A judge on Thursday dismissed felony charges against two local men who were to be tried for the 2008 deaths of a family from carbon monoxide poisoning in a home near Aspen.
Former city building inspector Erik Peltonen, 69, of Basalt, and Marlin Brown, 58, of Glenwood Springs, owner of Roaring Fork Plumbing and Heating, had each been charged with four counts of criminally negligent homicide. The dismissal comes 15 months after a grand jury handed down the charges. The secret body investigated the case for a year, and indicted Peltonen and Brown in 2010.
The charges were dismissed after Chief Judge James Boyd of Pitkin County District Court refused to allow the prosecution to amend the grand jury’s indictment.
Chief Deputy District Attorney Arnold Mordkin was seeking to add to the indictment the date of the deaths of the Lofgren family of Denver. The date — either Nov. 27, 2008, or Nov. 28, 2008 — had been omitted in the indictment, which said only that the alleged crimes had occurred between Jan. 1, 2004 and Jan. 1, 2006. That represented when the residence was inspected before a certificate of occupancy was issued.
The latter date proved crucial Thursday during a motions hearing. When the grand jury returned the indictment on July 23, 2010, it was doing so about 4 1/2 years after Jan. 1, 2006, Boyd ruled. The judge said by law he could only rely on the 2004 and 2006 dates because they are the only ones in the indictment.
The 4 1/2 years exceeds the three-year requirement in the statute of limitations for criminal cases, and in attempting to add the date of the family’s deaths Mordkin was seeking to keep the case within the statute. That would have meant the grand jury had returned the indictment less than three years after the deaths.
Slight changes to indictments are sometimes allowed, but adding the date of death would have constituted a substantial modification that can only be done by the grand jury, Boyd ruled.
Peltonen is now free of both criminal and civil actions brought against him after the deaths of Caroline Lofgren, 42; her husband, Parker, 39; and their two children, Owen, 10, and Sophie, 8. They had rented the house on Popcorn Lane a few miles east of Aspen through a fundraising auction at their children’s school.
Peltonen shook the hand of his attorney, Abraham Hutt of Denver, who hugged Peltonen’s wife afterward.
“It’s been 15 months of worry,” Peltonen said. “I’m glad it’s over.”
Peltonen said he felt Mordkin and the family “were using six innocent people to do their agenda.” The six referred to the Lofgrens and himself and Brown, he said.
Lofgren relatives who attended the hearing angrily rebutted Peltonen, with Jean Rittenour, the mother of Parker Lofgren, saying his comment made no sense.
“That’s not the kind of people we are,” added Hildy Feuerbach, Caroline Lofgren’s sister.
Since the tragedy, the relatives have concentrated on spreading awareness about the importance of carbon monoxide detectors in homes. The home at 10 Popcorn Lane did not have such a device in 2008 despite a county ordinance requiring one.
Snowfall on Nov. 27 of that year activated the boiler, which was used to melt snow on the driveway and provide hot water. A disconnected pipe or vent allowed the odorless gas to penetrate the rest of the home while the family slept. Friends discovered their bodies the next day.
Brown’s company was responsible for the installation of the boiler. Peltonen said he denied the approval of the boiler after inspecting it. And Hutt pointed to the fact that the Pitkin County Sheriff’s Office investigated the tragedy and decided it wasn’t a crime.
For their part, family members of the Lofgrens “are not in the business of guilt or condemnation,” said Frederick Feuerbach, Jr., the father of Caroline Lofgren.
He told Mordkin after the ruling that he was courageous for pursuing a case that the defense called unprecedented in Colorado. He said later that he thought the judge’s decision was based on a technicality.
But Colleen Scissors, the Grand Junction attorney representing Brown, said she thought Boyd had no choice but to rule as he did.
“There just was no question that the statute of limitations issue was accurate as a matter of law,” she said.
Mordkin declined comment about the dates involved in the indictments. He said he apologized to the victims’ family.
The city of Aspen and Pitkin County, which share building inspection duties, paid for Peltonen’s defense. After his decision, Boyd vacated the trial dates for this month and next for the defendants.
Given how many people worked on the home and its infrastructure, Mordkin’s decision to focus only on Brown, Peltonen and Pitkin County building inspector Brian Pawl was “extraordinarily unusual,” Hutt said.
Pawl had been charged with misdemeanor crimes related to the deaths. The case was dropped after Boyd dismissed the charges, which also violated the statute of limitations.
Hutt declined comment when asked if he thought other subcontractors and the homeowner at the time — parties that are named in a civil lawsuit filed by relatives of the Lofgrens — were granted immunity in the criminal cases.
Still, he said the fact that those parties were not involved in the criminal side was striking.
On Wednesday, a federal judge dismissed the family’s civil lawsuit against the county government, Peltonen and Pawl. The case was remanded back to the district court level, where Brown remains a defendant with other subcontractors who worked on the home. The judge ruled in essence that the plaintiffs failed to prove that the county created the dangerous situation.
Hildy Feuerbach said she was grateful to Mordkin and members of the grand jury for spending an entire year on the case.
“I’m sure it’s a disappointment to them,” she said. “We thank them.”
The relatives’ next step will be to unseal the secret jury’s deliberations to see if that will help in the civil trial.
The Lofgren family “can’t be forgotten,” Rittenour said.