Purple Berets


When the Batterer
is a Cop

Home Page
About the Purple Berets
Breaking News
Violence Against Women
Tools For Working Your Own Case
Other Law Enforcement Issues
Contact Us




CHP Officer Acquitted . . .
But So Was O.J.

It was 3:30 on a Thursday afternoon when word went out that the jury had reached a verdict. After seven weeks of testimony in the domestic violence trial of California Highway Patrol officer Curt Lubiszewski, the jury had deliberated less than two hours. It wasn't a good sign.

Forty-five minutes later, the jurors filed into a courtroom filled with deputy DAs, defense attorneys, Purple Berets, investigators ... and no press. A nervous hush; an excruciating wait while the judge reviewed the verdicts, then handed them to the court clerk to read.

"On the first count of battery of a domestic partner ... not guilty.
On the second count of battery of a domestic partner ... not guilty.
On the third count of battery of a domestic partner ... not guilty.
On the fourth count of vandalism ... not guilty."

How Did We End Up Here?
This was a story that had begun more than a year earlier. Fully fed up with Curt Lubiszewski's hate-filled denigration and total control over her life, Mitzie Grabner got out. The 14-month relationship had been filled with outbursts of violence, peppered with "you fucking cunt" and "fucking whore," and Mitzie knew it wasn't going to change. When her call for help getting her things safely from his house led to official reports of the violence, things quickly spiraled out of her control. (For a full report of the lead-up to the trial, click here.)

A criminal investigation was opened, and the CHP launched an employee disciplinary investigation. Mitzie Grabner made sworn statements on a number of violent incidents, three of which were still within the statute of limitations for criminal prosecution. Once the district attorney's office felt they could prove domestic battery beyond a reasonable doubt, charges were filed. A criminal protective order was issued, Lubiszewski's guns confiscated, and for the first time since she'd left him, Mitzie Grabner felt safe.

But by the time the various police officers involved had done their part in the investigation of a fellow cop, the prosecution had an uphill battle ahead of them.

The Role of the Boys in Blue
When Rohnert Park detective Jeff Nicks was assigned the criminal investigation, he became the "go-to guy" in control of whether his comrade-in-arms was prosecutable or not. He did his best to make sure he was not.

When Mitzie showed up at her initial police interview, Nicks wouldn't allow her support person to be present, then said, "You know, Curt's got a lot of friends around here," as soon as he got her alone. He then waltzed her into the interview room where Curt's CHP sergeant, Scott Bertelson sat, tape recorder in hand. (I'm told this is a big no-no, as any crossover between the criminal investigation and the police agency's internal investigation contaminates both.)

Here are just a few of Nicks' actions that were used against Mitzie in court:

  • Part-way through her statement to Nicks, the tape recorder either stopped or was turned off. Nicks said, "We've got enough." Mitzie protested, as she hadn't even covered some of the most egregious violence, but to no avail. This was, of course, used against her in the trial. "Why didn't you tell Officer Nicks about this? Or did you just make it up later to ‘get the cop?'"
  • Once the tape recorder was off, Nicks discouraged Mitzie from getting a restraining order or going forward with the criminal case, as Lubiszewski would lose his job. When she claimed this in court, the defense sneered that it wasn't on the tape.
  • Nicks didn't bother to capture the 911 tape on the September 21, 2002 incident, by far the most violent. Since 911 tapes are only saved for a short period of time, Nicks' failure to capture it immediately meant it was gone forever. The jury would never get to hear the voices of the callers as they described the violence they were hearing.

Then there was Rohnert Park Officer. Boggeri, who responded to that September 911 call. With no tape, there was nothing to dispute Boggeri's version of events. Here's the hand Boggeri played:

  • Boggeri says he wasn't given an address, so he went to the street and looked around. He talked to some neighbors who were having a barbecue, then left without ever getting out of his car.
  • Boggeri never went to the home of the couple who called 911 to ask them to point out the house where the violence was taking place. If he had, he would quickly have learned that it was a domestic battery in process at Curt Lubiszewski's house.

Had he done that, there would (or should) have been a police report detailing Mitzie's account of what happened, photos of her injuries, a contemporaneous interview with Curt's son, Jeff long before he was coached by the defense, spontaneous statements by the 911 callers, and pictures of the bedroom where the struggle took place. The broken cellphone would have been taken into evidence, Lubiszewski would have been jailed and charged with a felony, not a misdemeanor, and Mitzie Grabner's nightmare would have ended. Instead, she endured four more months of Lubiszewski's violence.

The third Rohnert Park cop to bungle (or intentionally destroy) the case was Justin Thomas. Thomas was called in to do the "civil standby," where a police officer accompanies the victim to the house so she can safely get her belongings out. Three witnesses said Lubiszewski was hostile and intimidating, especially to Mitzie's friend, Bonnie Leslie who was clearly crying and afraid. Twice Thomas asked Leslie if Lubiszewski was bothering her. Twice Curt inserted himself between Leslie and Thomas and answered, "No." On the stand, Thomas perjured himself, saying all went smooth as silk.

What the Jury Heard
Despite the police misconduct A to Z, it's hard to understand the jury's verdict. For four days, they heard Mitzie's account of the three violent incidents being charged.

But the jury didn't have to take Mitzie's word for what happened. A neighbor on the street behind testified that she was gardening on September 21st when she heard an argument break out at Lubiszewski's. When the fight accelerated, she called her partner out to the porch. As they listened, the fight escalated into violence, and they testified to hearing a "hit," a "slap" or a "punch," a kid's voice, and an enraged Lubiszewski ordering someone out of the room. At that point, the pair called 911.

Ex-girlfriend Ronda Stowell testified that when she ended the relationship with Curt he virtually stalked her, repeatedly showing up at her house, and got into a beef with her new boyfriend. Finally Ronda sent him a certified letter threatening him with a restraining order if he didn't leave her alone.

Jeffrey Lubiszewski, Curt's 14-year old son, had witnessed much of the September incident. After Mitzie's first day on the stand, defense attorney Steve Turer had taken Jeffrey into his office and told him Mitzie's testimony word-for-word. Obviously coached and under extreme pressure to save his dad's job, Jeff said he didn't see his father hurt Mitzie, at the same time admitting Curt had manhandled her. He demonstrated how Curt grabbed Mitzie by the arms and shook her, but said he didn't see him head-butt her into near unconsciousness..

But when Jeff left the stand, Rose Schloming, maternal grandmother to the three Lubiszewski children, told of how only days later Jeff had shown her what Curt did to Mitzie, grabbing her by the shoulders and pushing her down. As soon as she left the stand, the defense recalled the traumatized Jeffrey and badgered him in the DA's witness room to contradict Rose's testimony. On the other side of the closed door, the boy's anxious family heard his anguished protest against perjuring himself further, wailing, "I don't remember; I don't remember."

And they heard from Bonnie Leslie, who had witnessed a number of Curt's rampages, describing him as "going off over nothing" and "in a red-faced rage; body rigid, arms flailing, and with saliva flying from his mouth" as he berated Mitzie, physically intimidated her and bullied her into silence. Leslie described the bruises she'd seen more than once on Mitzie's arms – deep purple full hand-prints.

What the Jury Didn't Hear
Damning as the testimony was that corroborated Mitzie's story, the testimony the jury didn't hear equally so As in most trials, the wrangling that went on outside the presence of the jury did as much to convict or acquit the defendant as the testimony the jury was allowed the hear. In this case, it was the kiss of death.

The greatest strength of Mitzie Grabner's case against Curt Lubiszewski was that she wasn't the only woman to suffer violence at his hand. Bonnie Garrett was married to Curt for nine years, and had three sons with him before their divorce in 1998. Like Mitzie, Bonnie had never reported Curt's violence to police or the CHP, though she had tried to get two restraining orders against him, both denied. (The judges were Wong and Daum.)

Once she got out, Bonnie just hoped Curt would change and her sons wouldn't grow up to think women were made to be battered and controlled. But when Mitzie came forward with her allegations against Lubiszewski, Bonnie knew she'd been kidding herself, and she too stepped forward with her own account of the violence she'd endured.

In interviews with Rohnert Park police, the CHP and the district attorney, Bonnie told of a marriage riddled with incidents of being restrained, Lubiszewski grabbing her by the arms and shaking her, sitting on her chest and screaming in her face when she threatened to leave. In 1989, while Bonnie was pregnant with her first child, Lubiszewski had thrown her against a wall, bruising her tail bone and risking a miscarriage. She also told of a number of times when Lubiszewski, fearing she would finally leave him, locked himself in the bathroom and threatened to kill himself with his gun.

Because it's known to be a serial crime (i.e., violence that's repeated again and again over time), domestic violence is one of the offenses where the defendant's past history of violence can be brought into the trial. The judge, however, has discretion to decide how far back in time he'll allow. Since Bonnie and Curt had been divorced for six years, the latest incident she could tie to a date was relatively minor in relation to the overall picture.

But that's where Judge Nadler decided to stop the clock, ruling not once but twice that she could only testify to that one incident. Left out would be the nine years of ongoing violence; the bruised tail bone; the threats of suicide. The D.A. decided not to put Bonnie on the stand.

The Role of Judicial Discretion
This wasn't the only of Judge Nadler's rulings that, taken together, gutted what was left of the prosecution's case. I'm not saying Judge Nadler "conspired" with law enforcement to protect one of its own, or that his rulings emanated from a conscious bias against women, or against domestic violence victims.

I am saying that repeatedly, when the law gave him the discretion to let testimony in or keep it out; to limit and corrupt what the jury would hear or to let them hear the whole truth, this judge came down on the side of the defense, with devastating consequences to the prosecution – and, frankly, to the community-at-large.

Besides giving Lubiszewski his gun back mid-trial and keeping Bonnie Garrett's story out of the case, some of Judge Nadler's rulings created a trial that battered the victim, freed the batterer, and opened the door to a crackpot "feminist conspiracy" theory,

"Latitude" So Wide You Could Drive a Fist Through It
While in the beginning his rulings were thoughtful and considered, the more defense lawyer Steve Turer amped up, the more Judge Nadler caved in.

Steve Turer is the bully boy of the Sonoma County defense bar, universally hated as he is feared as an opponent. Given his head, his trials are operas of intimidation – intimidation of witnesses, of judges, of prosecutors. Here he "papered" the court with endless, specious motions, ran a costly but losing attempt to recuse the district attorney's office, demanded every contentious issue be decided in a mini-trial of its own, and generally ran roughshod over the court and everyone in it.

As Turer's threatening and badgering, obfuscation and delay ruled, Judge Nadler gave him what he called "wide latitude" in his cross examination of Mitzie Grabner. Turer was allowed to bully and intimidate Mitzie Grabner, to ridicule and roll his eyes at her every word, even call her names. ("What, are you stupid?" "Can't you read English?")

While Mitzie's testimony was direct and unassailable under prosecution questioning, the cross examination read like a Kafka tale. Wildly asserting contradictions in her testimony where there were none, Turer then created contradictions, showing one document while asking questions about a different one; lying about what had been said in previous statements and interviews, then asking her to explain those statements. He'd say, "Let's go back to the afternoon of September 21st," then ask questions about an incident that took place three months later.

It was ugly. Through it all, the prosecution is objecting and the judge is overruling; Mitzie is bravely trying to keep her head from spinning at the insane perversion of her testimony, as Turer berates her, physically intimidates her, makes wild accusations against her, calls her stupid ... in short, does exactly what Curt Lubiszewski had done to her. The room reeked of the evil joy of beating up on a woman in public and the macho determination to destroy the credibility of this woman who'd dared to blow the whistle.

All this, remember, watched over by the judge and allowed to continue unabated.

Advocate Privilege
Nadler also made an awful ruling on advocate privilege that will surely haunt all victim advocates in the years to come. Advocates have "privilege" with their clients similar to what lawyers have – i.e., you can't put someone's lawyer on the stand and question her about things that were told her by her client. An advocate is the one person in the convoluted criminal justice loop who the victim can be candid with and rely on. Assurance of the confidentiality of those communications is essential.

Early on, Turer decided to take that out. First he floated the lie that Mitzie had first contacted Purple Berets for help months before we actually spoke. The point was to allege that Mitzie never mentioned any violence until she hooked up with her advocate (that's me), and that together we cooked up this story in a feminist plot to "get the cop." Never mind that we hadn't spoken until April, three months after Mitzie had recorded various interviews with police, district attorney and CHP – the truth was not the point here.

For weeks there were pretrial fights over our privilege I was forced into in-chambers hearings with the judge, interrogated by the defense, and had my confidential case notes subpoenaed. In the end, after whittling it away a piece at a time, Nadler ruled that the privilege had been waived. I was immediately put on the witness list, barred from hearing any trial testimony but Mitzie's, and the fact of ever having heard of the Purple Berets became grounds for juror disqualification. (I call it the "Are you now or have you even been ...?" voir dire.)

No matter that the judge repeatedly said, "The Purple Berets are not on trial here," those rulings opened the door to "the Purple Berets defense." Every prosecution witness was asked, "Have you ever talked with Tanya Brannan or the Purple Berets?" If they had, they were accused of changing their testimony after talking with us. In closing arguments he even referred to it as their "BA testimony" (i.e., before advocate) and their "AA testimony" (after advocate).

References were repeatedly made to us as a feminist group "out to get the cop" who "had already tried and convicted him." And in closing arguments – where the defense attorney only had to raise a shadow of a doubt – Turer repeatedly said the whole case was part of a feminist "agenda" intent on unjustly destroying a "model cop," as he showed pictures of Lubiszewski with Al Gore. Puke!

Nadler knew those accusations were false. He had not only the power, but the obligation to keep these wild, unproven, and outrageously prejudicial lies from the jury. He didn't.

But the Jury Bought It
By the time the not–guilty verdicts came in, few in the courtroom were surprised. No matter that the jury had heard from Mitzie and the six witnesses who'd corroborated her testimony. No matter that three different women, over a period of 14 years, tried or threatened to get restraining orders against Lubiszewski because they were afraid. The boys won.

Battered but still standing after their trial-by-fire are Mitzie Grabner, Bonnie Garrett and the Purple Berets. It's always an uphill battle for domestic violence victims whose partners are cops. They're afraid to report, so there are no contemporaneous police reports, no bloody photos of injuries, no tapes of 911 calls. They're cut off and shut down by the police officers who investigate the few cases that ever come forward. They're denied protection when they need it most, penalized when they reach out for help, and doomed if they don't. And jurors want to ... have to ... believe that cops are the good guys there to protect them, and not the criminals they need to be protected from.

So after this ugly, firsthand look at the life of a cop's partner in the real world, where do we go from here?

The District Attorney
The one criminal justice entity that did the right thing here was the district attorney. After first rejecting the case based on the initial halfhearted police report, once they heard Mitzie and Bonnie give their accounts, they reopened the investigation, assigned their own investigator, and soon filed charges. They assigned a good prosecutor, and fought to keep evidence in and to preserve advocate privilege.

So, as the highest law enforcement agency in the county, we've asked their office to spearhead the changes needed so the next victim of police domestic violence doesn't have to go through what these women experienced. Here's what that would look like:

  • All officer-involved domestic violence should be reported directly to the District Attorney's office rather than a police agency. Our hope is that, knowing it won't be cops investigating their brother cops, victims will feel safer to report.
  • All domestic violence 911 calls involving a police officer should immediately trigger a call to the critical incident DA, who would report to the scene and conduct the investigation. This is modeled on the new draft domestic violence policy in Monterey County. The DA heads up the investigation from start to finish; the cops are out of the loop.
  • The DA's victim advocate would be assigned to every officer-involved DV case. The "domestic violence counselors" on staff at the DA's and some police agencies are just that – counselors. Only the victim advocate has the criminal justice experience to safely shepherd the victim along the treacherous road to trial.
  • Track all reports of officer-involved domestic violence from initial report to final resolution. This is a no-brainer: if we're to deal with this problem, we have to know how bad the problem is.
  • Continue to oppose defense motions to pierce advocate privilege in these and all domestic violence and sexual assault cases.

California Highway Patrol
Having watched firsthand the Rohnert Park CHP office's concerted effort to protect their boy, they should now be moved off the stage. We call on the Internal Investigation Unit at the State Headquarters of the CHP to:

  • Immediately reopen the internal investigation into Lubiszewski's domestic violence based on:
  • Information we think was not included in the original investigation including the 911 dispatch record of the September 21st incident, testimony of the 911 callers, and testimony of Ronda Stowell's threat to get a restraining order if Lubiszewski wouldn't leave her alone.
  • Information barred from the criminal case by technical rules of evidence, specifically Bonnie Garrett's testimony of 9 years of Lubiszewski's abuse.
  • Their much lower burden of proof to sustain a disciplinary action ("more believable than not" rather than the "beyond a reasonable doubt" standard in a criminal case).
  • Immediately open an agency investigation into the Rohnert Park CHP office's handling of the Lubiszewski investigation. This was a cover-up from the moment Lubiszewski's buddy was assigned to head up the investigation. Despite our complaints and detailed explication of wrongdoing, the Sacramento CHP remained hands-off. It's time for them to get hands-on.

We're currently working on two other domestic violence cases involving CHP officers in Northern and Southern California. We'll be calling for the agency investigation to include those cases as well.

The California Legislature
Although legislation isn't our thing, we do have a number of ideas in the works to deal with police-involved domestic violence on a statewide level. But clearly there are some laws that would make prosecuting battering cops a lot more possible now:

  • Strengthen victim advocate privilege. If that privilege exists at a judge's whim, there is no confidentiality between victims and their advocates.
  • Institute a statewide policy that all law enforcement agencies must track and report annually all criminal and internal domestic violence complaints against police officers and their disposition.
  • Study closely and implement legislation similar to that recently passed by the Washington State Legislature on officer-involved domestic violence. Washington just passed a raft of legislation on the subject in the wake of the domestic violence homicide of Crystal Brame, murdered last year by her husband, Tacoma Police Chief David Brame. Among them are new laws:
  • Requiring every police agency to adopt and enforce tough policies regarding domestic violence when officers are involved or suspected.
  • Prohibiting an officer from bringing a weapon into a courthouse if he or she is party to a domestic violence or harassment case.
  • Allowing victims of domestic violence to break rental agreements without paying extra rent, and prohibiting landlords from evicting or refusing to rent to them.
  • Authorizing an extra penalty on those convicted of domestic violence. The money will help finance programs for victims.

Final Message
Our greatest fear, and certainly the intention of law enforcement all along, is that other women who are being beaten by their partners who are cops will read this and think, "Now I know I'll never report." At the same time, we think that if you're in that situation and thinking of reporting, you have a right to know what you're up against, and to know that women around the country are fighting to tear down the barriers thrown up in your path.

The bottom line is this: none of us is free of domestic violence until all of us are free. At this moment, no domestic violence victim is more imprisoned or has fewer options that the woman whose batterer is a cop. It's our job to make her safe, both for our sisters and for our communities.

April 2004


© Tanya Brannan, Purple Berets
You can copy and distribute this information at will
if you include credit and don't edit.

Copyright © 2001 Purple Berets

Web Site by S. Henry Wild