A Summit County judge has rejected the Colorado Attorney General’s argument that forcing the boss of the Colorado Avalanche Information Center to testify in a rare criminal case could have a chilling effect on the way backcountry travelers share avalanche observations with the agency.
“I would really hope that the chilling effect that is being discussed here does not happen because, frankly, all you are doing by withholding that information is making it less safe for you, your colleagues and … other backcountry users,” Judge Ed Casias said Tuesday afternoon. “So the chilling effect component of it, the court does not really see as being a major, major issue here.”
Attorney General Phil Weiser did not want avalanche center director Ethan Greene to testify in the case against backcountry snowboarders Evan Hannibal and Tyler DeWitt, who are facing charges of reckless endangerment and $168,000 in restitution stemming from a March 2020 avalanche above Interstate 70. The avalanche, captured on their helmet cam video, did not injure anyone, but it did destroy an avalanche mitigation device and bury a service road.
Weiser feared that forcing Greene to testify in the prosecution of backcountry travelers would hinder the ability of the avalanche forecasting organization to gather information from backcountry users.
“The agency’s concern is based on decades of experience with staff in frequent communication with backcountry travelers,” Deputy Colorado Attorney General Jeff Fugate argued Tuesday in a hearing on the motion to quash the prosecution’s subpoena for Greene’s testimony. “This community involvement and this information sharing really is fragile and there is real potential to damage the public trust.”
Deputy District Attorney Stephanie Cava was critical of the “speculative nature of the concern” about the chilling effect. She said her office prosecuted an avalanche case in 2014 involving backcountry travelers outside Keystone ski area and there was no decrease in avalanche reporting. In fact, she said, the agency is fielding a record-high number of avalanche observations from backcountry travelers this season. Cava suggested the increase might have to do with press coverage of the case.
“There have been no studies that I know of showing that criminal actions impact avalanche reporting,” Cava said. “If this court were to grant this and give every witness that doesn’t want to testify an out, it sets a great precedent. It would be something where more and more witnesses would say ‘I don’t want to testify.’ And how are the people going to be able to prove charges going forward if that’s allowed?”
Fugate said the Colorado Avalanche Information Center “could not disagree more” with the contention that the case has spurred more field reporting.
“The increase is directly related to the time and resources invested by CAIC to encourage more reporting,” Fugate said. “The center has worked hard to foster and develop a close relationship with the backcountry community … and establish itself as a trusted, reliable resource.”
The role of the CAIC is to educate backcountry travelers about avalanches and hazards. Both Fugate and Cava agreed on that point.
“If they are the teachers, you don’t expect people to not be able to ask questions,” Cava said. “That is what we are asking them to do … to educate six jurors who are the people of the state of Colorado who are making the decision in this case.”
Casias took more than an hour to explain his position on Tuesday. He acknowledged that Greene and avalanche forecaster Jason Konigsberg, who also was subpoenaed to testify, are “reluctant witnesses.”
He pointed to the report on the avalanche compiled by the CAIC, which described the snowpack and the descent of Hannibal and DeWitt but did not make any judgements.
“The conclusion (in the report) does not say they acted recklessly,” Casias said. “It had fair, objective, fact-based conclusions that will then be argued if it was reckless or not.”
Casias said he did not think Greene would be testifying as an expert witness about whether or not veteran backcountry travelers Hannibal and DeWitt were breaking laws when they snowboarded on the slope above I-70 near the Eisenhower- Johnson Memorial Tunnels.
“He is testifying as to what his report determined,” Casias said. “That is education and that is education for the members of this community who will have to decide whether this behavior was criminal or not.”
Prosecutors filed a motion objecting to the expert witness recruited by Hannibal and DeWitt, avalanche educator Jon Miller, who has promoted avalanche safety across the West for decades. She also suggested her team could use more time to fully vet Miller and prepare questions for the trial, which is set to begin next week.
Jason Flores Williams, the attorney for Hannibal and DeWitt, argued against a continuation.
“What this complaint represents to them is essentially a financial end to their life,” Flores Williams said, pointing to the prosecution seeking $168,000 to pay for an avalanche mitigation system that was destroyed in the avalanche.
In a rare instance of a prosecutor openly talking about plea negotiations, Cava said Hannibal and DeWitt declined a deal to plead guilty to a lesser misdemeanor, pay a fine of $25,000 and serve volunteer hours in the community.
Flores Williams said Casias has issued “extremely thoughtful” rulings in the case and was very happy he allowed Miller to testify as the defense’s expert witness.
“It was critical for these guys to be able to rebut whatever expert testimony is offered by the prosecution and be able to offer our own expert to be able to counter their testimony,” he said. “This was a critical win for us today.”
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