Avalanche investigators from the Colorado Avalanche Information Center (CAIC) must testify in the trial of Evan Hannibal and Tyler DeWitt according to Judge Casias. He dismissed a motion from the Attorney General’s Office to void subpoenas to keep them off the witness stand.
On March 25 DeWitt and Hannibal were snowboarding above the Loop Road at the Eisenhower/Johnson Memorial Tunnels. They triggered an avalanche. Nobody was injured but it covered more than 400 feet of the roadway up to 20 feet deep and damaged a remote avalanche-control installation.
The District Attorney charged both snowboarders with misdemeanor counts of reckless endangerment.
Much has been made of the avalanche center’s role. The center contacted the defendants after the avalanche to collect information to put together a report on the incident. The defendants voluntarily supplied information. Which was later shared with the Summit County Sheriff’s Office.
The defense attorney Jason Flores-Williams fought to suppress the report as evidence. He argued that it represented a violation of the defendants constitutional rights because they were never informed the information could be used against them. Judge Casias ruled there were no violations. The avalanche center employees weren’t acting as law enforcement agents in their investigation and there was no formal search or seizure.
The avalanche center was directly involved the case a few days later. Subpoenas for their avalanche investigators were issued. They required the center’s Director Ethan Greene and forecaster Jason Konigsberg to testify as expert witnesses. On Feb. 26 the Attorney General filed a motion to quash the subpoenas on the grounds that such testimony could have an “unintended adverse ‘chilling’ impact on the CAIC’s ability to gather important information from people involved in avalanches.”
On Tuesday Assistant Attorney General Jeff Fugate defended the office’s stance. He claimed that forcing the men to testify would harm future efforts to gather information following an avalanche. It could create a situation where backcountry users would no longer view the CAIC as impartial.
“The center is very aware of conversations taking place in the backcountry community. And advice being widely shared that people should no longer speak to the CAIC if they are involved in an avalanche,” Fugate said. “…That’s the exact opposite message the center has worked hard to implement in Colorado. People should be willing to share information with the center without hesitation or reservation because the more information the center has, the better it can educate the public about avalanche safety.”
“The agency has fulfilled their role by sharing this information. However, appearing as an expert for the prosecution takes them outside of this informational or educational role. It leaves the wrong impression or the misunderstanding that the CAIC is now ‘on a side.’ That’s something this agency just wants to avoid at all costs.”
Fugate said the fear wasn’t that community members would stop reporting avalanches altogether. But they may report an avalanche and refuse to provide any follow-up interviews, photos or videos.
Fugate continued to say that the subpoenas for the avalanche investigators were unnecessary. They say prosecutors could find other avalanche experts who weren’t working for the state to serve as witnesses.
In response Deputy District Attorney Stephanie Cava called the assertions speculative. She said her office often deals with situations like this. She compared the situation to someone getting in a car crash, calling the police and still potentially getting a ticket.
She also said that some fears were driven by inaccurate news reporting. She singled out a recent story from The Colorado Sun. Which mistakenly called the case the state’s first criminal case involving an avalanche. She claims there were three cases that went to trial in Summit County in 2014 after a fatal avalanche. While those cases did not receive the same news coverage Cava claimed it did not impact avalanche reporting. She noted that field reporting to the avalanche center nearly doubled from 2014 (1,392) to 2020 (2,771).
Cava also says that reports her office seeks a set amount of restitution in the case were false. Any restitution amounts will be decided if the men are convicted. She noted that the most recent plea offer her office made to the defendants was rejected. It involved the defendants pleading guilty to reckless endangerment, performing 120 hours of public service and paying $25,000 in restitution.
Cava also said that prosecutors are given wide latitude to call witnesses. Quashing them in this case could create a bad precedent in the district. She claims that witnesses from state agencies frequently testify without compromising their impartiality.
“When a (Colorado Bureau of Investigation) forensic scientist comes and testifies in a DUI case, they don’t get up there and speak on behalf of the people,” Cava said. “… (They) don’t get up there and say, ’That person was drunk.’ They say, ‘Well this is the test that I did, this is how I did it and, based on that information, you could see these sorts of signs.’ They don’t give a conclusory opinion.”
Casias noted that avalanche investigators Greene and Konigsberg would be reluctant witnesses and that the case potentially could have impacts on future avalanche reporting. But he said the district attorney’s office didn’t err in issuing the subpoenas.
As expert witnesses, Casias said the men would be asked only to share their objective findings from their investigation.
“They don’t get to sit here and say this person is guilty or not guilty of any criminal conduct,” Casias said. “… Their expertise and their knowledge is providing an objective determination of what caused the avalanche to go.”
The trial is set for March 25-26.
