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The Explainer: Thoughts on Erzinger and why I won’t boycott Vail

  • By Charles Pelkey
  • Published Dec. 18, 2010
  • Updated Dec. 22, 2010 at 7:10 AM EST

Q.Dear Explainer,
I appreciate the coverage VeloNews has provided for the Vail hit-and-run case. I was really happy you made the trip to watch events in court, too. I think you offered what used to be described as a “fair and balanced” (well, at least before that term was hijacked) story that day. But I am left wondering what your impressions and conclusions might be.

I for one am outraged. I intend to avoid any future visit to Vail, be it for skiing, cycling or even stopping for gas. I am also going to do my best to keep next year’s Quizno’s race from stopping there. I think a boycott is the way to show these guys — the broker, the DA and the judge — what such actions mean to them, too.

So, other than a rant from me (I obviously have my opinions), what are your thoughts? What did you think of the hearing? Would you support a boycott? If so, would you help?
Lawrence

A. Dear Lawrence,
Thanks for your … uhhh … question there. I actually picked your email out of the many I’ve received over the past few days because it’s fairly representative of what we’re hearing from readers. So let me try to tackle some of the issues you raise.

It’s the DA, not the town

First off, from the start my problem was — and continues to be — the way this case was handled by District Attorney Mark Hurlbert. My most serious issues have nothing to do with the community, the judge or even the defenses raised by the offender. Later on, I’ll tell you why I am not a big fan of the boycott idea.

Hurlbert and the defendant, Martin Erzinger, have both bemoaned the “media campaign” against the plea bargain since November. But the problem had less to do with the media than it did with Hurlbert’s idiotic statement to the media; namely when he told the Vail Daily last month that “felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into” his decision to drop the most serious of three charges in the case.

Well, duh. That’s actually often the point, isn’t it? Felons are stripped of a host of rights and opportunities, ranging from the freedom to walk the streets while they’re imprisoned to  — in some states — a lifelong loss of the right to vote. There are usually dire economic consequences to committing a crime and Hurlbert has rarely shown such restraint and compassion in the past.

We have already discussed his vigorous pursuit of felony charges in the “stolen identity” case of two women involved in the Leadville 100. He’s also spent the time, money and effort to pursue two jury trials after an Australian exchange student threw a snowball at a co-worker at Copper Mountain ski resort. In the Leadville case, one of the offenders lost her job as a teacher because of her conviction and the Aussie snowball tosser would have probably lost his student visa had Hurlbert’s prosecution not fizzled in the end.

Yet, Hurlbert was apparently overwhelmed by empathy when it came to the career prospects of a wealth fund manager, whose trading license would be put at risk by a felony conviction.

Indeed, it was at Thursday’s hearing that the most offensive example of that thinking was presented to the court. Steven Milo, the cyclist victim in the case, was — despite Hurlbert’s objections — allowed to offer his thoughts on the fairness of the plea bargain, in which Erzinger was allowed to plead guilty to two misdemeanors in exchange for seeing the felony charge disappear.

Since the July incident, Milo had been actively seeking a felony prosecution in the case. He had been repeatedly assured by Hurlbert’s office that the evidence was more than sufficient to pursue the charge. But by September, Milo was beginning to be concerned when his calls would go unreturned or conversations with prosecutors began to sound somewhat hesitant.

Milo had the good sense to record one call with Assistant District Attorney Mark Brostrom in which the young prosecutor raised the issue of dropping the most serious charge because an employment attorney, hired by the defense, had informed the DA that in the event of a felony conviction “Mr. Erzinger would lose his job immediately.”

Indeed, according to Milo, the deal had already been struck, although he and his attorney weren’t formally notified of that fact until November, leaving them less than a day in which to react. Hence, the decision by Milo’s attorney, Harold Haddon, to file a formal objection to the agreement.

It’s not about the money

Oddly enough, when Hurlbert began discussing the deal in public, he often justified his decision by noting that allowing Erzinger a deal in which he could keep his job at Morgan Stanley Smith Barney would ultimately be fairer to Milo.

Not stopping is a crime ... especially when you leave someone on the road.

“When you’re talking about restitution, you don’t want to take away his ability to pay,” Hurlbert said.

Well, that’s all well and good, but as Haddon pointed out, Colorado statute doesn’t actually provide a restitution mechanism in misdemeanor convictions — only in felony convictions.

“If a defendant is fully insured,” Haddon noted, “and we have to assume that Mr. Erzinger is surely that, then there really is no opportunity for the court to order restitution in this case.”

Milo has repeatedly said that when it came to the criminal case, his primary motivation had nothing to do with money. He said he wanted “justice” and for Erzinger to take responsibility for his actions; namely “leaving (Milo) to die” while he continued to drive down the road.

Milo, probably more than most victims in cases like this, can honestly say that money isn’t necessarily a primary concern. He is an anesthesiologist and a member of the liver-transplant team at New York’s Mount Sinai Medical School Hospital.

Milo arrives in the ER.

Furthermore, his wife, Jennifer, who was seven-and-a-half months pregnant at the time of the accident, is the daughter of Tom Marsico, an even bigger player in the capital management business than is Erzinger.

To be sure, Milo retains the option to pursue civil action against Erzinger, and he probably will. And he probably should.

Despite the fact that Milo appeared to be a healthy, vigorous young man when he arrived at Thursday’s hearing, his description of the injuries he suffered was disturbing.

As a doctor, Milo’s description was detailed and downright clinical at times. Immediately following the hit-and-run doctors diagnosed serious bleeding in the deep recesses of Milo’s brain. It was the sort of injury that could have increased cerebral pressure to the point at which the young doctor could have lapsed into a coma and died.

His longer-term injuries continue to plague him. He had a crush injury to his right knee and now reports no sensation between that knee and his foot. He suffered a cervical neck injury that, Milo says, could have resulted in paralysis had his head hit the pavement in almost any other position than it did. He continues to suffer numbness and tingling in his arm and now experiences frequent and painful headaches.

“I’ve been an active and athletic person all my life,” he told the court. “I haven’t been able to do an athletic thing since.”

The deal is sealed

Thursday’s hearing was primarily for sentencing, but before that Eagle County District Court Judge Fred Gannett heard arguments from three sides about Milo’s formal objection to the plea agreement.

The Mugshot: Erzinger says he's suffered, too. Yeah right.

I know a lot of criticism has been directed toward Gannett for his decision to accept the deal, but frankly, I found him to be a thoughtful and fair-minded jurist. He took seriously the arguments presented and rejected defense and prosecution objections to Milo’s participation at that stage of the process.

Ultimately, Gannett gave considerable weight to the prosecution’s argument that unless the plea agreement qualified as “outrageous” the judge would be overstepping his authority by rejecting it.

Gannet noted that while the deal and Hurlbert’s handling of it may not have been what he would have done as a prosecutor, the plea bargain nonetheless fell within Gannett’s “realm of reasonableness.”

Here we should stop and ask what qualifies as “reasonable.” Given that Erzinger had a clean criminal record, the felony conviction would likely have resulted in a deferred sentence. In other words, had he kept his nose clean for two years or so, no sentence would have been imposed and his record wiped clean.

That is the way other defendants, whose charges were based on similar facts, have been treated by Hurlbert and that court in the past. Milo’s attorney, Haddon, pointed to a similar case in which that was the only offer made to the defendant.

While Gannett found the offer to Erzinger to be within the definition of what is reasonable, Haddon argued that the inconsistent treatment based on economics and social standing qualified as “outrageous.” As a cyclist, my sympathies were more in line with Haddon’s position. As an egalitarian, my sympathies were more in line with Haddon’s position. Had I been the judge, I would have ruled differently, but I didn’t see corruption in Gannet’s decision. What I saw was two good lawyers, Haddon and Gannett, disagreeing on where a line should be drawn when weighing the actions of a bad lawyer, Hurlbert.

“It is not a hard decision, but it’s a tortured decision to determine how to bring justice to your case,” Gannett told Milo while ruling on his objection. “You may, for the remainder of your life, carry scars that are physical and emotional that cannot be cured.”

Apnea

With the plea agreement accepted, only Erzinger’s sentencing remained. Again, Gannett invited all interested parties to weigh in on what that sentence should be.

The view from the rear view mirror: Erzinger says he didn't see any indication that he'd hit someone. (Note the tire tracks.)

Haddon and Hurlbert found some common ground in that both called for the maximum penalty of 15 months in the county jail — three months for failure to report and a year for careless driving resulting in serious bodily injury.

Erzinger’s attorney, Richard Tegtmeier, then offered up the now famous “sleep apnea” defense, suggesting that while guilty of the two offenses, his client never knowingly struck Milo or left the scene with the knowledge that he had hit someone.

With testimony from an expert witness, neurologist Richard Kramer, Tegtmeier did his best to portray Erzinger as the hapless victim of an undiagnosed condition that caused him to fall asleep at the wheel. He did not, to his credit, raise the “new-car smell” defense that was first mentioned in documents provided by an accident reconstruction expert hired by the defense.

While not a full-blown trial, the testimony presented before sentencing can give a glimpse at what sort of case would have been made.

Perhaps the weakest element of Erzinger’s apnea argument, however, was the very expert the defense used to try to bolster it.

Kramer was easily the worst expert witness I’ve ever seen in a courtroom. He was muddled, inconsistent and, at the most awkward moments, downright arrogant. During his somewhat disjointed testimony Kramer told the court at one point that those suffering with undiagnosed apnea disorders often can’t recognize the problem and “don’t feel sleepy” and then later opined that Erzinger should be allowed to keep his driver’s license even after his diagnosis “because he doesn’t feel sleepy, so why should we take away his license?”

Despite an absolutely awful expert witness, Erzinger’s apnea defense might have found some traction in front of a jury. I’m not entirely sure I buy it, but it may have been enough to raise a reasonable doubt in one or two jurors’ minds. It would have been an interesting trial, but by no means a foregone conclusion.

Of course, we’re likely to see all of that play out in front of a jury if civil action is pursued.

The defendant speaks

Before Erzinger took the opportunity to address the court, his attorney offered several character witnesses who testified that the defendant was a great member of his community, a good father, husband, Christian, supporter of charities and a cyclist himself.

A relatively light sentence. How would a janitor have fared?

Friend and neighbor Bradford Talbot said that the descriptions of Erzinger that have appeared in the media over the past month “are totally foreign to the person I know Marty to be.”

Erzinger’s wife, too, offered a statement, which largely focused on the difficulty she and her husband have had since the “media campaign against Marty began last month.” Visibly angry, she told of death threats, “ugly, horrible statements on blogs and in thousands of emails” and noted that the family has been forced to hire bodyguards and Erzinger’s firm has employed additional security.

When the defendant rose to speak, he offered an apology to Milo, but tempered that once again by insisting that he had never been aware that he had struck anyone or anything other than a culvert. Like his wife, he spoke of the stress and strain he’s been under since the story gained national attention.

“I wake up every day thinking I am going to lose my job,” he said.

We know the sentence: One year probation, 90 days in jail — which can be served on work release or by doing 45 days of charity work — a $300 fine, court costs and a suspension of his driver’s license. Erzinger is also ordered to update his FINRA report to reflect the fact that he had, indeed, once been charged with a felony.

Backlash? Boycott? Not against Vail

Boycott Vail? I won't.

So what now? Milo will very probably file a civil suit against Erzinger. It is likely to be a doozy, with both sides fielding top-notch legal teams. I’m kinda looking forward to watching that one.

For the rest of us, what is there to do? The comments sections of this and other websites have been full of suggestions. Among the more civil are calls to boycott Vail and demand that organizers of the Quizno’s Pro Challenge reroute the new stage race away from the community next year. It’s a hit-’em-where-it-counts argument and one I would normally support, but here is why I don’t.

To say that this case was mishandled is something of an understatement. Hurlbert’s record of aggressive prosecutions of some defendants versus his kid-glove treatment of others is probably the biggest issue here.

It’s Hurlbert, not Vail, whose feet should be held to the fire. Vail is a terrific town. I’ve been there as a skier, an ice climber, a cyclist and a spectator at the old Coors Classic. I will continue to go there and I will continue to support the cycling community in and around there.

It’s also important to know that the incident actually didn’t happen within the city limits of Vail itself. Milo was struck in Edwards, Colorado. Erzinger was arrested in Avon, three miles away. Sure, they are all small communities in the Vail Valley and directly connected to the economic hub that is the ski area, but they are separate and distinct from Vail itself.

Furthermore, Hurlbert, a resident of Breckenridge and not Vail, serves as DA for all of Colorado’s Clear Creek, Eagle, Lake and Summit counties. He was appointed to the position in 2002, reelected in 2004 and 2008 ─ by residents of all four counties ─ and is term-limited from running for re-election in 2012. Indeed, anticipating that, he tried to launch a political career of sorts in this election cycle, running for the Colorado State Senate as a Republican. I’m sure you will all be sad to hear that he lost.

Look, a lot of us live in communities that have been tainted by controversy or have public officials who make stupid moves, utter boneheaded statements or do something that attracts national attention for all the wrong reasons. I, for one, don’t think the entire community, county or state should be painted with a broad brush because of that. I, for example, still plan on returning to Alaska.

While some folks may want to direct their anger over this case at Vail, I sure as hell won’t be among them.

But if I am ever in a voting booth and happen to run across Mark Hurlbert’s name on the ballot? Yeah, I’ll probably vote for the other guy. And hey, if I ever have a spare $5 million sitting around the house, I’ll probably put my money with Marsico and take a pass on Erzinger and the crew at Morgan Stanley Smith Barney.
Charles

Contact Pelkey by email.

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