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Vail Daily editorial: Judge should reject plea bargain

Vail Daily Editorial Board
Vail, CO Colorado

The district attorney appears to have overthought a curious case with Great Gatsbian undertones.

A wealthy money handler was offered a plea bargain in which he would be charged with misdemeanors after allegedly striking and seriously injuring a bicyclist in July, then driving away.

The cyclist and his lawyer furiously questioned why the charges against the driver would not remain felonies. The story Friday about their fury ignited enough outrage across the country that the district attorney acknowledged receiving over a thousand e-mails by Monday.



And that was just the start.

The DA, Mark Hurlbert, explained in a Valley Voices column on Tuesday that a plea bargain including a “felony with deferred judgment” would not work. The charge could later be stricken from the driver’s record. The driver, Martin Erzinger, could someday deny the accident on Highway 6 in Edwards ever happened. Besides, he had a clean record until now.



Meantime, the cyclist, Dr. Steven Milo, faces further surgery for spinal injuries. He also suffered from bleeding in his brain, and damage to a knee and shoulder.

This was hardly a fender bender for the cyclist.

Erzinger drove off – “left me for dead on the highway,” as Milo put it – and Avon police found him near the Avon I-70 interchange, putting a broken side mirror and bumper into the trunk of his new black Mercedes.



His lawyer later suggested Erzinger might have had sleep apnea when he struck the bicycle from behind. Prosecutors scoffed at that one, and initially filed felony charges. So far, so good.

But then the case took the turn that has landed it on national media including the “Today” show and Huffington Post, and brought the Vail Daily website traffic not seen since the Kobe Bryant case in 2003-04. Interestingly enough, the cyclist’s attorney, Hal Haddon, represented Bryant against Hurlbert. So in a way, this is deja vu all over again.

Hurlbert’s wounds this time, however, are entirely self-inflicted.

He rather clumsily explained that a felony might make restitution more difficult if the money manager’s employment were jeopardized.

“Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it,” Hurlbert said. “When you’re talking about restitution, you don’t want to take away his ability to pay.”

Some critics among the cyclist community have suggesated that the effect of a felony charge on employment did not seem to affect the prosecution of a case last spring against two women who committed the high offense of trading bibs for a bicycle race in Leadville. (Those charges eventually were lowered to misdemeanors in plea bargains much like this one.)

Is that how it goes in Eagle County? they ask. Checkbook justice? How good of a job does one need in order to magically turn felonies into misdemeanors?

This tale plays almost perfectly to an archetype perhaps best described in the line ascribed to F. Scott Fitzgerald: “The rich, they are not like you and me.”

That the line – and the line of reasoning at work here – actually are false isn’t going to get in the way of a good story, though. Those under the influence of their outrage will not let such nuance get in the way of their scorn.

Back to Kobe for a second. His wealth obviously didn’t cause Hurlbert and team to back off that case. You can believe Hurlbert when he says a defendant’s riches or stature won’t sway his judgment.

But something did.

The DA appears to have outsmarted himself by getting tangled in matters of secondary concern to a criminal case. Those can be saved for civil litigation, and that’s why Haddon is involved. This, too, Hurlbert might have learned from the Kobe Bryant case after the victim stopped cooperating with the prosecutors and eventually got her restitution through a lawsuit settlement.

Forget misdemeanor vs. “felony with deferred judgment” and all the complicated economic and criminal record implications of various plea bargains.

There’s another obvious option: Simply prosecute this straight up as the serious hit-and-run criminal case it is. If Mr. Erzinger wants to plead guilty, fine. If not, go to trial. Duh.

A misdemeanor is in order for a case of trying to save some registration money by switching a bib before a bike race. A felony might be more appropriate in the event of “leaving me for dead on the highway.”

County Court Judge Katharine Sullivan should help the district attorney get his priorities back in order by rejecting a frankly poorly considered plea bargain.

Let Erzinger worry about the implications for his job. The DA’s job description, last we looked, does not include employment counselor.


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