Summit County Judge Ed Casias sent out 40 summonses to local residents for Thursday’s docket. Only a fraction showed up – not enough to help decide one of the more interesting high-country cases in years.

After dismissing some potential jurors for cause – such as a vaccine shot and a big test for a college student – there were not enough jurors to try two backcountry snowboarders facing criminal charges involving an avalanche. So Casias was forced to declare a mistrial.

“I am disappointed in the folks who did not show,” Casias said Thursday after reviewing two sets of jurors. “There are very few civic responsibilities we ask of you: jury service and voting. Some of the people who were summonsed chose not to respond and I will address them.”

Evan Hannibal and Tyler DeWitt are facing misdemeanor criminal charges of reckless endangerment after they reported an avalanche on March 25, 2020, that buried a service road above Interstate 70. The two experienced backcountry snowboarders were descending a line above the west portal of the Eisenhower-Johnson Memorial Tunnels when an avalanche ripped below them and buried a road above Interstate 70 in more than 20 feet of snow.

The two handed over video of the avalanche to the Colorado Avalanche Information Center and that video prompted prosecutors in Summit County to file criminal charges as well as seek $168,000 in restitution for an avalanche mitigation device destroyed in the slide.

Exactly a year after the avalanche, they were in court.

“Summit County, who has charged these guys and made them live with this for exactly a year to the day could not protect their rights with a fair jury pool, which is disturbing,” the snowboarders’ attorney, Jason Flores-Williams, said. “I think they have put these guys through enough. How many resources are we going to expend in a case against two really amazing guys who are emblematic of backcountry responsibility and kept themselves safe, just to make your point? You made your point. If what we are really interested in is fairness and protecting the constitutional rights of citizens, it’s time to drop this case.”

Avalanches rarely result in criminal charges. One example: A case in 2014 in Summit County involved two skiers who triggered an avalanche outside Keystone ski area that buried and killed a man, leading to a jury trial that ended with acquittal. But those charges focused on the skiers’ violation of boundary rules under the Colorado Ski Safety Act, not necessarily a backcountry avalanche.

The case against Hannibal and DeWitt has seen some twists on the way to Thursday’s jury selection process. Casias dismissed a motion filed by the two that their constitutional rights were violated when the video they voluntarily provided to the avalanche center was used as evidence in criminal charges. And Casias also dismissed a motion filed by Colorado’s attorney general asking to throw out Summit County’s subpoena of avalanche center director Ethan Greene.

Flores-Williams said as he researched the case, he began to view it as more of an issue of product liability than reckless endangerment. Flores-Williams said he plans to file a motion to dismiss the charges.

“The real question here is the failure of the state’s avalanche mitigation machine,” Flores-Williams said. “Tyler and Evan did everything right because they were not swept away and killed, right? But the state’s avalanche mitigation unit could not even mitigate itself from getting knocked out by an avalanche. I have all sorts of questions about the placement of that machine.”

A new trial date was set for June 6-7. Deputy District Attorney Stephanie Cava said her office will be ready for trial in June.

“As we do in every case, we will keep an open dialogue with the defense going forward as part of that process,” she said.

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