Over the previous few weeks, he’d started to pack his things. Clothes. Shoes. Books. Pictures. Paperwork. Some of the kids’ stuff, too. It was surprising how much Tom Fallis had accumulated in a year and a half of living in his sister’s home in Greeley. He wasn’t in a hurry, so he’d toss a few things into a box each day and, when it was full, move it to the garage. Once or twice he wondered what his mom would do with his belongings if he didn’t come home after the trial ended.
It had been a long, difficult four years. For several months after Ashley died, Tom had sent text messages to his wife’s cell phone so he could feel like he was talking to her. Just days after her death, he began typing notes like, It’s been so hard without you. I wish that you were here. We all miss you so much. I love you with all my heart. He tried but ultimately couldn’t return to work as a corrections officer at the Weld County Sheriff’s Office, not only because he needed to care for their three kids, but also because he wasn’t emotionally capable. When he decided to go back to college in Indiana, a year and a half after Ashley died, he thought the move from their home in Evans, Colorado, would be good for him and the kids. And it had been. Then, more than two years after he watched paramedics try to save his wife from a self-inflicted gunshot wound, authorities in Evans reopened the investigation into the cause of her death. Although he had been 1,100 miles away in Bloomington, Tom could feel the accusatory finger pointing in his direction.
More from our October 2017 Issue
Only as he sat at the defense table during his second-degree murder trial at the Weld County Court House in mid-March 2016 did the then 36-year-old begin to let himself think about what life might be like without having to worry about serving a 48-year prison sentence. After having been forced to remain in Colorado for more than a year while awaiting trial, he knew daydreams of loading those boxes into his black Dodge Caravan and driving it east on I-70 were premature. It felt good to be hopeful, even though he knew things could still go wildly wrong. In fact, so much had gone awry since January 1, 2012, it crossed his mind that simply for the sake of consistency, the jury’s verdict might fall that way too.
As the trial wore on, though, Tom’s Denver-based defense attorneys Iris Eytan and Dru Nielsen became increasingly certain their client would be heading home to the Hoosier State. To them, it was clear the jury—which, by the end of the two-and-a-half-week proceeding, had listened to testimony from more than 40 witnesses—was wise to the district attorney’s anemic case. At times, all 12 members of the panel, Eytan says, wore looks of absolute incredulity.
That didn’t diminish the counselors’ anxiety when, mid-morning on March 31, 2016, the jury began deliberating. For Tom, his attorneys, and his family, a long lunch at the Rio Grande Mexican Restaurant helped pass the time during what could’ve been hours and hours—even days—of deliberations. But before servers had cleared away plates of half-eaten tacos and baskets of chips, a call came from the courthouse: The verdict was in.
He wasn’t sure, but he thought he heard crying. The bathroom door was closed, so Tom knocked quietly before opening it. Ashley was sitting on the toilet, her pajama bottoms around her ankles. Just a few days earlier, the 28-year-old had taken a home pregnancy test and gotten a positive result. Now, she was bleeding. And sobbing.
Tom took a seat on the tub next to his wife of three years. He rubbed her back while they talked. This was the third time in the past nine months Ashley had believed she was pregnant, despite the fact that she had taken her mother’s advice and undergone a tubal ligation after giving birth to their son three years earlier. Tom didn’t understand what was going on medically—he’d begged his wife to see a doctor, to no avail—but he knew Ashley believed she was miscarrying. He knew she felt responsible. And he knew she had stopped taking her mood stabilizers—clonazepam, quetiapine, and amphetamine to treat anxiety, obsessive-compulsive disorder, and bipolar tendencies—for fear of hurting the fetus. She was fragile. Teary-eyed, she told Tom she wished she hadn’t listened to her mom, that she wanted more children. He nodded and told her he did too.
Although it was New Year’s Eve and the Fallises needed to prepare for the party they were hosting that night, they spent a few hours Googling the details of tubal ligation reversal. Ashley had holed up in their bedroom for most of the day, missing the comings and goings of friends and family, but Tom thought she had perked up enough for them to go ahead and have the gathering.
The fete at 5711 Zinfandel Street in Evans’ Grapevine Hollow neighborhood wasn’t a formal affair; just some family and a few work friends. The dining room table was full of snacks, and there was jungle juice, Jell-O shots, and a mini keg of beer to wash down the pretzels and chips. The Fallis kids—six- and nine-year-old girls and a three-year-old boy—and their cousins ran up and down the stairs from the basement. Ashley socialized with her guests and knocked back a few Jell-O shots.
At one point in the night, an animated fantasy football discussion broke out in the kitchen. It was a loud enough conversation that Jenna Fox, Ashley’s mom, said she asked Tom to cool it with the cursing since there were kids around. She said Tom snapped at her in response. Tom says the exchange never took place. Either way, the long-simmering tension between the two—likely amplified for Tom by the image of Ashley crying earlier in the day—was palpable that evening.
As midnight approached, Ashley turned on some music and told her husband she wanted to dance. Tom shook his head and said he wasn’t going to dance to a random song. Instead, he changed the tune and said, “I’ll dance to this one.” The first few notes of Blue October’s “18th Floor Balcony” filled the living room. The couple swayed slowly to their song while their guests looked on.
The ball dropped shortly thereafter. Tom’s parents left, and the couple’s friends headed home. Only Ashley’s mom, dad, aunt, uncle, and cousin lingered. When Tom saw Ashley come out of their bedroom with her coat, she explained she was going outside to smoke. “A cigarette?” Tom asked. “Well, I don’t know,” Ashley said. It was then Tom realized his wife was planning to smoke a joint with her family. And he didn’t like it.
He wasn’t angry at Ashley per se. He was frustrated, though. He told her she shouldn’t be getting high but reserved his anger for her family, who time and again seemed to coax her into doing something she might later regret. Not only was marijuana illegal at the time, but Tom was also employed by the Weld County Sheriff’s Office, and Ashley had only recently found work—after about a year of unemployment—at Northern Colorado Rehabilitation Hospital. Both could be drug-tested at any time.
It was more than that, though. Ashley had already had a few drinks, she had stopped taking her medication, and she thought she’d just miscarried. Tom stomped through the house, yelling at Fox; Ashley’s adoptive father, Joel Raguindin; her aunt; and her uncle, who Tom knew was supplying the pot. Tom wasn’t judicious with his words, which were something along the lines of: “Fuck you. You don’t understand. Get the fuck out of my house.”
Ashley likely heard the shouting before Tom walked off and slammed their bedroom door. She’d been in the hallway bathroom and came out to find her family leaving in a hurry. She hugged everyone, mentioned maybe getting together for a Super Bowl party, and then, furious, went to find her husband.
Tom was in their en suite bathroom when Ashley threw open the bedroom door. Mortified, she asked why he would embarrass her in front of her family and ruin what had been a nice evening. Tom wasn’t apologetic. “Fuck your family,” Tom said. “Fuck your mom. We just spent hours going over all this tubal ligation reversal stuff because you let your mom control your life, because you listened to your mom. Why are you always listening to your mom?”
Although Ashley was still agitated, Tom walked toward the closet to change into pajamas. She slammed the closet door in front of him, walked across the room, and said, “Fuck you. I’ll do whatever the fuck I want.”
Tom reopened the closet door and spat back at her. “Fine,” he said. “Do whatever you want. Just don’t do it because your family told you to.”
That’s when Tom heard her chamber a round. Tom looked out from the closet door in time to see a puff of smoke. He didn’t even register the sound of the gun firing.
It took about two seconds for him to get to her. She had fallen between their bed, the bedside table, and a stand-alone jewelry chest. Her gun, which she’d grabbed from her purse on the bed or from the nightstand, was resting near her torso. He grabbed her head. She was still breathing. He lunged for the landline on the nightstand. When the 911 dispatcher picked up, Tom begged for help and then dropped the phone so he could stem the bleeding. He thought the call had disconnected, but the operator remained on the line. She could hear Tom pleading with his wife.
“Ashley, no. Ashley, no. Ashley, no…. You’re staying here. You’re staying here. Ashley, you’re not leaving me. Come here. You’re staying here…. Ashley, look at me. Hey, look at me. Hey…. Ashley, Ashley. Hey, Baby, stay right here…. We got a son that needs us. We got two girls that want us here. They want to see us. They want to see us tomorrow. Do you understand me?”
An Evans Police Department officer arrived between four and seven minutes after Tom’s call. The Fallises’ nine-year-old daughter opened the front door. Her voice was audible on the 911 call. She said, over and over again, “My mom died.” As other first responders arrived, they pulled Tom away from Ashley. Covered in blood, Tom walked outside into the chaos of sirens and patrol cars. He texted his mom and told her he needed her to come back to the house. Then he crouched on the ground with his head in his hands and wailed uncontrollably.
That was when he heard them. Ashley’s family had followed the red and blue lights back to the Fallis house. Police were restricting access to the yard and the house, but that didn’t stop Ashley’s dad and uncle from shouting from the street. “I just remember them yelling at me,” Tom says. “They were yelling, ‘You killed her! You fucking shot her!’ ”
The email Weld County Assistant District Attorney Michael Rourke sent on May 30, 2013, was clear. He wanted Evans Police Department Chief of Police Rick Brandt, Sergeant Jason Phipps, and Commander Patrick Haugse to know he’d spoken with the attorney general’s office about Ashley Fallis’ parents’ continued efforts to prove their son-in-law had murdered their daughter, even though the case had been closed in March 2012 as a suicide. He also wanted his law enforcement colleagues to know he had delivered an explicit message to the attorney general’s office: “[I] explained that from my perspective, this investigation was done properly by Evans, CBI, and the Northern Regional Crime Lab. I also explained that no one believed there was even PC [probable cause] for a crime, much less proof beyond a reasonable doubt.”
It had been 17 months since Ashley died when Rourke hit send on that email. It would not be the last time the assistant district attorney dealt with Jenna Fox and Joel Raguindin. From the moment they saw police rushing to 5711 Zinfandel Street, the pair believed Tom had shot their daughter, who they repeatedly said had a zeal for life and who would never have left her children behind.
They also concluded, within hours of Ashley’s death, that the Evans Police Department was not only unprofessional and inept but potentially complicit in helping protect Tom because he worked as a corrections officer for the Weld County Sheriff’s Office, even though the two law enforcement agencies are unrelated. Fox sent no fewer than seven emails to Sergeant Phipps in the days following her daughter’s death, the first on January 4. Much of her communication requested that Evans do its job, by which she meant arresting Tom.
It was not the first instance in which Fox and Raguindin had questioned the competence of a Colorado police department. When Fox’s brother died by suicide in Park County in 1999, they initially suspected his wife of homicide and pressed authorities for a more thorough investigation—until the fact that Michael Schmitzer had killed himself became too obvious to ignore.
In the days, weeks, months, and years after their daughter’s death, Fox (who declined to provide an on-the-record statement to 5280) and Raguindin (who did not respond to requests for comment) spoke with local politicians, sent emails to law enforcement agencies and to the district attorney’s office, and talked on-air with a variety of news outlets in an effort to show that the investigation into Ashley’s death had been flawed from the start. They argued investigators were too quick in deciding Ashley died by suicide, that not enough evidence had been tested to make that determination. They charged that Tom hadn’t been treated as a suspect by responding officers. They asserted that Tom hadn’t been immediately handcuffed or separated from other potential witnesses, like the children and his parents. They pointed to the fact that Tom’s hands hadn’t been bagged to protect forensic evidence. They derided Evans Police Department’s three-hour, middle-of-the-night interrogation—during which Tom repeatedly said, “I didn’t do this”—on January 1, 2012, arguing that suspects have been grilled for longer over a stolen car. They even accused Tom’s father, Jim, of using his connections as the former athletic director for the University of Northern Colorado to make things fall Tom’s way.
Most law enforcement experts would likely agree with at least some of Ashley’s parents’ assertions, particularly that every suspicious death be considered a homicide until determined otherwise, and that Tom should’ve been treated as a suspect and separated from other potential witnesses as soon as police arrived on the scene. Even Chief of Police Brandt later admitted that certain protocols went unheeded, some follow-up interviews went undone, and various conclusions were reached before every lab result was returned. Still, Brandt maintained that no evidence of a cover-up existed and stressed that the Colorado Bureau of Investigation had been called in to work the scene within several hours, partly because of Ashley’s family’s allegations about Tom.
None of that appeased Ashley’s family. More than a year after their daughter’s death, Fox and Raguindin had had enough inaction. They found a more sympathetic ear in an enterprising Fox31 reporter named Justin Joseph.
The story they told him sounded insane: Their daughter had been shot to death, and the person responsible had literally gotten away with murder. But, then again, maybe it wasn’t so crazy.
Fox and Raguindin were in sporadic contact with Joseph in the days and weeks after Ashley died. Their assertion—that the case had been botched by police and their daughter’s death ruled a suicide too quickly—piqued the reporter’s interest, especially since the potential suspect was a Weld County Sheriff’s Office corrections officer. After spending approximately a year and upward of $70,000 in legal fees to secure grandparents’ visitation rights through the courts, Fox and Raguindin circled back to Joseph, who began pursuing his own investigation. “There was enough there to suggest that there wasn’t at least a thorough investigation,” Joseph told 48 Hours (he declined to speak on the record with 5280). “And so I thought I owed it to the family to take a look at that.” For the next 12 months, the reporter re-interviewed dozens of witnesses as well as law enforcement officers, sometimes with Fox and Raguindin at his side.
By April 2014, Joseph believed he had discovered enough evidence to go to the police. A conversation with the Fallises’ next-door neighbor, 17-year-old Nick Glover, finally legitimized Joseph’s yearlong probe. In his meeting with Joseph, Glover said he’d heard Tom confess to shooting Ashley that New Year’s Eve. Glover said he’d crouched below an open window in his house that night, watching and listening as the drama unfolded. Glover told Joseph he heard Tom say to his dad, “Oh, my God, what did I do?” and “I shot her.”
The young man also explained to Joseph that he had informed Detective Michael Yates of the Evans Police Department about the alleged confession when the officer interviewed him on January 1, 2012. Joseph knew then he had something worthy of the six o’clock news: There had been nothing in Yates’ report about the teenager hearing a confession. Joseph called Chief of Police Brandt.
On April 8, 2014, at a press conference in Evans, Brandt reopened the investigation into Ashley Fallis’ death more than two years after it had been investigated by five law enforcement agencies and closed. Citing “new information regarding the case brought to my attention by a Fox31 reporter,” Brandt explained that “new eye- and earwitness accounts” were serious enough to warrant another look. He wasn’t mentioned by name, but the implication was clear: Tom Fallis was being investigated for murder.
The call from his dad was short and pointed. Call this Evans Police Department officer. He needs to talk to you. Here’s his number. Tom received the call during a history class at Indiana University, where he was taking courses to finish his bachelor’s degree. He sneaked out of the lecture to phone the officer. The information he received was both maddening and worrisome: Authorities were reopening Ashley’s case because new evidence had been uncovered. When Tom asked what the new evidence was, the officer explained he wasn’t allowed to discuss it. At that moment, Tom knew two things for sure. One, his former in-laws had finally exerted enough pressure on someone to make this happen. And two, he needed a lawyer. A really good one.
Iris Eytan, a criminal defense attorney who worked for Denver’s Reilly Pozner law firm at the time, took Tom’s case. Her instructions to her client were simple: Call me if anyone tries to contact you about the case. But Eytan didn’t just believe in being reactive; she contacted the Fort Collins Police Department, which would be re-investigating Ashley Fallis’ death in light of the Evans Police Department’s alleged missteps. Detective Jaclyn Shaklee was the lead on the case, and Eytan reached out to her, offering full cooperation. Eytan was essentially silver-plattering a smorgasbord of evidence the Fort Collins police would’ve first needed to know existed, and then gotten a search warrant to obtain: Tom’s phone, Ashley’s phone, downloads from Ashley’s computer, emails, texts, handwritten notes, and Facebook screenshots.
Not everyone was disseminating such potentially constructive information following the reopening of the case. Local and national news outlets raced to broadcast the story, painting an ugly—and sometimes factually inaccurate—picture of Tom in their haste. Ashley’s parents spoke live with Megyn Kelly on Fox News’ the Kelly File and told the host that their son-in-law was an angry, quick-tempered man and that there was zero reason to believe their daughter was mentally unstable. Jane Velez-Mitchell, a television journalist on the HLN channel, aired a program that not only incorrectly identified Tom Fallis as a “cop” multiple times, but also allowed a panel of experts, including an attorney for Fox and Raguindin, to discuss topics including how a mother “would have to hate [her] children to kill [herself].” A 48 Hours episode entitled “Death After Midnight” that ran many months later latched onto a flashlight that had been photographed at the scene of Ashley’s death. The program generated an animated simulation of how Tom could have used the flashlight to beat his wife before shooting her. The 48 Hours reporters, however, neglected to check the provenance of the flashlight, which had been left behind by a police officer who’d been trying to save Ashley Fallis’ life.
Of course, Justin Joseph and Fox31 had a distinct advantage over other outlets: Less than 24 hours after Brandt’s presser, Joseph interviewed Fox and Raguindin on the air about the reopening of the case. The following day, Fox31 live-streamed a press conference in which Ashley’s parents and their lawyer expounded upon their frustrations with the investigation into their daughter’s death. In May, Fox31 covered a “Justice for Ashley” protest outside of the Evans Police Department organized by Ashley’s family. As the coverage continued, Joseph’s name became nearly synonymous with the Fallis investigation.
As the weeks and months wore on, Tom says he had to stop watching the news. It was too infuriating to listen to the talking heads intimate that he was a gun-carrying police officer when he was actually a corrections officer with no access to a service weapon. Instead, Tom and his defense team, which quickly grew to include Dru Nielsen, focused on what little they knew of the Fort Collins Police Department’s inquiry. They were aware that Detective Shaklee had flown to New York to interview Jim Fallis while a colleague of Shaklee’s interviewed Tom’s mom, Anna Fallis, in New Jersey. They were aware that the lead detective, in concert with Fox and Raguindin, secretly took Tom and Ashley’s daughters to be re-interviewed—in violation of a court order—while the girls were visiting Colorado.
One of the more promising developments for Tom and his legal team came in August, four months after the investigation had been reopened. Detective Michael Yates, the Evans police officer who had been accused of altering or withholding Nick Glover’s statement about hearing Tom confess, was cleared of criminal wrongdoing by the Loveland Police Department, which had been brought in to do an independent investigation.
“When they closed the case against Yates,” Eytan says, “we were like, ‘That’s it.’ I mean, the whole case hinged on Yates and Glover.” Yet there was no communication from Assistant District Attorney Michael Rourke, who had been so adamant about a lack of probable cause in May 2013. (Rourke declined to speak with 5280.) And there was zero notification from the Fort Collins Police Department that Tom, who had no prior criminal history, was no longer being pursued as a suspect. “[Our cooperation] was an exercise in futility in the end,” Eytan says. “We realized that they didn’t take into account anything we had given them. All they did was try to find something that made Tom look like a bad guy.”
A couple of inches of snow still blanketed the ground around the Weld County Court House. The storm had abated, but the temperature wasn’t supposed to crest nine degrees. Assistant District Attorney Michael Rourke expressed his gratitude to Jenna Fox for braving the elements to be his second witness during what would be a four-day grand jury proceeding beginning on November 12, 2014. He needn’t have thanked her. This was her opportunity to testify in hopes of bringing criminal charges against Tom Fallis for allegedly killing her daughter.
It is relatively rare for a case to go to a grand jury in Colorado. In many other states, every potential felony charge must be reviewed by a grand jury; however, in the Centennial State, the decision to bring a case in front of a panel of grand jurors—to determine if there is probable cause a crime was committed—is up to the district attorney’s office and/or the attorney general’s office. The grand jury is just one of several options that allow a prosecutor to deliver a case to trial. A more frequently employed method to determine probable cause is a preliminary hearing. In a preliminary hearing, a suspect has already been arrested and criminal charges have been filed. The hearing, held in front of a judge in open court, determines whether a person should be tried based on whether there is strong enough evidence that he committed the crime.
Grand juries, on the other hand, operate behind closed doors. The system is purposefully shrouded in secrecy, and therefore many Americans have little idea why it’s used and how it works. Even with grand juries coming under heightened scrutiny in recent years—often for not indicting police officers for shooting unarmed young black men in places such as Cleveland and Ferguson, Missouri—the process remains shadowy.
While mechanisms vary by state, the fundamentals of the system are essentially the same. At the beginning of each year in Colorado, every state judicial district that’s large enough to warrant having a grand jury selects 12 citizens and four alternates from the community to serve 12- to 18-month terms as grand jurors. The chief judge, with assistance from the district attorney’s office, empanels these men and women, who are expected to show up to hear testimony as needed. In general, the chief judge and district attorney are looking to select a diverse set of jurors. They’re particularly interested in seeking out community members who have the ability to be fair and open-minded.
In this way, grand juries are different from trial juries, where, through a process known as “voir dire,” prosecutors and defense attorneys attempt to reject prospective jurors who may be antagonistic to their causes. “A smart district attorney wants a range of people on the grand jury,” says Roxanne Bailin, a retired chief judge from Colorado’s 20th Judicial District. “He wants that because if he’s taking something to the grand jury, he really wants to know what the community thinks.”
Most prosecutors will say that’s what a grand jury is really for—to be the voice of the community when it’s not clear a crime has occurred. “The foundation of the grand jury process,” says Michael Dougherty, assistant district attorney for Colorado’s 1st Judicial District, “is that the community acts as a check on the government.” But prosecutors extoll the virtues of the grand jury process for several reasons. First, a grand jury has subpoena powers, which means prosecutors can force under-oath testimony from reluctant witnesses or obtain previously out-of-reach documents in ways police cannot. Second, the proceedings are secret (until the grand jury hands up a recommendation for indictment, the prosecution decides to prosecute, and police make an arrest). This secrecy, prosecutors say, can help prevent destruction of evidence, may keep nervous suspects from leaving the jurisdiction, and, most important, protects the identity of suspects and witnesses—something that’s critical in cases involving public corruption—so that if probable cause isn’t found, their reputations aren’t unnecessarily tarnished. The final reason prosecutors like the grand jury option isn’t one they like to discuss openly: It can be a deft way to evade responsibility. In other words, asking 12 grand jurors to decide if there is probable cause to charge someone with a crime instead of the prosecutor doing it herself allows the district attorney—a publicly elected official—to avoid potential political fallout.
All of this makes perfect sense when a prosecutor explains it. But there’s one major criticism of the grand jury system that is widely dismissed by prosecutors: It does not conform to the dearly held American principle that the judicial system be adversarial, meaning that in a court of law, there should be the opposing forces of a prosecuting attorney and a defense attorney, as well as a judge who ensures everyone adheres to the rule of law. In a preliminary hearing, all parties are accounted for because charges have already been filed; however, during grand jury proceedings, there is no judge and there is no defense counsel. The target, or suspect, of a grand jury investigation is not present. The district attorney—and his staff—presides. The grand jurors are his captive audience, and he can present the case however he sees fit. If he doesn’t want to secure an indictment against, say, a law enforcement officer, he can choose to present a weak case. “The process can be so influenced by the government,” says David Kaplan, a longtime Denver defense attorney, “that the grand jury, whether it’s explicit or by virtue of process, ends up being an agent of the prosecution. There’s no question the government indicts virtually any time it wants to.”
Based on anecdotal evidence from prosecutors and defense attorneys, statewide statistics would likely back up Kaplan’s claims—except there are no statewide statistics. The frequency with which Colorado’s 22 judicial districts use grand juries or how often they return indictments is unavailable because many districts, citing secrecy rules, refuse to release their numbers.
Their reasoning may be sound: In smaller districts where only a few cases go before a grand jury all year, it’s possible the public or the media could surmise the identity of a target who went unindicted. Still, the lack of transparency about how often and how effectively grand juries are used only intensifies suspicions that prosecutors could be taking cases to grand juries that do not have a reasonable chance of conviction once presented to a trial jury—and, more disturbingly, abusing their mostly unsupervised powers of persuasion.
There had been a lot to like about the pretty young brunette with almond eyes Tom met on match.com. On their first date in February 2007, they had talked and laughed and flirted, but she’d turned her cheek when he tried to kiss her in the parking lot. He was disappointed; he’d thought they had good chemistry. But he gave her a quick peck and told her to text him when she got home so he’d know she was safe. The gesture earned him a second date.
There were a lot of things Tom adored about Ashley from the outset. She wasn’t quiet like he was; she was loud and talkative and wildly energetic. She was smart—a respiratory therapist by training. She had a dark, Denis Leary–esque sense of humor. She had a serious Starbucks addiction and a laughably complicated standing order: a grande low-fat caramel macchiato, extra shot of espresso, extra pump of caramel, with whipped cream. The thing that struck Tom the most about Ashley, though, was that she was a single mother of two at the age of 24. Maybe that’s because Tom had always felt a need to help, to swoop in. He loved playing the hero. In high school and college, he was the person his buddies called in the middle of the night when they were too drunk to drive home. He was also the guy who would defuse a tense situation or take the rap for something someone else did. And, according to friends and family, he seemed to be drawn to women he thought he could save.
Within weeks of their first date, Tom began offering to watch Ashley’s daughters while she was at work. He enjoyed it, he told her, and didn’t mind when Ashley’s four-year-old quickly began calling him “Dad.” So, when Ashley became unexpectedly pregnant five months into the relationship, there was no reason to panic. Instead, the couple decided to move from Denver to Greeley to be closer to Tom’s sister, Natalie, and her two kids. Tom quit his job with the property management firm Aimco, worked a few short-term gigs in the Greeley area, and then applied to be a corrections officer with the Weld County Sheriff’s Office. Ashley continued to work for a hospital in Denver for a short time but then took a respiratory therapy job at Northern Colorado Medical Center in Greeley.
Things were going well—well enough that Tom bought an engagement ring. He’d wanted to make manicotti and crème brûlée—two of Ashley’s favorite dishes—and propose over dinner at the house, but when he tried to sneak out to the jewelry store to pick up the ring, Ashley wasn’t fooled. She wouldn’t let him go alone. In fact, she couldn’t wait to get back to their house for Tom to pop the question in a more romantic setting. She begged him to ask her right there in the parking lot at Jared. So he did.
That was just the way Ashley was. Persistent. Assertive. Impulsive. She wasn’t one to back down from an argument, suffer fools in silence, or let anyone say a negative word about her friends or family. She liked getting her way. And Ashley rarely let anyone tell her what to do—except for, according to Tom, her mom. Which is how the young woman ended up undergoing a tubal ligation, without discussing it with Tom, after the couple’s son was born in March 2008. Ashley’s mom was concerned her daughter had had too many children too young. She was also not convinced the relationship with Tom would last, a breakup scenario that would’ve left Ashley a single mother of three.
Tom says he wasn’t planning to go anywhere, though. He was disappointed about the tubal ligation—he’d always wanted a big family—but they had a new baby boy, two beautiful girls (whom he’d go on to adopt in 2010, after the girls’ biological father gave up his parental rights), and new jobs. There wasn’t much to complain about. So when Ashley told Tom she wanted to go to the courthouse to get married one morning two weeks after having their son, he was happy to let her have her way.
Wearing a well-tailored suit, with a touch of gray at his temples, Assistant District Attorney Michael Rourke asked questions of Jenna Fox for the better part of the morning on that frigid day in November 2014. Grand jurors listened as the distraught mother talked about what a “fabulous” mom her daughter had been. How much Ashley had “loved life.” How she was “easy to be around,” “unique,” “a lot of fun,” and “very sure of herself.” The jurors also heard how Ashley’s husband, Tom, was “controlling.” That he was “abrupt,” “explosive,” and “opinionated.” Fox explained that “every family function Tom was part of turned into an argument, a fight, an explosion.” She told jurors she knew there had been physical altercations and mental abuse between Tom and Ashley and that Ashley thought Tom was having an affair. She also said she believed her daughter needed to be on mood-stabilizing medications because of Tom.
It was damning testimony. It was also problematic. Prosecutors are supposed to adhere to the American Bar Association’s Rule 3.8, which covers ethical obligations and decrees that prosecutors have the responsibility of “a minister of justice and not simply that of an advocate.” Rule 3.8 also states that “the prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” There isn’t anything specific in the rule about an attorney’s ethical obligations in attempting to obtain a grand jury indictment. The manner in which prosecutors abide by these ethics rules varies from one district attorney’s office to another, but it’s generally agreed upon—although not required by law—that a prosecutor shouldn’t allow a witness to assassinate a suspect’s character on the stand; that a prosecutor should present any evidence that may exonerate a target; that a prosecutor shouldn’t allow testimony of prior similar acts unless the acts are so similar it couldn’t be accidental; and that a prosecutor should choose to only present evidence that would be admissible at trial.
“Of course, there’s nobody there in the courtroom to tell a DA he or she can’t ask questions that make a defendant look bad,” says former Chief Judge Bailin. “It might increase the likelihood of a true bill [a recommendation by the jury for the state to indict] but probably not a conviction.” That’s because leading up to or during an actual trial, prosecutors are bound by rules of evidence. They must, for example, disclose materially exculpatory evidence—evidence that tends to exonerate the defendant—in the government’s possession to the defense. They cannot, with exceptions, allow a witness to introduce hearsay into testimony. They must lay a foundation before presenting certain evidence or witnesses. They cannot lead the witness. The list goes on. But in a grand jury proceeding, there are almost no rules.
Proponents of the grand jury system argue that the grand jury is not a mini trial. The prosecutor, they say, need only present evidence he or she believes illustrates probable cause and nothing else. But based on the grand jury transcripts, which are typically released to the defense upon request, Eytan and Nielsen believed that Fox’s testimony, as well as inflammatory statements from additional grand jury witnesses, may have unduly influenced jurors. “After noting how many times someone said something that was improper,” Eytan says, “we were like, ‘How could a human being be thinking anything other than what the jurors thought?’ That he’s a monster.” Being “explosive” or “controlling” isn’t probable cause, but according to Eytan, it can sure sound like it to regular citizens.
After dissecting the grand jury transcripts further, Tom’s legal team noted other potential breaches of ethical obligations, which makes one wonder what the grand jurors would have thought had they been given all of the evidence. What if Detective Jaclyn Shaklee (who did not respond to requests for an interview) had told jurors she’d spoken to a credible witness who contradicted Nick Glover’s testimony that he heard Tom confess? What if the prosecutor had asked a question that elicited the information that Evans’ Detective Michael Yates had been cleared of criminal wrongdoing in his reporting of Glover’s statement? What if they had been told Tom had negligible gunshot residue on his hands, while Ashley had a significant amount? What if they had been informed by the assistant district attorney that some of the coroner’s testimony was incorrect or misleading based on forensics the prosecution had in its possession? That Tom’s skin was actually not found underneath Ashley’s fingernails; that scratches found on Tom’s chest were not indicative of a struggle; and that certain evidence collection that may have been beneficial to the defense had not, in fact, been executed? They were told none of these things. Tom’s defense attorneys ultimately filed a motion alleging prosecutorial misconduct, which was denied by the trial judge, who stated “there were no examples of any inappropriate conduct by the district attorney.”
Had the jurors been told all of these things, they may have come to the same conclusion they did anyway: that while arguing in their bedroom, Tom obtained a Taurus 9 mm pistol and, during a struggle, held the gun to the right side of Ashley’s head and pulled the trigger before lowering her to the ground, holding her head, and calling 911. Then again, they may have come to a very different conclusion, especially if evidence that misled the jury into believing a physical altercation had taken place had been corrected. Based on current law, however, Assistant District Attorney Michael Rourke didn’t have to amend that testimony. He was not obligated to elaborate on or elicit testimony that may have shone a favorable light on Tom. He was not compelled to examine any witnesses in front of the grand jury who might have presented exculpatory information. He did not have to put a halt to any testimony that assailed the suspect’s character. “Not to have the grand jury process designed to be a little more critical of the evidence,” Kaplan says, “is to reduce it to something that’s not effective as a legitimate review—and the repercussions are sometimes catastrophic.”
They certainly were for Tom Fallis. On November 18, 2014, one day after a Weld County grand jury determined there was probable cause to believe Tom killed his wife in a fit of rage, Indiana authorities arrested him just a few minutes after he arrived home from the grocery store. He’d had no warning and no time to make arrangements for his children.
Yet, there were at least three people who did know ahead of time something that was supposed to have been secret: Fox31’s Justin Joseph, who had corresponded with Ashley’s mother 141 times in the days leading up to Tom’s arrest and who happened to be waiting outside Tom’s house in Bloomington to film it for the evening news. And Jenna Fox and Joel Raguindin, who were somewhere in the city hoping to collect their grandkids as soon as their father was handcuffed and taken to jail.
Tom spent three weeks in Indiana’s Monroe County Jail awaiting extradition and eight days in Larimer County Jail before his family was able to post bond. When he’d been arrested, his biggest concern was his children. He didn’t want Ashley’s parents—who, according to Tom and others, told the kids on multiple occasions that their dad killed their mom—caring for them. Once Tom’s mom, Anna Fallis, arrived in Indiana to fight for, and ultimately retain, custody, he could think about other things. Like how he’d ended up in a six-by-eight-foot cell.
With hindsight, Tom could draw a crooked line between the moments and events in their lives that might’ve contributed to Ashley’s suicide. He just hadn’t recognized it in real time. There was the move from Denver to Greeley, of course. There was also the specter of her ex-husband trying to regain custody of their daughters. Tom and Ashley’s conflicting work schedules and the fighting they caused took an emotional toll so steep that Ashley actually had divorce papers drawn up in 2009. Tom convinced her not to file them.
Later that year, there was another speed bump: Doctors diagnosed their 18-month-old son with hydrocephalus, a buildup of cerebrospinal fluid in the brain that can cause developmental delays. He would need multiple surgeries to treat the disorder. Ashley threw herself into learning everything about their son’s illness, but the constant worry exhausted the young mother, who sought out mental health services in Greeley in early 2010.
Her son’s ailment wasn’t the only issue overwhelming Ashley’s thoughts. She was dealing with a challenging work environment (a dispute with her supervisors in late summer 2010 resulted in her dismissal for insubordination; Ashley sued for wrongful termination and reached a settlement with Northern Colorado Medical Center); a deteriorating relationship with her mom and dad (who took the Fallis kids, against Ashley’s wishes, to a party where drugs were present); an affair with an old high school boyfriend (she started seeing him in summer 2011); and the feeling that she was repeatedly getting pregnant—and then miscarrying.
The strain of it all wore on Ashley, whose moods became more and more difficult to predict. Most days, Ashley was what Tom describes as “up.” Frenetic, jumpy, fidgety, anxious, unable to sleep, and incapable of relaxing, Ashley couldn’t just be. She was constantly on edge.
Ashley’s ups had corresponding downs. During those depressive episodes, the young mother’s insecurities—about her ability to parent, about her marriage, about her career, about her life choices—materialized. There were days when she struggled to get out of bed. The ebbs and flows of Ashley’s disposition concerned Tom not just because he wanted his wife to be happy, but also because he knew she had a family history of mental illness: Both her maternal grandmother and her maternal uncle had died by suicide.
The medications Ashley was taking also made Tom uneasy. She’d been prescribed a regimen of antianxiety meds and mood stabilizers when she began having four or five panic attacks each week. Tom suspected she wasn’t following the prescriptions correctly, but he had no idea his wife was surreptitiously seeing two psychiatrists and a primary care doc and doubling up on her scripts.
But the drugs, no matter the dose, didn’t always alleviate the feelings of failure that crept up in Ashley. Five months before she died, she typed out a four-paragraph-long suicide letter addressed “Dear Tom.” In it she apologized for “all that I have caused” and “for your pain.” She explained, “I can no longer go on living this life. I am a failure at everything, a wife, a mom, at having a career, at school. Everything. I have so much pain on the inside; I can no longer take it.”
Perhaps it should have, but that suicide note—as well as another dire letter penned a few weeks later in which Ashley expressed feelings of failure about her inability to find a job; mentioned her discontent with being a stay-at-home mother; and explained that she felt “broken” and couldn’t “dig deeper”—didn’t give Tom pause about the semiautomatic pistols the couple had purchased together earlier that year. Although her grandmother and uncle had both shot themselves in the head, it never occurred to him that Ashley would use the gun she often carried in her purse to hurt herself. “She always said if she were to kill herself,” Tom says, “she would’ve taken a bunch of pills and just fallen asleep.”
At the request of the prosecution, Dan Gilliam, dressed in an ill-fitting beige-gray suit and tie, used a Sharpie to write “gun” on a piece of duct tape stuck to the courtroom’s maroon carpeting. As a firearms/toolmark examiner for the Northern Colorado Regional Forensic Lab, Gilliam had been called to testify as a witness for the prosecution in the People of the State of Colorado versus Tom Fallis in March 2016. The forensic investigator had been summoned to 5711 Zinfandel Street on January 1, 2012—and he’d since logged approximately 400 hours dissecting, analyzing, and testing evidence from the scene of Ashley Fallis’ death. His expertise was now on display for the jury as he explained blood spatter and bullet trajectory in a reconstruction of the Fallis’ bedroom that leaned more Law & Order shabby than CSI chic.
Still, Gilliam’s testimony, delivered with a quiet confidence as he negotiated the pre-fab furniture and duct tape representations, was convincing. His measurements were exacting; his explanations were straightforward; and his conclusions were deliberate. There were no theatrics; just science. He would have been a dream witness for the prosecution save for one major hiccup: Gilliam’s professional opinion was that Ashley Fallis died by suicide.
Jurors could’ve been forgiven for wondering why the district attorney’s office put Gilliam on the stand (the defense would’ve if they hadn’t). However, there were so many problematic witnesses for the prosecution that, as juror Daniel Stejskal puts it, “It seemed like the prosecution was all over the place.”
To refute their own witness’ forensic testimony, prosecutors brought in another analyst, who contradicted Gilliam’s findings. But Jonathyn Priest, who said he believed Tom had been in contact with—or at least near—Ashley when the gun went off, hadn’t done any testing. He hadn’t been to the scene. His measurements were called into question by the defense. He postulated his theories based on photographs and others’ reports. Eytan took to calling him the “eyeball-ologist.” Stejskal says Priest’s conclusions were more like “assumptions” than actual analysis.
Even the judge seemed to agree that some of the state’s work was slipshod. During pretrial discovery, Eytan and Nielsen had zeroed in on the potentially exculpatory information Detective Jaclyn Shaklee had neglected to mention during the grand jury proceedings. Tom’s defense attorneys brought the so-called discovery violation—in which a friend of Nick Glover’s remembers him saying “my neighbor shot herself” in the days following Ashley’s death, not that he heard his neighbor confess to shooting his wife—to the judge’s attention. Judge Thomas Quammen, who called the violation “significant,” made certain the jury was aware of the state’s mistake. He read a statement (an “instruction,” in legalese) to the jury multiple times that called into question not only Shaklee’s ethics, credibility, and police work, but also Nick Glover’s accusations. In other words, the judge himself informed the jury that it might be reasonable to be skeptical of certain prosecution witnesses’ testimonies.
Nick Glover took the stand on the fourth day of the trial. Under direct examination, Glover reiterated that he heard Tom say, “Oh, my God, what have I done? I shot her” that night to two people who Glover assumed were Tom’s parents. But under cross-examination, Glover became taciturn. He responded with “I do not recall” more than 90 times to Nielsen’s questions, some of which focused on Glover’s interactions with Tom—going on a group camping trip that included Tom and his kids and Christmas caroling with them—after he allegedly heard the man confess to murdering his wife.
Glover’s defensive posturing did little to bolster the veracity of his claims. Neither did his inability to identify in open court Jim Fallis, the person he says he saw talking with Tom when the confession occurred. It didn’t help the prosecution that more than 15 law enforcement officers who had been within earshot of Tom that night testified to not hearing Tom say what Glover said he heard from inside his house. “Nick Glover lacked authenticity top to bottom,” says Debra McEvers, the jury foreperson. “He was shady. Everything from him was flip. And the confession he says he heard just didn’t line up.”
That’s how the entire case seemed to go for the prosecution: Nothing really lined up. Star witnesses fell flat. Others—like former Weld County Sheriff’s Office Deputy Chris Graves, who claimed he, too, heard Tom confess on January 1—collapsed under cross-examination. And that was when things were going relatively well. When Shaklee and Larimer County coroner Dr. James Wilkerson gave back-to-back testimony, things went sideways for the state.
During Detective Shaklee’s reinvestigation of the Fallis case in mid-2014, she informed Wilkerson—without taping the conversation, as she did with almost every other case-related interaction—about additional information she had received, which ultimately pushed the coroner to change Ashley’s manner of death from suicide to undetermined. (Wilkerson did not respond to requests for an interview.) But much of the information she gave to Wilkerson—that Tom’s skin was found under Ashley’s fingernails; that Tom had scratches on his chest from a physical altercation with Ashley; that there wasn’t enough blood on the carpet for Ashley to have hit the ground without Tom’s involvement—wasn’t true.
Although Shaklee testified she believed the information she gave Wilkerson to be true at that time, she acknowledged she was ultimately mistaken about some of the nuances. Nevertheless, Shaklee also left out critical details in her interactions with the coroner, who relied on law enforcement to provide him the information he needed to make his determinations. She didn’t tell him that the scratches could’ve come from Tom himself, who had recently shaved his chest and had been complaining about how it itched. She didn’t tell the medical examiner that they had swabbed the scratches on Tom’s chest and found none of Ashley’s DNA on him. She didn’t tell him that Tom had tried to stanch Ashley’s bleeding for about four minutes, which could have explained why there wasn’t the typical amount of blood on the carpet. As juror McEvers puts it, “I remember not believing Shaklee. Her missing notes, her missing interviews were suspicious.”
During her cross-examination, Eytan asked on several occasions if the information Shaklee had provided to Wilkerson encouraged him to change his opinion on the manner of death. He answered yes multiple times. The coroner’s testimony was compelling for a few other reasons. First, he confirmed Ashley had trace amounts of benzodiazepines—her clonazepam prescription—in her urine, consistent with someone who hadn’t taken the drug for a few days. He also tested Ashley’s blood alcohol content, which was 0.088. Two other autopsy results stood out: The first was that Ashley’s tubal ligation had failed on one side, giving her the ability to become pregnant. The second was that Wilkerson found Ashley did not have enough pregnancy hormones in her urine to suggest she had been pregnant—at least not for about a week before her death—leaving the jury to ponder if and when a miscarriage had occurred or if Ashley’s emotional struggles may have contributed to her belief that she was miscarrying.
Even Ashley’s parents, who could have triggered sympathy among jurors with heartrending testimony, didn’t help the prosecution’s case. According to jurors, both came off as, at best, parents who didn’t know their daughter as well as they thought or, at worst, people who wanted someone to blame. During cross-examinations, Nielsen pounced on the lawsuits that Fox and Raguindin had brought against several law enforcement officers and agencies, a common tactic used by defense attorneys to bring into question the motivations of witnesses. In this case, it was effective. Nielsen repeatedly asked both if they wanted to “punish” the Evans Police Department, if they wanted to “punish” individual officers. The notion that Ashley’s parents had sued for punitive damages lingered in jurors’ minds.
None of the state’s miscues made the trial easier for Tom. He had to watch his friends, family, co-workers, and neighbors answer questions about him, his kids, his wife, and the worst day of his life. It was, however, vindicating in some ways. “These witnesses weren’t just being coddled by the prosecution anymore,” Tom says, referring to the grand jury proceedings. “This time somebody was going to ask them questions, and once those questions started getting asked, we knew everything those people had said was going to start falling apart.”
The prosecution’s unconvincing case was readily apparent in the jury room. McEvers, a teacher living in Weld County, was elected foreperson as soon as deliberations began. She says she took a quick “temperature check” to see where everyone stood. Only three people said they had questions they wanted to discuss with the group. Everyone else was ready to vote. After looking at the jury orders again, talking through some lingering questions, and pulling out some critical pieces of evidence, McEvers had a suggestion. “I said ‘Let’s do lunch. Or go have a cigarette. Let’s let it be for a while,’ ” she says. “Then we came back for the anonymous vote.”
In about three hours, the jury came to a unanimous decision. After a year and a half of waiting in a torturous purgatory, Tom was acquitted on all counts. He finally would be rejoining his kids in Indiana.
But on that day—and on many days since—McEvers has mulled over why Tom Fallis ever needed to be in that courtroom in the first place. She also wonders why Michael Rourke, who had been appointed district attorney for Weld County just weeks after the grand jury indictment, would have decided not to try such a high-profile case himself. Instead, he sent his deputies in to prosecute a man he had indicted. She surmises that politics—and an upcoming campaign—were involved. “As a decent human being, I have to believe the best about people,” she says. “I have to believe that about the district attorney. But when you look at a trial where the defense only calls two witnesses, you wonder what was in the evidence at the grand jury. The case we saw—it wasn’t a strong case.”
Beyond the short life it denotes and the inscription that reads “Loving Mother & Eternal Wife,” the most noticeable thing about the granite headstone in a cemetery near Estes Park is that it’s cracked. Then the crude etching comes into focus. “I got a call toward the end of 2016,” Tom says, “from a Larimer County officer telling me that someone vandalized Ashley’s headstone.” Just below Tom’s name on the joint grave marker, in the empty space after 1980–, someone had carved the word “Soon,” causing the stone to fracture.
Tom shakes his head in disbelief that anyone would do such a thing. He says he’s been trying to get the stone fixed from afar, but it’s clear from his expression that he doesn’t have the emotional bandwidth to deal with it. He also hasn’t been to visit Ashley’s grave in person since the trial. In fact, he’s only been back to Colorado twice since he put his boxes into the Dodge and made haste for Colorado’s eastern border, where the kids took a smartphone snap of him hugging the Welcome To Kansas sign. On one occasion when he flew back to Denver, he had to explain to his son he was going to Colorado by choice—and that no one was going to keep him there. The eight-year-old was unsure. “He kept texting me,” Tom says, “asking if I was still coming home when I said I was.”
Although it’s been nearly six years since their mom died and a year and a half since their father came home for good, the Fallis kids’ emotional scars are still apparent. The younger two, who were six and three on January 1, 2012, haven’t asked for specific details about their mom’s death, but they do ask about her from time to time. Tom has told them Ashley had an accident. He’ll tell them more when they’re older.
His 14-year-old daughter is another matter. She’s old enough to know what suicide is. “Kids were saying things to her at school,” Tom says. “She asked me, ‘Why would Mom do this?’ I told her, ‘I don’t have that answer. I’ll never have that answer.’ But I explained that her mom had a miscarriage, and that I thought for whatever reason, Mom was needed in heaven to care for that baby and that I’m here to care for you guys.”
That hasn’t been easy, either. Raising three kids alone and going to school makes for busy days. It also makes money scarce. Tom took out loans to go back to college, and the children receive $2,300 total a month in Social Security death benefits. There was a life insurance policy for Ashley—a spousal policy given to every employee at the Weld County Sheriff’s Office—but that approximately $50,000 sum went to pay down credit card debt and a car loan and to cover some hospital bills. For now, repaying the $400,000 in legal fees has fallen to Tom’s parents. “I’ve gotten a lot of help from family and friends,” Tom says. “We’ve made adjustments. We don’t go without. And, hey, cheap cereal is the breakfast of champions.”
Tom’s dry humor remains intact, but like his kids, he has unhealed wounds. He says he still cries sometimes. He’ll be listening to talk radio in the car and for no particular reason, the tears will come. He still can’t listen to “18th Floor Balcony.” And he still feels as though he failed Ashley because he didn’t know how to help her. He’s not afraid, however, to say that he’s angry at his wife. “I’m mad that she left,” he says. “I’m mad that she did what she did. It pisses me off. Am I accepting? Yeah. But I have to watch that image of her doing it all the time.”
He’s also not hesitant about saying he’s learned valuable lessons about the integrity of the legal system—how it can be warped and misused and bent by the wills of others. The media. His former in-laws. An ambitious assistant district attorney. A detective who played loose with the facts. A kid looking for attention. “What I’ve learned about the American legal system is that it’s not the pieces on the board that matter,” Tom says. “It’s the players playing with those pieces.”
It’s difficult not to harbor ill will when you’ve been wrongly accused, Tom explains, especially when others may have benefitted from your tragedy. Michael Rourke was appointed by Governor John Hickenlooper to the position of Weld County district attorney—after Ken Buck vacated the office—just weeks after securing the well-publicized indictment of Tom. He subsequently campaigned and was elected to the position, which he still holds, seven months after Tom was exonerated. And Justin Joseph, who recently traded his career in television news for a job in real estate, was awarded an Emmy in July 2015 for his coverage of the Fallis investigation.
But, Tom says, life goes on. And even though Google searches by prospective employers will forever haunt him and his children will have difficult questions for him as they mature and he will never again get to bring home low-fat caramel macchiatos with extra shots of espresso and extra pumps of caramel with whipped cream for Ashley, he knows he can handle it. He now knows he can endure just about anything.
If you or someone you know is experiencing a crisis, call 1-844-493-TALK (8255) or visit coloradocrisisservices.com