Gotta Love Plutocracy

[Capt. Slo-mo]

Not that it's any secret that the rich often get a different kind of experience when they enter the legal arena, but this one is particularly galling.

A wealth fund manager who hit a biker and fled the scene will not be charged with a felony, because it might impact his ability to manage his billion dollar fund.

The victim? A liver transplant surgeon who suffered severe injuries.

[Inquartata]

Um...so the defendant's attorney thinks it should be a felony.

And this should be the deciding factor in the charging?

Maybe you're focusing on the wrong part of the story.

Not that the story has enough details to create informed opinions or anything...

[WGH]

Where does it say that the defendant's attorney thinks it should be a felony? The victim's attorney thinks it should be a felony. The defendant, the prosecuting attorney and the District Attorney think it shouldn't be. Kinda screws the victim if both sides in court don't want it to be a felony.

[I_luv_saber]

It's a bit of an exaggeration, but rings true surprisingly often: If you ever want to commit murder, make sure you're in a car and they're on a bike.

Which brings be to two points - one is that while it's certainly silly, a lot of it has to do with the lack of seriousness we treat driving-related charges here in the States (couples with cycling bias, generally). People get cart blanche to drive inattentively, and if they hit someone they can just say "oops, it was an accident" and get a slap on the wrist. Literally hundreds of cyclists die with little consequences to their killers because of this attitude (I could direct you to quite a few articles). Most of this problem is how we view the responsibility (or lack thereof) of driving.

On the second point, I found it hilarious that one of the excuses given as to why they were not charging as a felony was because it could jeopardize his job, hence make it harder for him to pay compensation. Ignoring for a moment the fact his insurance would probably foot the bill anyway, since when has this mattered? This angle is absolutely an example of distorted justice due to wealth and/or social standing, IMNSHO.

Hitting someone and leaving them for dead should absolutely be a felony.

[Capt. Slo-mo]

It's true, a defendant's lawyer always thinks in reductionist terms, but that's not the point.

1. The man hit a cyclist, caused serious injuries, left the scene of an accident, and tried to hide the evidence. That's a misdemeanor?
2. A felony was on the table, but withdrawn by the DA on a day's notice to the victim.
"The original complaint included a felony count against Erzinger for causing serious bodily injury. Deputy DA Mark Brostrom is prosecuting the case and Milo says in court documents that Brostrom called Erzinger's July 3 actions “egregious.” Prosecutors pleaded the case down to a misdemeanor later in the summer, then in August told Milo and his attorneys that Erzinger would face a felony charge, Haddon wrote."
3. The rationale was not that there was insufficient evidence, but: “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.”

Now, picture if this had been an illegal immigrant driving and hitting the hedge fund manager. Think the DA would have reduced it to a misdemeanor, so the driver could keep his sub-minimum wage job landscaping the East Vail mansions and make restitution? Think Fox Noise would have been on a 48-hour non-stop histrionics cycle about it?

[Inquartata]

Where does it say that the defendant's attorney thinks it should be a felony? The victim's attorney thinks it should be a felony. The defendant, the prosecuting attorney and the District Attorney think it shouldn't be. Kinda screws the victim if both sides in court don't want it to be a felony.

Heh. Yes.

Sorry, I meant the plaintiff's attorney.

1. The man hit a cyclist, caused serious injuries, left the scene of an accident, and tried to hide the evidence. That's a misdemeanor?

Pardon, but---these are only allegations at this point. All "facts" are "according to court documents". We are not told which "court documents".

And nowhere in the article do I see "tried to hide the evidence".

In this day and age it is entirely possible that the motorist clipped the cyclist with his passenger-side mirror and never realized it, and merely kept driving unaware that anything had happened...and that the cyclist took a spill and sprained a wrist ( which for a surgeon would certainly qualify as a "debilitating" injury, if not a particularly grievous one.

It's also possible that he ran him down with malice aforethought, and left him in a body cast.

Or anything in between. And it's up to the DA's office to set charges based upon their determination of the totality of the facts, rather than upon the wishes and beliefs of either party, or their attorneys.

One side is always going to be outraged by the decision, the other relieved. That's how it works...

2. A felony was on the table, but withdrawn by the DA on a day's notice to the victim.

Everything is always "on the table". Everything is NOT always warranted, however.

"The original complaint included a felony count against Erzinger for causing serious bodily injury.

The tendency is to file the most serious charge supportable. If then the case is not deemed winnable, the charges are downgraded. Pretty standard practice ( as are the howlings of plaintiff's attorneys when it happens ).

Deputy DA Mark Brostrom is prosecuting the case and Milo says in court documents that Brostrom called Erzinger's July 3 actions “egregious.”

Well! Plaintiff says! I guess that settles it, then!

Prosecutors pleaded the case down to a misdemeanor later in the summer, then in August told Milo and his attorneys that Erzinger would face a felony charge, Haddon wrote."

Also pretty standard practice, I understand.

3. The rationale was not that there was insufficient evidence, but: “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.”

That's a rationale. I missed where it's the rationale...

Yeah, it sounds a bit shaky to me. But I'd be very surprised if it were the only reason given, as opposed to the only one given in the plaintiff's attorney's press release.

Now, picture if this had been an illegal immigrant driving and hitting the hedge fund manager. Think the DA would have reduced it to a misdemeanor, so the driver could keep his sub-minimum wage job landscaping the East Vail mansions and make restitution? Think Fox Noise would have been on a 48-hour non-stop histrionics cycle about it?

Objection, Your Honor, calls for speculation.


Now, picture if this had been an escaped convict fleeing police in a car equipped with bladed wheels a la Egyptian chariots, and the victim had been an 80-year-old nun taking a meal to a shut-in handicapped child! :P

[Capt. Slo-mo]

Let's give the DA his say, from an op-ed piece in the local Vail paper.

You now, being all fair, and all.

[the ancient one]

At the end of the day Milo will be convicted of vandalism to Erzinger's car.

[erik_blank]

At the end of the day Milo will be convicted of vandalism to Erzinger's car.

Only after pleabarganing away the charge of attempted Grand Theft Auto and attempted homicide against Erzinger. Isn't it obvious that this bleeding heart liberal cyclist was only there in an attempt to intentionally get run over so that he could kill Ezringer and take his car?

[Inquartata]

Let's give the DA his say, from an op-ed piece in the local Vail paper.

You now, being all fair, and all.

Here's the part I found most interesting:

"Despite what is implied in the Vail Daily, 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.

What this means is that Mr. Erzinger would plead to a felony leaving the scene of an accident, and the judgment would be set aside."

I was not aware that prosecutors gave weight to which charges a victim "asks" to have filed. ( Or I suppose what his lawyer asked to have filed, really. ) I have never heard of this sort of thing going on, and I'd think it as inappropriate as for the offender ( or his attorney ) to ask for specific charges...

[I_luv_saber]

In this day and age it is entirely possible that the motorist clipped the cyclist with his passenger-side mirror and never realized it, and merely kept driving unaware that anything had happened...and that the cyclist took a spill and sprained a wrist ( which for a surgeon would certainly qualify as a "debilitating" injury, if not a particularly grievous one.

If you are operating a 1+ ton vehicle, and you are hitting things without realizing it, you should not be operating a vehicle.

The victim suffered "very serious" injuries to his brain and spinal cord.

And apparently he realized he hit something at least at some point, because he stopped miles up the road to call roadside assistance for damage to his car.

Or anything in between. And it's up to the DA's office to set charges based upon their determination of the totality of the facts, rather than upon the wishes and beliefs of either party, or their attorneys.

But the odd part is that this even came into play:

[Hulbert]"Felony convictions have some pretty serious job implications for someone in Mr. Erzinger's profession, and that entered into it... Justice in this case includes restitution and the ability to pay it."

No - hitting someone and leaving them for dead is a crime, and it's prosecuted heavily because such people are deemed a danger to society. So it seems the facts of the case were not the only basis, or possibly even the main basis, for choosing not to pursue a felony, and that's what people are taking issue with.

http://bikeportland.org/2010/11/08/a...colorado-42320

[Capt. Slo-mo]

Yes, especially since an assistant DA termed the driver's actions "egregious" earlier in the process, it raises all sorts of questions. Before posting his op-ed piece, the Vail DA had also tried to make the case that a misdemeanor charge was somehow worse than a felony, because it couldn't be expunged from the perp's record. Which, of course, passes right by the whole "can't be a ginormous money fund manager with a felony" issue.

Another thing I found odd was the DA's statement that drugs and alcohol were not involved. How would he know? The perp was not immediately arrested, and since there is no report of a negative test, I am suspicious about whether so much time had gone, no test was ever taken.

Meanwhile: hitting a cyclist, leaving them for dead, and trying to fix your car before the coppers arrive=misdemeanor charges for the Vail DA. Want to know what warrants a felony charge from this bastion of justice? Using fake ID numbers in a mountain bike race.

[Inquartata]

If you are operating a 1+ ton vehicle, and you are hitting things without realizing it, you should not be operating a vehicle.

However, that is not what's being litigated in this case. ( And it would probably spell the end of loud stereos and cell phone use in cars. One can only hope. )

The victim suffered "very serious" injuries to his brain and spinal cord.

I'd be less skeptical if that judgement were coming from a doctor instead of from the victim's lawyer via a journalist...

And apparently he realized he hit something at least at some point, because he stopped miles up the road to call roadside assistance for damage to his car.

Yes, he also hit a culvert. The story mentions damage to his mirror and bumper. The former could easily have occurred when he hit ( allegedly ) Milo, and the latter when he hit the culvert. As I said, the one could have gone unnoticed. The mirrors on my car are designed to "fold back" against the chassis, which could reduce any noise or feel of impact.

[Hulbert]"Felony convictions have some pretty serious job implications for someone in Mr. Erzinger's profession, and that entered into it... Justice in this case includes restitution and the ability to pay it."

Why? You'd rather the victim just have to absorb his financial losses and medical expenses himself? Why should making the guilty party pay not enter into a prosecutor's decision?

[Inquartata]

Yes, especially since an assistant DA termed the driver's actions "egregious" earlier in the process, it raises all sorts of questions. Before posting his op-ed piece, the Vail DA had also tried to make the case that a misdemeanor charge was somehow worse than a felony

"felony deferred judgment and sentence".

Another thing I found odd was the DA's statement that drugs and alcohol were not involved. How would he know? The perp was not immediately arrested, and since there is no report of a negative test, I am suspicious about whether so much time had gone, no test was ever taken.

Ah, so NOW you're interested in what details were NOT mentioned in that news article? This is so sudden...

This is why we have such a complicated court system with, things like voir dire and all: So we don't get jurors who have made up their minds already from reading a newspaper, and go in thinking defendant's are guilty, with the only questions in their minds being how harshly he deserves to be punished...

[shlepzig]

However, that is not what's being litigated in this case. ( And it would probably spell the end of loud stereos and cell phone use in cars. One can only hope. )



I'd be less skeptical if that judgement were coming from a doctor instead of from the victim's lawyer via a journalist...

Dr. Milo has made several statements to the press as well, in fact the "left for dead on the side of the road" quote is from Dr. Milo not his lawyer.

Yes, he also hit a culvert. The story mentions damage to his mirror and bumper. The former could easily have occurred when he hit ( allegedly ) Milo, and the latter when he hit the culvert. As I said, the one could have gone unnoticed. The mirrors on my car are designed to "fold back" against the chassis, which could reduce any noise or feel of impact.

Indeed that damage could have happened when he hit the culvert, and it is possible that he did not know he hit a man. Why was he found putting the damaged mirror and bumper in his trunk when police found him? I have never been encouraged by an insurance adjustor to remove damaged items from a vehicle before taking it to a shop for an estimate for repairs. In my opinion, the actions of mr. Erzinger do not match up with his story that he did not know he struck someone.

Why? You'd rather the victim just have to absorb his financial losses and medical expenses himself? Why should making the guilty party pay not enter into a prosecutor's decision?

Mr. Erzinger's collision insurance will probably pay most of the bill regardless how it works out. It is also not the criminal court's decision to decide any part of the restitution, this is a criminal proceeding, and Dr. Milo is pursuing his Victims Rights in the criminal case as established in Colorado. The inevitable civil case will determine the restitution and payment.

see:
Bicycling.com Road Rights - Hit And Run In Vail Incites Outrage
Velonews.com Is Having A Mercedes An Affirmative Defense

<adding this link about other hit and run incidents>
Bicycling.com Road Rights - Hit And Run

-Shlep'

[I_luv_saber]

However, that is not what's being litigated in this case. ( And it would probably spell the end of loud stereos and cell phone use in cars. One can only hope. )

Indeed.

I'd be less skeptical if that judgement were coming from a doctor instead of from the victim's lawyer via a journalist...

I think it's far more likely. One does not often get lucky enough to be hit by a car at these sorts of speeds, even the side mirrors, and come out with just a sprained wrist. Many cyclists have died from being hit in the head with a side mirror, actually.

Yes, he also hit a culvert. The story mentions damage to his mirror and bumper. The former could easily have occurred when he hit ( allegedly ) Milo, and the latter when he hit the culvert. As I said, the one could have gone unnoticed. The mirrors on my car are designed to "fold back" against the chassis, which could reduce any noise or feel of impact.

I still find it very hard to believe he did not notice. Besides which, if the DA believes that he did indeed not notice, why is he prosecuting the case at all? If he's prosecuting a hit-and-run, should this not be a felony charge? I mean, if the man is innocent of intentionally fleeing the scene, then obviously he should not be charged for such (though I'd have no problem with yanking away his license) - but if he's being charged for it, what's with the tuned down charges, especially for such a weak reason?

Why? You'd rather the victim just have to absorb his financial losses and medical expenses himself? Why should making the guilty party pay not enter into a prosecutor's decision?

1. The guy has insurance which should cover these sorts of things. That's why it's generally an obligation to have insurance.
2. If for whatever reason he does not, or it will not pay, I'm finding it pretty unlikely he does not have the assets to do so anyway.
3. Where is the precedent that one should not charge a felony "because then he'd have to disclose that and it might effect his job"? Criminal cases are not all about the victim, they are also very much about the offender's effect on society.

If he is being charged with hit-and-run, then the charge is he is a danger to society. This should not be ignored simply because it might effect his job. Would you feel differently if it were another, "worse" felony charge? Manslaughter? Murder? Where do we draw the line?

[Capt. Slo-mo]

Actually, there are a number of unclear details. For instance, how long after the accident was the perp arrested? Hours? Days? How did they identify him? An eyewitness? Phone call from the shop?

The perp says he hit a culvert, causing at least some of the damage. Is this independently verified? Or just his claim? Or was the culvert impact an attempt to muddy evidence and further avoid liability?

Meanwhile, restituitional strength should be the LAST thing considered in a criminal proceeding. As ILS noted, a billion dollar fund manager likely has insurance for medical bills for the vic, and substantial personal wealth...which can be a target of a civil lawsuit, once the criminal proceedings have concluded.

Otherwise, you devolve this situation into means testing for criminal culpability.

Unless you are a mountain biker who swapped race bibs. If so, be prepared for the full force and weight of the law, in Vail County.

[shlepzig]

This is the most succint timeline I have read thus-far. From:
Bicycling.com Road Rights - Hit and Run In Vail Inspires Outrage

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.

It does not appear that a lot of time passed between the accident and the arrest. Though Mr. Erzinger did have enough time to get towed and then remove his bumper and side mirror at home. So it was probably a few hours.

-Shlep

[Philistine]

[*]The guy has insurance which should cover these sorts of things. That's why it's generally an obligation to have insurance.

My guess is that his car insurance will probably be inadequate, given the injuries and probable lost wages and other non-medical damages. Maybe there's an umbrella, which would be smart, of a million or two.

[*]If for whatever reason he does not, or it will not pay, I'm finding it pretty unlikely he does not have the assets to do so anyway.

Yeah, seems likely.

[*]Where is the precedent that one should not charge a felony "because then he'd have to disclose that and it might effect his job"? Criminal cases are not all about the victim, they are also very much about the offender's effect on society.

To be fair, that argument, or variants, aren't that uncommon. There are a lot of jobs where the biggest ramifications of a felony conviction are loss of current and future employment.

The thing that had me scratching my head about the restitution arguments was that the DA appeared to be making the argument that they declined to go with the victim's wants about charging a felony, because that would interfere with the ability to pay restitution to the victim, himself.

If he is being charged with hit-and-run, then the charge is he is a danger to society. This should not be ignored simply because it might effect his job. Would you feel differently if it were another, "worse" felony charge? Manslaughter? Murder? Where do we draw the line?

[/quote]

I don't know anything about Colorado law in general, but it doesn't surprise me in any way that a first-time offender would be allowed to plead to a misdemeanor in these circumstances (it wouldn't shock me if it went the other way).

OTOH, from what I've read, including the bit about the "identity theft" prosecution, this guy seems to be a bit of a hardass. Bottom line, my guess is the decision to accept the plea had more to do with difficulty in proving the case against competent representation than anything else.

--Philistine

[Hauptman]

A wealth fund manager who hit a biker and fled the scene will not be charged with a felony, because it might impact his ability to manage his billion dollar fund.

This thread is digressing unnecessarily. The key point is the quote above. The authorities did not say that they dropped the felony charge because they could not win, or that there was a lack of evidence. They said that it might impact his ability to work, and that is completely inappropriate and inconsistant with standard practice.