H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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The High Price of Restrictive Federal Gun Laws in Colorado Domestci Violence Cases

A Fort Carson soldier Chester Duncan, who was featured Sunday in a Gazette investigation of troops who deploy with pending felonies, appeared in court Monday on leave from Afghanistan. He hoped for a light sentence that would ensure he could return.

The judge did not give it to him.

In 4th Judicial District Court, the 28-year-old specialist pleaded guilty to choking his wife and slapping his daughter.

The prosecutor had agreed to a plea deal she thought would allow Duncan to continue his tour as a combat engineer, hunting hidden roadside bombs and flying remote-controlled aircraft. The soldier would plead to 3rd degree assault — a misdemeanor — and receive a one-year deferred sentence, which meant if he went to domestic violence and child abuse classes, he would do no jail time and his record would be wiped clean in 12 months.

Both the prosecutor and defense attorney told the judge that it was the right move because Duncan and his wife had made amends, he had gone to Army family violence classes, and the couple had not fought since his arrest in the fall of 2009. In fact, while he was in court, she was going into labor with their third child.

“Is this what you want?” 4th Judicial District Judge Deborah Grohs asked Duncan, who stood before the bench.

Duncan said yes.

For defendants to take a plea agreement, they must explain to the judge what they did wrong.

Duncan, a soldier in the 3rd Brigade Combat Team, 4th Infantry Division, described how he got into an argument with his wife, then pushed her and held her down.

“Did you choke her?” the judge asked.

“Yes,” Duncan said.

“Did you cause your wife physical pain?” the judge asked.

“Yes,” Duncan said.

The prosecutor and defense attorney asked the judge that the assault charge not be categorized as a domestic violence crime, because under federal law, that would bar Duncan from possessing a firearm for the 12-month sentence, which began Monday.

“If he could not hold a gun, he may not be able to go back to Afghanistan,” deputy district attorney Carrie Sample told the judge.

Duncan’s public defender, Rory Taylor, argued that Duncan’s case was not really domestic violence, just the unfortunate aftermath of a 15-month deployment in Iraq that had resulted in “a lot of tension.”

The judge listened to the arguments, but said she was ultimately constrained by law.

“You are getting a very nice plea agreement,” she told Duncan. “If you complete the requirements you will have no criminal record.”

Then she sighed. After a long pause, she noted that Duncan and his wife were married at the time of the crime and he choked her until she was unable to breath.

“This is, indeed, an act of domestic violence,” the judge said. “I have total sympathy for you and respect your service, but this is what it is, I can’t make it disappear. I know it may mean your termination from the Army, but it is what it is.”

She determined that the crime should be categorized as domestic violence.

It is not clear whether the Army will return Duncan to Afghanistan, or whether he risks being discharged because of his conviction. A spokesman for his brigade did not respond by press time to an e-mail request for comment.

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H. Michael’s Take

This tragic circumstance highlights the unyielding nature of “all or nothing” federal gun laws whose passage was a knee jerk reaction to a powerful feminist lobby. By removing discretion from a judge – (here it occurs at the state law level – which charaterizes a case as Colorado “Domestic Violence”) – based solely upon the identification of the victim and ignoring all other pieces of information in a case mitigating his actions – the state legislature prevents the judge from doing what the judge is elected to do… decide the case results.

Both the DA and the Defense Attorney must have known the judge could not disregard the law – which is mandatory – identifying this as a domestic violence case. This judge had no choice but to impose the domestic violence “tag” to the soldier’s actions – thus – in my opinion – ending his military career.

The pendulum must swing back and judges must be allowed to do their jobs and answer for their decisions… and not wring their hands and blame the mandatory nature of Colorado’s domestic violence laws..

This must change. Change begins with you – the voter.