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ADVANCE SHEET HEADNOTE December 7, 2020
2020 CO 85
No. 20SA265, People v. Kent—Motion to Disqualify District Attorney— § 20-1-107(2), C.R.S. (2020)—“Special Circumstances.”
In this interlocutory appeal, the elected district attorney in Colorado’s Fifth
Judicial District contends that the district court abused its discretion in granting
the defense’s motion to disqualify his office from the case. As relevant here, the
defendant argued that he is unlikely to receive a fair trial based on the existence of
special circumstances. The district court correctly determined that each identified
circumstance, “in and of itself,” did not warrant disqualification. But it
nevertheless held that those same circumstances, “viewed as a totality,” sufficed
for disqualification. It therefore granted the motion to disqualify.
The supreme court concludes that the district court abused its discretion by
misapplying the law. The district court failed to adequately explain how the
circumstances in question, though individually inadequate to warrant
disqualification, justified the extraordinary relief requested when considered together. The supreme court further concludes that the record reflects that the
defendant plainly failed to satisfy his burden of establishing that he would be
unlikely to receive a fair trial if this district attorney’s office continues prosecuting
his case. Because the circumstances articulated by the district court, even
considered cumulatively, are not so extreme as to justify the drastic remedy of
disqualification, which is reserved for narrow circumstances, the supreme court
reverses the disqualification order and remands for further proceedings consistent
with this opinion. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
Supreme Court Case No. 20SA265 Interlocutory Appeal from the District Court Lake County District Court Case No. 19CR75 Honorable Catherine J. Cheroutes, Judge ________________________________________________________________________
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Shannon L. Kent. ________________________________________________________________________ Order Reversed en banc
December 7, 2020 ________________________________________________________________________
Attorneys for Plaintiff-Appellant: Bruce I. Brown, District Attorney, Fifth Judicial District Stephen F. Potts, Deputy District Attorney Lauren Crisera, Deputy District Attorney Leadville, Colorado
Attorneys for Defendant-Appellee: John Scott, Attorney at Law, LLC John G. Scott Leadville, Colorado JUSTICE SAMOUR delivered the Opinion of the Court. JUSTICE HOOD dissents, and JUSTICE GABRIEL and JUSTICE HART join in the dissent.
2 ¶1 In Colorado’s Fifth Judicial District, the elected district attorney, Bruce I.
Brown, and the elected coroner of Lake County, Shannon L. Kent, mix like oil and
water. They are adversaries in this case: Brown is prosecuting Kent for perjury, a
class 4 felony, and second degree official misconduct, a class 1 petty offense. After
the case had been pending for approximately nine months, Kent filed a motion to
disqualify Brown’s office, arguing that he is unlikely to receive a fair trial based on
Brown’s personal interest in the case and the existence of special circumstances.
Following briefing and an evidentiary hearing, the district court granted the
motion.
¶2 The court ruled that there were special circumstances present that rendered
it unlikely that Kent would receive a fair trial. Importantly, the court correctly
determined that each identified circumstance, “in and of itself,” did not warrant
disqualification. But it nevertheless held that those same circumstances, “viewed
as a totality,” sufficed for the exceptional remedy sought by Kent.
¶3 We conclude that Brown’s office should not have been disqualified. In our
view, the Aristotelian concept to which the court hitched its wagon—“the whole
is greater than the sum of its parts”—is unpersuasive in this case. The court failed
to adequately explain how the circumstances in question, though individually
inadequate to warrant disqualification, justified the extraordinary relief requested
when considered together. And the record before us reflects that Kent plainly
3 failed to satisfy his burden of establishing that he would be unlikely to receive a
fair trial if Brown’s office continues prosecuting this case.
¶4 We recognize that the court was concerned that “this prosecution is
significantly different than most” and that “[t]here is something personal about
the case” for Brown. But even taking those concerns at face value, the court’s
approach strikes us as akin to the “bad smell” standard we rejected a decade ago
in People v. Loper, 241 P.3d 543, 547 (Colo. 2010), after the legislature eliminated the
appearance of impropriety as a ground for the disqualification of a prosecuting
office.
¶5 Because the circumstances articulated by the court, even considered
cumulatively, are not so “extreme” as to justify the “drastic” remedy of
disqualification, which is reserved for “narrow circumstances,” id. at 546–47, we
reverse the disqualification order and remand for further proceedings consistent
with this opinion. Even assuming the circumstances at issue “may cast doubt”
upon Brown’s “motives and strategies” in this case, “they do not play a part in
whether [Kent] will receive a fair trial.” Id. at 547.
I. Facts and Procedural History
¶6 The genesis of the animus between Brown and Kent can be traced back to a
complaint filed by the Lake County Sheriff regarding Kent’s practices as a coroner.
According to that complaint, Kent asked his wife, Staci Kent, to respond to a
4 coroner call, and she showed up to the scene without a body bag. After the Sheriff
submitted her complaint to the Colorado Coroner’s Association, she forwarded a
copy of it to Brown, who assigned the matter to an investigator in his office and
later presented it to the grand jury. The grand jury, in turn, returned a true bill
and indicted Kent on a charge of second degree official misconduct, a class 1 petty
offense. The charge alleges that Kent allowed his wife to act in the official capacity
of deputy coroner before she was formally deputized.
¶7 On the day the grand jury returned its true bill, Kent confronted Brown in
the hallway of the courthouse and told him that he should “pull his head out of
his ass.” Needless to say, this further soured their relationship. Brown was upset
by the remark and told Kent’s attorney that he felt threatened.
¶8 Thereafter, while attempting to negotiate a plea bargain, Brown told Kent’s
attorney that Kent should plead guilty to the petty offense charge and resign as
coroner because there was a possibility of a felony count being added. This
apparently angered Kent, who visited the District Attorney’s Office in Leadville
(located in the Fifth Judicial District). There, he had a contentious interaction with
a legal administrative assistant during which he made threatening statements
5 directed at Brown (“Leadville incident”).1 Upon receipt of an email from that
assistant conveying the threatening statements, Brown contacted the Colorado
Bureau of Investigation (“CBI”) and requested an investigation into the Leadville
incident because he believed that Kent was unstable and may have committed a
crime. An investigation was conducted; however, after review by a special
prosecutor from a different judicial district, no charges were filed.
¶9 At some point after CBI commenced its investigation, Brown spoke with
Kent’s attorney again. Brown reiterated that if Kent didn’t plead guilty to the petty
offense charge, “things would get really bad.” He added that individuals who had
threatened him in the past had been convicted of felonies.
¶10 The grand jury subsequently reconvened and returned a second true bill
against Kent, this time for perjury, a class 4 felony. The perjury charge is rooted
in the sworn testimony provided by Kent during the original grand jury
proceedings. He testified then that his wife had been a deputy coroner for
1Kent told the assistant that Brown had promised to add a felony count if Kent didn’t plead guilty to the petty offense charge, asked whether Brown understood who he was, said that Brown had “fucked with the wrong person,” noted that he knew people in high places, indicated that Brown had “better watch out,” and shared that Brown was going “to fuck himself in the ass” if he didn’t stop. Further, Kent inquired whether the assistant was aware that Brown had been involved in an accident in a state car and had left the scene, had been asked to leave a polling place, had refused to investigate a voter fraud case, had declined to investigate a county employee dealing drugs, and was rumored to be having an affair.
6 approximately two years (since 2017) and had not acted in an official capacity
before 2017. But the grand jury was presented with a death certificate signed by
Staci Kent in 2016. At Kent’s request, the district court has since reviewed the
grand jury transcripts and found that the grand jury’s finding of probable cause
with respect to the perjury charge is supported by the record.
¶11 Brown, his investigator (Jason Boston), and the deputy district attorney who
presented evidence to the grand jury were all witnesses to the statements that form
the basis of the perjury charge. The prosecution has endorsed Boston as a witness.
¶12 Following the filing of the superseding indictment, Brown lodged a
complaint with the Department of Regulatory Affairs (“DORA”) against Kent. In
his complaint, Brown asked DORA to share with him any information it may
uncover during its investigation of Kent. Kent and his attorney were not made
aware of this complaint.
¶13 Earlier this year, Kent served two subpoenas duces tecum—one on the
Sheriff, seeking copies of her written communications with Brown about Kent; the
other on the special prosecutor assigned to the Leadville incident, seeking
recordings of witness interviews in connection with that incident. Brown’s office
moved to quash both subpoenas, but the court denied that motion. The court
found that the subpoenas duces tecum were appropriate and that, in any event,
7 the information Kent was after “should have been disclosed” by Brown’s office
pursuant to Crim. P. 16 without any prompting.
¶14 After the court resolved the dispute over the subpoenas duces tecum and
found that Brown’s office had violated Crim. P. 16, Kent filed a motion to
disqualify Brown’s office from prosecuting this case. Following briefing, the
motion was considered at an evidentiary hearing. Less than a week later, the court
issued a written order disqualifying Brown’s office and appointing a special
prosecutor. The People sought to have the court reconsider its ruling, but to no
avail. This interlocutory appeal by the People followed.
II. Jurisdiction
¶15 Before launching our analytical expedition, we make a quick pit stop to
check our jurisdictional gauge. Without jurisdiction, we lack power to proceed.
¶16 We conclude that this interlocutory appeal is properly before us. See
§ 16-12-102(2), C.R.S. (2020). Section 16-12-102(2) allows the People to file an
interlocutory appeal from a ruling on a motion to disqualify pursuant to section
20-1-107, C.R.S. (2020). People v. Kendrick, 2017 CO 82, ¶ 33, 396 P.3d 1124, 1130.
Therefore, we have jurisdiction to resolve the People’s appeal, and we now
proceed to review the district court’s decision to disqualify Brown’s office.
8 III. Analysis
¶17 We kick off our analysis by examining section 20-1-107(2) and our
jurisprudence on motions to disqualify prosecuting offices. Next, mindful of the
governing standard of review, we carefully inspect the district court’s order and
test it against the law. Because we conclude that the district court abused its
discretion by misapplying the law, we reverse.
A. Section 20-1-107(2) and Relevant Case Law
¶18 Our General Assembly has declared that it is “necessary to protect the
independence of persons duly elected to the office of district attorney.”
§ 20-1-107(1). To that end, section 20-1-107(2) provides that a district attorney
“may only be disqualified” from a case in limited situations: (1) “at the request of
the district attorney”; (2) “upon a showing that the district attorney has a personal
or financial interest” in the case; or (3) if the court finds “special circumstances that
would render it unlikely that the defendant would receive a fair trial.” These are
the three exclusive bases for disqualifying a district attorney. Loper, 241 P.3d at
546. The third category, “special circumstances,” is the only one in play here.2 We
confine our discussion accordingly.
2 The motion to disqualify included an allegation that Brown has a personal interest in this prosecution. But the court did not rely on the personal interest prong of the disqualification statute.
9 ¶19 The key inquiry with respect to the “special circumstances” prong is
whether it is likely that the defendant would receive a fair trial. Id. The party
moving to disqualify the district attorney based on special circumstances “bears
the burden of showing that it is unlikely that [he] will receive a fair trial.” Id. To
meet this burden, the moving party must point to “actual facts and evidence in the
record supporting the contention.” Id. “[M]ere hypothetical information” does
not suffice. Id.
¶20 Not surprisingly, we have not deemed it fit to identify the circumstances
that qualify as “special circumstances” under section 20-1-107(2). Loper, 241 P.3d
at 546. Doing so seems as foolish as attempting to nail jello to the wall because of
the difficulty of anticipating the possible circumstances that may render it unlikely
that a defendant would receive a fair trial. But that’s not to say that our case law
sheds no light on the matter. Our past application of this statutory prong teaches
that the special circumstances “must be extreme to justify disqualifying the district
attorney.” Id. We have found that even potential wrongdoing by a prosecutor is
not so extreme as to require her office’s disqualification. People v. Jimenez, 217 P.3d
841, 858 (Colo. App. 2008). Thus, though we have reviewed plenty of section
20-1-107(2) orders, in the last couple of decades “we have identified only one
scenario in which the circumstances were sufficiently extreme so as to justify
disqualifying a district attorney.” Kendrick, ¶ 43, 396 P.3d at 1131 (referring to
10 People v. Chavez, 139 P.3d 649, 654 (Colo. 2006), where the district attorney had
previously represented the defendant in a substantially related matter and was
privy to confidential communications regarding the pending case).
¶21 Of particular relevance here, in People in Interest of N.R., 139 P.3d 671, 675
(Colo. 2006), we explained that in 2002 the legislature did away with the
“appearance of impropriety” standard as a basis for disqualifying a district
attorney.3 There, we detected no special circumstances warranting
disqualification, even though the district attorney had received substantial
support from the victim’s family for his political campaign and had thereafter
reversed his predecessor’s decision not to prosecute the case. Id. at 678. That the
district attorney may have been indebted to the victim’s family was of no
consequence to our decision. Id.
¶22 In line with People in Interest of N.R., we have consistently refused to find
special circumstances warranting disqualifications where “the facts raise[d]
concerns of impropriety” but fell short of demonstrating that the defendant was
3Before 2002, the disqualification statute stated that a district attorney could be disqualified if she was “interested or ha[d] been employed as counsel in any case which it [was her] duty to prosecute or defend.” § 20-1-107(4), C.R.S. (2001). We had construed this language in the old version of section 20-1-107 as requiring disqualification whenever there was an “appearance of impropriety.” See, e.g., People v. C.V., 64 P.3d 272, 274 (Colo. 2003).
11 unlikely to receive a fair trial. Loper, 241 P.3d at 547. Hence, we declined to find
special circumstances warranting disqualification where a district attorney had
previously represented the victim in another case, People v. Lincoln, 161 P.3d 1274,
1281 (Colo. 2007), and where the district attorney was accused of stealing relevant
medical records, Dunlap v. People, 173 P.3d 1054, 1093–95 (Colo. 2007). In
reviewing People in Interest of N.R. and its offspring in Loper, we emphasized that
facts that give rise to an appearance of impropriety are no longer relevant under
section 20-1-107(2). Loper, 241 P.3d at 547.
¶23 Significantly, we recognized in Loper that the circumstances involved in
cases like People in Interest of N.R., Lincoln, and Dunlap may well “cast doubt upon
a district attorney’s motives and strategies.” Id. But we nevertheless defended the
determination in each case that, notwithstanding the potential appearance of
impropriety, the circumstances present did not warrant disqualification. Id. And
we did so with good reason—such circumstances had no bearing on whether the
defendant would receive a fair trial. Id.
¶24 Guided largely by the signposts erected in People in Interest of N.R., Lincoln,
and Dunlap, in Loper, we reversed the district court’s order disqualifying the
prosecuting office after we determined that there were no special circumstances
that made it unlikely that Loper would receive a fair trial. Id. at 544. There, Loper
was accused of sexually assaulting his girlfriend, whose mother was a probation
12 officer in the Fourth Judicial District. Id. We acknowledged that the probation
officer had been involved in the incident, was endorsed as a witness in the case,
provided almost all of the relevant testimony at the preliminary hearing, and “may
have influenced the district attorney in bringing the charges against Loper.” Id. at
544–45, 547. But we observed that the district court had found probable cause for
the charges and that there is a presumption “that a district attorney act[s] in
accordance with the law.” Id. at 547.
¶25 We held in Loper that the motion to disqualify did not present the type of
rare situation warranting disqualification. Id. at 548. In so doing, we noted that
the case certainly did “not implicate the confidentiality and conflict of interest
issues that we found to be special circumstances warranting disqualification in
Chavez.” Id. at 547. We concluded that, even if the probation officer had influenced
the filing of charges by the district attorney, there was no basis to rule that the
likelihood that the defendant would receive a fair trial had been jeopardized. Id.
The fact that the circumstances may have left “a bad smell,” we continued, was of
no moment for purposes of the section 20-1-107(2) motion. Id.
¶26 More recently, in Kendrick, we echoed our disavowal of “appearance of
impropriety” as a valid basis for disqualification under the current version of
section 20-1-107. ¶ 47, 396 P.3d at 1132 (citation omitted). The disqualification
order under challenge in Kendrick was premised on the district court’s “lingering
13 concern that . . . there clearly [was] at least an appearance that the defendant would
not receive a fair trial.” Id. at ¶ 46, 396 P.3d at 1132. We reversed, reasoning that,
“[i]nsofar as the district court [had] based its ruling on a perceived ‘appearance’ of
impropriety,” it had erred. Id. at ¶ 47, 396 P.3d at 1132; see also People v. Perez,
201 P.3d 1220, 1232 (Colo. 2009) (stating that it was error to disqualify the district
attorney’s office based on the appearance of impropriety created by the fact that
one of its prosecutors had previously represented the defendant). In the process,
we spotlighted the principle that the “special circumstances” criterion in section
20-1-107(2) is reserved for “extreme” circumstances that render it unlikely that the
defendant would receive a fair trial. Kendrick, ¶ 48, 396 P.3d at 1132 (quoting Loper,
241 P.3d at 546).
¶27 It is against this backdrop that we must scrutinize the district court’s
disqualification order. We do so next.
B. The District Court Misapplied the Law
¶28 We review the district court’s order disqualifying Brown’s office for an
abuse of discretion. People v. Ehrnstein, 2018 CO 40, ¶ 13, 417 P.3d 813, 816. “A
district court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair.” Id. If a court grants a motion to disqualify a prosecuting
office based on a misapplication of the law, it abuses its discretion. People v. Epps,
2017 CO 112, ¶ 14, 406 P.3d 860, 864.
14 ¶29 As a preliminary matter, neither party challenges the district court’s finding
that none of the identified circumstances, alone, supports the disqualification of
Brown’s office. And there is no basis in the record or the law for us to sua sponte
call that finding into question.
¶30 In its comprehensive order, the court reeled off a number of circumstances,
but it appeared to view three of them as “problematic” or “potentially
problematic.” We focus on the three circumstances that the court was most
troubled by: (1) Boston’s anticipated testimony at trial about Kent’s alleged perjury
during the grand jury proceedings; (2) the two discovery violations by Brown’s
office; and (3) the DORA complaint filed by Brown. We address each circumstance
in turn.
¶31 First, the court was worried because Boston, an employee of Brown’s office,
may be called as a witness at trial. As the court acknowledged, though, there is a
transcript of Kent’s sworn testimony before the grand jury. Consequently, any
testimony offered by Boston at trial to lay a foundation for the admission of that
transcript or to corroborate the contents of that transcript would be “cumulative
and relevant only to an uncontested matter.” People v. Dist. Ct., 560 P.2d 463, 465
(Colo. 1977) (involving a prosecutor’s anticipated testimony related to a charge of
perjury). Such testimony “is not of sufficient consequence” to render it unlikely
15 that Kent would receive a fair trial. Id. Accordingly, Boston’s likely testimony is
not a special circumstance that qualifies for disqualification.4
¶32 Second, the court was “gravely concern[ed]” about two discovery violations
by Brown’s office.5 The court found that the prosecution had violated Crim. P. 16
by failing to disclose the information sought by Kent’s subpoenas duces tecum,
both of which the prosecution opposed. But our “court has never found a
discovery violation to be the type of special circumstance warranting
disqualification.” Perez, 201 P.3d at 1233. When a discovery violation occurs, the
trial court must impose the least restrictive sanction that preserves the truth-finding
4 Boston’s proposed testimony stands in stark contrast to the proffered testimony we found of sufficient consequence and troublesome in Pease v. District Court, 708 P.2d 800, 802–03 (Colo. 1985), and People v. Garcia, 698 P.2d 801, 805 (Colo. 1985). In Pease, two employees of the prosecuting office were endorsed as witnesses (one by each party), and their testimony was undoubtedly necessary and admissible—it was directly relevant to contested issues, including the issue of guilt. 708 P.2d at 803. One witness was expected to testify about incriminating statements made to him by the defendant, while the other was planning to testify about exculpatory statements made to him by the defendant and abuses committed by the prosecution. Id. at 802. Similarly, in Garcia, a deputy district attorney planned to offer the only testimony regarding the culpable mental state element of the offense charged. 698 P.2d at 806. Again, that testimony was directly relevant to contested issues, including the issue of guilt, and was, thus, clearly necessary and admissible. Id. 5 The court raised the discovery issues sua sponte. This was improper. A defendant who moves to disqualify pursuant to section 20-1-107(2) bears the burden of showing actual facts and evidence in the record supporting his contention that there are extreme circumstances present that render it unlikely that he would receive a fair trial. Loper, 241 P.3d at 546.
16 process, restores a level playing field, and deters future misconduct by the
prosecution. People v. Dist. Ct., 793 P.2d 163, 168 (Colo. 1990). “Disqualification of
the entire DA’s Office is a drastic remedy and certainly not the least restrictive
sanction available for a discovery violation.” Perez, 201 P.3d at 1233. Therefore,
the prosecution’s discovery violations are not special circumstances that warrant
disqualification.
¶33 Finally, the court referenced the DORA complaint. But it discerned nothing
inappropriate about it. Neither do we. And filing the DORA complaint is surely
not a special circumstance warranting disqualification.
¶34 Despite correctly concluding that none of these circumstances was
sufficiently extreme to warrant disqualification, the district court ruled that the
same circumstances, viewed in totality, warranted disqualification. But, like the
district court in Loper, the district court here failed to adequately explain how the
circumstances in question, even when considered together, were so extreme as to
have rendered it unlikely that the defendant would receive a fair trial. And we
perceive no basis for the court’s holding that Boston’s endorsement as a witness
for largely foundational purposes, the two discovery violations, and the DORA
17 complaint, considered cumulatively, are such extreme circumstances that they
render it unlikely that Kent would receive a fair trial.6
¶35 More than anything, the court seemed apprehensive about Brown’s motives
and strategies. For example, it remarked that the DORA complaint made it
particularly obvious that Brown was seeking to penalize Kent above and beyond
this criminal prosecution. It also questioned whether Brown had “the ability” to
be fair in this case. However, circumstances that may lead a court to harbor
suspicions about a district attorney’s motives and strategies do not warrant
disqualification if they don’t render it unlikely that the defendant would receive a
fair trial. Loper, 241 P.3d at 547.
6 As mentioned, the court recited a number of circumstances beyond the three we have addressed in detail. But the court debunked each of those other circumstances. More specifically, the court found that: (1) the fact that Brown assigned an investigator to the Sheriff’s complaint and presented the matter to the grand jury in no way impacted Kent’s ability to receive a fair trial; (2) while Brown may have felt threatened by the remarks Kent made during the Leadville incident, “it is sometimes the nature of prosecution to be threatened,” and Brown referred the matter to a special prosecutor; (3) though it was “perhaps . . . unusual” for Brown to be so directly involved in this case and to have demanded during plea bargain negotiations that Kent resign from his position, neither was “unheard of”; and (4) the decision to present evidence to the grand jury regarding Kent’s alleged perjury could be seen “as either Mr. Brown continuing in his duty” as a prosecutor or as “retaliatory,” but no evidence was presented “either way,” and, regardless, this did not affect Kent’s ability to receive a fair trial. Even assuming the court relied on these other circumstances, it still erred in disqualifying Brown’s office. The circumstances present in this case, including in their “totality,” are not so extreme as to justify the drastic remedy of disqualification.
18 ¶36 True, the court believed that the circumstances, considered simultaneously,
depicted a district attorney who had made this prosecution personal because of a
conflict with Kent. However, animosity, alone, is insufficient to warrant
disqualification under section 20-1-107(2). See Loper, 241 P.3d at 547.
¶37 In Loper, we disclaimed the district court’s determination that the
circumstances advanced warranted disqualification because, “taken together,”
they “raised serious concerns about the [suspicious] manner in which the district
attorney [had] brought the case and ‘[left] a bad smell.’” Id. at 545–46. Though the
district court here did not use the “bad smell” nomenclature, it appeared to adopt
the same analytical framework as the district court in Loper, focusing on concerns
related to Brown’s potential impropriety based on his discord with Kent. For
instance, the court was troubled by the discovery violations because it viewed
them as evidence that Brown was attempting to hide the ball from Kent.
According to the court, Kent’s need to resort to subpoenas duces tecum was the
“breaking point.” As we’ve made clear by now, though, the appearance of
impropriety created by a prosecutor’s conduct is no longer pertinent under section
20-1-107(2). Loper, 241 P.3d at 547.
¶38 Because the district court misapplied the law, it abused its discretion. Kent
failed to meet his burden of showing actual facts and evidence in the record
supporting his assertion that there are extreme circumstances present in this case
19 that render it unlikely that he would receive a fair trial. Accordingly, the district
court should have denied his motion.
¶39 To recap, disqualification of a district attorney is “a drastic remedy” that
should be granted only in “narrow circumstances.” Id. As we have cautioned in
the past, defendants should not have “the unfettered option of disqualifying a
prosecutor.” Id. at 547–48 (quoting People v. C.V., 64 P.3d 272, 276 (Colo. 2003)).
Allowing disqualification under a less demanding standard risks both putting a
strain on the system and causing significant problems. Id. Because the district
court misapplied the “special circumstances” prong of the disqualification statute,
it erred.
IV. Conclusion
¶40 For the foregoing reasons, we conclude that the district court abused its discretion
in granting Kent’s motion to disqualify Brown’s office from prosecuting this case.
Accordingly, we reverse the disqualification order and remand for further proceedings
consistent with this opinion.
JUSTICE HOOD dissents, and JUSTICE GABRIEL and JUSTICE HART join in the dissent.
20 JUSTICE HOOD, dissenting.
¶41 In a “comprehensive” written order, maj. op. ¶ 30, the trial court carefully
outlined the law and a host of troubling facts. From its more illuminating vantage
point, the court concluded that the defendant’s right to a fair trial was in jeopardy,
so it chose to disqualify District Attorney Brown’s office. In doing so, it exercised
the substantial discretion we purport to afford the court closest to the facts.
Because I see no abuse of that substantial discretion here, I respectfully dissent.
¶42 As the majority opinion observes, and neither party disputes, we review the
trial court’s order disqualifying Brown’s office for an abuse of discretion, which
occurs if its decision is manifestly arbitrary, unreasonable, or unfair. If a trial court
gets the law wrong, it abuses its discretion. Maj. op. ¶ 28.
¶43 The majority claims that the trial court abused its discretion by misapplying
the law here. Id. at ¶¶ 3, 17. I disagree. In discussing the governing legal
framework, the trial court correctly identified the controlling statute;
acknowledged the demise of the former “appearance of impropriety” standard;
accurately recited the defendant’s burden of proof; focused on whether “extreme”
circumstances demonstrated that the defendant was unlikely to receive a fair trial;
and discussed the guiding principles in People v. Loper, 241 P.3d 543 (Colo. 2010),
and People v. Chavez, 139 P.3d 649 (Colo. 2006), to which the majority points today.
1 ¶44 Despite this textbook work, the majority concludes that the trial court
blundered by ascribing cumulative significance to facts that individually fall short
of the governing statutory standard. Maj. op. ¶ 3. But we’ve never said that such
a combination of circumstances would be insufficient to justify disqualification.
After all, the many circumstances potentially imperiling a defendant’s right to a
fair trial defy easy tabulation. Therefore, the totality of the circumstances should
be our focus, just as it was for the trial court. Accord People v. Arellano, 2020 CO 84,
¶ 30, __ P.3d __ (“[I]n deciding whether special circumstances render a fair trial
unlikely, a court need not (and ordinarily should not) evaluate the facts before it
in isolation but rather may properly consider all of those facts together to
determine whether a defendant will receive a fair trial.”).
¶45 While trying to concoct a bright-line test might be as fraught as trying to
“nail jello to the wall,” maj. op. ¶ 20, we have some important markers to guide us
in the sticky task at hand.
¶46 Of course, the Colorado Constitution normally requires elected district
attorneys and the attorney general to prosecute criminal cases within their
jurisdictions. Colo. Const. art. IV, § 1(1); id. at art. VI, § 13; § 20-1-102(1)(a), C.R.S.
(2020). And we have long emphasized that “[u]nder the [Colorado] Constitution,
the legislature is the only body empowered to circumscribe the duties of the
district attorney” and that “such restrictions [should] be construed as narrowly as
2 possible by the courts.” People ex rel. Losavio v. Gentry, 606 P.2d 57, 61–62 (Colo.
1980). Indeed, the General Assembly enacted the disqualification statute,
§ 20-1-107, C.R.S. (2020), “to protect the independence of persons duly elected to
the office of district attorney.” § 20-1-107(1). The grounds contained in the
disqualification statute are thus the only means by which district attorneys can be
disqualified from their otherwise constitutionally and statutorily required duty to
prosecute. People v. Kendrick, 2017 CO 82, ¶ 41, 396 P.3d 1124, 1131. With those
thoughts in mind, I turn to the controlling statute.
¶47 Section 20-1-107(2) authorizes the disqualification of a district attorney in a
particular case “only” “(1) ‘at the request of the district attorney,’ (2) ‘upon a
showing that the district attorney has a personal or financial interest’ in the
prosecution, or (3) if the court ‘finds special circumstances that would render it
unlikely that the defendant would receive a fair trial.’” Kendrick, ¶ 37, 396 P.3d at
1130 (quoting § 20-1-107(2)). As the majority notes, it is this third prong that is at
issue here. Maj. op. ¶ 18 & n.2.
¶48 The party moving to disqualify the district attorney based on “special
circumstances” bears the burden of showing that absent disqualification, he or she
will not receive a fair trial. Loper, 241 P.3d at 546 (noting that, to justify
disqualification, the “‘special circumstances’ must be extreme”).
3 ¶49 The General Assembly gave criminal defendants the opportunity to seek
and obtain the drastic remedy of disqualification under this third, catchall prong
for one paramount reason: due process. Cf. id. (“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.”) While the prosecutor and the defendant may be
“adversaries,” maj. op. ¶ 1, “[a] prosecutor has the responsibility of a minister of
justice and not simply that of an advocate.” Colo. RPC 3.8 cmt. 1. Better in some
rare instances that we permit another, typically neighboring, elected official to take
charge, rather than risk compromising a defendant’s right to a fair trial.
¶50 And the trial court responded accordingly. Its recitation of what it found
troubling here demonstrates precisely how the sum of the circumstances can be
“special,” in the sense that it threatens a fair trial, even if the individual
circumstances are not:
• Brown obtained a grand jury indictment against Kent for a petty offense after having Brown’s staff conduct the investigation;
• Brown threatened to bring or seek a felony charge if Kent didn’t plead guilty to that petty offense and resign from his elected office;
• after Kent refused and allegedly threatened Brown (which resulted in an investigation, and a no-file decision, by another District Attorney’s office), Brown obtained an indictment against Kent for a felony perjury charge;
• Brown, albeit among others, was a percipient witness to the alleged perjury;
4 • Brown complained to the Department of Regulatory Affairs (“DORA”), which concerned the trial court that “the District Attorney is seeking some penalty on Mr. Kent, regardless of the outcome of the criminal prosecution”; and
• Brown’s office twice failed to meet its discovery obligations in its criminal action against Kent.
¶51 The trial court concluded as follows:
[W]hile the individual events outlined above may not in and of themselves warrant removal, reviewing them as a whole makes clear that there are special circumstances that make the appointment of a special prosecutor appropriate in this case. There is something personal about the case. Mr. Brown is both seeking a conviction of Mr. Kent and his removal from his position. When Mr. Kent did not agree to Mr. Brown’s conditions, Mr. Brown sought additional charges. Then, Mr. Brown reported Mr. Kent to DORA but without disclosing anything to the defense. Mr. Brown did not turn over statements from complaining witnesses or from the investigation regarding the threats. These the defense had to seek out. These documents/statements contain potential impeachment information which certainly relates to the credibility of witnesses and is necessary for the defense to adequately prepare for trial. This pattern raises grave concerns about the ability of the defendant to receive a fair trial with Mr. Brown and his office prosecuting the case.1
¶52 Although the trial court seemed to perceive a significant risk that Brown has
a personal vendetta against Kent that risks corrupting his trial, the majority
1 This quote refutes the majority’s assertion that the court found only three circumstances problematic: (1) the District Attorney investigator’s anticipated testimony regarding the alleged perjury; (2) the discovery violations; and (3) the DORA complaint. See maj. op. ¶ 30. While the trial court “debunked” certain sources of concern, id. at ¶ 34 n.6, it ultimately remained focused on the totality of the circumstances, whether individually innocuous or not.
5 second-guesses that conclusion and finds this situation to be insufficiently
extreme. Maj. op. ¶ 34. But the majority’s dismissal of these facts as mere
“apprehensi[on] about Brown’s motives and strategies,” id. at ¶ 35, may lead
future courts to erroneously reject all disqualification motions that don’t meet or
exceed the especially egregious facts of Chavez, 139 P.3d 649.
¶53 Chavez was an easy case: Of course, a district attorney can’t prosecute a
former client after having confidential conversations relevant to the case. See
Chavez, 139 P.3d at 654. But if the General Assembly had meant to set the threshold
for “special circumstances” at a demonstrable conflict of interest, it would have
done so explicitly. Since it did not, we must carefully guard against allowing the
first case that cleared the bar to ossify into the standard against which we judge all
future claims, especially when that first successful claim cleared the bar by such a
wide margin.
¶54 Moreover, the evidence here does more than merely “cast doubt upon [the]
district attorney’s motives and strategies.” Loper, 241 P.3d at 547. In Loper, the
victim’s mother was a probation officer in the judicial district of the prosecution
and may have influenced the decision to initiate the case against the defendant,
but there was no evidence that the resulting trial would be unfair. Id. at 545, 547.
As the majority observes, the “animosity, alone,” of a probation officer “is
insufficient to warrant disqualification.” Maj. op. ¶ 36. But when the elected
6 district attorney exhibits “personal” animosity, there is more reason to worry
about a fair trial.
¶55 By equating the trial court’s approach here to the “bad smell” methodology
we rejected in Loper, maj. op. ¶ 37, the majority takes a case that falls into the gray
area between Chavez and Loper and lumps it in with the duds. But in murky
situations like this one when the trial court credits the risk of an unfair trial based
on a constellation of significant, but not overwhelming, evidence, I believe we
should be more cautious about disturbing that decision. We should hesitate to
find an abuse of discretion when the evidence of unfairness, though scattershot,
plausibly suggests that the district attorney can’t prosecute a defendant objectively
due to a palpable, personal animus.
¶56 In reaching this conclusion, I do not mean to disparage District Attorney
Brown or defend Kent, let alone condone any of Kent’s allegedly intemperate
behavior. Instead, I simply believe that on this record we’d do better to show the
trial court the deference to which it is entitled.
¶57 Therefore, I respectfully dissent.
I am authorized to state that JUSTICE GABRIEL and JUSTICE HART join in this dissent.