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The Colorado Supreme Court reversed an order en banc on a case involving whether an entire district attorney’s office can be disqualified from a case.
Jorge Solis was charged with first-degree murder, criminal attempt to commit first-degree arson and first-degree criminal trespass. The 7th Judicial District Attorney’s office is prosecuting the case out of its Gunnison office. The Montrose Regional Office of the State Public Defender has represented Solis during the case. Darren Struble used to work for the public defender’s office and represented Solis before accepting a position in the DAs office.
Struble didn’t take any files, computers or notes regarding any of his cases when he left his position with the public defender’s office for a position with the DA’s office in Gunnison, according to court records. Struble was supposed to begin working for the DA’s office on or about April 18. On April 13, Solis filed a motion for appointment of a special prosecutor, asking the court to disqualify Struble, along with the entire 7th Judicial DA’s office from prosecuting the case.
Solis argued Struble had a great deal of confidential information from when Struble represented him and his new role as deputy district attorney created a conflict for him and the DA’s office. The DA’s office conceded Struble would be disqualified from the Solis case. But the DA’s office argued special circumstances didn’t exist for the entire DA’s office to be disqualified because it had taken a number of steps in anticipation of the hiring of Struble which would insulate Struble from prosecuting any of his former clients.
This included implementing a new policy on April 7. Under the new screening policy, employees were barred from any kind of participation in cases that involve prosecuting former clients or anyone whom the employee developed an attorney-client relationship with in the same or substantially related matter. The DA’s office also noted when Struble was hired, it got a list of cases Struble was counsel on.
The DA’s office also argued that since it knew Struble previously represented Solis, it took extra precautions beyond the screening policy for the case. For example, the DA’s office blocked Struble from using e-filing in the case. Casework related to Solis was also confined to the DA’s conference room with screens placed to cover the room’s windows and blockers were put on the door to make sure no one could look into the room. The DA’s office also represented that all major witnesses had been advised of the conflict and instructed to restrict discussions of the case to that room.
A trial court was initially persuaded that Struble was being kept away from Solis’ prosecution due to the policy and extra precautions. Later, Solis filed a motion for reconsideration after learning Struble appeared for the DA’s office in two unrelated misdemeanor cases involving a different former client. The trial court concluded there was a potential or likelihood Struble would further violate the screening policy and the court disqualified the entire DA’s office, ordering the appointment of a special prosecutor.
The Colorado Supreme Court concluded there isn’t evidence indicating the confidential information obtained by Struble about Solis’ case has not been and cannot continue to be adequately screened given the DA office’s screening policy along with the additional safeguards implemented.
For this reason and because the trial court based its ruling on an unrelated event and what could happen in the future, the high court surmised the trial court abused its discretion granting Solis’ motion. The Supreme Court reversed the trial court’s order and remanded for further proceedings consistent with the opinion.
Justice Richard Gabriel dissented.
“First and foremost, Solis, who is facing first degree murder charges, among others, will be forced to sit through trial wondering what confidential information his former counsel might have conveyed to his new colleagues in the district attorney’s office, even if that information was conveyed inadvertently,” Gabriel wrote. “Given that the stakes are so high for Solis here, I would err on the side of caution and affirm the trial court’s decision to have unquestionably conflict-free prosecutors come in to try this case.”