Colorado Criminal Law- Courts Make It Hard To Disqualify The District Attorney – 20-1-107

By H. Michael Steinberg Colorado Violent Crimes Criminal Defense Lawyer – Attorney

Colorado Criminal Law- Courts Make It Hard To Disqualify The District Attorney – 20-1-107 – Recent court decisions in Colorado make it nearly impossible to disqualify a Colorado District Attorney. Colorado’s District Attorney Disqualification Statute – § 20-1-107

Under Colorado law disqualifying a District Attorney is governed by 20-1-107 of the Colorado Revised Statutes C.R.S.

Section 20-1-107(2), C.R.S. 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 a Colorado District Attorney could be could be disqualified….

“If 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. The standard applied was known as the “appearance of impropriety” standard. This is a very low standard for disqualification.”

In the year 2002 section 20-1-107 was ameneded to eliminate the appearance of impropriety standard and that left only the specific inclusive list of circumstances enumerated in the statute. These enumerated sections are the only bases for disqualifying a Colorado DA. The showing an appearance of impropriety is no longer relevant to the determination of whether to disqualify a district attorney.

The first two bases for disqualification are almost never alleged. While the third basis – “special circumstances” appears to have a much broader application.

How Does The Special Circumstances Provision Work?

If a party seeks to have the district attorney disqualified under the “special circumstances prong” of Section 20-1-107 C.R.S., that party bears the burden of showing that it is unlikely that the defendant will receive a fair trial. The burden of proof for this prong is difficult to establish because to prove this prong, there must be actual facts and evidence in the record supporting the contention and it cannot be based on mere hypothetical information.

A successful allegation that a Defendant would not receive a fair trial must be supported by the record an while the courts have not specifically defined what circumstances qualify as “special circumstances” the allegations must be extreme … extreme enough to justify disqualify the district attorney under a difficult standard to meet. The bottom line – Colorado Courts view disqualifying the district attorney is a drastic remedy that should only occur in narrowest of circumstances.

The potential for wrongdoing by a prosecutor is not sufficient to automatically disqualify the district attorney. Historically it has been almost impossible to meet the burden of proof necessary to establish special circumstances and the Appellate Courts have found only one situation where the “special circumstances” were sufficiently extreme to justify disqualifying a district attorney under section 20-1-107(2).

In that case, the DA had a previous attorney-client relationship with the Defendant that was substantially related to the case in which the Defendant was being prosecuted.

But in most cases the facts and circumstances “may cast doubt upon a district attorney’s motives and strategies, they do not play a part in whether a defendant will receive a fair trial.”

Examples Of “No Special Circumstances” Found To Disqualify

Since the “appearance of impropriety” standard has been withdrawn as a basis for disqualification of the District Attorney – as noted above, it is not surprising that in a case in which the district attorney received substantial support from the victim’s family in his political campaign did not meet the standard. Even though…

“… the district attorney might have been indebted to the victim’s family, [but the Court still] held that this did not bear upon whether the defendant would be unlikely to receive a fair trial.”

Similarly, in a case where a District Attorney had previously represented the victim in a separate case, allegedly stole relevant medical records, and was likely to testify as a witness in the same proceeding, the Court also did not find that the “special circumstances prong” had been met.

In this second case the Court found that while a relationship with a victim or the Defendant may have influenced the district attorney in bringing the charges against a Defendant, the Court will assume that a District Attorney acted in accordance with the law in prosecuting the case.

Unless the allegation of disqualification of the District Attorney raises clear implicates of the confidentiality and conflict of interest issues a finding of “special circumstances” will be a difficult bar to hurdle.

Mere “influence” alone over a District Attorney appears to not be enough to jeopardize the assumption that a Defendant will receive a fair trial.

Here is the law in Colorado establishing the rules that govern a Motion To Disqualify a Colorado District Attorney:

20-1-107. Disqualification – Court to Appoint Prosecutor – Legislative Declaration.

(1) The general assembly finds that the office of the district attorney was created by the state constitution and that the state constitution gives to the general assembly the exclusive authority to prescribe the duties of the office of the district attorney. The general assembly finds and declares that this section is necessary to protect the independence of persons duly elected to the office of district attorney.

(2) 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 order disqualifying the district attorney shall be stayed pending any appeal authorized by this section. If the motion is brought at or before the preliminary hearing, it may not be renewed at the trial court on the basis of facts that were raised or could have been raised at the time of the original motion.

(3) An interlocutory appeal from an order of disqualification of a district attorney entered in the district court shall be filed in the supreme court pursuant to section 16-12-102 (2), C.R.S. An appeal from an order of disqualification filed in the county court shall be filed in the district court.

In computing the time period within which a trial must be commenced, the period during which an appeal pursuant to this section is pending shall be excluded.

(4) If the district attorney is disqualified in any case which it is his or her duty to prosecute or defend, the court having criminal jurisdiction may appoint a special prosecutor to prosecute or defend the cause. The judge shall appoint the special prosecutor from among the full-time district attorneys, assistant district attorneys, or deputy district attorneys who serve in judicial districts other than where the appointment is made; except that, upon the written approval of the chief justice of the supreme court, the judge may appoint any disinterested private attorney who is licensed to practice law in the state of Colorado to serve as the special prosecutor. Any special prosecutor appointed pursuant to this section shall be compensated as provided in section 20-1-308

Colorado Criminal Law- Courts Make It Hard To Disqualify The District Attorney – 20-1-107

If you found any of the information I have provided on this web page article helpful please click my Plus+1 or the Share buttons for Twitter and Facebook below so that others may also find it.

The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2017) of criminal trial experience from both sides of the courtroom – as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (18 years).

The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

[email protected]

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 36 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

Putting more than 36 years of Colorado criminal defense experience to work for you.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law- Courts Make It Hard To Disqualify The District Attorney – 20-1-107.

Summary

Article Name

Colorado Criminal Law- Courts Make It Hard To Disqualify The District Attorney - 20-1-107

Description

- Recent court decisions in Colorado make it nearly impossible to disqualify a Colorado District Attorney. Colorado’s District Attorney Disqualification Statute - § 20-1-107

Author

H. Michael Steinberg