Sometimes, because of the negative associations with it, I regret my freely chosen profession[al license]. I understand that I knew this and clearly disregarded it when I submitted my enrollment letter to law school, but having passed both the MA and NY bar has made it official: I struggled through three years of school, plus two state bar exams, to join a profession that is commonly referred to as “soulless.”
As a fairly accomplished expert in the field of denial, I’ve tried to justify the label in a number of ways [“I’m ethically bound to ‘competently’ represent my clients,” or “I think ‘soulless’ just means ‘hardworking,’”]. It’s worked so far, in that I’m not completely disgusted with myself [yet]. But then something last week reared its ugly head which made me instantly back pedal from any association with the legal profession: the story about the Eagle, Colorado financial manager who ran over a cyclist [the latter is a NY surgeon] against whom the prosecuting District Attorney chose not to pursue felony charges because “it could jeopardize his job.”
The story is fucked up three ways to Sunday: financial manager Martin Joel Erzinger hits a NY surgeon, Dr. Steven Milo, cycling on the road in Colorado, with his black 2010 Mercedes-Benz sedan. Then, instead of doing the normal thing of maybe apologizing, calling an ambulance and/or police, or at least leaving a card, he “fled the scene.” [Emphasis mine]. Erzinger was only arrested after he pulled into a Pizza Hut parking lot to call the Mercedes-Benz auto assistance service to ask that the damage to his car be addressed, failing to mention that he just ran over someone which is why there was damage to his car in the first place. Responding Avon police officers arrested him.
According to court records, the original complaint included a felony charge “for causing serious injury,” which in this case includes, “spinal cord injuries, bleeding from his brain and damage to [Milo’s] knee and scapula,” as well as “’disabling’ spinal headaches...a herniated disc...and scars.” However, the prosecuting district attorney announced for the first time, in a notification to the court on September 7, that the charge will be reduced to a misdemeanor. The justification for the reduction in charges was motivated by the “serious job implications for someone in Mr. Erzinger’s profession...when you’re talking about restitution, you don’t want to take away his ability to pay,” said District Attorney Mark Hurlbert.
In Colorado [like most US jurisdictions], district attorneys are elected officials, and prosecutors have a fair amount of discretion when it comes to deciding what charges the state will pursue. In that regard, I sadly can’t say I’m surprised. What sort of bothers me more is that it’s not even a well-reasoned justification. And here’s why.
Restitution is a legal concept which seeks to place the person as good a position as the person was in before the event occurred. The concept does not include punitive damages, but simply seeks to re-establish the former status quo. In this case, restitution would require placing Dr. Milo in “as good” a position as he was in before the accident. Putting aside the obvious likelihood that Dr. Milo may never return to his pre-getting-hit-by-a-car condition, restitution could be measured by Dr. Milo’s medical bills, property damage, lost wages, and other out-of-pocket expenses. Colorado explicitly allows victims of certain crimes the option of seeking restitution in its Victim Rights Act.
Okay, that’s great, you might think, this doctor will get paid for at least the financial cost of the hit and run. But the thing is, there is absolutely no guarantee that a victim of a crime in Colorado will be entitled to restitution. According to a pamphlet provided by the Colorado State Judicial Branch:
A defendant may be ordered to pay the victim for damages which occurred as a result of the crime committed. This is called restitution. The Victim Impact Statement helps in determining this amount.
Notice the wording. This means that it is within the court’s discretion, with input provided by the Victim Impact Statement, to determine an amount that is appropriate for restitution. Basically, even if found guilty, the court doesn’t have to order that Erzinger pay any restitution to Dr. Milo [although chances are, Dr. Milo will collect at least enough to cover his medical bills]. Furthermore, if, in any event, Dr. Milo suffers from future injury caused by the initial collision [and this seems fairly common where spinal injuries are involved], increasing the amount due under a court-determined restitution order is extremely difficult unless “the final amount of restitution due has not yet been set by the court.” [source].
District Attorney Hurlbert’s admission that Erzinger must continue to work to pay restitution may indicate that Hurlbert anticipates a hefty bill for Erzinger. But given that all of this will be determined by the court, no one knows what this amount will be [if any]. And, in any case, it’s difficult to imagine a sum so large that it would require Erzinger - an extremely wealthy financial manager - to continue working to pay it off. The stated fear that Erzinger just might lose his job becomes more absurd when combined with 1. the fact that Dr. Milo clearly does not care about the money but wants Erzinger to take responsibility for his actions, and 2. this crappy economy.
I’m disappointed to say the least. It’ll be interesting to see what happens next, and the litigious side of me is fervently hoping for at least a civil suit against Erzinger. Punitive damages, anyone?
More relevant reads on Simple Justice and ExPat ExLawyer.
After writing this post, I read on the Huffington Post that Erzinger's misdemeanor charge was part of a plea bargain which includes "significant" restitution. Hurlbert has stressed that the misdemeanors would stay on Erzinger's record permanently.
Sure, okay, but two other things: 1. what exactly is "significant restitution"? "Significant" for Erzinger might not be so significant for Dr. Milo. 2. Am I missing something or did Erzinger call Mercedes, not the police, after he drove over Dr. Milo? Other than the fact that that seems completely, well, soulless, that sounds like a clear-cut case of vehicular assault, which [Google tells me] is a Class 5 felony in Colorado...