In the face of mounting criticism of his May 8 decision to file felony criminal impersonation charges against two Colorado mountain bike racers for swapping numbers at a Leadville race last year,
DA Mark Hurlbert
DA Hurlbert nows says it is unlikely the two women would go to jail or face a felony conviction. It also looks like a settlement is in the works and could be announced as early as today.
Hurlbert charged Wendy Lyall, 36, who competed in the women’s 40-49 division of the race, with one count of felony criminal impersonation. She is due to appear in Lake County Court at 11:30 on May 24.
Her friend, Katie Brazelton, who allegedly gave her non-refundable racing packet to Lyall because she was injured and could not compete, has not yet been charged. Update: 5-12, 11:30 a.m. – The court clerk just notified me that Hurlbert has charged Brazelton with one count of feloncy conspiracy to commit criminal impersonation. She is due in court on June 7.
Mark Hurlbert is the controversial prosecutor of L.A. Lakers’ basketball star, Kobe Bryant. After a failed bid to extend his term limits as DA, he is now a Colorado state Senate candidate for District 16, shown in this map. Hurlbert, ironically, is competing for the Republican nomination against an avid endurance road cyclist, conservative/libertarian businessman, Tim Leonard of Evergreen. Update: 5-12, 11:30 a.m. See today’s lead article in the Summit Daily, on this campaign. Hurlbert lies and says Leonard was in the race three months longer than him as a pathetic excuse for Leonard whipping him in fundraising. Try three weeks in the applicable quarter. Lots of other stupid quotes too.
Given Hurlbert now admits that a felony conviction is unlikely and jail unmerited, why did he go ahead and charge the felony to begin with? Though he probably doesn’t care, Hurlbert certainly knows that the mere charging of a felony is likely to ruin a person’s life. Here’s his answer:
We were looking at the laws, and this was the only crime that was a fit. That doesn’t mean they will be convicted of a felony.
A prosecutor has a sworn ethical obligation, though, not to merely seek a conviction, but to act in the best interest of justice on behalf of ” The People of the State of Colorado.” It would seem charging an individual with a crime that is admittedly overkill just because later he can leverage it to force a misdemeanor plea bargain, fails this ethics test.
And these life-shattering concerns are not just theoretical. Before even being charged, Katie Brazelton has reportedly already lost her job as a private school teacher in Vail. I learned from Google that Brazelton was the Development Director for SOS Outreach, which according to their website is the “country’s largest winter and summer sports-based youth development charity.” But when I opened the link, no Katie. SOS erased Brazelton’s sordid presence from their website as soon as Hurlbert threatened to file, as I discovered from this cached copy Google captured just two days before.
Here’s SOS’ description of Katie Brazelton’s achievements and work:
Katie started her work with SOS as a curriculum consultant during the summer of 2009. She has lived in the Vail Valley since 2004 and worked in educational administrative roles at both a private school and the non-profit world. She received her undergraduate in 1991 in education from Loyola Marymount University in Los Angeles, and in 2005 completed her Master’s Degree in School Administration. Katie values her time in assisting with the development of programs that provide underprivileged youth with life-long skills and opportunities.
Well, thankfully, Mark Hurlbert stopped Brazelton dead her in her tracks before she continued with any more activities like this. We can all sleep better at night now. I don’t know any details about Wendy Lyall, other than everyone seems to like her, she has never committed any crimes, and she’s extremely fit. And now she’s been charged with a felony.
Interview with Race Organizer Ken Chlouber
Lake County Sheriff Ed Holte promptly responded to my open records act request, and we are the first to report on the investigation. It began on March 2, 2010, when race organizer Ken Chlouber wrote a letter to the Sheriff outlining concerns he’d confirmed from a tip that “two women had lied, cheated and stolen by fraudulently exchanging identities for entry” into the race. Chlouber’s letter sets out the
Ken Chlouber - Leadville 100 Race President
possibilities of how the women could have gotten through the identification procedures, and closes with a request for prosecution on theft of services for the $250 in race fees, $225 in awards, plus racer services, including aid stations, security, and a pre-race banquet.
It seems to me that adding in both the race fee and the services provided to racers would be double-counting. On the other hand, Chlouber sounds like he has a better handle on what law might “fit” than Hurlbert. I read the theft of services statute (CRS 18-4-401), and as long as the value of the property taken by “deception” is less than $1,000, it’s a misdemeanor.
Chlouber writes, “the integrity of the race results was extremely damaged.” Yet, those results couldn’t be clearer now. He calls the actions of the two women “disgusting beyond comprehension.” I’ve seen a lot worse. Chlouber says, “the two women riders that rightfully should have accepted 2nd and 3rd will never have that moment [on the podium].” But Chlouber himself devised a solution to this problem by staging a special awards ceremony for them this August. Undoubtedly they’ll get plenty of spotlight after this debacle.
In short, most if not all the concerns expressed by Chlouber to the Sheriff in March have been rectified. And the message of deterrence Chlouber wants to send already got delivered loud and clear to the women involved, and to racers throughout the country.
Settlement Discussions Already Underway
Sheriff Holte then passed along the case to the DA in April, and notably Holte did not recommend charging Brazelton, only Lyall. Chlouber was adamant in speaking with me that he never wanted jail time for either woman and certainly didn’t want felony charges. He hadn’t even considered the possibility of a felony “until Hurlbert came out with these charges.” Chlouber also told me it was “overblown” to charge a felony.
According to Chlouber, negotiations are underway and took place yesterday between DA Hurlbert and the parties. Chlouber anticipates the case might settle as early as today, and predicted it will settle for something relatively minor, with no jail time.
What would Chlouber like to see happen? He wants a written apology to the two displaced racers and a full explanation of the mechanics of how the identity swap occurred. He wants to know who was up there on the podium receiving the coveted awards, and if it was Lyall, was Katie sitting in the stands watching? He wants to know whether Lyall used Brazelton’s I.D., or whether Brazelton entered with her own I.D., and later provided the racer wrist band and bike numbers to Lyall. He wasn’t completely clear whether he wants a criminal charge.
Update: 5-13- Ken Chlouber would like to see criminal charges dropped if the disclosure and apology conditions are met, and he believes Hurlbert will agree to same. More details in a comment I posted on Ken Chlouber’s behalf.
Chlouber rejected the suggestion he said some have made for Lyall and Brazelton to appear at the 2010 event ceremony and perform a public mea culpa for the spectators, calling such a spectacle a humiliating “public flogging.” He also doesn’t want to see heavy fines or “doing something to them worse than what they’ve already done to themselves.”
Laura Victoria’s Verdict
Given the sanctions uniquely available within competitive sports for rules violations, the criminal law is out of place except in rare circumstances, such as a boxer biting off an opponent’s ear. Chlouber himself has already used his role as race president to rectify most of his concerns. So I think Chlouber’s remaining concerns are exaggerated, though he seems sincere, even passionate.
But it is precisely the role of the DA to look objectively at the facts, and divorce himself from the emotion any alleged victim might genuinely feel. In addition, a prosecutor needs to do more than scour the criminal code to see if some square peg behavior might “fit” into a round legal hole. He needs to decide if that “fit” is a just one for all concerned, including the accused and the taxpayers.
Prosecutorial pursuits must be prioritized. And some pursuits shouldnt be pursued at all. The remedies sought by Ken Chlouber, combined with what the women have already endured, should sufficiently deter future misconduct. Hurlbert should not pursue any criminal charges, including misdemeanors, against either Wendy Lyall or Katie Brazelton.
Update: 5-12, 11:30 a.m. After learning Hurlbert has now come up with the ludicrous felony conspiracy charge against Brazelton, all I can say is Hurlbert has exceeded even my expectations for poor judgment.
[Ed: Many readers and bloggers in the mountain bike racing community have expressed major doubts about the seriousness of the alleged conduct of Lyall and Brazelton. Many don't like the way Chlouber runs the event, and believe he's inconsistent in his concern for rules when big names are involved. Some question various financial aspects of the event, and some bemoan the graded dirt and lack of singletrack. Links and comments are here, in an updated article. Also see the comment I posted based on 5-13 follow-up interview with Ken Chlouber.]