In a potentially devastating development for prosecutors in the Lake Christine Fire cases, a judge last week ruled that a sign denoting a prohibition on incendiary tracer rounds at the Basalt gun range where the blaze originated cannot be used as evidence at the defendants’ trials.
The 5th Judicial District Attorney’s Office moved immediately to try to stay proceedings in the cases against Allison Marcus and co-defendant Richard Miller so it can pursue an appeal to the Colorado Supreme Court after the May 7 decision by Judge Paul Dunkelman of Eagle County District Court. A prosecutor wrote that the judge’s decision to suppress “material evidence” related to the sign is “tantamount to dismissal” of the four felony charges each defendant faces.
The ruling is significant because to prove arson, prosecutors must show that the defendants “knowingly or recklessly” started the fire, which scorched over 12,500 acres, destroyed three homes and caused the evacuation of nearly 2,000 midvalley residents.
Miller and Marcus had arrived from Maryland roughly 24 hours after the Eagle County Sheriff’s Office, a couple of days before the fire, implemented a Stage II fire ban, which prohibits the use of tracer rounds. Shortly after the blaze ignited, allegedly by Marcus using such a bullet, Miller told a law enforcement officer that he had seen electronic road signs about the fire ban near the gun range but said they only mentioned fires and fireworks.
The state signs posted at the range do not list a prohibition against tracer rounds. Another sign, apparently posted by the private gun club that operates in part of the range, does list that rule, but it is “just inside the doorway of the rifle range and behind the backs of anyone entering the rifle range,” wrote Marcus’ attorneys, Stan Garnett and Amanda Houseal.
Their late April motion to exclude the sign-related evidence says that, “buried deep within this sign, in the ninth bullet point, after a discussion regarding picking up trash and keeping the range clean, is the statement, in small font, reading, ‘tracer … ammunition is prohibited.
“Ms. Marcus never saw this small sign, and [prosecutors] have no evidence that she did.”
They further argued that the marker is not a legal Colorado Parks and Wildlife sign because it doesn’t comply with the agency’s regulations for official signs and is instead a “informal, non-binding” marker that belongs to the private club.
“This sign is not evidence of a Colorado Parks and Wildlife regulation,” the defense motion says. “The sign is irrelevant to any lawful regulation regarding use of tracer ammunition, and if it were admitted [it] would be unfairly prejudicial to Ms. Marcus, will confuse the jury, and would likely mislead the jury as to the actual law concerning use of tracer ammunition in Colorado, and the imposed rules and regulations of the range as defined by Colorado Parks and Wildlife.”
Tracer rounds are allowed in Colorado, but the parks and wildlife agency in the days after the Lake Christine Fire banned them from property it controls. Such rounds are also barred in Colorado’s national forests. The defense also cites how confusing the Stage II rules implemented by Eagle County were versus those in place at the range.
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,” Garnett and Houseal wrote.
“Other than agreeing that ‘open fires and fireworks’ were prohibited, the opinions about other provisions are many and confusing,” the motion says. “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 defense team met with Eagle County Sheriff James Van Beek to try to clear up the confusion, and the top lawman told them that it’s “clear” that tracer rounds are prohibited during both Stage I and Stage II fire bans.
“However, there is no ‘applicable order, rule or regulation issued by a governmental authority’ that confirms Sheriff Van Beek’s assertion or clarifies the terms of either level of fire ban,” the motion says, adding that the ordinance Eagle County adopted does not mention tracer rounds.
Judge Dunkelman agreed with the defense on May 7, citing his comments made in open court that day. Minutes of the judge’s comments could not be obtained Tuesday, and efforts to reach prosecutors were unsuccessful.
The prosecution on Monday filed its motion to stay the cases so it can appeal to the state high court. Judge Dunkelman has yet to rule on the matter.
Marcus’ attorneys called this prosecutorial bid “extraordinary” and said their client had yet to decide whether to agree to a continuance and waive her right to a speedy trial.
“From the very beginning of this case, counsel for Ms. Marcus has suggested to the Colorado Fifth Judicial District Attorney’s Office that there is insufficient evidence to proceed to trial against [her] because she simply did not have the requisite mental state required for any of the four felony charges brought against her, a fact the [prosecution] would have realized had they conducted a careful investigation of the case prior to filing charges against Ms. Marcus,” the defense wrote in opposing the DA’s bid for the stay and appeal.