Vail Daily letter: What constitutes justice? | VailDaily.com
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Vail Daily letter: What constitutes justice?

“And justice for all,”the ending phrase of the American pledge of allegiance (Bellamy 1892), has merit and should be recognized in American jurisprudence.

This high road should apply to the pending criminal case of “People of the State of Colorado vs. Martin Joel Erzinger.”

District Attorney Mark Hurlbert’s negotiated settlement with Erzinger is his endeavor to seek justice for all in this case – for Erzinger, Dr. Steven Milo (the victim), and lastly, for the community (the state of Colorado).



It is a given that: (i) Erzinger’s egregious conduct, if proven, would be classified as a felony under our statutory scheme of things; (ii) that as a result of that conduct, Milo suffered substantial and grievous injuries; and (iii) that at face value, the community in which we live wants justice in the matter. That is the rub of it all.

I have gathered from most of the letters to the editor in the Vail Daily that there is a sense of condemnation for Hurlbert’s conduct in representing the community and his efforts to find a judicial resolution for Milo’s injuries.



Justice is a relative term, since what one man (the perpetrator) sees as fair and equitable, another (the victim) might not agree. We (the community) are left with the dilemma of resolving that conflict, which brings to mind the question of how we define the term justice in a way that is acceptable to most. Is it solely punishment? Is it retaliation? Is it revenge? Is it to showcase the proscribed conduct?

Or should it be an endeavor to restore the defendant and victim to a status quo that existed before the criminal event first occurred as best the defendant and community can? This latter definition is commonly referred to as “restorative justice,” and it is the most humane, constructive and altruistic of all.

Were Hurlbert to strictly prosecute the felony statutes in this case without consideration of the financial, emotional and personal consequences that may befall Erzinger, would that course facilitate the return of the defendant to society as a responsible citizen? I think not.



On the other hand, were he to merely waive the condemned conduct of Erzinger, would that be fair and equitable to Milo? I think not.

Finally, were Hurlbert to simply clear the docket and get the matter behind him for efficiency’s sake, would that be serving the community and our system of jurisprudence? I think not.

So I take note that the DA in this case has considered one of the statutory tools that is available (deferred sentence and judgment) to apply restorative justice for the defendant. If that shoe fits, the defendant will remain a free and contributing member of society, a benefit to the victim, and the latter will perhaps suffer less from his injuries with the consolation that he helped to promote the reinstatement of the defendant to citizenship with its attendant civil rights.

Restorative justice is concerned not so much with retribution and punishment as with making the victim whole and reintegrating the offender into society. This approach frequently brings an offender and a victim together, so that the offender can better understand the effect his/her offense had on the victim.

When the packaged settlement is presented to the court at sentencing, the judge then must ascertain if the disposition of the charges is appropriate under the circumstances, taking into account the defendant’s criminal record, if any, the gravity of the crime (major in this case), remorse and empathy toward the victim the defendant has shown, the defendant’s acknowledgement of his wrongdoing and what the community and/or victim would exact from the defendant to become satiated.

Were the court to find that Erzinger readily admitted responsibility for the injurious acts, and reached out on his own volition to Milo to express his remorse and to make reparations, notwithstanding the consequences, that would be big and a determining factor in accepting the stipulated plea.

But were the defendant lawyered up and out of touch with the victim, neither admitting responsibility, empathy nor compassion, then that would seem to indicate that there is self-interest at play. Will Erzinger pass his retributive obligations off on his insurance company or that of the victim?

Would it not be more appropriate for Erzinger to pay for Milo’s damages personally and then financially suffer also for his conduct? Milo not only has his enduring pain, but also suffers financially.

Has Erzinger personally communicated with Milo, expressed his great sorrow and admitted to his wrongdoing, notwithstanding the admonishment of his lawyer?

These are the nuances that the community looks for, what the court should consider and what restorative justice would require.

If Hurlbert has read all of the redeeming and exemplary signs exhibited by Erzinger and trusts his instincts that this defendant should be restored to the community as a responsible, law-abiding and remorseful citizen, then by all means proceed on course.

As Rudyard Kipling once mused, “If you can trust yourself when all men doubt you, but make allowance for their doubting, too,” then Hurlbert should promote his restorative agenda, notwithstanding the doubts that I and the community may have.

However, I fear that Erzinger may be marching to the drum of his lawyer rather than to the beat of his pulse.

Fredric Butler


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