When children die of suspected abuse or neglect in Colorado, the odds are even that nobody will go to prison as a result of the death.
The reasons are complicated.
In many cases, a suspected parent or other children are the only witnesses. Sometimes investigators can’t tell whether a drowning or suffocation was accidental, neglectful or intentional. When the circumstances are in doubt, police or prosecutors may decide that criminal charges would only compound a parent’s grief.
A Denver Post study of more than 200 child abuse or neglect deaths in the last decade found that about a third of those cases were not prosecuted.
The deaths of at least 38 other children were followed by prosecutions that ended either with no state prison sentence or a jury acquittal. The killers of seven others were judged insane.
Some child-killers were severely punished. A few were sentenced to more than 90 years in a state prison. Others received much shorter sentences despite testimony that the child died a brutal death.
Augustine Valerio, for instance, got three years in prison after acknowledging in a plea bargain that he negligently caused the death of his girlfriend’s son, 22-month-old Emilio Romero.
Emilio died in 1996 from head injuries a doctor likened to those from a high-speed car wreck. His brain and the retinas in both eyes were bleeding. His face, arm, chest and thighs and a bone in his back were all bruised.
“Three years? It surprises me greatly,” said Dr. Deirdre Arnholz, the Children’s Hospital physician who described Emilio’s injuries in an Otero County courtroom.
“It was clear that he died of abuse,” she said. A severe head injury “with massive swelling of the brain” killed him, and “he had bruises distributed over much of his body.”
Valerio, who was paroled after 20 months, declined to be interviewed.
The Post’s study involved child deaths from 1993 through 2002 in which abuse or neglect was a suspected factor and Colorado Department of Human Services records listed a suspected perpetrator. District attorneys’ offices, the state court administrator’s office and two Department of Corrections officials helped search for results of prosecuted cases.
In at least 71 deaths, mostly cases involving parental neglect, The Post found no record of a completed criminal prosecution. In nine other cases, defendants were acquitted. The killers of 10 other children committed suicide.
In prosecuted cases, adults responsible for the deaths of 29 children received sentences other than prison, such as probation or community corrections. The deaths of 26 other children brought sentences of 10 years or less. Forty deaths brought sentences of 11 to 30 years; 26 brought sentences exceeding 30 years.
‘Great disparities’ in sentences
By comparison, the average sentence for second-degree murder in Colorado last year was 41 years in prison.
Corrections records also show that some adults convicted of seriously injuring children serve longer prison terms than others who kill a child.
Dozens of defendants in nonfatal child abuse cases were sentenced to at least 10 years, some to 20 years or more. One Denver man got 46 years for repeatedly beating two girls with a belt.
Prosecutors and defense lawyers say a host of factors – a lack of witnesses, questions about the defendant’s state of mind and history of abuse, the relatives who speak for the victim or defendant at sentencing – help account for the divergent sentences in fatal child abuse cases.
They also say the difference between a long prison term and probation can hang on a single word: whether the defendant acted “recklessly” or “negligently.”
Under state law, an adult who knowingly or recklessly causes a child’s death faces 16 to 48 years in prison, and possibly longer if other acts of abuse preceded the death. A perpetrator who acted with criminal negligence may get anywhere from probation to 16 years.
And “there’s hardly any difference” between recklessness and negligence, said Craig Truman, a noted Denver defense lawyer. “The distinction is more in the heart of the prosecutor or judge than in the words.”
Colorado law defines criminal negligence as “a gross deviation” from a reasonable standard of care. “Recklessly” means consciously disregarding “a substantial and unjustifiable risk.”
Miles Madorin, staff attorney for the Colorado District Attorneys’ Council, said he believes state law appropriately permits a wide range of sentences because circumstances vary greatly in fatal child abuse and neglect cases.
But he agreed that much depends on “the mental-state analysis” of the defendant, who is often the only witness. “The distinction between acting recklessly and acting negligently is huge, if you look at the penalties,” he said.
Adams County District Attorney Bob Grant said statistical comparisons of prison sentences in child abuse cases are not meaningful because the defendant’s criminal history, age and remorse, as well as the nature of the crime itself, all factor into sentencing decisions.
But he also said he has seen “some great disparities” among sentencing judges, where one might call a child’s death “a horrendously aggravating case” and another might conclude, “You know, kids get on your nerves sometimes.”
Child abuse cases are particularly difficult to prosecute because jurors don’t want to believe there are parents who kill their children, Grant said, and often, “you have child witnesses who are the only witnesses to murderous acts.”
Probation for neglect
Probation sentences for child deaths have come mostly in neglect cases.
The list of those not sent to prison includes parents and other caretakers who let children drown in bathtubs or suffocate in fires, gave fatal overdoses of medicine or forsook medical care for religious reasons.
Prosecutors say they sometimes decide that while parents should be held responsible for a child’s death, it would be wrong to compound their grief with years in a prison cell.
But “you second-guess all these cases,” said Karen Pearson, a child abuse prosecutor in Arapahoe County. “They’re horrible. Putting the parents of a dead child through a trial is horrible.”
In at least six cases, Colorado parents accused of fatally beating, shaking, strangling or smothering children were sentenced to probation.
In 1998, Raymond Morris pushed the face of his crying month-old son, Roberto, into a blanket. He told police that he had said, “Come on, you little s—,” as he did so, but that he held his son face-down for only about two seconds. Roberto died that day in what the coroner classified as a homicide, probably “due to smothering.”
Arapahoe County District Judge Gerald Rafferty sentenced Morris to probation, stunning investigators who believed Roberto’s death was not accidental. After Morris tested positive for marijuana weeks later, Rafferty revoked his probation and gave him eight years in prison.
In a 2000 case, Rafferty gave Javier Sandoval a deferred sentence, plus 24 months’ probation, in the death of his infant son, Adam. Sandoval told police he had held Adam in the air, with his thumbs near the 3-month-old boy’s neck, while pleading, “Adam, please stop crying; please don’t cry.” He said he then returned Adam to his crib – and discovered 10 minutes later that his son wasn’t breathing.
Sandoval pleaded no contest to reduced charges that included child abuse resulting in serious bodily injury. Thomas Nellessen, Sandoval’s lawyer, said mistakes by an ambulance service, which failed to get oxygen to Adam’s brain, left questions about who caused his death. “That’s why we got the deal we got,” he said.
Robert Chappell, chief of the special victims unit in the Arapahoe district attorney’s office, said his office was unhappy with the probation sentence in the Morris case.
Adam Sandoval’s death “was originally ruled a SIDS (sudden infant death syndrome),” he said, so “right out of the box it’s a tough case.”
Chappell said there are cases where “basically good people can end up reaching some sort of flash point. At that instant, they lose track of what they’re doing. Bad things happen. Does that mean the person is a vicious killer? Probably not. Should they be held accountable? Yeah.
“Figuring out what that accountability should be is difficult. It’s especially difficult when it’s a parent and a child.”
Denver Post staff writers Kirk Mitchell, Nancy Lofholm and Erin Emery contributed to this report.
