Judge denies motion to force charges against Transfort driver who fatally hit man in January

Patricia Telleen held up a photo of her son as a judge denied her request to force criminal prosecution against the driver of the bus that struck and killed him last January.

Jason Telleen, 37, was working as a fueler at Fort Collins' Transfort maintenance and fueling facility at 6570 Portner Road the evening of Jan. 24 when another employee hit and ran over him while parking a bus. After the driver hit Jason Telleen, he put the bus in reverse and ran him over again.

A Fort Collins police investigation resulted in an officer recommending no charges be filed against the driver in mid-February, and the 8th Judicial District Attorney’s Office announced its decision not to file charges shortly after.

But Patricia Telleen — unsatisfied with the police department’s investigation and district attorney’s conclusion — hired her own experts to investigate her son’s death. She and her attorneys believe the driver should be charged with careless driving resulting in death, a Class 1 traffic misdemeanor, and filed a motion to compel prosecution in October. In that motion, she also requested a judge appoint a special prosecutor in the case.

In front of a courtroom packed with Telleen’s friends and supporters, Judge Jenny Ellison denied Telleen’s motion to compel prosecution during a court hearing Monday afternoon.

“It feels like another loss,” Telleen said after Monday’s ruling. “It’s just like losing him all over again.”

Telleen, attorneys say bus driver was 'definitely careless'

Patricia Telleen’s attorney, Matthew Haltzman, said during his argument that the bus driver acted carelessly when he drove through the lot at higher than the posted speed limit and when he made the “inexplicable decision” to reverse the bus and run over Jason Telleen a second time instead of immediately stopping. Haltzman also showed the judge surveillance footage from the bus that he says shows the driver is not looking where he is driving when he hits Jason Telleen in the middle of the paved area.

A careless driving resulting in death charge can be filed against “a person who drives a motor vehicle … in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances,” according to state statute.

“We’ve hired experts to investigate, and that all determined unanimously that (the driver) was engaging in driving that was not reasonable, not prudent and definitely careless,” Haltzman said.

One of those experts uncovered new information last week that indicates the driver may have had long-term vision problems at the time Jason Telleen was killed, Haltzman said. But 8th Judicial District Attorney Gordon McLaughlin said the information is "significant hearsay" and not reliable. Even if it were, McLaughlin said, it's information investigators did not have at the time of his decision not to file charges.

"We cannot fill in the blanks how we choose," McLaughlin said.

'Not all tragedies are crimes'

In an email statement, McLaughlin said his "heart goes out to the Telleen family" after the "tragedy" of Jason Telleen's death, "however, not all tragedies are crimes."

"Our office took this case incredibly seriously and 11 attorneys spent significant time reviewing the evidence," McLaughlin said in his statement. "Fort Collins Police Services did not request criminal charges and the facts simply did not rise to the criminal level. Filing a charge not backed by the facts would be a violation of our legal and ethical obligations."

More: Family continues investigating months after Transfort facility death

In a previous statement from the district attorney’s office on their decision not to charge the driver, a spokesperson cited other “complicating factors,” including poor lighting and a lack of reflective clothing, that contributed to Jason Telleen’s death and led to their decision not to charge the driver. They also stated that the video perspective does not accurately show the driver’s perspective, and that "the driver's maneuvers were described as prudent and reasonable driving by the investigating officer, who holds a Class A CDL (commercial driver's license).”

But Haltzman argued that the lead investigator did not have enough experience in crash investigations to make an informed charging decision, and that their hired experts disagreed with some of the factors cited by the district attorney’s office. Haltzman pushed back on investigators and prosecutors placing some blame on Jason Telleen for not wearing any high-visibility clothing because it wasn’t the city’s policy at the time to require it and most, if not all, employees were not wearing high-visibility clothing the night he was killed.

While McLaughlin said he “strongly disagree(s) with Mr. Haltzman’s legal argument, there’s not question this is a tragedy.”

“I wish the law were different or the facts were different so that it allowed us to pursue justice in this case,” McLaughlin told the judge.

McLaughlin explained in court that, in order to file charges in any case, prosecutors have to believe there’s a reasonable likelihood of success at a jury trial, and they didn’t believe the evidence in this case would prove to a jury beyond a reasonable doubt that the driver is guilty of careless driving.

McLaughlin criticized the experts hired by Patricia Telleen, stating that “they understood the conclusion they wanted reached,” and that a jury trial would end up being a battle between paid and unpaid experts.

“The reliable information the (prosecution) acted upon is that this … is not a case that met our legal and ethical burden,” to prosecute, McLaughlin said. “If the facts do not meet the law then we can't file that case, no matter how much of a tragedy it is or how much our hearts go out to the family, and they do.”

Ellison said in her ruling that her decision is not based on whether the judge agrees with the district attorney’s charging decision, but whether she believes there is clear and convincing evidence that he decided not to prosecute the case unjustifiably.

“I cannot find there is clear and convincing evidence that the district attorney acted in a capricious manner and that they did so without reasonable excuse,” Ellison said, citing the district attorney’s belief that the office would not successfully convince a jury at trial as a reasonable excuse to not prosecute.

Ellison said careless driving resulting in death cases are the “most devastating” cases she handles.

“It is always a tragedy when someone is killed in a collision,” Ellison said.

Plan to appeal: 'We're still fighting for him'

Patricia Telleen said she was “very disappointed” by the ruling and feels the judge “really dropped the ball.”

“We had compelling evidence and for them to sweep it under the rug … it’s inexcusable,” she said in an interview after the hearing.

Haltzman also said he was disappointed by the court’s ruling, though he respects the judge’s decision.

“We would not have filed and put significant resources into this case without thinking we had a very strong case,” Haltzman said.

Patricia Telleen and her attorneys are planning to file an appeal of the district court’s decision with the Colorado Supreme Court. The statute of limitations to file charges in this case expires Jan. 24 — one year after Jason Telleen was killed — and an appeal through the state supreme court will hopefully be a faster process than an appeal at the district court level, attorney Adam Mueller said. Mueller and his law firm — which is separate from Haltzman's firm — will handle the appeal.

Mueller said an appeal to the state supreme court is “really the only practical way to make sure some court looks at this” before the statute of limitations expires next month. The state supreme court could overrule the district court’s decision, appointing a special prosecutor and ordering the driver be charged; it could agree with the district court’s ruling; or it could decline to look at the case, Mueller said.

Patricia Telleen said she is not giving up on getting justice for her son.

“I’ve been telling him all day we’re not going to give up,” she said after Monday’s hearing. “We’re still fighting for him.”

This article originally appeared on Fort Collins Coloradoan: Judge won't force prosecution in fatal Fort Collins Transfort crash