Opinion

Felix Salmon

How to buy your way out of a felony charge

By Felix Salmon
November 8, 2010

One of the main contributing factors to the financial crisis was the feeling of impunity and omnipotence which pervaded Wall Street. No matter how egregious their behavior, financiers knew that they would end up wealthy and comfortable. That, in turn, made it much easier to overcome their natural risk aversion.

Jon Hendry now points me to a very shocking real-world (non-financial) example of this. Martin Joel Erzinger is a star broker at Smith Barney, overseeing over $1 billion in assets for “ultra high net worth individuals, their families and foundations”. On July 3, Erzinger was driving his black Mercedes in Eagle, Colorado, and ran over a cyclist — New York physician Steven Milo — from behind:

Milo suffered spinal cord injuries, bleeding from his brain and damage to his knee and scapula, according to court documents. Over the past six weeks he has suffered “disabling” spinal headaches and faces multiple surgeries for a herniated disc and plastic surgery to fix the scars he suffered in the accident.

“He will have lifetime pain,” Haddon wrote. “His ability to deal with the physical challenges of his profession — liver transplant surgery — has been seriously jeopardized.”

Erzinger immediately drove away from the scene of the crime, eventually stopping in a parking lot on the other side of town, where he called the Mercedes auto assistance service and asked that his car be towed.

This kind of egregious hit-and-run is, obviously, a very serious crime. Milo is incredulous at the suggestion from Erzinger’s attorneys “that Erzinger might have unknowingly suffered from sleep apnea”, and wants Erzinger to be charged with a felony. Justice must be served: the case “has always been about responsibility, not money”, he wrote to DA Mark Hurlbert.

Yet Hurlbert, looking at Erzinger’s wealth, decided that the case really was about the money after all:

“The money has never been a priority for them. It is for us,” Hurlbert said. “Justice in this case includes restitution and the ability to pay it.”

Hurlbert said Erzinger is willing to take responsibility and pay restitution.

“Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it,” Hurlbert said. “When you’re talking about restitution, you don’t want to take away his ability to pay.”

In other words, Erzinger has bought his way out of a felony charge, over the strenuous objections of his victim; it’s very unlikely that online petitions will do any good at this point. Just another thing to add to the list of things that money can buy, I suppose.

Comments
22 comments so far | RSS Comments RSS

Elite impunity is one of the defining characteristics of a banana republic. Welcome to San Marcos.

Posted by lambertstrether | Report as abusive
 

I call it ‘trickle-down justice.’ The argument, I suppose, is that legal immunity for the elite is really a benefit for everyone, in the long run.

Posted by MattF | Report as abusive
 

“Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it,” – don’t felony convictions have serious implications for most people? Shouldn’t he not have committed the alleged crime?

Would be nice to have a bit more of an idea why the DA is acting this way. Afterall surely in this environment tackling a rich banker in hit and run has to be a winner.

Posted by Danny_Black | Report as abusive
 

This isn’t the way it worked in “Bonfire of the Vanities”. I guess we’re not in the 1980s any more.

Posted by Curmudgeon | Report as abusive
 

How is it possible that the DA doesn’t file charges?

And why should Hulbert’s opinion count for anything here?

Can’t the victim demand that his attacker be tried in criminal court?

Posted by MarkWolfinger | Report as abusive
 

Actually, it’s a bit more insidious than ‘buy-out’ when the DA refuses to prosecute because of the mere fact that someone has money.

Posted by Foppe | Report as abusive
 

Mark,

(1) Filing charges is almost always in the prosecutor’s sole discretion.

(2) Generally, the reason prosecutors, not victims, have the right to make the choice of whether to prosecute or not is that (a) they’re more neutral than the victim and (b) victims typically don’t know the law. You don’t want an angry victim to be able to force a prosecutor to bring stronger charges than the facts merit.

(3) No. Long ago, citizens could bring their own criminal cases, but not anymore.

As this has been presented, its pretty horrifying. I wish I was a fly on the wall in the prosecutor’s office – I’m wondering if there are really evidentiary concerns here, since it would be strategically stupid for the prosecutor to use that as the justification.

Then again, maybe the prosecutor thinks that since this will be one of the few perps who is actually capable of paying restitution, its unfair to give him the same punishment as someone who can’t.

Posted by AnonymousChef | Report as abusive
 

I drive through the streets, and I care not a d—n;
The people they stare, and they ask who I am;
And if I should chance to run over a cad,
I can pay for the damage if ever so bad.
So pleasant it is to have money, heigh ho!
So pleasant it is to have money.

Arthur Hugh Clough d 1861

Posted by tomrus | Report as abusive
 

I would have to assume the prosecutors are god fearing religious people and recognize that anyone who works for Goldman-Sachs is simply doing “God’s Work”. The Lord does indeed work in mysterious ways.

Posted by Sinestar | Report as abusive
 

Felony convictions are SUPPOSED to have some pretty serious implications for EVERYONE. That is the reason there are laws with convictions, fines, restitution and jail time. The punishment suits the crime.

Once he drove away it was a hit and run felony. Once he stopped to call for maintenance rather then 911 or an ambulance, he proved there was no guilt or remorse and was bound to cover it up as soon as possible, rather then help his victim. He left him for dead!

After reading about this, will his Morgan Stanley private investors still be thinking he is ethically bound monetarily being he did such an unethical act? Should Morgan Stanley stand by him or will they simply because he wasn’t convicted as he should have been?

Posted by hsvkitty | Report as abusive
 

The victim, a liver transplant surgeon, actually was doing God’s work and is now unable to do so. By injuring Dr. Milo, Mr. Erzinger has not only destroyed one life but has also negatively impacted the lives of hundreds of people who need Dr. Milo’s skills. Mr. Erzinger offers no skills to benefit society as a whole and has demonstrated, in multlple ways, that he is an amoral lowlife. The DA shares responsibility for this injustice. This case exemplifies why many Americans distrust our legal system.

Posted by randrews | Report as abusive
 

I can understand including the ability to pay restitution; but not in the case where the victim declares that this should not be an issue.

Yes, prosecutors have discretion on what to charge people for crimes. However, what offends people so much is that the perpetrator’s income and occupation were a factor ostensibly for a reason that only affects the victim and the victim asked that it be excluded for consideration.

Posted by invisiblehand | Report as abusive
 

Are Erzinger’s assets now sufficient to compensate Dr. Milo’s injuries? If they are, what bearing would his future earning ability have on what would seem to be obvious criminal liability. Restitution up to and including forfeiture of assets sufficient to pay for Milo’s medical care lost earnings could be part of a criminal sentence that also included jail time.

Posted by teabagno | Report as abusive
 

What about filing a civil suit?

Posted by chr2 | Report as abusive
 

AnonymousChef, I would love to know too. This is one of those frustrating articles thats simply begs more questions to be answered.

My understanding is that the DAs in America are elected, so this has to be a populist and righteous case if ever there was one. Wealthy banker hits and runs on a doctor? Surely a slam dunk. And it is hard to believe that anyone with a brain would give that reason for pleading down.

This report makes it sound a bit more like there may have been worries the guy would have simply walked free if tried for the worse crime, which presumably has a higher bar for evidence:

http://www.summitdaily.com/article/20101 108/NEWS/101109802/1078&ParentProfile=10 55

Can only hope with the coverage it is getting now that the DA feels he needs to explain his rationale.

Posted by Danny_Black | Report as abusive
 

Hurlbert seems to have his own agenda when it comes to money.

This story has a felony charge given originally to 2 racers who exchanged bibs

http://www.huffingtonpost.com/2010/05/11  /leadville-100-mountain-bi_n_571561.htm l

After looking at several of his cases, this guy seems to have his own agenda, favouring the wealthy.

Posted by hsvkitty | Report as abusive
 

This sounds like the Middle Ages, where rich nobles could commit virtually any crime and get away with it.

What is America turning into, and how can we stop it?

Posted by BastHotep | Report as abusive
 

Here are a few problems with the story.

1) I question the claim that the Prosecutor failed to file charges. If the prosecutor was involved in the plea agreement (which it seems he was) – Charges were filed.

2) If the Prosecutor chose to settle the case for some form of restitution, there are likely reasons for this. These reasons may be that the Defense attorney was really good, or simply because the case isn’t as solid as the reporter would like us to believe. (in many cases, this might only be a non-felony crime except for the publicity it was given)

3) In this case there is probably a threat of a felony sentence hanging over his head if he fails to abide by the rules and conditions of his probation (also very common).

Posted by LandonAscheman | Report as abusive
 

Disgusting.

Posted by shawngrggs | Report as abusive
 

unknowingly suffering from sleep apnea… is that what defense attorneys are calling cocaine binges these days?

Posted by wolphkaat | Report as abusive
 

Landon, even though you are a criminal lawyer, it seems that the hit and run driver was allowed a plea bargain… even though he was charged with a felony and there was evidence of severe bodily harm and permanent damage.

Hurlbert accepted the plea bargain, which he says have far more punitive effects because the burden of those charges will remain on his record wheres the felony charges would be dropped in 2 years.

That’s a far cry from his original press statement that the felony charge would have a detrimental effect on the driver’s job as he has to report his felony to his clients within 30 days of being charged.

I still think it is interesting that there is once again a flip flop from:

“Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it,” Hurlbert said. “When you’re talking about restitution, you don’t want to take away his ability to pay.”

He should have been charged and paid restitution as well as served the 2 years, and continue restitution for the rest of his life.

As it stands his ability to pay is probably better right now, and less likely later as I wouldn’t want this unethical man playing with my money, nor trust him to do right by me when he has himself and his restitution on his mind and eating at his pocketbook.

By Colorado law, serious injuries call for felony charges… outlined in 2b and 4b, below

(1) The driver of any vehicle directly involved in an accident resulting in injury to, serious bodily injury to, or death of any person shall immediately stop such vehicle at the scene of such accident or as close to the scene as possible but shall immediately return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of section 42-4-1603 (1). Every such stop shall be made without obstructing traffic more than is necessary.

(1.5) It shall not be an offense under this section if a driver, after fulfilling the requirements of subsection (1) of this section and of section 42-4-1603 (1), leaves the scene of the accident for the purpose of reporting the accident in accordance with the provisions of sections 42-4-1603 (2) and 42-4-1606.

(2) Any person who violates any provision of this section commits:

(a) A class 1 misdemeanor traffic offense if the accident resulted in injury to any person;

(b) A class 5 felony if the accident resulted in serious bodily injury to any person;

(c) A class 3 felony if the accident resulted in the death of any person.

(3) The department shall revoke the driver’s license of the person so convicted.

(4) As used in this section and sections 42-4-1603 and 42-4-1606:

(a) “Injury” means physical pain, illness, or any impairment of physical or mental condition.

(b) “Serious bodily injury” means injury that involves, either at the time of the actual injury or at a later time, a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.

Posted by hsvkitty | Report as abusive
 

I don’t get it… even from a cold-hearted market perspective, would I trust my investment in the hands of someone who (if we dare give him the benefit of the doubt), was too unobservant/distracted/careless to notice that he caused an accident and left someone for dead on the side of the highway. Heck no! Lock the bugger up and through away the key–his usefulness to society is over.

Posted by Cafferty | Report as abusive
 

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