A jury can’t be seated to determine whether Terry Barton’s actions in setting the Hayman fire were aggravated – a finding that might have led to the reinstatement of her maximum 12-year prison term thrown out in 2004, a prosecutor said Monday.
Doyle Baker, a prosecutor in the El Paso and Teller County district attorney’s office, said that a ruling by the Colorado Supreme Court on Monday in a similar case has blunted efforts to have a jury hear the facts surrounding the Hayman arson.
“What they (the justices) are saying is that once a defendant has pled guilty and is sentenced, you can’t subsequently go back and empanel a jury and impose an aggravated-range sentence,” Baker said. “Which is, of course, exactly what we were trying to do in Miss Barton’s case.”
The decision means that unless prosecutors are able to get Barton a longer sentence through procedural maneuvers, she could be released as early as 2008.
That upsets Dr. Michael Zigich and his wife Angie, whose son, Zachary, was one of five firefighters killed as they traveled to Colorado to fight the Hayman fire. Barton was never charged in the deaths. Rather the van driver, Megan Helm, was fined and given a community service sentence in the rollover accident.
But the couple blame Barton for setting in motion the events that led to their son’s death.
“I just think it is horrible. It is a terrible injustice,” said the doctor. “It’s like they just don’t care. I thought the 12 years was one of the good results. This hurts.”
In March 2003, Barton pleaded guilty to arson and was sentenced by a judge to the maximum aggravated sentence of 12 years for lighting the 137,000-acre blaze in June 2002. But the sentence was thrown out in December 2004 by the Colorado Court of Appeals, which ruled only a jury – not a judge – could impose a sentence in the aggravated range.
Prosecutors then convinced Teller County District Judge Tom Kennedy to empanel a jury to determine whether there were aggravators surrounding the setting of Colorado’s largest wildfire.
Although a jury was to hear evidence against Barton this summer, the Barton case was put on hold because of another case out of Montezuma County. There a judge also had decided to empanel a jury after the defendant in that case, Travis Patrick Lopez, pleaded guilty to vehicular homicide and vehicular assault. The judge, not jury, imposed an aggravated sentence. The Court of Appeals threw out the aggravated sentence, and the judge – as in the Barton case – ordered a jury to be empaneled.
But Justice Nathan Coats said Monday in the Lopez case that the procedure simply is not sanctioned in Colorado.
Barton is still serving a six-year federal sentence, which is to expire in June 2008. A new state sentence is likely to be in the two- to six-year range running concurrently, meaning she could be released from custody when her federal sentence ends.
Prosecutors hope to get a judge to withdraw Barton’s Teller County guilty plea, then try to increase her sentence by taking her to trial in four districts damaged by the fire. Barton’s defense lawyers will oppose that effort.
Staff writer Howard Pankratz can be reached at 303-954-1939 or hpankratz@denverpost.com.
