Disqualification Reversal: DA’s React to Recent Colorado Supreme Court Decision

A large building made of concrete has multiple windows and has large columns at the front. Near the front entrance there’s a sign that reads “Colorado Supreme Court” and “Colorado Court of Appeals.”
The Colorado Supreme Court recently reversed an order concerning whether an entire district attorney’s office can be disqualified from a case. / Law Week file.

The Colorado Supreme Court on Nov. 14 reversed an order that disqualified an entire district attorney’s office from a case.

The 7th Judicial District Attorney’s office is prosecuting the case out of its Gunnison office. Darren Struble used to work for the Montrose Regional Office of the State Public Defender and represented Jorge Solis during the case. Struble was then hired for a position with the DA’s office in Gunnison.

Solis, who is charged with first-degree murder, criminal attempt to commit first-degree arson and first-degree criminal trespass, 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.

The DA’s office conceded Struble would be disqualified from the case, but argued the entire DA’s office shouldn’t be because it took a number of steps in anticipation of hiring Struble to insulate him from prosecuting former clients including having a new screening policy. The DA’s office also noted when he was hired, it got a list of cases Struble was counsel on from “judicial.” The DA’s office shared that list and the screening policy with the public defender’s office asking to confirm the list’s accuracy.

A trial court was initially persuaded 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 DA’s office argued the public defender’s office never informed them that this defendant was previously represented by Struble and was not on the list of Struble’s 120 former clients.

“To be sure, the trial court’s concern about a potential or even likely future deviation from the screening policy is understandable, particularly as the PD’s Office has declined to indicate if the names of any of Struble’s former clients are missing from the list the DA’s Office sent it back in April,” wrote Justice Maria Berkenkotter in the opinion.

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. But the trial court was persuaded Struble hadn’t and wouldn’t divulge any of the defendant’s confidences.

Under Colorado Revised Statute 20-1-107(2), a court can disqualify an elected district attorney for a case under three different circumstances: if it’s requested by the district attorney; if the district attorney has personal or financial interest in the case; and when special circumstances exist where the defendant likely wouldn’t receive a fair trial. The Colorado Supreme Court focused on the special circumstances issue. 

The high court also found in a previous case, People v. Chavez, a properly drafted screening policy would be relevant to a trial court’s decision whether an entire DA’s office should be disqualified.

The Colorado Supreme Court concluded there isn’t evidence indicating the confidential information obtained by Struble about Solis’ case hasn’t and cannot continue to be adequately screened with the DA office’s policy and additional safeguards. The high court reversed the disqualification order and remanded for further proceedings consistent with the opinion.

Legal Leaders Provide Insight into Decision

Law Week caught up with multiple legal leaders, including the DA’s office at the center of this case, about what the ruling means for their offices and how they avoid conflicts of interest.

“They looked at the law, they looked at the facts specifically based on the case that was under appeal, and determined that there were no special circumstances meriting the trial court’s order to appoint a special prosecutor as we had hoped they would,” said 7th Judicial District Attorney Seth Ryan. 

Ryan said when his office decided to hire Struble, it introduced a formal conflict of interest policy but it didn’t have one before, adding most of the time the office hires law students who haven’t practiced before.

“We have the ethical rules of professional conduct that basically spell out when an office has a conflict and when an office doesn’t have a conflict. And what an office can do to address those conflicts. So it is codified in the Colorado Supreme Court rules, but there’s nothing that specifically says we have to have a written policy,” Ryan said. “It’s just when a conflict arises, it’s good to know what our written policy is and that’s one of the factors that a court considers when a party raises that a conflict might exist.” 

The Colorado District Attorneys’ Council supported the Colorado Supreme Court’s decision.

As correctly held by the court, findings by any court establishing that a prosecutor has a conflict of interest based upon the statutory special circumstances provision are expressly reserved for only those rarest of situations when ruling otherwise would deprive a defendant of a fair prosecution or trial,” wrote CDAC executive director Tom Raynes. “To find otherwise in this situation or other scenarios turning on perceived appearances rather than facts could easily result in spurious and erroneously conjured requests for special prosecutors that could inappropriately divert cases from the office of a DA elected by … the citizens of a community to represent them when no actual conflict exists.”

Other DA offices also weighed in on the case.

Our office carefully screens cases whenever there is a potential, legitimate need for a special prosecutor,” wrote 20th Judicial District Attorney Michael Dougherty covering Boulder County. “The statute and case law are clear on what is required of district attorneys when faced with an actual conflict that requires a special prosecutor or renders it unlikely that the defendant will receive a fair trial.”

Dougherty continued, saying his office has hired former defense attorneys as prosecutors, which highlights a need to have a screening mechanism in place.

For example, the Boulder District Attorney’s office wrote the office has a careful screening process and if there’s a possible conflict, the first assistant DA and DA review the case. They analyze the case’s facts, along with the nature of the potential conflict and other factors. The Boulder DA’s office added, as with other DA offices, the 20th Judicial District Attorney’s Office is paired with other prosecutor offices for the purpose of evaluating and handling special prosecutions.

Not all on the Supreme Court, however, agreed as Justice Richard Gabriel dissented.

“Because I perceive no abuse of discretion on either the facts or the law here, and because I worry about the effect that the majority opinion will have on our trial judges’ authority to manage their courtrooms, I respectfully dissent,” Gabriel wrote.

Editor’s note: Additional information was added Nov. 23 concerning the list of cases Struble was counsel on. Justice Maria Berkenkotter’s quote from the opinion was changed to a different quote from the opinion to reflect that.

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