Fire Defendants

Richard Miller and Allison Marcus

The two people accused of starting the Lake Christine Fire, one of the most destructive blazes in recent memory, are expected to plead guilty today in Eagle County District Court, a prosecutor said Tuesday.

Because the plea agreement had yet to be finalized, Heidi McCollum, assistant district attorney in the 5th Judicial District, would not say what crimes Richard Miller and Allison Marcus will plead guilty to, nor what the sentencing terms of the deal may entail. Marcus’ attorney, Stan Garnett, and Miller’s lawyer, Josh Maximon, declined comment.

The guilty pleas, if they go through, would cancel lengthy trials set for each defendant — Miller’s was to start next Tuesday — and allow victims of the nearly 12,600-acre fire that destroyed three homes and forced the evacuation of thousands of midvalley residents to speak at their sentencings. McCollum said the sentencings could happen in a couple of weeks.

“We’re looking forward to a resolution in these cases to help the community begin healing,” she said.

The DA’s office was hamstrung by a recent ruling by Judge Paul Dunkelman, who excluded from trial any mention of a sign at the gun range where the fire ignited that prohibits tracer rounds. The sign is an unofficial marker put up by a private gun group that operates a portion of the range, the defense teams argued, noting that official signs posted by Colorado Parks and Wildlife, which runs the public side of the range, contain nothing about such a prohibition.

Prosecutors had said they intended to appeal the ruling to the Colorado Supreme Court, but McCollum noted Tuesday that the high court overturning the lower court ruling was a long shot.

Judge Dunkelman’s ruling “excluded what we considered to be a crucial piece of evidence,” McCollum said. “We could go to the Supreme Court for review and request they overturn it … but it’s not a slam dunk. It’s not even a 50-50 shot.”

Authorities confronted Miller and Marcus, and she admitted to firing a rifle and starting the fire on the evening of July 3. An incendiary tracer round apparently ignited tinder-dry brush and quickly spread, growing to the point that portions of Missouri Heights and Basalt were evacuated.

Miller and Marcus are each charged with three felony arson counts — one for each of the three residences destroyed by the fire — and another involving setting fire to a woods or prairie, also a felony. The fourth-degree arson charges involve “knowingly or recklessly” starting a fire that placed “someone in danger of death or serious bodily injury or [placed] another person’s building or occupied structure in danger of damage,” according to the state statute. The count related to setting fire to a woods or prairie contains similar language.

The defense teams have maintained that their clients did not have the culpable mindsets to be found guilty because they were not aware that the Stage II fire restriction in place at the time prohibited tracer rounds. Miller told law enforcement shortly after the fire started that he had seen electronic road signs about the fire restriction, but said they only mentioned fires and fireworks. Marcus tearfully told police that she was not aware of the fire ban and didn’t even know what types of rounds she was shooting, according to law enforcement reports.

If the state high court did not grant the DA’s appellate petition and the exclusion of the sign was upheld, “it would have been an incredibly difficult case to prove,” McCollum said. “Given the posture of our case, I do think this is the appropriate direction to take these cases in.”

Asked if she thought her office had over-charged the defendants and whether a misdemeanor count of criminal negligence, for instance, would have been more appropriate, McCollum said no and cited the statute language.

“To shoot tracer rounds during a fire ban is a reckless act,” she said.

But the defense also took issue with the Stage II ban language, contending the rules implemented by Eagle County versus those in place at the range were confusing.

Posts about the restrictions on the sheriff’s office website and its Facebook page did not contain precise terms of the fire ban, and the language used was “in dispute and confusingly conveyed,” Marcus’ attorneys wrote in a motion. “Other than agreeing that ‘open fires and fireworks’ were prohibited, the opinions about other provisions are many and confusing.

“Indeed, even the Colorado Division of Fire Prevention and Safety’s ‘Fire Restrictions Explained’ handout varies greatly from both the Eagle County ordinance” and a June 29, 2018, press release from a sheriff’s office spokesperson about the Stage II ban, the motion says.

Maximon filed as an exhibit a memo written by McCollum in which she says she attended a meeting of top law enforcement officials in March. During the meeting, Eagle County Sheriff James van Beek said his jurisdiction was updating its fire-ban language.

“The sheriff commented that the updates are necessary because the regulations are confusing as to what is and what is not banned during different stage bans, i.e., Stage I vs. Stage II,” McCollum wrote.

The assistant district attorney on Tuesday also addressed the stance her office has taken regarding plea deals for defendants in fire-related cases that happen during fire bans. District Attorney Bruce Brown said a few days after the fire that his office has a long-standing policy to not reduce the level of a fire-related charge, upon conviction or plea, if it comes amid a fire restriction.

“The reason we do not reduce charges on fire cases is because as a rural district we are vulnerable to wildfire and believe that if the community is listening, this sends a message of deterrence,” McCollum wrote in an email. “However, prosecutors cannot maintain charges unless they are provable. In this case, given limitations that were placed on our evidentiary presentation, we didn’t have the necessary evidence to convict the defendants and would therefore have been challenged in presenting the evidence that we once believed would have been sufficient to prove a more serious charge.

“Please understand this is no policy change.”

McCollum forwarded, “as an example of the seriousness with which we treat these cases,” a press release from her office about a Denver man who was convicted this month of violating a Stage II fire ban in Clear Creek County last summer. The man was shooting at targets in a remote area during drought conditions despite the ban being clearly marked by highway signs, the release says.

Chad is a Contributing Editor for Aspen Daily News. He can be reached at chad@aspendailynews.com or on Twitter @chad_the_scribe.