Good intentions, it is said, pave the road to Hell. It’s an especially direct road when the good intentions are those of a prosecutor who doesn’t have the skills or common sense to reach the correct decision to resolve a rather easy ethical conflict. An ethical conflict occurs when there are valid ethical arguments for diametrically opposed actions, and one must weigh the priorities, implications and likely results in order to make the most ethical choice. Mark Hurlbert, the district attorney for Eagle, Colorado, faced such a conflict, as prosecutors often do. He botched it royally, and that road he’s paving is going to reach far beyond Colorado.
Dr. Stephen Milo, a surgeon who specializes in liver transplants, was cycling by the side of a road when he was hit from behind by a speeding Mercedes-Benz sedan that veered into him. Milo was thrown to the pavement, and suffered spinal cord injuries, bleeding from his brain and damage to his knee and scapula, as well as facial injuries that will require a series of surgeries. The driver did not stop or report the accident; instead, he drove to the next town and had his car turned in for repairs. Naturally, he claims now that he didn’t know he had hit anyone, which is either a lie or additional proof that he was driving while impaired. Nobody believes him.
This would be, as you can tell, a fairly brutal issue hit-and-run felony, with possible prison time and serious civil damages as well. But prosecutor Hurlbert, thinking it all through, reached a different, “ethical” conclusion. The driver of the Mercedes was Martin Joel Erzinger, who manages more than $1 billion in assets for Morgan Stanley in Denver. Hurlbert reasoned that charging him with a felony and seeking prison time will only result in him losing his lucrative job, and thus reduce the amount of damages Milo would be able to win from him in the inevitable lawsuit. Thus, he offered Erzinger a plea bargain for restitution and two misdemeanors . “Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it,” Hurlbert told the local press. “When you’re talking about restitution, you don’t want to take away his ability to pay.”
“It’s our call,” he added.
And an unbelievably bad call it is. Nobody seems to think this is a fair or logical example of prosecutorial discretion, even the victim, who objected strenuously to Erzinger escaping without facing felony charges.”Mr. Erzinger struck me, fled and left me for dead on the highway,” Milo has written to Hurlbert. “Neither his financial prominence nor my financial situation should be factors in your prosecution of this case.”
Erzinger, of course, is pleased as punch. So is the Business Investor, which actually argued for the justice of Hurlbert’s decision, writing,
“…consider how his punishment is shaping up. He might be working for the rest of his life and giving much of his paycheck to the victim, Dr. Milo. Milo’s family was presumably pretty well-off too, as a doctor from New York City. So imagine the kind of lifestyle Erzinger might have to support now that Milo is, sadly, it seems, completely debilitated, having suffered a really terrible, hit and run at the hands of Erzinger.”
Everyone else, it seems, is shocked and nauseated. The site Change.org has posted a petition asking signers to protest letting a hit-and-run driver off lightly because, in essence, he’s rich and the prosecutor wants him to be able to stay that way. Prosecutors don’t respond to petitions, nor should they: justice isn’t a popularity contest. A cycling site has called for Hurlbut to be disbarred; that’s not going to happen either, but firing him would be an excellent idea. Here is what is unethical and unreasonable about the handling of this case:
- Hurlbert’s first obligation is to enforce the laws, closely followed by his duty to ensure fairness and equal treatment in the justice system and the key job of protecting that system’s integrity while maintaining the public trust. This decision is contrary to all three of those.
- A district attorney’s job is to make sure the criminal system works, not to try to micro-manage restitution. The final plea deal included, reports say, “significant” financial commitments to Milo, but when a prosecutor is involved in trading charges for cash, what does that look like? It looks like rich people can buy off justice, and that is exactly what happened. Ask yourself this: would a less wealthy “perp” be able to use his checkbook to avoid jail time? Or this: what if Milo had died, the victim of a probably intoxicated driver who fled to avoid charges of manslaughter? Would Hurlbert make the same kind of deal?
- When the reaction of virtually everyone who hears about the reduced charge is either “So poor guys get charged with felonies and rich guys get charged with misdemeanors” or, as Abandon Your Car posted, “…the whole thing reeks of a pay-off,” we have a classic “appearance of impropriety” situation, something that every government code of conduct commands public employees to avoid.
Certainly prosecutors have to exercise discretion regarding who, what and when to charge, and a decision to treat an in individual more leniently in light of his or her past achievements and future potential to benefit the community can be defended as ethical, though such decisions still raise legitimate equal treatment and bias questions. Hurlbert’s logic, if you can call it that, is based on money and only money, reaching the perverse conclusion that the best way to punish a rich guy is to let him stay rich. This is either naive or stupid; hasn’t Hurlbert seen “Trading Places”? As Eddie Murphy sagely noted in that classic film, “You know, it occurs to me that the best way you hurt rich people is by turning them into poor people.” And while the victim’s wishes should not determine the course of prosecution where serious crimes are involved, the fact that Dr. Milo was more interested in seeing the criminal laws upheld than he is in getting the maximum damages is telling. He’s thinking like a prosecutor. Hurlbert, the prosecutor, is thinking like..well, he’s not thinking at all.
He has made American justice look like a rigged rich man’s game; he has called into question the integrity of his office and the justice system itself; he has let an irresponsible and even dangerous lawbreaker avoid the full consequences of his actions, and the alleged justification for all of this—-making sure that Dr. Milo gets more in restitution—isn’t guaranteed. Meanwhile, I think Erzinger should lose his job anyway. If Morgan Stanley would fire a manager because he was charged with a felony, why wouldn’t it fire a manager who committed a felony? Erzinger’s actions implicate his judgment and trustworthiness, and he has embarrassed his employer and his profession. Morgan Stanley, however, doesn’t see it that way, telling the Huffington Post:
“This unfortunate situation was not related to the individual’s professional activities, but we are continuing to monitor the situation and will cooperate fully with law enforcement, if requested.”
Translation: “We’ll happily employ felons in positions of trust as long as they confine their felonies to their private lives.”
Good to know.
Ethics Alarms 
As a public defender, I am aghast. As it is now, I bring up Lindsay Lohen and Brittany Spears at every revocation proceeding I defend, usually to no avail. Now I have one more rubber arrow to shoot when I am defending some poor probationer who has relapsed.
Why not take all the money Erzinger has now and then put him in prison? He must have tremendous assets of his own that are accessible: take them all, and put him away. Surely the D.A. could have thought of that. Erzinger’s FUTURE earnings are not the only thing available. What about his own liquid assets, investments, real estate, etc.? Didn’t look too far into that, did he? Someone should bring him up on ethics charges. Or simply deem him “unfit to practice.”
Frankly, I had no idea that a DA had THAT much leeway in enforcing the law. Key phrase: “enforcing the law.” Something tells me his “deal” with Erzinger may be struck down by some good judge.
I seem to remember another Colorado case with rich folks involved that was so mishandled by the Boulder DA’s office that they never were able to find the murderer of a young girl… So the good work in Colorado DA’s offices continues.
Finally, to drive off after such an accident makes this man a sociopath, or a pathological egoist. And he gets off because he has money? Sure wouldn’t want him managing mine. Or worse, meeting him on the road somewhere…
Worse, this is just the kind of deal that makes the entire justice system look bad, and no wonder. It’s the minority/poor folk accusations come to life.
I’ve seen too many occurrances in recent years as to how D.A.’s can either dodge or refuse outright to prosecute blatant violations of the law. Often enough, the cases involve people who are either “pillars of the community” and/or are generous donors to their re-election campaigns. It also highlights how the concepts of justice and revenue have gotten intermingled in the minds of modern jurists and politicians. All these are dangerous trends that undermine the very fabric and concepts of justice under law… not to mention common decency. Someone needs to explain to those people that the Weregild does not hold in this country.
Timely comments – I was fascinated by the information ! Does someone know if my assistant could grab a template Actors\’ Equity Association Showcase example to use ?