking a lighter sentence, either probation or reduce her sentence to four years. Apparently the taxpayers have paid for brain surgery to have a golf-ball size tumor removed. She also now controls her mental illness with anti-psychotic medication. Her lawyer also claims she has now quit drinking alcohol (naturally, she's in jail).
Her former husband and two co-workers who witnessed her attack at the Air Force Academy on May 5, 1999, asked that Hassania serve her full sentence and fear she will kill them if she is released.
Abstracted from story by Deedee Correll
© 2004 Colorado Springs Gazette
Monday, March 8, 2004 No one can forget Hassania Miranda's promise.
Not her ex-husband, Jerry Miranda, who saw the flash of a 10-inch blade and twisted away before she plunged it twice into his back.
Not Jerry Miranda's co-worker at the Air Force Academy, Jesse Howard, who threw himself at her, grabbing at the knife.
"They can't hold me forever," she chanted that May 5, 1999, morning. "I'm going to come back and kill all of you."
They believed her, Jerry Miranda most of all.
Still, he thought it would be a long time before he'd have to worry again about his homicidal ex-wife. In 2001, the judge gave her 10 years in prison. He figured 10 years meant 10 years.
Less than three years after Hassania Miranda was sentenced in a case that drew national attention and was featured on 48 Hours, mostly because of the gender of her victim, she has tried three times for freedom.
She asked the judge in 2002 to reduce her sentence to four years. She applied for community corrections in 2003. She went before the parole board last week.
Each time, she failed.
Each time, the people she terrorized dress up and go to court. They send letters of protest, resurrecting the scariest day of their lives. They wonder if Hassania Miranda intends to make good on her promise.
"This," said Jerry Miranda, "will never end."
Howard was at work at the Air Force Academy that morning.
He'd known the Mirandas for years; their families were friends. That spring, Howard knew only that the Mirandas were divorcing. He didn't know about the abuse. The Mirandas had hidden it well.
Their secret blew open May 4, 1999, when Hassania Miranda showed up at her old house and pointed a gun at her son's friend. He fled, and she placed bullets throughout the house as a calling card.
Police arrested her that night. She bonded out of jail hours later, and in the morning, phoned her husband's office. She spoke to Howard.
"She said, 'They took my gun. But it's OK I have four more,'" Howard relates.
"Hassania," he said, "don't do anything stupid."
What she did later that day made him a victim too, he said.
"I was there," Howard said. "I saw it. I lived it."
Hassania Miranda's appeal for freedom took place in Classroom No. 4 of the Pueblo Center.
The low hum of the Pepsi machine made the only sound in the waiting room of the Pueblo Minimum Security Center.
Howard, Jerry Miranda and his 27-year-old son Joe Miranda sat, not talking.
In a chair several feet away sat another relative of Hassania Miranda, there to lobby for her release. They hardly looked at each other.
Howard drummed his fingers on the table. "Joy, joy," he muttered.
Curtis Devin, vice chairman of the Colorado Board of Parole, sat at the teacher's desk, and the three men took the second row of seats in front of him.
Jerry Miranda furiously chewed his gum.
Hassania Miranda walked in. Her hair had grown long. She had curled the ends and put on eye makeup. She didn't look at anyone as she sat directly in front of Devin.
Joe Miranda pushed his chair back slightly, putting some distance between himself and his mother. It was the closest he'd been to her without an armed officer in five years.
His mother isn't sorry, Joe Miranda said. She never apologized. She'd gone to prison for stabbing his father. But she'd hurt her sons many times, too. She'd kicked him down the stairs. She'd chased him with a knife.
Hassania Miranda turned away again when her ex-husband spoke.
"My life has been miserable," he began.
Imagine going back to work and facing his co-workers, he said, his voice breaking. Imagine everyone talking about you.
Some people thought he embarrassed the academy. Some wondered how he could possibly let a woman victimize him. He'd lost face.
Hassania Miranda has always regarded herself as the victim, Jerry Miranda said.
"I made you put a knife in my back? I made you chase the children around with a knife?" he said.
Hassania Miranda's parole was denied, this time.
According to the Denver Post of Thursday, April 8, 1999, a 44-year old woman was arrested the previous Tuesday night on suspicion of stabbing her husband after going to his home to kill his girlfriend. Her 48-year old husband was treated at the hospital for a stab wound to his arm and released.
On Thursday, May 13, 1999, an arrest warrant was issued for FBI agent Elaine Lipka, age 37, for attacking her husband, also an FBI agent, with a shovel on March 17 th in their Fall River home. Two Clear Creek County deputies responded to a 911 call on that date. When they arrived at the couple's home they found Elaine Lipka with blood on her face. However, they later determined that the blood came from her husband whom she allegedly hit with a shovel.
The deputies reportedly would have arrested Mrs. Lipka at the scene as current law requires. However, Sheriff Don Krueger also responded to their home and no arrest was made at the time. A later investigation prompted District Attorney Mike Goodbee to issue the warrant two months after the incident. Also at issue in the case is whether Mrs. Lipka received preferential treatment due to her status as an FBI agent. Because of these issues, and the close relationship between the DA and sheriff, the appointment of a special prosecutor was requested (Denver Post, May 14, 1999).
Had the couple not been FBI agents, it is seems a virtual certainty the husband would have been arrested without further ado as soon as blood was found on the woman's face. There is a widespread perception, reinforced by such incidents as this, that male victims of domestic abuse, when they do seek help, encounter: (1) a bias against believing that males are victims at all; (2) no one asks them questions about what happened and their statements are not believed or, worse, they are ridiculed; (3) an absence of shelters or other social services for male victims or their children and they have no advocates in the taxpayer funded "victim's assistance" programs; and (4) the female offender, even if arrested and convicted, is treated lightly by the police and many judges. However, the widespread publicity in this case apparently forced prosecutors and the courts to carry through.
A hearing in early July, 1999, let the charges against Ms. Lipka stand. The first attempt to try Ms. Lipka ended in a mistrial Wednesday, October 13, 1999, according to the Denver Post (October 14, 1999). However, she was retried on November 23, 1999, and found guilty by a four woman, two man jury (Denver Post, November 24, 1999).
Her attorney has promised to appeal the case. According to an article by George Lane in the November 25, 1999, Denver Post, Mrs. Lipka will remain on limited duty status at the FBI while her case is reviewed.
According to the November 24 th Denver Post article, her husband testified that he and his wife argued about another woman, who lives in Alice, Colorado and Mr. Lipka is reputed to have been seeing, on the night of March 17 while having drinks in Idaho Springs. The argument continued on the drive home. When they got home, he was opening the door when she hit him on the left side of his body with a snow shovel.
"I didn't find it offensive and probably didn't react the way I should have, by laughing," he testified. Apparently, for the FBI, and Mr. Lipka is an FBI agent, when a woman hits a man, even with a weapon such as a shovel, it should be found funny!
After the assault in the doorway, he was "encouraging" his wife up the steps to go to bed, and was a step or two below her when she said, "Leave me alone, give me space, don't touch me."
It was at that point that Elaine Lipka reached back with her right hand and had "accidental" contact with his nose, causing it to bleed, he testified. "I didn't know what to do with the blood," he said. "It was on my hand. I wiped it on her face."
But on the night of the assault, Mr. Lipka had told deputies he was slapped with an open hand, causing the nose bleed. "That night, it was a slap that caused his nose to bleed," the prosecutor said in her closing argument. "Here, today, it was an accident. Do you take the blood and wipe it on the face of your spouse if it were an accident. You also don't call 911 if it was an accident."
The February 18, 2000, issue of the Denver Post (p. 5B) bemoans the fact the Ms. Lipka faces double jeopardy because of her conviction on these charges. She was sentenced on Thursday, February 17, 2000, to a year of probation and 36 weeks of classes on domestic violence.
However, Federal gun-control laws prohibit any person convicted of domestic violence from owning or being in the possession of any weapon. A condition of her position as an FBI agent is that she carry a firearm. Instead of being terminated, she is being placed on limited-duty status pending appeal of her case from county court to the district court.
District Court Judge Richard Hart has rejected all the appeal issues except one according to the February 28, 2001, Denver Post (p. 6B). The remaining issue apparently concerns what seems to amount to a "dirty look," and perhaps a threatening statement her husband, FBI agent John Lipka, directed at witness Clear Creek County Deputy Beau Campbell in the hearing of some of the jurors. Judge Hart directed the county court judge to hold a hearing on whether there is sufficient reason to believe Mr. Lipka's behavior may have prejudiced the jury in reaching their decision. A hearing on that issue is now scheduled for April 25, 2001, to determine whether there is sufficient cause to hold a new trial. Mr. Lipka's caused a mistrial in his wife's first trial when he gave improper testimony about polygraph tests.
The behavior of these experienced Federal officers demonstrates why the nation's founders, and informed citizens today, fear a national police force.
Our question is whether an ordinary man and woman would be given the same consideration?
On August 11, 1999, the wife of Colorado Rockies' pitcher Pedro Astacio telephoned police saying that she had ordered him to leave their home in Greenwood Village, and that he had struck her in the right eye during an argument.
Pedro Astacio, a native of the Dominican Republic and currently the Colorado Rockies leading pitcher earning $5.8 million a year, initially pled not guilty to charges of assault and domestic violence after his arrest. But on January 29, 2000, he agreed to a plea bargain calling for a deferred judgement and a sentence of 24 months probation.
As noted elsewhere, it is not a good idea to plea bargain, or seek a deferred judgement in domestic violence cases as the sentence is the same as if you had pled guilty.
After entry of his plea, as mandated under a 1996 federal law the Immigration and Naturalization Service began deportation proceedings against Astacio.
On the basis that he was not properly warned of the consequences that would result from his acceptance of a deferred judgement, he filed a motion to withdraw his guilty plea in Arapahoe County. That motion was granted on March 8, 2000.
After completing 35 of 36 weeks of domestic violence counseling (note that punishment occurs before his conviction) Astacio pleaded guilty to a lesser charge of telephone harassment on November 13, 2000. Arapahoe County Judge Ethan Feldman sentenced him to six months probation, sixteen hours of community service, a $500 fine, and a payment of $1,800 to the victim compensation fund according to the November 14, 2000, Denver Post (p. 1B & 12B). Judge Feldman also ruled that the designation of domestic violence would still be part of his conviction as required by state law.
Conviction on the harassment charge apparently does not mandate deportation and that has greatly upset the Immigration and Naturalization Service, who are appealing the ruling.
In the meantime, Astacio is apparently back in his home with his wife. According to the March 9, 2000, Denver Post, she has borne him a son who is a U.S. citizen by birth. As the father of a U.S. citizen, even if he is deported he would immediately be eligible to apply for a waiver once he returned to the Dominican Republic.
The September 15, 1999, issue of the Denver Post reports that at about 11 P.M. on August 28th, Jean McKay, the 52-year old wife of Colorado State Representative Scott McKay (Lakewood) went to the police station to report that her 41-year old husband had abused her. She claimed he had thrown a trash can at her, spit in her face, twisted her big toe and nose in an argument. She claimed Rep. McKay's 15-year old son had witnessed the argument.
The couple have been married two-and-one-half years but have known each other for ten.
Lakewood police declined to press charges against Rep. McKay after investigation when his son did not substantiate Mrs. McKay's story. There was also no visible injury or other physical evidence of an assault. The police claim to have had no knowledge that McKay was a state representative.
McKay is said to have wondered if his wife had reported the incident in retribution for her arrest for harassment after a January 10, 1999, argument in which she had sprayed a bottle of dish soap into his mouth. The charges against Jean McKay were dismissed May 7th in Lakewood Municipal Court despite the "no drop" provisions of Colorado state law in domestic violence situations.
Partially based on story by Rick Rogers, San Diego Union-Tribune
Observations are based on the findings of the court of appeals.
December 3, 1999 Embroiled in a hotly-contested divorce, Marine Corps Sgt. Brian Foster was awarded custody of their children in California. Then his wife, Heather, fled to Colorado with the boys and sought the help of a feminist attorney specializing in women's rights. The California judge issued a kidnapping warrant for Heather Foster. She then claimed she fled her husband's abuse.
Colorado, being a "safe haven" state, Heather was neither arrested nor charged.
Marine Sgt. Brian Foster was then forced to negotiate once again for custody of his children. When those negotiations broke down Sgt. Foster found himself charged by his wife's attorney with assaulting, raping and threatening his wife. Foster was convicted by a general court martial in December 1999 of all charges and sentenced to 17 years confinement, stripped of his rank, all pay and allowances and given a dishonorable discharge. He served nine years, two months and 17 days of that sentence, most of it at the maximum security United States Disciplinary Barracks at Fort Leavenworth, Kansas, before being released
Sgt. Foster's prison ordeal began when a military jury at Camp Pendleton convicted him of spousal rape and related charges on December 3, 1999. A general court-martial composed of officer members convicted Sgt. Foster, contrary to his pleas, of rape, two specifications of aggravated assault, and wrongfully communicating a threat in violation of Articles 120, 128 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and 934.
He was then sentenced to confinement for seventeen years, forfeiture of all pay and allowances, reduction in rank to private (pay grade E-1), and a dishonorable discharge. The convening authority (CA), Commanding General, 1 st Force Service Support Group, Marine Forces Pacific, Camp Pendleton, California, approved the sentence as adjudged.
The following observations are based on the findings of the court of appeals.
Heather and Brian Foster were married in 1993. In 1998 Sgt. Foster hired an attorney and filed for divorce in California and was given custody of their children. Heather then kidnapped the children and fled to Colorado. Following completion of requisite residency requirements she then filed for divorce against Brian in Colorado despite the pendency of the divorce case in California. The California judge issued a kidnapping warrant for Heather Foster. She then claimed she fled to Colorado to escape her husband's abuse. Because of her unproven and unsubstantiated claim of domestic violence the warrant was never enforced.
Over the course of several months the estranged couple engaged in civil discovery and custody-related settlement discussions in California and Colorado. The primary issues pending in both jurisdictions related to the conditions by which Brian and Heather would share legal and physical custody of their two minor children. The civil litigation between the parties was ultimately consolidated under the Uniform Child Custody Jurisdiction Act with a judge from each state joining in pretrial settlement efforts. Indeed, following mediation of the matter, the parties agreed to a provisional agreement on custody in which Heather consented to Brian's joint legal and partial physical custody of their two children.
The record is opaque as to the reasons for the collapse of this agreement, aside from references to lapses of communication between the two civil attorneys. Almost certainly this breakdown was a deliberate manipulation of the situation by Heather's redfem attorney. It is no surprise then that Heather's attorney in Colorado reported the alleged misconduct to prosecutorial officials at Camp Pendleton, which led to the charges against him.
The key witness against Sgt. Foster was his spouse and alleged "victim," Heather Foster. Based largely on the report of Heather's Colorado attorney, prosecutors alleged myriad instances of spousal abuse and one incident of rape over the course of the marriage.
The record shows that Sgt. Foster was convicted of rape solely upon the testimony of his estranged wife, nearly five years after the alleged incident occurred, and corroborated only by the victim's own statements to her friend nearly two years after the alleged incident.
In the time between the alleged act and her sworn testimony, Heather Foster, by her own admission, had voluntarily participated in several instances of intimate sexual contact with Brian, including the willing production of a sexually-explicit video.
Further, no forensically-related evidence was introduced at trial and no official report to any authority was made after the alleged rape took place. Indeed, the alleged rape was only "reported" to Marine Corps authorities by the alleged victim's divorce attorney in the midst of a complicated and contentious custody battle with Sgt. Foster when the couple's settlement agreement broke down.
Without any official report or forensic evidence of the alleged rape the prosecution called on two of Heather Foster's drinking buddies for supporting testimony.
Mrs. Kolstee testified that she was one of the Fosters' neighbors during the period when they lived in Hawaii and that she and Heather shared baby sitting duty for each other, shopped, and otherwise socialized together. Mrs. Kolstee testified that they became "very" close during their time in Hawaii. Despite their close proximity and regular contact Mrs. Kolstee testified that Heather never told her about any instances of abuse at the hands of her husband while they were stationed in Hawaii.
Mrs. Kolstee did offer some corroboration as to the charge of aggravated assault with a rifle, asserting that she saw what she believed was the end of a rifle barrel through the slot in the door at the Foster residence. Unfortunately, Mrs. Kolstee identified the "weapon" as a pistol in her statement to the Naval Criminal Investigative Service before the trial. Her credibility was also hindered by her discussion of the case with the alleged "victim" the evening before testifying at the UCMJ Article 32 Investigation.
As a result the appeals court found that this witness' testimony was extremely general, at times confusing, and contained factually unsupported opinion. More importantly, throughout her testimony no reference was made to any knowledge of the alleged rape. Obviously Sgt. Foster's defense attorney was incompetent, which is confirmed in the following episodes.
Ms. Kossen on the other hand, testified that Heather Foster had reported the alleged "rape" to her approximately two years after it supposedly occurred. This rather significant delay seriously undermined the materiality, if not the credibility, of the victim's statement to her friend and that friend's testimony. Moreover, the testimony was admitted at trial as a prior consistent statement per Military Rule of Evidence 801, Manual for Courts-Martial, United States (1998 ed.), not as an excited utterance, or other statement contemporaneous with the alleged rape.
Additionally, Ms. Kossen offered testimony regarding her frequenting night clubs and drinking with Heather, and testimony pertaining to yet another allegation of aggravated assault with a weapon in California. However, she told investigators this was an incident that took place in Hawaii.
In summary, while there is various evidence in the record that Sgt. Foster may have subjected Heather to instances of abuse and assault as defined under current law, the evidence as to his culpability for rape was anemic at best.
Heather made no report to medical or law enforcement authorities of the rape,
She engaged in long-standing intimate contact with her "rapist" for years following the incident, including a home video in which she plays a starring role.
Prosecutors presented no forensic or contemporaneous testimonial evidence that corroborated Heather's rape allegations.
As a result the appeals court concluded that the prosecution attempted to bootstrap a rape conviction atop several instances of alleged assaultive conduct for which there was also little substantiation. In short, the Government's evidence of rape in this case, aside from Heather's testimony, consisted of statements by her to her friends and her mother. None of these statements were made proximal to the alleged rape.
The appeals court was also significantly disturbed by the fact that the allegations of rape were made in the midst of a hotly-contested divorce and custody battle, after failed attempts at settlement, under the terms of which the "victim" was prepared to surrender partial custody of her children to the man she later accused as an abusive rapist.
Considered in the light most favorable to the Government, a reasonable member of the trial court could choose to believe the "victim," and to disbelieve evidence inconsistent with guilt. However, under the facts presented, the appeals court was unable to conclude that Sgt. Foster is guilty of rape beyond a reasonable doubt. To the contrary, the court found that his conviction for rape was factually insufficient, and was obtained as the result of other errors, discussed below. Therefore, the rape conviction was not allowed to stand.
The appeals court began by reviewing the manner in which expert testimony was admitted during this litigation with the proposition that "the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." [Note that the Equal Justice Foundation has successfully opposed admission of "expert" testimony by redfems and helped prosecutors oppose "battered woman" claims in a murder trial.]
They also considered the plenary understanding in military law that expert testimony is not permitted to replace the decision-making process of the fact finder or, more specifically, to advance the expert witness' opinion as to the "believability or credibility of victims or other witnesses" in a case dealing with sexual assault.
The appeals court restated that "expert testimony is admissible if it is relevant..., if its probative value outweighs its prejudicial value..., and if the testimony will assist the trier of fact..." In determining if a military judge has properly admitted expert testimony, they then tested his decision for an abuse of discretion.
The trial judge permitted the prosecution to call Dr. Mary Dully, a pediatrician, who testified as to the general subject area of domestic violence as dictated by her ideology.
It should be noted that the universe of Dr. Dully's experience is defined by her work in the Camp Pendleton emergency room and her service with the San Diego Police Academy's Primary Aggressor Course, where she taught officers how to identify the person who "may have exerted power and control and been the winner in a physical altercation and helping officers on scene who is likingly [sic] the primary aggressor and who is actually the looser [sic] in the physical altercation." So the bias and dogma of her training and background are obvious from the outset. After reciting her professional qualifications, Dr. Dully went on to outline her vision of what domestic violence was based upon her "training and experience."
What followed was an extensive colloquy with trial counsel that involved this pediatrician's personal view of how domestic violence presents itself, and how both the aggressor and victim are likely to act according to the DV industry playbook. This discussion included offering the members of the trial court an ideological basis for why a victim might take certain action, such as remaining with her abuser over a long period of time, all in line with redfem DV dogma.
Notably, defense counsel did not voir dire the witness at trial. Further, a review of the record reveals that the trial counsel's questions and Dr. Dully's responses substantially mirrored the factual theory of the case presented by the Government. Yet the record is clear that the Dr. Dully reviewed no materials specific to this case and certainly did not conduct an examination of either Sgt. Foster or his estranged wife, Heather, in preparation for trial. In short, dogma and ideology were introduced unchallenged as evidence in this criminal case.
This outline of what constitutes abuse by this expert witness, and the close factual nexus between the call of those questions and the Government's position at trial, brings Dr. Dully's testimony very close to the nature of profile evidence of an offender, which is forbidden under military law. While the appeals court did not hold that Dr. Dully's "evidence" strayed over the permissible line, having drawn so very close to it, the Government's admission of Dr. Rusher's testimony immediately thereafter, exacerbates the dangerous nature of Dr. Dully's unrestricted testimony.
Regarding the testimony of Lieutenant Commander Mary Rusher, Medical Corps, U.S. Navy, the court of appeals held that the military judge abdicated his role as impartial gatekeeper, and erroneously admitted testimony which compromised the credibility of this trial in its entirety. [emphasis added]
While the record indicates that Dr. Rusher was a physician, board certified in neurology and psychology, her testimony was that she was, in fact, a psychiatrist, who conducted a single interview with the alleged victim in this matter. Therefore, the military judge erred in permitting the members to consider Dr. Rusher's testimony.
In preparing their case for litigation, the prosecution arranged for Heather Foster to meet once with Dr. Rusher for an evaluation on November 10, 1999. The examination took two hours. Dr. Rusher testified that she took a history from Mrs. Foster, including a review of past substance abuse, history of abuse, social history, medical history, conducted a mental status evaluation, and developed an assessment.
Importantly, Dr. Rusher does not simply explain to the members what Mrs. Foster claims. In sharp contrast to the fundamentals of admissible expert testimony, Dr. Rusher delivered the factual assertions of the victim as a medical diagnosis.
The pertinent exchange with trial counsel follows:
Q: What did you observe during the interview?
A: I observed that Mrs. Foster did indeed have the symptoms of post traumatic stress disorder.
Q: And what are those symptoms that you observed?
A: The symptoms that I observed in her was [sic] that she did experience a traumatic - actually, multiple traumatic incidents where her life was threatened and the life [sic] of her children were threatened; and she re-experienced this trauma through nightmares.
She would have nightmares of her husband placing a gun to her head for several hours. She had intrusive memories of the abuse where her life was threatened and the lives of her children were threatened. She had graphic memories where she was told she would be chopped up, and her children would be chopped up in small little pieces; and they would have a slow painful death...
She also had avoidance symptoms where she had difficulty going places that reminded her of the abuse. For example, it was very difficult for her to come to California, because in California was one of the places where the abuse occurred.
She had a numbing of responsiveness where her effect at times or her expression were somewhat flat and emotionless, which again is more one of the very common symptoms of post traumatic stress disorder order [sic].
As set forth above, Dr. Rusher went well-beyond a medical analysis of the facts before her. In short, she adopted the facts as advanced by the alleged "victim" and cloaked them in a physician's white coat, presenting them as scientific findings to the members of the trial court. It is well established that "...to put 'an impressively qualified expert's stamp of truthfulness on a witness' story goes too far.' An expert should not be allowed to 'go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility.'" However, this is a standard tactic of "expert" witnesses introduced by radical feminists in domestic violence trials for the reason, as here, that it frequently works to condemn a male defendant.
In reviewing Sgt. Foster's case, the court noted that the military judge took no action to correct the tone and content of Dr. Rusher's testimony during the tenure of her recitation to the court martial officers. The Court of Appeals for the Armed Forces (C.A.A.F.) has stated that:
"...it is [dangerous] for judges to receive uncritically just anything an expert wants to say. The evaluation of expert testimony does not end with a recitation of academic degrees. Everything the expert says has to be relevant, reliable, and helpful to the fact finder. A rational and demonstrable basis is the sine qua non of expert opinion." United States v. King, 35 M.J. 337, 342 (C.M.A. 1992).
As a result to appeals court concluded the testimony of Dr. Rusher was plain and obvious error.
Though the military judge failed to recognize this and take action to prevent the improper testimony, he ultimately recognized the threat it posed to the neutrality of his members, albeit not until the expert witness had concluded her testimony. At the close of her testimony, the military judge, without defense prompting, provided the members a curative instruction. The law is clear that such a curative instruction is the "preferred" remedy for correcting error when the court members have heard inadmissible evidence, as long as the instruction is adequate to avoid prejudice to the accused.
Generally courts assume that members are able to comport themselves with a curative instruction in the absence of evidence suggesting otherwise and apparently in Sgt. Foster's case the members made an honest effort to comport themselves with the trial judge's instruction.
However, the appeals court decided that in view of the testimony in conjunction with the entire trial, they were left convinced that the military judge was unable to "unring the bell." They further concluded that the error did "substantially sway" the members in their decision to convict Sgt. Foster, and to impose a punitive discharge and substantial confinement in his case. Thus, this error materially prejudiced Sgt. Foster's substantial rights.
Adding injury to insult the trial judge permitted the members to hear the testimony of an incompetent witness in the form of Jacob Foster, the six-year-old son of the "victim." The child's testimony was permitted without the military judge conducting an Article 39(a), UCMJ, session so as to make an assessment of the child's competence and probity.
After the child, who was coached and alienated from Sgt. Foster by his mother, began testifying the trial court found that the boy had not been born at the time of one of the charges about which he was testifying. Further, he was approximately two years old at the time of the most recent alleged act. When that was discovered the military judge excused the members of the trial court.
After consultation with counsel, the judge ordered the testimony to be stricken and instructed the members to disregard it. One can only wonder why defense counsel didn't demand a mistrial at this point?
Were this the only error, the appeal judges felt they could rely on the members assiduously abiding by their instructions to mitigate the error. But this testimony amounted to at least the third retelling of the victim's story, including one retelling by a physician as a matter of medical fact and another who recited dogma as proven in every case of abuse.
In view of all these errors the appeals court found that the accumulation of errors described above required them to evaluate the fairness of the appellant's trial using the cumulative error doctrine. The scope of their evaluation of the errors in the case was made:
",,,against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the [trial] court dealt with the errors as they arose (including the efficacy or lack of efficacy of any remedial efforts); and the strength of the government's case."
Considering the improper testimony of Dr. Rusher, combined with the dogma of Dr. Dully, and the stricken testimony of the boy, the appeals court concluded that these errors called into question the basic fairness of Sgt. Foster's trial. They also questioned the efficacy of the trial courts curative instructions in that the military judge acted late with regard to both Dr. Rusher's improper testimony and the child's coached recitation.
The appeals court also noted that the Government's case was not strong, being based almost entirely on the statements of the "victim" and some testimony that Sgt. Foster was an abusive husband. They stated that but for the cloaking of the victim's statements in the physician's lab coat of Dr. Rusher they were unable to discern whether the members of the trial court would have convicted Sgt. Foster on any charge. They characterized the entire case as muddled and hearsay based.
The tremendous time lapse in having Foster's conviction reviewed about nine years caught the attention of the appellate court and outside experts in military law.
"I've never bumped into something like this in 30 years of practicing law," said attorney Kevin Barry McDermott, who represented Foster for eight months between late 2000 and early 2001. "From all the feedback I've gotten, no one can remember a case that took this long to get to a preliminary review."
Sgt. Foster's case came at a bad time, said Michelle Lindo McCluer, executive director of the National Institute of Military Justice in Washington, D.C. The Navy and Marine Corps' appeals system faced such a backlog of cases, she said, that the U.S. Court of Appeals for the Armed Forces eventually told those services to add staffing.
"It is a black eye for the military justice system," said Tom Umberg, an Army Reserve colonel called to active duty in 2004 to prosecute detainees housed at Guantanamo Bay, Cuba. "This injustice should have been resolved in 18 months," Umberg said. "This was not the world's most complicated case."
Regarding prejudice the appeal judges found that this case is one in which the post-trial delay is so extreme as to "...give rise to a strong presumption of evidentiary prejudice." They then concluded that Sgt. Foster was clearly prejudiced by the post-trial delay after his general court-martial, and considered that as weighing heavily in his favor.
The primary factor in their evaluation was the determination that the Government failed to prove Sgt. Foster guilty of rape by legal and competent evidence beyond a reasonable doubt.
The appeals court also concluded that had just one of the seven previous lead judges in this matter conducted a thorough assessment of the record of trial in a timely fashion the extensive errors embracing this case would have been discovered and Sgt. Foster would have faced, at worst, the prospect of a new trial on all but the rape charge.
In short, nearly ten years of delay makes a difference in a case where the alleged instances of misconduct took place years before the actual trial. As a result of all the factors cited they determined that Sergeant Foster's conviction for rape was improper as the Government did not and could not establish his guilt. Therefore, he served nearly ten years of confinement in large measure for an alleged offense of which he should not have been convicted and that likely never happened.
The appeals court then considered the egregious delay in the reviews of Sgt. Foster's case and concluded that there was a due process violation resulting from the post-trial delay in processing this case. They found the delay "...is so egregious that tolerating it would adversely effect the public's perception of the fairness and integrity of the military justice system." Further, they concluded that the error created by the unreasonable delay is not harmless beyond a reasonable doubt. Even if it was harmless, the court was also aware of their authority to grant relief under Article 66, UCMJ, and stated that in this case, irrespective of the due process violation, they would have chosen to exercise that authority because of the unique circumstances.
As to an appropriate remedy the judges considered dismissing all charges and specifications with prejudice. However, they found that Sgt. Foster would be able to defend himself against any remaining charges.
So as to compensate Sgt. Foster for the actual prejudice discerned from ten years of confinement served in large measure for an offense which they dismissed, they limited Sgt. Foster's further exposure to any adjudged sentence to nothing more than a punitive discharge. Should the rehearing result in conviction, court of appeals believed that limiting Sgt. Foster's possible sentence will serve as adequate relief for the deprivation of his right to speedy post-trial review. The Equal Justice Foundation most emphatically disagrees. The injustice of ten years confinement at Fort Leavenworth on trumped up, vindictive, self-serving false allegations should free this Marine without question or reservation.
A spokeswoman for the appellate court said current rules require military appeals to be reviewed within 18 months of docketing.
The charge of rape was dismissed with prejudice and cannot be retried. The remaining findings and the sentence were set aside. The record was returned to the Judge Advocate General for remand to an appropriate Convening Authority with a rehearing authorized. Sgt. Foster was ordered to be released from confinement forthwith and that was done.
After spending a decade behind bars, the former Camp Pendleton Marine is now a free man as of March 14, 2009, after a military appeals court ruled that "a muddled, hearsay-based case" caused his spousal-rape conviction.
But anyone who thinks Brian Foster is bitter would be wrong. As Foster left the prison at Fort Leavenworth, Kansas, on February 20 th he picked up his sergeant stripes and spoke candidly with his superiors.
"I told (them) I was happy to be back in the Marine Corps and that I'll go anywhere and do anything the Marine Corps wants me to," Foster, now 35, said during a phone interview yesterday from Belton, Missouri. "I said I love my country and I love the Marine Corps and that unfortunately, these things happen in a free country."
Sgt. Foster was handed a cell phone to call his parents in Texas. It took him a while to admit that he didn't know how to use a cell phone.
"Heck, I didn't know how to turn it on," he said.
Heather Foster couldn't be reached for comment. She is said to be living in the Denver area with her two sons [and no doubt being supported by the DV industry with taxpayer funds].
Since Foster left prison, fellow Marines have spent more than $800 to buy him clothes and a steak dinner that he said he had been thinking about for 10 years.
"It was amazing to be treated so well," he said. "This was something they did not have to do. It was their personal money."
Foster said he endured prison thanks to his faith and the Rev. Carroll Thorne, a Catholic priest and Vietnam War veteran. He said Thorne preached courage and perseverance.
"He told me that he was constantly rooting for me," Foster said. "He was just a great support."
Foster hopes to persuade the military to give him back pay for the past decade. But most of all, he wants to serve in the Marine Corps until his retirement.
"Sometimes bad things happen to good people," Foster said. "The courts, which I joined the Marine Corps to defend, ultimately made me free. It just took a little bit of time."
Two days before Christmas in 1999 my wife told me she was pregnant. But it was a tubal (ectopic) pregnancy so there was no chance we could have this child that we had both so desperately wanted.
A few days before New Years she started having severe cramps in the middle of the night. I called 911 for an ambulance. I told them my wife had a tubal pregnancy and was having cramps.
But the first to arrive were police officers. The ambulance and paramedics arrived shortly thereafter. Once they got into the house she could not move. I was told to wait outside.
I was greatly concerned and wanted her to get the best care she could. I stepped out of the way not knowing that the police had shown up with the preconceived notion that this was a domestic violence case. The police assumed that I must have punched her in the stomach or kicked her. Not knowing what they were after, and afraid for my wife, I was completely oblivious to what they were looking for.
Maybe she did have a tubal pregnancy and simply needed medical attention but the police did not believe for one minute that this was true. They did however determine that she was hemorrhaging.
I was asked all sorts of questions such as, "Did you have an argument?" She was asked the same questions but was in so much pain that she couldn't answer. I told them again that she had been diagnosed with a tubal pregnancy and that she was hemorrhaging. Nonetheless they were treating this as a domestic violence case. After about 20 or 30 minutes of interrogation from the police one of the paramedics realized that she was pregnant and that she needed medical attention or she could die.
But the police were more interested in this as a domestic violence case than simply finding she was hemorrhaging from a tubal pregnancy that needed to be aborted.
The ambulance driver then told the police we need to get this woman to a hospital and we need a helicopter to fly her there. It was too risky to take a chance on driving her as we were in eastern Adams County, 57 miles from the closest hospital, and she most certainly could have died on the way.
Even after she was put in the helicopter the police continued to interrogate me. I had to show them that she definitely did go to a doctor. I had to spend another 20 minutes trying to find the papers to show them that was true or they were not going to let me go to the hospital.
The police also contacted my wife's mother and she was able to convince them that she had been with her daughter and that, in fact, she did have a tubal pregnancy.
The police assumption of domestic violence was due to the fact that this 911 call was made at approximately 1:30 AM and when they arrived they found my wife in excruciating pain. Therefore, I must have beaten her.
According to the January 23, 2005, edition of the Colorado Springs Gazette (p. Metro 3) Susan Salamon, 46, was found dead near the railroad tracks at North Nevada and Roberts Road by a Colorado Springs Utilities worker on Friday morning, January 21, 2005. An autopsy showed she had died of acute alcohol poisoning and there were no obvious signs of trauma.
Ms. Salamon's husband had obtained a restraining order against her in 1999 and divorced her shortly after that. She had been convicted of driving drunk at least four times since then and convicted on domestic violence charges three times in that same period.
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