Judge drops criminal cases in Aspen carbon monoxide fatalities
November 4, 2011
ASPEN – The criminal cases against a subcontractor and a former Aspen building inspector, both indicted by a grand jury for the carbon monoxide poisoning deaths of a Denver family of four, came to an abrupt end Thursday when a judge ruled that the statute of limitations on the charges had expired.Judge James Boyd issued his decision to dismiss the charges of criminally negligent homicide in a near-capacity Pitkin County District courtroom after 3:15 p.m. The defendants, former city of Aspen building inspector Erik Peltonen, 69, of Basalt, and Marlin Brown, 58, owner of Glenwood Springs-based Roaring Fork Plumbing & Heating Co., embraced family members and supporters after learning their fate. Boyd’s dismissal came just three weeks before Brown was scheduled to go to a jury trial in Pitkin County District Court on four counts of criminally negligent homicide. Peltonen’s trial, for the same charges, was scheduled in December.”I shouldn’t have been here in the first place,” said Peltonen, who worked on Pitkin County’s behalf when he inspected the house three years before the family died in it over the 2008 Thanksgiving holidays. A carbon monoxide detector was not in the house, where a faulty Munchkin boiler had leaked the poisonous gas that killed the family. “I was totally blindsided by this.”On the other side of the courtroom, three relatives of the victims, accompanied by their civil lawyer, gathered to digest the news. Chief District Attorney Arnold Mordkin consoled them, offering his apologies as well.”It’s disappointing,” Mordkin told a reporter. “I have nothing else to say.”Massachusetts resident Hildy Feuerbach, the sister of the deceased mother, flew into Aspen on Wednesday to attend the proceedings. She expressed disappointment with the outcome, but said she and other relatives will continue to press on to find out who was responsible for the deaths.”These dismissals do not indicate innocence,” she said. “Four people died.”Boyd’s ruling came just one day after a federal court judge dismissed the county from any civil liability in a lawsuit the family filed in U.S. District Court in Denver. The federal judge also remanded the lawsuit, which seeks an unspecified amount in damages, back to Denver County District Court. Brown and a host of other private-sector defendants – from contractors to the home’s former owner – remain defendants in the case. The criminal case, meanwhile, had attracted national attention, not only because of its tragic theme, but because public building inspectors rarely, if ever, are held criminally liable in carbon monoxide poisoning deaths.And in September, attorneys for Pitkin County and the city of Aspen, as well as the International Code Council and the Colorado Municipal League, filed a brief arguing for dismissal of the case against Peltonen, on the basis that the county’s implementation of a building code is voluntary and shields the inspector from any civil or criminal liability.
Boyd’s dismissal of the criminal case came after defense attorneys filed a motion in August contending that the three-year statute of limitations on the charges had already expired. The grand jury’s indictment said that during the time period between Jan. 1, 2004 and Jan. 1, 2006, Brown and Peltonen “unlawfully and feloniously” caused the deaths of Caroline Lofgren, 42, her husband, Parker, 39, and their two children, Owen, 10, and Sophie, 8.But the indictment failed to mention one critical aspect – the approximate date when the deaths occurred – either on Nov. 28 or Nov. 29 of 2008. Instead, the statute had effectively expired by the time the grand jury issued the indictment on July 23, 2010, the judge said.Mordkin admitted as much to the judge in Thursday’s hearing. But he lobbied Boyd to allow him to amend the indictment by adding the date of the fatalities. Boyd said the issue was out of Mordkin’s hands. “The only people who can amend the indictment is the grand jury,” Boyd said.That meant that in order for Mordkin to change the indictment, the grand jury would have to reconvene. Mordkin would not comment about whether he will do that, but all indications appeared that the criminal case is done. Attorneys for both Brown and Peltonen said the judge had no choice but to dismiss the indictments. “The judge was 100 percent correct,” said Brown’s lawyer Colleen Scissors of Grand Junction. “As sad as this is for the family, now everyone can move on.”Denver attorney Abraham Hutt, who along with James Jenkins of Boulder defended Peltonen, said the prosecution’s case was problematic in many ways. “Just about anything that could happen in this case did happen,” he said, noting that the prosecution focused on particular suspects and “paid no attention” to others.Boyd’s ruling marked the second time charges in the case had been dropped because of statute-of-limitations issues. In January, Mordkin dismissed charges against Aspen building inspector Brian Pawl, originally indicted by the same grand jury on four misdemeanor counts of reckless endangerment connected to the deaths. The reason: The statute of limitations on the misdemeanor counts had expired at the time the indictments were issued. Peltonen also faced the same, lesser charges, which Mordkin dropped for the same reason.
Later in the day, the survivors’ family members – Hildy Feuerbach; Massachusetts resident Dr. Frederick Feuerbach, the father of Caroline Lofgren; and Oregon resident Jean Rittenour, the mother of Parker Lofgren – spoke about the judge’s decision.”How can we be satisfied? The deaths of four of our family members have left an emptiness, a void that will be with our family for many generations,” Frederick Feuerbach said. Even so, the relatives praised Mordkin for his work on the case.”We owe him a debt of thanks,” Hildy Feuerbach said. “He did something very courageous: calling a grand jury.”The attorney who is representing the family in the civil case, William Hansen of Denver, said: “I think this is morally sad, but legally that’s the way it is.”For his part, Peltonen said the grand jury got the wrong man. He said he never approved the faulty Munchkin boiler. That claim has been made in the family’s civil lawsuit; however, his alleged criminal role was not available for public consumption because the grand jury conducted its hearings privately. Only the District Attorney’s Office and the defense team have access to the information presented to the grand jury. Hansen, though, said he plans to take legal action to obtain the grand jury transcripts for the civil suit. When asked if he planned to speak to the relatives, Peltonen replied: “I’m here because of them. I feel they’ve been using six innocent people [him, Brown and the four deceased family members] to do their agenda.”The relatives said their cause has simply been a fact-finding mission to determine which people caused the deaths, either directly or indirectly. They added that they did not wield any influence on Mordkin’s decision to convene a grand jury beginning in July 2009 – seven months after the Pitkin County Sheriff’s Office determined that there was no criminal activity that caused the deaths. Hansen noted that it wasn’t until after the grand jury indictment that he and the family filed the suit, which came in October 2010, nearly three months later. “We weren’t doing this out of vindictiveness, we were doing it out of love,” Hildy Feuerbach said. “Their deaths cannot be done in vain.”The relatives already have been instrumental in having bills passed requiring certain homes to have carbon monoxide detectors. In February 2009, for example, Gov. Bill Ritter signed the Lofgren and Johnson Families Carbon Monoxide Safety Act. And in December 2008, shortly after the Lofgren deaths at 10 Popcorn Lane, four miles east of Aspen, Pitkin County clarified its carbon monoxide ordinance and renamed it the Lofgren Family Ordinance. firstname.lastname@example.org