The Removal of a Judge

There are times in defending a Colorado Criminal Case that the judge is biased or prejudicied against your client. Understanding when this occurs is critical because of the impact a judge can have on the jury or clearly at the time of sentencing if a jury verdict of guilty is returned. This page is intended to assist the public in understanding the standards and tests that arise out of the Colorado laws in this area.

The right to an impartial judge underpins the right to due process and a decision by a biased judge requires reversal.

Judges must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but to retain public respect and secure willing and ready obedience to their judgments.

A judge must not put her “partiality in question

Criminal Procedure Rule 21(b) and § 16-6-201 both direct that a judge shall be recused if he or she is in any way interested or prejudiced with respect to the case, the parties, or counsel. § 16-6-201 (d); Crim. P. 21 (b) (1) (IV).

The Colorado Code of Judicial Conduct

Judge’s are governed by their own very important Code Of Conduct – these “Canons” are as follows:

• Canon 3(C)(1) of the Colorado Code of Judicial Conduct requires disqualification in any proceeding in which the judge’s “impartiality might reasonably be questioned. The disqualification of a judge is required where objective observer might wonder whether the judge could decide the case with the requisite aloofness and disinterest.
• Rule 1.2 of Canon 1 states, “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
• Rule 2.11 of Canon 2 states: (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
  1. The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

The Colorado Test for Disqualification ….

…is whether the motion and supporting affidavits allege sufficient facts from which it may reasonably be inferred that the judge is prejudiced or biased, or appears to be prejudiced or biased, against a party to the litigation. The test for recusal is objective.

Motions to Recuse Are Submitted to the Trial Judge

When considering a motion to recuse the court, a judge must confine her analysis to the four comers of the motion and supporting affidavits, and then determine as a matter of law whether they allege legally sufficient facts for disqualification.

The court must accept as true the facts stated in the motion and affidavits for disqualification of a judge.

Once facts have been set forth that create a reasonable inference of a “bent of mind” that will prevent the judge from dealing fairly with the party seeking recusal, it is incumbent upon the trial judge to recuse himself.

A trial judge must accept the affidavits filed with the motion as true, even though the judge believes that the statements contained in the affidavits are false or that the meaning attributed to them by the party seeking recusal is erroneous.

Colorado Rule of Civil Procedure – Rule 97

C.R.C.P. 97 provides:

A judge shall be disqualified in an action in which he is interested or prejudiced, or has been of counsel for any party, or is or has been a material witness, or is so related or connected with any party of his attorney as to render it improper for him to sit on the trial, appeal, or other proceeding therein.

A judge may disqualify himself on his own motion for any of said reasons or any party may move for such disqualification and a motion by a party for disqualification shall be supported by affidavit. Upon the filing by a party of such a motion all other proceedings in the case shall be suspended until a ruling is made thereon. Upon disqualifying himself, a judge shall notify forthwith the chief judge of the district who shall assign another judge in the district to hear the action. If no other judge in the district is available or qualified, the chief judge shall notify forthwith the court administrator who shall obtain from the Chief Justice the assignment of a replacement judge.

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