Local government building inspectors, accused of playing a role in the deaths of a Denver family who perished in a 2008 carbon monoxide poisoning at a home east of Aspen, were exonerated this past fall.
The bringing of criminal charges against government employees for the deaths was rare — if not nearly completely unheard of.
A judge dismissed the felony cases against building inspector Erik Peltonen and Marlin Brown, the owner of a Glenwood Springs heating and plumbing company, in November. The charges were dropped based on a technicality and a mistake that the Aspen prosecutor had made.
Peltonen and Brown had each been charged with four counts of criminally negligent homicide in the deaths of Caroline Lofgren, 42; her husband, Parker, 39; and their two children, Owen, 10, and Sophie, 8.
In 2008, they won a stay in a mansion on Popcorn Lane a few miles east of Aspen through a fundraising auction at their children’s school. A disconnected pipe in a boiler used to heat both the home and its driveway snow-melt system allowed carbon monoxide to penetrate the residence, killing the family.
After nearly a year of secret deliberations, a grand jury indicted Brown, Peltonen and fellow government building inspector Brian Pawl. Brown and Peltonen were charged with the felony negligent homicide counts and misdemeanor counts of reckless endangerment. Pawl faced only the latter charges.
But Chief Judge James Boyd of the 9th Judicial District in January dismissed the misdemeanor counts against all three men, agreeing with prosecutors that the 18-month statute of limitations on the lesser charges had expired.
Peltonen and Brown still faced the felonies, but the role of the statute of limitations was not done.
As a government building inspector, Peltonen worked for both the city of Aspen and Pitkin County, as did Pawl.
Attorneys representing the two governments contended that the prosecution flew in the face of state and county laws and could have led to a “rude surprise” for taxpayers.
The potential of criminal exposure for municipal employees who are acting in good faith and without malice had “breathtaking implications” for the ability of municipalities to recruit and retain quality staff or conduct routine operations in a timely manner, such as approving certificates of occupancy, the governments of Aspen and Pitkin County argued. They also called such filing of charges against a government employee “unprecedented” in modern times.
Boyd’s eventual ruling centered on a critical error Chief Deputy District Attorney Arnold Mordkin made in the grand jury’s deliberations.
The judge refused to allow Mordkin to amend the grand jury’s indictment. Mordkin was seeking to add to the indictment the date of the deaths of the Lofgrens. The date — either Nov. 27 or 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 during a Nov. 3 motions hearing. When the grand jury returned the indictment on July 23, 2010, it was doing so about four and a half years after Jan. 1, 2006, Boyd ruled. The judge said by law he could only rely on the 2004 and 2006 dates because they were the only ones in the indictment.
The four and a half years exceeded 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.
The relatives of the victims also sued in federal civil court. Their claims against Pitkin County, Peltonen and Pawl were dismissed, a day before Boyd’s criminal-side ruling, after a judge said the plaintiffs failed to prove that the county and its building inspectors had created the danger that led to the deaths of the Lofgren family.
After the federal decision, the civil suit by the relatives of the Lofgrens was remanded to Denver District Court. Brown, along with nine other subcontractors who also worked on the home, and Black Diamond Land Development Corp., which owns the residence, remain defendants.
— Chad Abraham