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.
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.
the first count of battery of a domestic partner ... not guilty.
On the second count of battery of a domestic partner ... not
On the third count of battery of a domestic partner ... not
On the fourth count of vandalism ... not guilty."
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
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.
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.
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
Here are just
a few of Nicks' actions that were used against Mitzie in court:
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
- 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
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:
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.
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.
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
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
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.
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
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
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.
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.
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
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.
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.
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.
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,
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
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.
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?")
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
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.
remember, watched over by the judge and allowed to continue unabated.
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.
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.
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.)
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).
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!
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.
Jury Bought It
By the time the notguilty 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.
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 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
- 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.
to oppose defense motions to pierce advocate privilege in these
and all domestic violence and sexual assault cases.
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:
reopen the internal investigation into Lubiszewski's domestic
violence based on:
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
barred from the criminal case by technical rules of evidence,
specifically Bonnie Garrett's testimony of 9 years of Lubiszewski's
- 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).
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.
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.
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:
victim advocate privilege. If that privilege exists at a judge's
whim, there is no confidentiality between victims and their
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:
every police agency to adopt and enforce tough policies regarding
domestic violence when officers are involved or suspected.
an officer from bringing a weapon into a courthouse if he or
she is party to a domestic violence or harassment case.
victims of domestic violence to break rental agreements without
paying extra rent, and prohibiting landlords from evicting or
refusing to rent to them.
an extra penalty on those convicted of domestic violence. The
money will help finance programs for victims.
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.
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.