Defendants in monoxide case take the ‘Fifth’ in civil lawsuit

by Chad Abraham, Aspen Daily News Staff Writer

Believing they could again face criminal prosecution or civil liability for the 2008 deaths of a Denver family from carbon monoxide poisoning, a county building official and a former city building inspector last month invoked their Fifth Amendment right against self-incrimination during a deposition in Aspen for a lawsuit by the family’s relatives.

The city of Aspen and Pitkin County acknowledged last week that they have paid Denver lawyer Abraham Hutt more fees for his advice in the lawsuit. Brian Pawl, the county’s chief building official, and Erik Peltonen, a former city building inspector, were once defendants in the lawsuit, as was Pitkin County, before a federal judge dismissed the civil claims against the two men and the county.

Hutt also represented Peltonen when he, Pawl and Marlin Brown, the owner of a Glenwood Springs plumbing and heating company, faced felony and misdemeanor charges in the deaths of Caroline Lofgren, 42; her husband, Parker, 39; and their two children, Owen, 10, and Sophie, 8. They died over the Thanksgiving weekend in 2008 after a boiler leaked the deadly gas into a home they were staying in outside Aspen.

All of the criminal charges were dismissed after Hutt and other attorneys successfully argued that the dates used on a grand jury’s indictment of the men were outside the statute of limitations.

The family’s lawsuit has continued against 10 remaining entities, including the mansion’s then-owner and various contractors who worked on the home, for alleged roles in the family’s deaths.

Attorneys for the plaintiffs and some of the defendants came to the Inn at Aspen on Oct. 16 for the depositions of Pawl and Peltonen, as did the Lofgrens’ relatives. On Hutt’s counsel, the men invoked their Fifth Amendment rights, wrote the relatives’ attorney, William Hansen of Denver, in a Nov. 15 court filing.

Their refusal to testify about “any substantive issues involving their building inspections” of the home outside Aspen where the Lofgren family died was “extremely surprising,” Hansen wrote.

“This was raised by their civil attorneys, in consultation with their former criminal defense counsel, under what [the family] would describe as some feigned and fantastical concern over some lingering possibility of further criminal prosecution, somehow related to the politics of the district attorney’s race in the 9th Judicial District,” Hansen wrote.

Hansen since May has sought testimony and evidence presented to the grand jury that, in 2010, indicted Peltonen, Pawl and Brown.

He is seeking a court order that would allow Aspen prosecutors and the Pitkin County Sheriff’s Office to release the Munchkin boiler that leaked the gas and vent piping for the apparatus. Both the plaintiffs and defendants want to examine the boiler and piping, Hansen wrote.

And both sides also want to know what Peltonen and Pawl told the grand jury.

“Upon information and belief, they testified before the grand jury without invoking Fifth Amendment rights, privileges or immunities against self-incrimination and were indicted on various charges, all of which were eventually dismissed,” Hansen wrote in a supplemental petition to unseal the evidence.

Other civil defendants “have also defended their own conduct by claiming reliance on the building inspections performed by these building inspectors,” the filing says.

But at the Inn at Aspen last month, both men said little. Hansen filed a transcript of their depositions as an exhibit to his grand jury petition.

Questioning Pawl, Hansen asked if he was involved in various inspections of the construction work being done on the home at 10 Popcorn Lane.

“Yes, I was,” Pawl said.

“And tell us what your involvement was, please,” Hansen said.

“I’m invoking my Fifth Amendment right to be free of self-incrimination, and, therefore, I respectfully decline to answer any further questions,” Pawl said.

“What do you have to hide, sir?” Hansen asked.

“I respectfully decline to answer that question,” Pawl replied.

In the petition, Hansen wrote that the civil and criminal attorneys for Peltonen and Pawl “continue to be paid to advance this obstruction by Pitkin County and the city of Aspen.”

The county and city in November 2011, shortly after the criminal charges were dismissed, said they had paid Hutt $259,070 to represent Peltonen. That amount has since risen to $263,114; the governments, which share building inspection duties and are splitting the legal costs 50-50, have paid Pawl’s attorney, Gerry Goldstein, about $14,400, according to county finance director John Redmond. It’s unclear who the civil attorneys for Pawl and Peltonen are or how much they have been paid to represent the men.

Hansen called the men’s fear of further prosecution “fantastical and contrived given the district attorney’s office’s written assurances that the criminal investigation is closed, as well as the Democratic challenger’s repeated criticisms of these criminal prosecutions during the political campaign …”

Beeson said Tuesday that he has offered immunity to allow the men’s grand jury testimony to be used in the civil case. And Sherry Caloia, the Democratic challenger cited by Hansen who unseated Beeson in the Nov. 6 election, said Wednesday that she “would certainly consider” a similar step.

“I was very critical of [the prosecutions], that’s true,” she said. “I would look at all of the evidence before making a decision.”

Aspen City Attorney Jim True last week said that, despite such assurances, Hutt, Peltonen and Pawl still did not want to take the risk. He said there could be an appeal after the lawsuit that could again entangle the former defendants and that there is still some question about the potential for a future prosecution.

The city and county will continue to stand behind their former and current employees, True said.