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September 30, 2011
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DA argues against dismissal of Aspen carbon monoxide deaths case

ASPEN - The 9th Judicial District Attorney's Office has filed a series of responses to defense motions that negligent-homicide charges should be dropped against two men implicated in the carbon-monoxide poisoning deaths of a family of four.

The responses are the latest volley in the cases of retired city of Aspen building inspector Erik Peltonen and subcontractor Marlin Brown, both indicted in July 2010 by a Pitkin County grand jury on four separate negligent homicide charges. Peltonen, 69, Basalt, is scheduled to stand jury trial Dec. 12 in Pitkin County District Court, two weeks after the trial begins for co-defendant Brown, 58, of Glenwood Springs.

Over the past month, the prosecution and defense have ramped up their cases. Several motions to dismiss by the defense are pending before District Judge James Boyd. On Wednesday, prosecutors filed responses to two of the motions to dismiss.

One motion filed by Peltonen's attorney Abraham Hutt, of Denver, claims the three-year statute of limitations has expired on the negligent homicide charges. Peltonen inspected the home where the family died in the summer of 2005 and signed off on the home's snowmelt system, including a Munchkin boiler that leaked the noxious gas. Prosecutors say the death occurred Nov. 29, 2008, and "at that time ... the statute of limitations began to run in the present matter," a motion filed Wednesday says. The motion also says that because the grand jury indictment came down July 23, 2010 - less than two years after the fatalities - that was "well within the statute of limitations."

Likewise, Brown has a pending motion to dismiss the charges against him. The motion, which defense attorney Colleen Scissors of Grand Junction files, argues that Brown, who installed the boiler, should be absolved of any criminal liability because Peltonen and another inspector, Brian Pawl, inspected it at a later date. The prosecution, however, disagreed, arguing in a motion filed Wednesday that that is a matter for a jury to decide.

Friday, the District Attorney's Office is likely to file a response to a "friend of the court" brief introduced to the case Monday by the attorney's offices for Pitkin County and the city of Aspen, as well as the International Code Council and the Colorado Municipal League. That brief argues for dismissal of the case, on the basis that the county's implementation of a building code is voluntary and shields Peltonen from any civil or criminal liability. The brief also contends that the criminal case against Peltonen could affect dramatically how building departments do business and "the pace of construction work would slow to a crawl."

"First, and most obviously, making the building department a bottleneck that prevents construction projects from moving forward will damage a community's economy and erode public support for the program," the brief says. "Secondly, such a bottleneck will increase the likelihood that owners and builders will simply disregard permit requirements altogether, further increasing that already prevalent problem of bandit construction and the likelihood of slipshod practices."

The "friend of the court" brief is a supplement to a motion Hutt filed Aug. 26 to throw out the charges against Peltonen. That motion contends that his indictment was unconstitutional, partly because the statute that he was charged with violating - criminally negligent homicide - contains vague language and did not give him fair warning that he could be prosecuted "for any alleged omission or failure" to carry out his job as a building inspector.

Hutt, like the aforementioned brief, also contends that Peltonen, during his course as a building inspector for the government, is shielded from criminal prosecution because he was adhering to a Pitkin County ordinance. That ordinance, the 2004 adoption of three building codes - the 2003 International Building Code, the 2003 International Mechanical Code and the 2003 International Residential Code - protects Pitkin County inspectors from any civil liability. And if they're protected from civil liability, Hutt argues, they should be shielded from criminal prosecution, too.

The charges are in connection to the fatalities of Caroline Lofgren, 42; her husband, Parker, 39; and their two children, Owen, 10, and Sophie, 8. The home, four miles east of Aspen, did not have a carbon monoxide detector at the time of their deaths.

rcarroll@aspentimes.com


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The Aspen Times Updated Sep 30, 2011 06:57AM Published Sep 30, 2011 01:14AM Copyright 2011 The Aspen Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.