By Karen Augé and Kirk Mitchell
The Denver Post
Workman's defense team argued that Tavyus' broken bones resulted from a vitamin deficiency; that his scrapes and fractures occured when family members and hospital personnel tried to revive him and that his head injuries resulted from a fall.
When children die of abuse and neglect, prosecuting their killers is difficult. Convictions can be elusive, sentences tend to be short and often charges are never filed at all.
When children die from abuse and neglect in Colorado, those responsible for their deaths are likely to serve significantly less prison time than those who kill adults.
That's if they go to prison at all.
A Denver Post analysis of five years of state sentencing data found that those convicted of child abuse resulting in death between 2007 and 2011 got prison sentences 25 percent shorter than those who killed adults and were sentenced for the comparable felony charge of second-degree murder.
For the less serious charge of child abuse negligently causing death, sentences were 42 percent shorter than those handed down for the equivalent Class 3 felony charge when the victims were adults.
There is no easy answer for that difference, said Dennis Maes, a retired chief judge who established a dedicated court for juvenile offenders and child abuse and neglect cases in his 10th District Court in Pueblo.
When Maes handed down sentences, a parent who had made a child's life miserable with cruelty would probably get a longer sentence than one who "but for this moment of irrationality" had tried to be a good parent, he said.
Charges either weren't filed or were dropped in 18 of the 72 cases reviewed by The Post where children died of abuse or neglect after their families or caregivers came to the attention of social services.
When charges were brought, three killers got life sentences and eight got probation.
For those of the remainder that have been adjudicated, the average sentence was 29 years.
At the high end of that range was 85 years for Maria Gardner, the El Paso County woman who set her five children on fire, killing one of them and critically burning the others.
At the other end of that spectrum, a Montezuma County man was sentenced to 90 days in September for killing his infant daughter.
Dylan Kuhn slammed his 6-month-old daughter Sailor, left, onto a bed hard enough to inflict brain injuries that killed her.
That man, Dylan Kuhn, slammed 6-month-old Sailor onto a bed hard enough to inflict brain injuries that killed her. District Attorney Russell Wasley originally charged Kuhn, then 19, with manslaughter and child abuse resulting in death, but in a plea agreement, Wasley removed the child abuse charge, along with a DUI charge Kuhn picked up while out on bond.
Prosecuting those who kill kids can be extraordinarily tough, said Weld County District Attorney Ken Buck.
"Most of the time, kids are not shot. They are abused or neglected," he said. "The adult homicide cases, if one gang member shoots another gang member, there is little doubt about what the intent is. But when a parent is involved, is the parent punishing the child? Is the parent in a rage? It gives the jury less certainty (about intent).
"It's an unfortunate part of the criminal justice system."
It is not just a facet of Colorado's system, either.
"I think that's a national problem," said Victor Vieth, director of the Minnesota-based National Child Protection Training Center. "These cases are more difficult than your typical homicide for many reasons."
Often, the witnesses are other children whose testimony can be unreliable. Typically, a lot of people care for a child, so it's hard to say who inflicted the injury, said Amy Fitch, a special-victims-unit prosecutor in the 4th Judicial District, which includes El Paso and Teller counties.
And even when it's relatively easy to pinpoint which adult in a child's life may have inflicted injuries, the testimony of medical experts can be confusing, even contradictory.
In May, at the trial of Michael Workman, a forensic pathologist testified that Workman's 7-week-old son, Tavyus, had a massive head injury; bruises and scrapes on his head; bleeding and excessive fluid on his brain; and numerous broken ribs when he died in 2009.
Workman's defense team, in cross-examining medical experts, argued that Tavyus' broken bones resulted from a vitamin deficiency; that his scrapes and fractures occurred when family members and hospital personnel tried to revive him; and that his head injuries resulted from a fall.
The Adams County jury deadlocked.
"You'll have a lot of folks on juries who will look at these perpetrators and say, 'I've been frustrated with my kids, I understand why you might lose your temper,' " Vieth said.
Vieth's organization now partners with ChildFirst, which, along with the American Prosecutors Research Institute, teaches prosecutors, investigators and others working on child abuse cases about techniques for interviewing children.
In the project's 14 years, 17 states have instituted the training. Colorado is not one of them.
In July, Workman pleaded guilty to negligent child abuse resulting in death and was sentenced to 12 years in prison.
Buck's office, too, knows firsthand the difficulty of getting a conviction where child abuse is suspected.
In 2008, a Weld County jury acquitted Dan Partch in the death of 7-year-old LoReyna Barea. LoReyna, whose body was covered with bruises, died of blunt-force trauma and acute dehydration.
Partch's attorneys argued that some of LoReyna's injuries were due to her throwing herself down the stairs. She was also suffering from the flu, they said.
After the acquittal, jurors wrote to the judge stating they felt Partch was involved in LoReyna's death, but they lacked the proof they needed to convict him.
"We feel that this is an injustice (for LoReyna)," jurors wrote.
Justice has been elusive for many of the 72 children who died since 2007 after someone reported they might be suffering abuse or neglect.
Children whose deaths resulted in no charges or dropped charges include:
• - Maria Macias, who was delivered by emergency cesarean section and survived four days after her pregnant mother was shot to death by her boyfriend. Lonnie Herrera was sentenced to 96 years for killing Maria's mother, 23-year-old Anna Marie Macias. Mesa County prosecutors dismissed charges against Herrera for Maria's death.
• - Four-year-old Lyberty Spencer who accidentally hanged herself on a jump rope while playing unsupervised in a backyard that police described as "an accident waiting to happen."
• - Kayla Dutcher, a legally blind 5-year-old who picked up one of her father's prescription pain pills off the floor and ate it.
Proving abuse in court is hard enough when a child is dead.
But when a child isn't killed, or when there are no broken bones or photos of burns to be entered into evidence, the odds of success are even worse.
And Colorado law doesn't give prosecutors a lot to work with.
In 2001, the Colorado Springs parents of eight children were arrested for abusing an adopted son for more than five years, starting when he was 8.
The boy was put in "the hole," a 4-foot-square, windowless, dark room with a concrete floor, a blanket and a bucket for his toilet. His parents, who said they were trying to discipline a child with behavior issues, forced him to wear an electric shock collar, exercise outside without clothes on and ride naked in the car to school.
He was allowed to dress in the car before going to class. Also, he wasn't permitted to celebrate holidays or his birthday, and he was forced to eat off the floor while the rest of the family sat at the dinner table.
"In regard to the mental and physical torture, this is one of the worst, psychologically, I've seen," Gary Darress, a Colorado Springs police detective told the Gazette newspaper at the time.
The story, published Sept. 11, 2001, didn't get a lot of attention.
Three months later, the mother, who was not identified in news stories to protect the boy's identity, pleaded guilty to two misdemeanors. Her sentence: two years in jail.
"This case makes me sick," Judge Theresa Cisneros said when she handed down the sentence.
At the time, prosecutor Geoff Heim said he wished he could have charged her with a felony. But Colorado law doesn't provide for that in cases of psychological abuse, even as extreme as that one.
Ten years later, little had changed.
Chad Buss found outside his Erie mobile home a skinny 14-year-old boy huddled in a small space that his own kids had used as a play fort. Buss coaxed the frightened boy out and brought him inside, sat him down and listened as the boy told him he was hiding from his mother, who kept him locked in a tiny room in their squalid trailer. The teen talked about how he had to urinate in bottles and got to eat only a few times a week.
Buss called police.
Officers discovered that the teen's trailer and tiny room were just as the boy described. They also learned that the mother and her boyfriend had taken off for Buffalo, N. Y., leaving no food or money for her kids. She had, however, texted her 16-year-old daughter instructions to beg for money - and then send it to her.
When they returned to Colorado, the mother, Amada Joliff, and her boyfriend, Richard Smith, were charged with felony counts of false imprisonment and misdemeanor child abuse.
At Joliff's sentencing earlier this year, Weld County District Judge Thomas Quammen said, "The question that comes to mind is, 'How can a human being do this to another human being?' It's incomprehensible. But to do this to your own son, it makes it even more aggravating."
Quammen sentenced Joliff to the maximum allowed: three years in prison. Smith got 60 days for misdemeanor child abuse.
Weld County DA Buck said that under the law, that was the best option Colorado law gave prosecutors. "We were bound by the law and what the legislature decided," he said.
"When you have psychological injuries like this kid obviously suffered, it's much more difficult to put a parameter on that than when you've got a physical injury," Buck said. "Do I think it should be a felony? Yeah, it should."
The hesitancy surrounding efforts to punish child abusers can be traced to society's lingering attitudes about a parent's right to discipline a child, Vieth said.
"In all 50 states, it's lawful to hit kids. In 19 states, it's still lawful to hit kids with boards in schools. But if you hit an adult, it's assault," Vieth said.
Decades ago, domestic violence was considered a private matter, one that police and courts were loath to wade into.
A lot of work by women's groups - along with grim statistics and education about the costs of domestic violence - changed that.
Now in Colorado, when police respond to a call of domestic violence, someone has to be taken into custody - so long as the parties involved are adults.
Under state law, "there is no mandated arrest for parents beating kids," said Jeff Koy, an attorney for the Rocky Mountain Children's Law Center.
One state that has taken steps to include children in domestic violence laws is Illinois, Koy said.
Few see such a law in Colorado's immediate future.
"Given the fiscal situation in the legislature and as crime goes down, there is less willingness to build more prison beds," Buck said. "It's not on anybody's front burner."
Vieth believes the problem runs deeper than just political climate.
"We just don't value children and their lives to the extent we do adults," he said.
Karen Augé: 303-954-1733, firstname.lastname@example.org or twitter.com/karenauge
Kirk Mitchell can be followed on twitter