By Bob Mionske, J.D.
We can say this much: Mark Hurlbert, Colorado’s Fifth Judicial District Attorney, went the extra mile to protect hit-and-run driver Martin Erzinger (read the story here) from any possibility of facing a jury on criminal charges. And it worked. Erzinger is a free man. Yes, there’s still that little matter of six weeks of community service Erzinger must perform, but as long as Erzinger puts in his time, he’s free.
He should probably also avoid any more hit and runs, at least until his one-year probationary period is up. New Mercedes smell notwithstanding, after those 12 months, Erzinger will have his driver’s license back, as well as that hit-and-left-a-cyclist-for-dead experience and his sleep disorder (court documents show his new-car smell, coupled with sleep deprivation, may have contributed to his crash).
It was a sweetheart of a deal, and none of the trial balloons District Attorney Mark Hurlbert floated to sell this deal to the public convinced anybody that this was anything other than rich man’s justice. Well, except the Judge, of course. But it was apparent to everybody else that this was a deal that would never be offered to any of us, the great unwashed. Hell, even Martin Erzinger agreed that it was a great deal.
For anybody who might be tempted to argue that this case really was about the pursuit of justice, I’ve got a question—when was the last time you heard a prosecutor express concern that the defendant would lose his job if appropriate charges were filed? Because that’s what happened in this case.
Consider the District Attorney’s explanation that he “couldn’t stomach” a felony with deferred judgment plea deal, because Erzinger would be able to have it removed from his criminal record after serving his sentence. A misdemeanor charge would be permanent, he explained. So would a felony conviction. Hurlbert neglected to explain that one.
But what about the restitution that District Attorney Hurlbert seemed so intent on making a part of the sentence? That, after all, was the original rationale behind not filing a felony charge and jeopardizing Erzinger’s continued employment. I asked Colorado bike attorney Brad Tucker about restitution, and as he explained, under Colorado traffic law restitution ordered under a non-felony conviction is limited to the amount of the victim’s loss that is not covered by the defendant’s insurance policy. This means that the defendant is only ordered to pay restitution if the victim’s economic damages—medical bills, lost wages, and so on—exceed the driver’s insurance policy limits. However, if Erzinger’s insurance coverage is adequate, he cannot be ordered to pay restitution on a misdemeanor charge.
And yet Hurlbert says that once he learned that Erzinger had adequate insurance to pay restitution (note to Mark Hurlbert: insurance pays claims; criminals pay restitution), Erzinger’s continued employment was no longer a consideration in his charging decision. This raises a nagging question—if Hurlbert was no longer concerned about Erzinger’s continued employment, why continue to seek a misdemeanor plea deal with the defendant on a felony crime?
And yet that is exactly what Hurbert did, despite his assurances to the hit-and-run victim that he would charge the case as a felony. In fact, Dr. Milo was notified of the plea deal weeks after it had been agreed upon, and only one day before it was submitted to the court. And once the deal was submitted to the court, Hurlbert attempted to prevent Dr. Milo from testifying at the hearing, making the same arguments against Milo that the Erzinger’s defense attorney made. It was as if Hurlbert was now working for the defense team.
To his credit, Judge Fred Gannett refused to bar Dr. Milo from testifying at the hearing, as both Hurlbert and the defense requested—and after hearing Dr. Milo’s testimony requesting that the Court reject the plea deal, Judge Gannett promptly accepted the deal, reasoning that it was within a “realm of reasonableness.” Addressing Milo, Judge Gannett said “there is nothing I can do in this court to make your life better. You can be stuck or continue on a path of healing,” apparently oblivious to the effect that justice denied might have on the process of healing.
And just to be clear, justice was denied, not just to Dr. Milo, but to all of us. As Judge Gannett noted, sentencing must be about changing the future behavior of the defendant. But justice is not solely about changing the defendant’s behavior, and it is not solely about punishment; it is also about sending a message to the rest of the community about criminal behavior and its consequences. The message sent from Judge Gannett’s courtroom on December 16 was that drivers will face minimal consequences if they hit a cyclist and flee the scene.
Dr. Milo was explicit from the outset that he wanted justice, not money. In a strange twist of fate, it turns out that Dr. Milo’s father-in-law is Tom Marsico, an acquaintance of Martin Erzinger’s for twenty years, and also in the wealth-management field, managing assets in excess of $55 billion.
In a serious collision with a driver, most of us would be hard-pressed to pay our medical bills without insurance, or restitution from the driver. But Dr. Milo didn’t need or want Erzinger’s money; all he wanted Erzinger to do was to take responsibility for what he had done. In another strange twist of fate, Dr. Milo has only one avenue left for justice—he can still file a civil suit against Erzinger, seeking money. If Milo does file suit, and he wins, Erzinger’s insurance company will write him a check, and be done with the case. He will not likely serve any time for his crime, and he will be able to deny that he ever committed a felony. It will be an outcome that Milo made clear that he did not want, and that Hurlbert said he was trying to avoid.
And as a consequence of the message sent from Judge Gannett’s courtroom, cyclists will be sharing the roads with drivers who now know that the consequences of hit-and-run collisions with cyclists are minimal, and well worth the risk of not stopping.
Research and assistance by Rick Bernardi, J.D.
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This article, Vail Hit & Run Follow-Up, originally appeared on Bicycling on January 19, 2011.