Trying to Remove (Disqualify) the District Attorney From a Colorado Criminal Case

There exists in Colorado a statute (law) that allows a Defendant – an accused – who believes the District Attorney is so biased against him/her to attempt to disqualify a prosecutor.

It is critical to win this argument at the trial court level – because an appeal of the trial court judge’s decision is almost certain to fail.

Here it is:

A district attorney may only be disqualified in a particular case at the request of the district attorney or upon a showing that the district attorney has a personal or financial interest or finds special circumstances that would render it unlikely that the defendant would receive a fair trial.

A motion to disqualify a district attorney shall be served upon the district attorney at least two weeks before the motion is heard. Such motion shall contain at least a statement of the facts setting forth the grounds for the claimed disqualification and the legal authorities relied upon by the movant and shall be supported by affidavits of witnesses who are competent to testify to the facts set forth in the affidavit.

The district attorney may file a response in opposition to the motion and may appear at any hearing held on the motion. The judge shall review the pleadings and determine whether an evidentiary hearing is necessary. The motion shall not be granted unless requested by the district attorney or unless the court finds that the district attorney has a personal or financial interest or special circumstances exist that would render it unlikely that the defendant would receive a fair trial.

The Standard of Review on appeal of a trial court’s decision to disqualify a district attorney for an abuse of discretion. A trial court abuses its discretion when its decision is “manifestly arbitrary, unreasonable, or unfair.” .. What this means is you will almost ALWAYS LOSE an appeal of the trial judge’s decision.

Section 20-1-107(2), C.R.S. (2010) provides an inclusive list of circumstances under which a district attorney may be disqualified.

These circumstances include:

1. when the district attorney has a personal interest in the case;
2. when the district attorney has a financial interest in the case; and
3. when there are special circumstances that would render it unlikely that the defendant would receive a fair trial. § 20-1-107(2).

Prior to 2002, the disqualification statute stated that a district attorney could be disqualified “[i]f the district attorney is interested or has been employed as counsel in any case which it is his duty to prosecute or defend.” § 20-1-107, C.R.S. (2001) (amended 2002).

This law was interpreted to require disqualification if there was an “appearance of impropriety.” In 2002 an amendment to section 20-1-107 eliminated the appearance of impropriety standard and that the circumstances specifically listed in the statute were the only bases for disqualifying the district attorney.

A party who moves to disqualify the district attorney based on this prong bears the burden of showing that it is unlikely that the defendant will receive a fair trial.

Whether it is likely that a defendant will receive a fair trial is the most important inquiry in our decision to disqualify a district attorney.

To prove this, there must be actual facts and evidence in the record supporting the contention, not mere hypothetical information.

The Colorado Supreme Court has held that the “special circumstances” – in order to succeed in this kind of a motion must be extreme to justify disqualifying the district attorney.

In the cases that have been decided, only one situation was found where the “special circumstances” were sufficiently extreme to justify disqualifying a district attorney under section 20-1-107(2).

In that case, People v. Chavez, the Court held that a district attorney who had a previous attorney-client relationship with the defendant should be disqualified when that relationship was substantially related to the case in which the defendant was being prosecuted. Because the district attorney had confidential communications regarding the pending case, the Court held that it was unlikely that the defendant would receive a fair trial.

Conversely, the Courts have declined to find such special circumstances in several cases where the facts raise concerns of impropriety but do not have any bearing on whether the defendant would be likely to receive a fair trial. In one case the district attorney had received substantial support from the victim’s family in his political campaign and his decision to prosecute the defendant reversed the former district attorney’s decision not to prosecute.

Even though the district attorney might have been indebted to the victim’s family, the Court held that this did not bear upon whether the defendant would be unlikely to receive a fair trial.

Similarly, in another case the Court held that there was not sufficient evidence to show that a defendant was unlikely to receive a fair trial when a district attorney had previously represented the victim in a separate case, or allegedly stole relevant medical records, or was likely to testify as a witness in the same proceeding,

The Court held in each of these cases that although such circumstances may cast doubt upon a district attorney’s motives and strategies, they did not play a part in whether a defendant will receive a fair trial.

Because the General Assembly modified section 20-1-107 to create an inclusive list of situations where disqualification is proper and eliminated the “appearance of impropriety” standard, facts under the “appearance of impropriety” standard, ave since been rejected. Most cases that are filed today follow the older “appearance of impropriety” and therefore fail to succeed in court as this standard is no longer relevant to the determination of whether to disqualify a district attorney.

In the most recent decent addressing a Defendant’s Motion to Disqualify a District Attorney, People v. Loper, the Colorado Supreme Court Said this:

Finally, disqualifying the district attorney is a drastic remedy that should only occur in narrow circumstances.

We have cautioned that defendants should not have “the unfettered option of disqualifying a prosecutor whenever a district attorney [has] knowledge of any fact surrounding a case.”

Allowing disqualification in this case would create a similar problem, giving defendants the option to disqualify the district attorney whenever the victim is related to anyone that worked closely with the district attorney and would unnecessarily increase the need for trial courts to appoint special prosecutors.

H. Michael’s Final Take:

Bottom Line – If you take a shot at disqualifying a District Attorney – MAKE SURE that you have the “special circumstances” necessary to win. Missing – and wounding the DA – so to speak – will end any possibility of a negotiated settlement in almost all cases.