Tag Archives: Ed Holte

DA Hurlbert Hints Mountain Bike Racers Don’t Deserve Felony or Jail in Leadville 100 Number Swap: UPDATE 5-13 – Race Organizer Chlouber Wants Criminal Charges Dropped, Says Settlement in Works

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.]

Deputy Facing Charges in Leadville Student Tasing? Lake County Sheriff Ed Holte Responds to DA Mark Hurlbert – Update: Brief Hurlbert Rebuttal

I reported yesterday that Lake County Sheriff Ed Holte told me that DA Mark Hurlbert would be filing 15 misdemeanor charges against  Deputy John Ortega for Tasing students at an April 8 school Career Fair.  The Updated article reports on an email exchange I had with DA

DA Mark Hurlbert's Comments Spark Taser War with Lake Cty Sheriff Ed Holte

DA and State Senate Candidate Mark Hurlbert - Photo: Eric Lesser/ Getty Images file

Hurlbert about whether he in fact had made a decision  to charge Deputy Ortega.  John Ortega resigned two days ago, according to Sheriff Holte.

In that exchange, Hurlbert stated:  “I have not made that [a charging] decision yet. No matter what Ed Holte says.  And it won’t be made until next week.”  Hurlbert also said, “three weeks is not a long time when there is [sic] over 30 witnesses.”

Because Sheriff Holte was so precise when I spoke with him, telling me there would be eight charges of child abuse and seven of reckless endangerment,  I asked DA Hurlbert how the Sheriff  could have assembled such detailed information?  Hurlbert replied, I have no idea what Ed Holte is thinking.”

Well, it turns out Hurlbert knew perfectly well how Holte got the information.  Holte returned my call this morning and told me DA Investigator Rick Wallingford told Holte a week ago about the completion of the investigation, and his charging recommendation.  Holte conceded that Wallenberg made it clear that his recommendations were, as always, subject to the DA’s review.  But it is also clear that Hurlbert took a cheap political shot at Holte by not being candid and simply saying he was reviewing his investigator’s report.  Hurlbert should also have just come out and said that Holte was likely basing his statement on conversations with Hurlbert’s own investigator.

Holte told me this shows Hurlbert has been sitting on Wallenberg’s investigation report for a week now, and was dismayed that Hurlbert claims to need yet another week to make a charging decision.  Why so much time? As I noted in yesterday’s article,  Hurlbert was on an out-of- state vacation last week.  An out-of- state vacation in the middle of crucial, unfinished DA business and an important  State Senate campaign?

Update – April 22: Hurlbert wrote saying he just received the investigator’s report yesterday, not when he was on vacation last week.  This week he is also out of town, though, attending a five-day, out-of-state national drug court training.  See his statement in the comments section. I presume this drug court training  is the reason for his delay until next week on announcing a charging decision on Ortega.  Update – April 25.  The latest is on this new post.

So given this Update on Hurlbert’s view of events, we have Hurlbert making vacation plans when he knew in advance he would be out of pocket for the following week in an intensive training seminar.  He indicated he did do work while on vacation, but can probably do very little during the five-day intensive training.  And this leaves him unable to attend candidate events and  personally campaign for the better part of a two week period

And not just during any old part of the campaign, but a critical part:  April 25 is the deadline marking Hurlbert’s first campaign fundraising reporting period.   All candidates are striving to gain as much fundraising as possible by this deadline, as a strong fundraising showing provides a leading indicator of a candidate’s electability.

The State GOP assembly is May 21-22 in Loveland, and Hurlbert will be competing in a Republican primary competition against conservative/libertarian businessman, Tim Leonard, of Evergreen.  Upon Hurlbert’s return from vacation, he reportedly attended a campaign event last  Saturday.  He booked this vacation knowing he’d be in a training seminar the following week.  Maybe he should have spent that Saturday reviewing Wallingford’s tasing report instead.

I have no dog in the fight between Hurlbert and Holte.  But it is clear that Hurlbert does not understand or care about this tourist-dependent community’s desire to have these recent controversial cases resolved promptly.  Holte opposes Hurlbert’s decision to charge his Deputy, Steven James,  for his arrest of a firefighter.  I wrote a glowing article supporting Hurlbert’s decision.

But Hurlbert continually demonstrates a cavalier attitude about transparency with the public- be it on cases, his budgets, or his positions on the issues as a state Senate candidate. His website still has no issues section more than three months into the campaign, and he has broken his promise to sign the CUT pledge for fiscal conservatism he promised to sign seven weeks ago.

By his own choice, Hurlbert has two full-time jobs.  He needs to put in the 65-80 hour weeks many of us in the private sector have had to endure to make ends meet.  Not take taxpayer-funded vacations when he has important public business to resolve.  And he needs to open up both to the public he currently represents as DA, and the voters he hopes to serve if elected to the state Senate.

Update:  Be sure to click on reader comments, where  I’ve included a statement by Hurlbert.

Deputy who Tased Leadville, Colo. Students to Be Charged with 15 Misdemeanor Counts by DA Mark Hurlbert, According to Lake Cty. Sheriff Holte: Tasing Ortega Resigns; James, Charged in Firefighter Arrest, on Paid Leave – UPDATED – Hurlbert Disputes Holte, Says No Charging Decision For Another Week

Lake County Sheriff’s Deputy John Ortega will be charged by DA Mark Hurlbert with 15 misdemeanor charges  arising out of an alleged tasing of Leadville school students at a Career Fair on April 8.  According to Lake County Sheriff Ed Holte, the charges will include eight counts of child abuse and seven counts of reckless endangerment.   Holte told me  Deputy Ortega resigned yesterday.

Update: 4-21, 10:00 p.m. – I sent this post to Mark Hurlbert in a mass email right after posting the article.   Hurlbert emailed back as follows:  “I have not made that [a charging] decision yet. No matter what Ed Holte says.  And it won’t be made until next week.” I immediately phoned back Sheriff Holte, left a detailed message about Hurlbert’s statement, and asked him to call me.  He didn’t. Update 4-22. Holte did call me first thing this morning, and based on that conversation I posted this new article. Update 4-25.  The latest is on this new post.

I sought further details from Hurlbert.  Was he saying he hadn’t made any charging determination at all, or hadn’t decided on the number or nature of the counts?  He stated it would be inappropriate to say he whether he was going to file charges  or not until he had completed his investigation.  He further stated “three weeks is not a long time when there  are  over 30 witnesses.”  

I should point out that Hurlbert’s statements don’t necessarily mean he hasn’t made any decision yet in his own mind or within the DA’s office.  It could mean that, but it could also mean that he feels it inappropriate to comment until he has decided on the actual charges, if any.  I also asked him why the Sheriff would tell me this if it weren’t true.  Hurlbert replied, “I have no idea what Ed Holte is thinking.” Never a dull moment in Leadville.

———

According to Denver’s 9 News,  the students wanted to see what a stun from a taser felt like:

According to school administrators, the students asked the deputy to shock them so they knew what it felt like.

Two of the students received minor burns and were taken to a local hospital. They were treated and released.

A student says one female student was shocked seven times at her request.

The students were not shot with the taser, but Ortega allegedly used the Taser in drive-stun mode.  Drive-stun mode is used as  a “pain-compliance” technique where the taser is pressed against someone’s body and a charge administered.   A drive stun, though not disabling like a standard Taser electric barb shot,  inflicts severe pain and often injury, as occurred here, with the aim of getting a resisting suspect to voluntarily submit so as not to receive any more pain. The drives stun has also been used inappropriately in some instances as a form of punishment.

Because of conflicts between the lake County Sheriff’s Department and the Leadville Police, neither police agency wished to be involved in the investigation, so DA Hurlbert stepped in with a team of investigators from his office.   Some students reported that Deputy Ortega wrote out some form of waiver for the students to sign before being tased, but Hurlbert confirmed what we wrote here:  “What we are looking at is child abuse charges, even if there is talk the kids consented, kids can’t consent to being abused,” Hurlbert stated to 9 News.

Many in the community thought charges should have and would have been brought sooner than two weeks following the incident.  But Hurlbert refused my requests to give a timeframe for the conclusion of the investigation.  He was reportedly out-of-state on vacation last week. Hurlbert is running for state Senate in a primary battle against conservative/libertarian businessman, Tim Leonard.

Deputy Steven James, Charged for Wrongful Arrest of Firefighter, Placed on Paid Leave

Hurlbert already charged another deputy, Steven James,  in the arrest of Fire Captain Dan Dailey.  James arrested Dailey when he was the first responder at a medical emergency in Leadville and refused orders to leave.  The arrest arose out of an ongoing territorial dispute between Lake County and the City of Leadville.

Sheriff Holte told me today that he will be placing James on paid administrative leave rather than unpaid because he disagrees with Hurlbert’s decision to charge James.  Some rumors were floating around Leadville that the county might pay for James’ defense, which would have been unusual to say the least as the county is paying for James’ prosecution via the DA’s office.  Holte said because James is a member of the Fraternal Order of Police, that organization would pay for his defense.

I pointed out the case could go on a very long time before being resolved given James’ determination to fight the charges through jury trial, and whether that might be an excessive burden on county taxpayers.  Holte told me James is only on leave at all because of possible insurance company concerns.  If those are resolved, Holte will likely place James back on active duty.