By Bob Mionske
The first email alerting me to the news arrived at 9:00 on Friday morning. And then the next e-mail arrived. And the next. And the next. By Monday morning, the New York Times was calling to get my perspective.
The story, in case you’ve been training on rollers in a cave somewhere, involved a Colorado driver who hit a cyclist and fled the scene, only to be arrested later after he called to arrange for a tow truck to pick up his damaged Mercedes. But that’s not what attracted so much attention; what sent the story viral was the district attorney’s decision to reduce the felony hit-and-run charge to two misdemeanor counts, reportedly because the official was concerned that the driver might lose his job with a felony conviction.
Cyclists went through the roof, angered, and rightly so, by the important questions raised by this case. But before I get to those questions.
Hit and Run
On July 3, Dr. Steven Milo was riding east on Highway 6 in the White River National Forest, just east of Miller Ranch Road outside of Edwards, Colorado, when he was hit from behind. The driver, who had suddenly veered off the highway, slammed into Dr. Milo, then hit a culvert, before driving off. Milo was thrown from his bike, and suffered serious injuries, which the Vail Daily reported to include “spinal cord injuries, bleeding from his brain and damage to his knee and scapula, according to court documents.” Another driver, Steven Lay of Eagle, Colorado, stopped to help Milo, and called 911.
Meanwhile, 6 miles away in Avon, Colorado, Martin Erzinger stopped his black 2010 Mercedes Benz sedan in a Pizza Hut parking lot and called Mercedes auto assistance to report that his Mercedes had been damaged, and to ask for a tow. He did not ask for law enforcement. However, Avon police did respond to the call; when they arrived on the scene, they found Erzinger putting a broken side mirror and his bumper in the trunk of his car. When questioned by police, Erzinger said that he was unaware that he had collided with Milo.
Erzinger was arrested. Later, the Vail Daily reported that Erzinger’s defense attorneys suggested that he might have “unknowingly suffered from sleep apnea, and that might have caused him to fall asleep at the wheel and hit Milo.” Prosecutors reportedly expressed their skepticism to Milo about this line of defense.
Felony? Or Misdemeanor?
Hit and run is a criminal offense, and thus, as in any other criminal case, the District Attorney had to decide what charges, if any, to file. As the victim of a criminal act, Dr. Milo wanted to make sure that his voice was heard in the prosecution of the driver who, as he put it, “struck me, fled and left me for dead on the highway.”
Thus, Milo hired Harold Hatton, of Colorado’s top attorneys, to represent him throughout the process. We know that Milo was adamantly opposed to prosecuting the case as a misdemeanor. However, the DA is now clearly shifting the blame to Milo for the decision to not prosecute the case as a felony. According to an editorial written by District Attorney Mark Hurlbert, “Dr. Milo never asked me to plea Mr. Erzinger to a felony. Dr. Milo asked that I plead Mr. Erzinger to a felony deferred judgment and sentence.”
In other words, Hurlbert says Milo asked him to offer a plea deal to Erzinger. The deal was that if Erzinger would plead guilty to a felony hit and run, he would receive a “deferred judgment and sentence,” meaning the court would find him guilty, and sentence him, but that the sentence would be “deferred,” which means that as long as Erzinger met the terms of his deferred sentence, he would not serve any time. It would be akin to being on probation.
Since drugs and alcohol were not involved, the law limited the DA to requesting only two conditions for the deferred judgment. First, Erzinger must not commit any criminal acts during the period of time specified in his deferred sentence, which would be either two or four years. Second, the DA could request that Erzinger be required to pay restitution to Milo.
As long as Erzinger kept his nose clean during that time period, the conviction would disappear from his record. Erzinger would have no criminal history, and would be free to deny that he had ever committed any crime. But if Erzinger violated the terms of his deferred judgment and sentence, he would be required to serve his sentence, and the conviction would remain on his criminal record.
According to Hurlbert, this is the plea deal that Milo requested be offered to Erzinger. But in the end, Hurlbert has sole prosecutorial discretion over what charges, if any, will be filed, and as he explains, “I could not stomach” Erzinger writing a check to Milo, and then denying that anything had ever happened. So Hurlbert says that he decided to offer Erzinger a different plea deal—a misdemeanor charge of hit and run, and a misdemeanor charge of careless driving causing serious bodily injury. If Erzinger accepted, he would face the loss of his license, potential jail time and restitution. And as Hurlbert explained, the misdemeanor convictions would stay on Erzinger’s criminal record for life.
Erzinger accepted the deal. Milo was outraged, and soon, the outrage was spreading like wildfire.
Although the DA has sole discretion in prosecuting a case, Milo had expected that the DA would offer the plea deal he had requested. Hurlbert had originally charged Erzinger with a felony, but shortly thereafter he pleaded the case down to a misdemeanor. Then, in August, Hurlbert informed Milo that the case would be prosecuted as a felony. However, instead of pleading the felony charge, the DA offered the misdemeanor plea deal to Erzinger—and only notified Milo of the deal after it had been accepted by Erzinger. Milo and his attorney, Hal Haddon, were described as “livid.” The next day, Haddon filed his objection to the plea deal with the court, arguing that “The proposed disposition is not appropriate given the shocking nature of the defendant’s conduct and the debilitating injuries which Dr. Milo has suffered,” and pointedly noting that “One business day is not sufficient notice to allow him to meaningfully participate in this criminal action.”
The “meaningful participation” Haddon was referring to involved Dr. Milo’s rights as a crime victim under Colorado’s Victims’ Rights law. Under that law, victims of crime have rights in criminal proceedings, including the right to be informed and consult with the DA on the reduction of charges and negotiated pleas. In Haddon’s view, this is a victims’ rights case, and in fact, both Haddon and the DA were treating the case as one that falls under the Victims’ Rights statute.
Although Milo was angered that a misdemeanor plea deal had been offered to Erzinger against his wishes, under Colorado’s Victims’ Rights law the DA is only required to consult “where practicable” with the victim—and the DA argued that he did that. The law does not require the DA to agree with the crime victim on the disposition of the case. In his defense, Hurlbert noted that “We had been talking with [Milo] about this misdemeanor disposition for a while now,” Hurlbert said. “The misdemeanor charges really are what he did.”
In fact, Hurlbert is wrong about the law. Milo suffered serious injuries in the collision, and under Colorado law, those injuries make Erzinger’s hit-and-run a felony, rather than a misdemeanor. Of course, the case can still be pleaded down to a misdemeanor, but there’s nothing in the law that prevents the DA from prosecuting this case as a felony. And of course, the question that Hurlbert danced around in his editorial still remains—if he was sickened by the thought of a deferred judgment and sentence, why didn’t he just plead the case as a felony, even if Milo “never asked” him to?
Looming over this dispute was the issue generating the tidal wave of outrage—was Erzinger offered a lesser charge because of his socioeconomic status? Hurlbert’s initial comments certainly seemed to suggest so: “Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it. When you’re talking about restitution, you don’t want to take away his ability to pay.”
What Hurlbert was saying is that a felony conviction might result in Erzinger losing his job at Morgan Stanley, where he manages more than $1 billion dollars in assets. If Erzinger was instead prosecuted on a misdemeanor charge, he would not be required by securities regulations to report the conviction, and presumably, this would mean continued employment, and in particular, an ability to pay restitution to Milo.
For the millions of prison inmates and ex-cons of lower socioeconomic status whose own job prospects were irrevocably damaged by their own felony convictions, this prosecutorial concern for Erzinger’s job prospects must have sounded like a bad joke: “The prosecutor just wants to make sure this conviction won’t get me fired.” Yeah, right.
Of course, the DA strenuously objected to any hint of more favorable treatment for Erzinger, but for cyclists, the appearance of a double-standard for justice—one standard for the wealthy, another standard for the rest of us—evoked an eerie sense of déjà vu . No matter how Hurlbert tried to spin it, the DA’s interest in reduced charges and restitution gave the appearance of a different standard of justice for the wealthy.
Was Erzinger treated any differently than, say, the kid asking if you want fries with your order? People will have to draw their own conclusions, but in my practice representing injured cyclists, socioeconomic status affects the injured cyclist at every step of the process, from how they are treated by the insurance claims representatives, to how the jury perceives them, to what their injuries are worth. Some of this is a matter of simple mathematics—the loss of potential future income for somebody making minimum wage busing tables is going to be a very small fraction that of a Wall Street banker, even though both might have suffered the exact same injury. But some of what I see really is just about treating people on the lower end of the ladder with less respect and consideration than those situated on the higher rungs; the social class of both the injured person and the person accused of causing the injury colors peoples’ perceptions of liability.
A somewhat different perspective on Hurlbert’s prosecutorial decisions was put forth on the blog ExPat ExLawyer : Hurlbert simply picks the wrong battles to fight, and the wrong ones to quit. Some examples:
- In 2007, Hurlbert proved relentless in his determination to prosecute a college student whothrew a snowball at a co-worker. In contrast, in 2009, the son of a prominent (and wealthy) Colorado couple who was originally charged with the attempted murder of his ex-girlfriend after “savagely beating ” her was allowed to plead guilty to reduced charges of criminal mischief on a deferred judgment.
- In May, Hurlbert filed felony charges against two women after one of them entered the Leadville 100 using the race number of the other woman, who had to drop out of the race due to knee surgery (and note that one of the women lost her job after the felony charges were filed). In contrast, in January, Hurlbert offered a misdemeanor plea deal to a man who had viciously beaten a woman while yelling racist and misogynist epithets.
The Final Word
At the end of the day, the District Attorney has the discretion as to how—or even whether—to prosecute a case, the victim’s own views notwithstanding. And yet, there is a higher authority than the prosecutor: the court has the final word on whether to accept or reject the plea deal—and despite the last-minute nature of the prosecutor’s surprise, Hal Haddon managed to file Milo’s objection to the deal. Whether the judge will accept the plea deal between Hurlbert and Erzinger, or listen to the plea of Erzinger’s victim, remains to be seen. Stay tuned.
Research and drafting by Rick Bernardi, J.D.