Dr. Steven Milo is a 34 year old New York City liver transplant surgeon.  Not too shabby.  And yet, in the scheme of wealth and influence in Eagle Colorado, he’s a piker.  Not a criminal defendant without the juice needed to buy his way out of a prosecution, but the innocent victim of a hit and run who unceremoniously learned why he should have listened to his mother and become a Wall Streeter.  That’s where the real power is.

From the Vail Daily :

[52 year old Martin Joel] Erzinger, an Arrowhead homeowner, is a director in private wealth management at Morgan Stanley Smith Barney in Denver. His biography on Worth.com states that Erzinger is “dedicated to ultra high net worth individuals, their families and foundations.”

This is a position of great significance.  We know this because Erzinger drove his black Mercedes into Milo, who was on a bicycle, struck him and then drove away, leaving Dr. Milo on the side of the road in bad shape.

Milo suffered spinal cord injuries, bleeding from his brain and damage to his knee and scapula, according to court documents. Over the past six weeks he has suffered “disabling” spinal headaches and faces multiple surgeries for a herniated disc and plastic surgery to fix the scars he suffered in the accident.

Yet  Erzinger will be allowed to plead to two misdemeanors, a felony charging having been dropped.  District Attorney Mark Hurlbert explains why:

“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.”

According to Milo’s attorney, Harold Haddon, they are “livid.”

“The proposed disposition is not appropriate given the shocking nature of of the defendant’s conduct and the debilitating injuries which Dr. Milo has suffered,” Haddon wrote.

The arguments made on Erzinger’s behalf, that the felony would end his ability to work in his chosen field, eliminate his ability to pay restitution, and thus impose a secondary, harsher penalty than would be the case when a person of lesser earning potential becomes a felon, aren’t exactly new ones.  On the flip side, the argument was likely that this was not an act of deliberate, heinous violence, but an accident, and the subsequent flight was merely an improper reaction by a man confused, who made the wrong decision.  All terrible, but not malevolent. 

What purpose would be served by saddling Erzinger with a felony?  No one will be safer.  No one will be saved.  It only makes things worse, and why do that?

To some extent, the arguments have some merit.  I know because I’ve used them myself, many times.  It’s a disingenuous argument in many respects, but we do what we have to do on behalf of our clients, even when we know that the same conduct by someone who wasn’t wealthy and successful would land him years in prison.  At least a felony conviction. 

But this doesn’t happen in a vacuum.  Had Dr. Milo been run down and left to die on the side of the rode by someone in a beat-up old pick-up, who’s occasional occupation was to trim bushes or mow lawns, the power and might of a surgeon from New York City might well have assured the driver a very long term of imprisonment.  The story would then be about how the victim’s juice caused the prosecutor to go hard on the defendant, who never meant to harm anyone and, but for his fleeing the scene in confusion and error, merely had an accident with very serious results.  That can happen.

It’s got to suck to be a New York City surgeon, a person who expects to have his interests and wishes treated with great respect and deference, and end up run down by a Smith Barney money man, one of the few with far more juice than him.

One natural reaction to a situation like this is outrage at another wealthy person getting special justice.  Of course, the same would be said if Dr. Milo was run down by the gardener and District Attorney Hurlbert put the defendant away for 20 years.  Then it would have been another rich victim using his wealth and power to impose his will on the system.  Ask the critics of Dr. William Petit about it.

Over at Crime & Federalism, this case has Mike Cernovich blowing off some steam. 

When it was reported that District Attorney Mark Hurlbert dismissed felony charges against a rich banker who slammed into a bicyclist, I wondered if Hurlbert had accepted a bribe.  Hurlbert has high political aspirations, and recently ran for State Senator.  Perhaps the rich banker promised  generous campaign contributions in exchange for dismissing felony charges?  It seems that Hurlbert  must be accepting bribes.  No other explanation makes sense.

Mike has long been highly critical of the power wielded by Wall Street, on government and the legal system.  It tends to get Mike a bit incensed when anyone from Wall Street gets a pass.

How can Hurlbert claim that a sociopathic banker must keep his job in order to pay restitution to the victim, when the victim himself doesn’t care about that restitution?  

Generally, we eschew the anger and outrage of the victims, and their families, or there would be an awful lot of cases seeking the death penalty.  Suddenly, the victim’s cry for “justice” must be heeded? 

This case has all the earmarks of special treatment due to Erzinger’s wealth, which must be pretty substantial for him to trump Dr. Milo, who’s no slouch either.  We hate special treatment, not because a defendant was treated well by a prosecutor, but because he was treated better than others, those without the wealth and power.  It seems like the rich always get a better deal.

Certainly we can’t blame Erzinger for getting the best deal for himself possible.  Doesn’t every defendant, and every defense lawyer, try to do the same?  So we’re left with Hurlbert, the District Attorney, as the villain.  The complaint is that he went soft on the defendant because he was richer than the victim. 

Indeed, Mark Hurlbert appears to have earned scorn.  Not because he went easy on Erzinger, but because of his outrageously harsh treatment of others for ridiculous offenses, like the prosecution of a woman for fraud for switching numbers in an amateur bike race, of the prosecution of a snowball thrower.  ExPat ExLawyer has followed Hurlbert closely and provides a litany of his prosecutorial discretion.

Whether it’s rank hypocrisy, a pathological abuse of discretion or, as Mike suggests, that Hurlbert is on the take, I can’t say.  But it’s clear that his erratic and inexplicable exercise of prosecutorial discretion has turned his office into a farce.  Given that he holds an elective office (and is seeking other, higher office as well), whatever explanation exists for Mark Hurlbert’s conduct as District Attorney must appeal to his constituents.  Perhaps they see him as compassionate, yet tough, in all the right ways.

H/T Keith Lee