Judge: Avalanche center investigators must testify in criminal case

Summit judge denies motion to quash witnesses in the trial of Evan Hannibal and Tyler DeWitt

The Eisenhower/Johnson Memorial Tunnels are pictured May 20. A pair of snowboarders are fighting reckless endangerment charges after triggering an avalanche above the Loop Road near the tunnels on March 25.
Photo by Liz Copan / Summit Daily archives

Summit County Judge Edward Casias ruled that employees of the Colorado Avalanche Information Center would be required to testify in the trial of Evan Hannibal and Tyler DeWitt next week, dismissing a motion from the Colorado Attorney General’s Office to quash their subpoenas and keep them off the witness stand.

On March 25, 2020, DeWitt of Lakewood and Hannibal of Vail were snowboarding above the Loop Road at the Eisenhower/Johnson Memorial Tunnels when they triggered an avalanche. Nobody was injured in the slide, but it covered more than 400 feet of the active roadway below in debris up to 20 feet deep and damaged a remote avalanche-control unit.

The 5th Judicial District Attorney’s Office subsequently charged both snowboarders with misdemeanor counts of reckless endangerment.

Much already has been made about the avalanche center’s role in the case. The center contacted the snowboarders in the days following the avalanche to collect statements, photos and video of the slide as part of its normal procedures to put together a public report on the incident. The defendants voluntarily supplied the center with the information, which was later shared with the Summit County Sheriff’s Office.

During a motions hearing last month, the men’s defense attorney Jason Flores-Williams fought to suppress the evidence, arguing that its use in trial represented a violation of his clients’ constitutional rights because they were never informed the information they provided could be used as part of a criminal investigation against them. Ultimately, Casias ruled there were no violations, noting that the avalanche center employees weren’t acting as law enforcement agents in their investigation and that there was no formal search or seizure.

The avalanche center was further dragged into the case a couple of days later, when the 5th Judicial District issued subpoenas requiring the center’s Director Ethan Greene and forecaster Jason Konigsberg to testify as expert witnesses in the case. On Feb. 26, the Colorado Attorney General’s Office filed a motion to quash the subpoenas on the grounds that the employees testifying could have an “unintended adverse ‘chilling’ impact on the CAIC’s ability to gather important information from people involved in avalanches.”

During a motions hearing Tuesday, Assistant Attorney General Jeff Fugate defended the office’s stance, voicing that forcing the men to testify would impede the center’s future efforts to gather information following an avalanche and create a scenario where backcountry users would no longer view them as impartial.

“The center is very aware of conversations taking place in the backcountry community and advice being widely shared that people should no longer speak to the CAIC if they are involved in an avalanche,” Fugate said. “…That’s the exact opposite message the center has worked hard to implement in Colorado. People should be willing to share information with the center without hesitation or reservation because the more information the center has, the better it can educate the public about avalanche safety. …

“The agency has fulfilled their role by sharing this information; however, appearing as an expert for the prosecution takes them outside of this informational or educational role, and it leaves the wrong impression or the misunderstanding that the CAIC is now ‘on a side.’ That’s something this agency just wants to avoid at all costs.”

Fugate said the fear wasn’t that community members would stop reporting avalanches altogether but that they would report that an avalanche happened and refuse to provide any follow-up interviews, photos or videos.

Fugate continued to say that the subpoenas were unnecessary, saying prosecutors could have found different avalanche experts who weren’t working for a state agency to serve as witnesses.

In her response, Deputy District Attorney Stephanie Cava called the assertions that Greene and Konigsberg’s testimony would cause a chilling effect speculative. She said her office deals with situations like this often, likening the scenario to someone getting in a car crash, calling the police and still potentially getting a ticket.

She continued to say that some fears were driven by inaccurate news reporting. She pointed to a recent story from The Colorado Sun, which erroneously called the case the state’s first criminal case involving an avalanche. She noted that there were three cases that went to trial in Summit County in 2014 after a fatal avalanche near Keystone. While the cases didn’t receive the same news coverage, Cava noted that it didn’t impact avalanche reporting numbers. In her response to the attorney general’s motion filed with the court March 8, she noted that field reporting to the avalanche center nearly doubled from 2014 (1,392) to 2020 (2,771).

Cava continued to say that reports that her office was seeking a set amount of restitution in the case were false and that any restitution amounts would be decided if the men were convicted. She noted that the most recent plea offer her office made to the defendants — which was rejected — involved the men pleading guilty to reckless endangerment, performing 120 hours of useful public service and paying $25,000 in restitution.

Cava also said that given the wide latitude prosecutors are given to call witnesses, quashing them in this case could create a bad precedent in the district and that witnesses from state agencies frequently testify without impugning their impartiality.

“When a (Colorado Bureau of Investigation) forensic scientist comes and testifies in a DUI case, they don’t get up there and speak on behalf of the people,” Cava said. “… (They) don’t get up there and say, ‘That person was drunk.’ They say, ‘Well this is the test that I did, this is how I did it and, based on that information, you could see these sorts of signs.’ They don’t give a conclusory opinion.”

While noting that Greene and Konigsberg would be reluctant witnesses and that the case potentially could have impacts on future avalanche reporting, Casias said the district attorney’s office didn’t err in issuing the subpoenas.

As expert witnesses, Casias said the men would be asked only to share their objective findings from their investigation.

“They don’t get to sit here and say this person is guilty or not guilty of any criminal conduct,” Casias said. “… Their expertise and their knowledge is providing an objective determination of what caused the avalanche to go.”

The trial is set for March 25-26.


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