Jordan, this story inspired me to actually log-in, join and post versus just being a casual reader. I'm an attorney and used to be a prosecutor. The actions of the DA in Vail are indefensible. But the best way we can respond is to do exactly what you and the other ST'ers are doing: inundate the DA with calls, emails and negative press and shame the offender and call his actions out to his employer. Many of us probably deal with Morgan Stanley -my employer has its stock plan with them - and we should use all the leverage we have. There was another similar case recently in San Antonio which I've linked here. http://www.mysanantonio.com/...eaths_104130179.html There, the driver killed a husband and wife, leaving a child with no parents. The driver was charged with a Felony and faces up to 10 years in prison. Also, the argument made by the DA in Vail about restitution is bunk - I have prosecuted numerous defendants who, as part of their sentence, are required to pay restitution. It is not "double jeopardy." And then the victim can still sue the offender in civil court (remember the OJ case)? The victim is incredibly lucky here that the offender is probably wealthy, and probably has a lot of insurance. Thanks again for raising the profile of this story!

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It is the mind itself which builds the body.
-Joseph Pilates

James- Thanks for posting. The governor is an avid biker so hopefully he wll have some sympathy.

and let us not forget about the victim here. He's a freaking MD that may be unable to PRACTICE as an MD for the rest of his life. Wouldn't want to inconvenience a wealthy financial broker with his big important job of making wealthy people more money while an MD can no longer do something trivial like practice medicine because he was victim of a hit and run. Again- another example of dehumanizng someone because he decided to ride a bike. So when we ride bikes we lose our status as human beings and as a result we lose all rights to the rules of society that are supposed to protect us from crimes like this???

Am I missing something here? 2 misdemeanor charges for causing a lifetime of pain to someone? Oh wait the victim was on a bike. Move along people, nothing to see here. WTF??? It's outrageous and a slap in the face to all human beings that are supposed to be protected by our JUSTICE SYSTEM.

Doug,

Welcome to Slowtwitch! Since you're a former prosecutor, I am very interested in hearing your thoughts on this. Based on the DA's explanation of why he made the offer (the one that someone posted above, as opposed to the quote in the Vail Daily), why are his actions indefensible?

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Mike Sparks


I have competed well, I have finished the race, I have kept the faith.

Hi Mike. Thanks for your question. I have read with interest yours and others' posts and I note a good deal of skepticism on your part about the ST "lynch mob". I will be the first to champion a methodical and critical view of the facts before rushing to place blame, especially because I know first hand how complex these types of cases can be. What upsets me the most as a former asst. DA is the reference in the article to the victim and his attorney demanding that this be viewed as a "victims rights case." Those terms have special legal significance in many states, including Colorado. Colorado has a Victims Rights Act, where, if a crime falls under it, guarantees certain protections to vicitms, including the right to be present at certain case events, notification by the DA of developments, and basically a voice in the process of any plea bargains. Without a cite to the statute under which the driver was charged it is hard to tell, but a quick review of that law 24-4.1-301, et. seq., suggests that the felony probably was a Victim's Rights case. DA's do have the authority in each state to plea down felonies to misdemeanors and it happens every day all over the country for lots of reasons - not enough proof, overcrowded jails, etc. But the victims's rights laws give the victim a voice. I suspect that by dropping the case to misdemeanor the DA effectively took away the victim's voice here. That is what has me steamed. And that is what I believe is indefensible. Regards,

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It is the mind itself which builds the body.
-Joseph Pilates

I contacted Haddon today by email to try and get an interview for Slowtwitch. No reply yet. But I will follow up on the phone later in the week. Herbert also has the contact info, so hopefully between the two of us, we can get an interview with Dr. Milo and/or his lawyer.

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"Non est ad astra mollis e terris via." - Seneca | rappstar.com | FB - Rappstar Racing | IG - @jordanrapp

Doug,

If the DA is not meeting his obligations under C.R.S. section 24-4.1-301 et seq., that's (in my opinion) a legitimate reason to be upset. But do we know if those procedures are applicable in this case? If they apply, then I wonder why the victim and his attorney are demanding that this be viewed as a victims rights case. Either it's a victims right case or it isn't, right? Why the need to demand that it be viewed as one? I don't know anything about Colorado law, but C.R.S. section 24-4.1-302(1), which defines what constitutes a crime for purposes of the victims rights procedures, seems fairly clear about what offenses trigger the victims rights procedures.

I agree that it would be helpful if we knew what charges the DA filed. If the felony count was hit and run, I don't see that the procedures apply; if it was vehicular assault, they would apply. Looking at the jury instruction for vehicular assualt, and the definition of recklessly, it seems a stretch that was the charge, but again who knows.

Nearly everyone who has posted in this thread has already convicted Erzinger, and now the only question is what is appropriate punishment. They seem to look past the inconvenient truth that the DA still has a case to prove. People have said the facts aren't in dispute; I bet the defense would disagree.

I spent some time as a prosecutor myself. Granted I was prosecuting municipal code violations (barking dogs, chickens in the city, loud stereos, and the myriad odd ball crimes under our city's city code), but I was subject to the same ethical obligations as every other prosecutor. I know that I took those obligations seriously, and I have no reason to believe that the DA in this case doesn't also. What concerns me most about this thread is that based on one article in the Vail Daily (perhaps an exmplar of hard hitting, thorough journalism, perhaps not), and likely without a full understanding of the extent of a prosecutor's ethical obligations, just about everyone seems to think that the DA is ethically bankrupt.

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Mike Sparks


I have competed well, I have finished the race, I have kept the faith.

As some one who was hit and left clinging to life on the side of the road this story hits too close to home. Earlier this year ST did an article about my return to Ironman Lake Placid you can find out more about it there so I won’t go into too much detail but the accident left me with a debilitating and permanent spinal cord injury. The months of hospitalization and years of therapy Dr. Milo will endure just to recover from this accident are being all but dismissed by this DA’s decision to let this driver off the hook. I bet had this driver hit a child in his wealthy neighborhood there would be rallies outside his home and the police station/DA’s office calling for justice. In this case however it’s a tourist from another town so who cares right?! Jordan I applaud you for calling everyone to action. I am not advocating prison but this guy should be forced to live with this every day just like Mr. Milo and his family will.

Hi Doug,

I posted the DA's public reply here: http://www.vaildaily.com/...p;ParentProfile=1065

What I don't understand is what he seems to present as the "either/or" scenario. I.e., it was either "felony deferred judgement and sentence" for leaving the scene of an accident _OR_ the two misdemeanors - "leaving the scene of an accident and careless driving causing serious bodily injury."

What I want to know is, were those the ONLY two choices? And if so, why?

Thanks,

Jordan

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"Non est ad astra mollis e terris via." - Seneca | rappstar.com | FB - Rappstar Racing | IG - @jordanrapp

I wrote to DA Hulbert:

Hi DA Hulbert,

I just read your reply in the Vail Daily, and I had a question. What I don't understand is what you *seem* to present as the "either/or" scenario. I.e., it was either "felony deferred judgement and sentence" for leaving the scene of an accident _OR_ the two misdemeanors - "leaving the scene of an accident and careless driving causing serious bodily injury."

What I want to know is, were those the only two choices? And if so, why? What other options could you have pursued? It seems to be that is a critical piece of information that is missing from the discussion. You clearly did not have to do what Dr. Milo and Mr. Haddon wished, but what other charges could you have levied?

Very respectfully,

Jordan Rapp

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"Non est ad astra mollis e terris via." - Seneca | rappstar.com | FB - Rappstar Racing | IG - @jordanrapp

Which one of you guys put this in the comments on CNBC?

From Preston McBillionaire

This writer fellow is absolutely right. It is incredibly difficult being a private wealth manager in America. We are constantly targeted by the police whenever we run over prominent physicians in our luxury vehicles. DWB, or Driving While Billionaire, I call it. Poor folks are never unfairly targeted for prosecution, which is why our prison system is exclusively full of billionaires like me. Oh here are some sirens right now, what could this police officer want? I suppose I should pull over and stop typing this. I'm sure the officer will be nice though, he is colored just like my servants and they all very friendly to me. Maybe they know each other! Good bye.

Well played, my friend. Well played.

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-All You Haters Suck My Balls-

Jordan,

I'll be interested to hear Doug's response. Remember, we're talking about a negotiated settlement of the charges. If the criminal complaint charged Erzinger with a felony and two misdemeanors, the DA has to give up something to make it worth while for Erzinger to accept the offer. I'm only speculating here, but under the circumstances maybe the DA saw this as the most palatable solution. Keep in mind that it's possible that as the case developed the DA may have realized that a felony conviction just might not be in the cards.

For an interesting read on the ethical obligations of prosecutors see http://www.abanet.org/...mag/20-2/ethics.html

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Mike Sparks


I have competed well, I have finished the race, I have kept the faith.

Jordan, those were not the only 2 choices. The DA can choose to offer no plea bargain at all and force the case to trial, and then the final decision on conviction or not on the misdemeanors and felony would be in the jury's hands. Or, on the other end of the spectrum, the DA could choose to dismiss the case completely and not pursue any criminal prosecution at all. But, like 99% of the cases out there, a plea bargain somewhere in the middle was the most realistic way to resolve the case.

I assume Dr. Milo wanted a felony DJ&S because it would then be admissible in a civil trial, but Mark Hurlbert is correct that with a successfully completed DJ&S the driver could petition the court to seal his records and no record of this event would appear on his criminal history. With a misdemeanor conviction, though, both the arrest and conviction will remain on his criminal history forever (but the conviction, itself, wouldn't be admissible in a civil trial).

Jordan - thanks for taking the cause on this. I will sign the petition.

The flaw in the DA's logic is that he pins his whole argument on what Dr. Milo supposedly asked him to do. In his mind, he did the right thing because it may have longer lasting implications to Mr. Fat Cat but he completely (to your point) disregards just a plain felony (not deferred).

The big question is "why didn't you just pursue the felony?" It seems that this is what he should have done...

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Disgusting. This guy should be taken care of.

Jordan,
It's a great question. I agree with TriBreck's response. Pleas are tricky - generally if you have the facts that make out a felony, the only misdemeanors you can plea to are what's known as "lesser included offenses" meaning that they constitute, some, but not all, of the elements required to charge a felony. So under this set of facts, there were a limited number of option available. Generally, DAs have tremendous discretion on whom and how to charge and they have that to insulate them from public sentiment especially when things get very heated. Once the plea is entered and a judge agrees, there is no real recourse, except at the voting booth. An opponent could seize on this as an example of poor judgment by the current DA and use it against him in an election. We are doing the best possible thing here that we can do - to shine a light on it. BTW, your personal story is amazing, and I understand why this means so much to you. I was at IM AZ as a fan when you won. Hopefully you have many more IM victories in your future. Thanks again for bringing attention to this tragedy. Best,

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It is the mind itself which builds the body.
-Joseph Pilates

It was quick and easy to write the governor. Link worked fine:

http://bit.ly/xBBPt

My letter:

Dear Mr. Governor,

Please consider issuing an executive order to re-open the case of the recent hit-and-run against a cyclist in Eagle County. District Attorney Mark Hurlbert reduced the crime against the accused from a felony to a misdemeanor, sending the message to drivers in the state of Colorado that hit-and-run is no big deal so long as the person they hit is on a bicycle.

Your a Good Man Mr Rappstar!

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** ** ** ** ** ** ** ** ** ** ** **
If you aren't sweating you aren't having fun!

done.

This was my concern from the very beginning, but not how you're thinking. We didn't know from the beginning what the victim wanted, but it seems we do now and that isn't enough for people? I'm sorry, I know why you're emotionally involved Mr. Rapp, and I know why cyclists and triathletes are emotionally involved, because of the number of people hit on bikes. But it feels like this is a bit of bandwagon justice (I wont go as far as lynch mob mentality), and to me this is folly. Just my opinion, and I do understand the sentiment. But this case, with the plantiff and defendant on board with the justice being served, is frankly not something we should be in the middle of, concerned citizens or not.

If everyone put the amount of effort shown here into persuading lawmakers to get anti-distracted driving laws on the books, money into road improvement projects focused on bike safety, and including share the road rules in every states drivers education courses and driver education tests we'd get a lot more accomplished than involving ourselves in a case where the horses have long ago left the barn and the door is basically closed.

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You don't have to like what I say but you should respect my right to say them and I'll do the same to you.

letter sent

I'll never understand the sentiment that believes what we, as a society do with such a perpetrator should be based on what we think he will learn.

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You don't have to like what I say but you should respect my right to say them and I'll do the same to you.

What does it teach when someone gets off with paying money? It teaches me that rich people can buy their way out of things. That's the "education" that people take from this.

I don't give a damn what he learns and sure as hell don't want him teaching anyone. There's nothing positive to be learned from this. We already know that hit and run is bad.

Thank you. Great reply (and Doug too). Another lawyer friend of mine commented on Facebook:

What the DA is trying to do with this self-serving letter is articulate that there was no consideration given to the financial situation of Erzinger except for his ability to pay restitution. What he's trying to do here is convince the reader that the double misdemeanor plea is actually more damning for Erzinger than the felony/deferred plea would have been, and he's right, in the long run. While the worst outcome for Erzinger would have been felony jury conviction, that path would not have been without risk for the DA. Erzinger may have been acquitted by the jury. The plea bargain must benefit both parties, and it does, with the DA getting the certainty of a conviction (plus cost/time savings) and Erzinger getting something less than the felony, yet not a deferred judgment that can be quickly expunged. I see the logic.

I think that what Erzinger did was abominable, at least he came around and admitted fault, which will leave an easy path for restitution. And that's justice. It's gonna hurt Erzinger, and if I were representing Dr. Milo, I'd seek some heavy punitive damages based on Erzinger's behavior after the fact. With future loss of earnings factored in, it's gonna be a big judgment.

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"Non est ad astra mollis e terris via." - Seneca | rappstar.com | FB - Rappstar Racing | IG - @jordanrapp