Prosecutor's Office Disqualified

When can a prosecutor be disqualified from prosecuting a case?

By Daniel Pollitt, Associate, at 2nd-Chair

 On May 12, 2025, the Colorado Supreme Court issued a predictable but disappointing opinion that continues the restriction on circumstances in which prosecutors can be disqualified from prosecuting cases.

In People v. Chapman, 2025 CO 19, the supreme court reversed a district court’s order disqualifying the Eighth Judicial District Attorney’s Office from prosecuting a case in which the named victim was a sitting district court judge who regularly presided over cases prosecuted by the same DA’s Office. The supreme court was unpersuaded by the professional relationship and power dynamics between the judge-victim and the DA’s Office and was similarly unmoved by the fact that there had been a full bench recusal and that over seventy-five percent of the witnesses identified by the prosecution in the charging document were employees of the DA’s Office.

The supreme court determined these unique facts were insufficient to constitute a personal or financial interest in the case or “special circumstances,” reiterating these are the exclusive bases for disqualifying a district attorney from prosecuting a case.

Since 2002, personal interest, financial interest, and special circumstances have, indeed, been the sole grounds for seeking to disqualify a district attorney from prosecuting a case, after the Colorado legislature amended section 20-1-107 to remove “appearance of impropriety” as a basis for disqualification.[1]

While district courts theoretically have “broad discretion” in deciding whether to disqualify a DA’s Office from prosecuting a case,[2] since the 2002 amendment, the supreme court has rejected nearly every disqualification order that has come before it, including situations where a prosecutor previously represented the defendant as a defense attorney,[3] where a prosecutor repeatedly violated Rule 16 and filed a complaint against the defendant with the department of regulatory affairs,[4] where a prosecutor was set to be called as a fact witness at trial,[5] and where the victim’s mother was a probation officer in the district and was set to be called as a material witness at trial.[6]

Chapman, like most disqualification cases, involved the “special circumstances” prong of section 20-1-702(2). Under this standard, defendants must show facts from which the trial court can reasonably conclude that they will probably not receive a fair trial without disqualification.[7] Since 2002, the supreme court has only affirmed disqualification orders under the “special circumstances” prong where the prosecutor previously had an attorney-client relationship with the defendant that was substantially related to the prosecution at issue[8] and where a staff member of the DA’s Office was the primary victim in the case and was set to appear as a witness at trial with proposed testimony “of sufficient consequence to prevent a fair trial.”[9]

While the Chapman Opinion was not unexpected, it nonetheless represents a continued hostility by this supreme court to the due process rights of defendants.

[1] See Ch. 210, sec. 4, § 20-1-107, 2002 Colo. Sess. Laws 758-59.

[2] See People v. Arellano, 476 P.3d 364, 368 (Colo. 2020).

[3] See People v. Solis, 523 P.3d 427 (Colo. 2022).

[4] See People v. Kent, 476 P.3d 762 (Colo. 2020).

[5] See People v. Epps, 406 P.3d 860 (Colo. 2017).

[6] See People v. Loper, 241 P.3d 543 (Colo. 2010).

[7] See People v. Chavez, 139 P.3d 649, 653 n.5 (Colo. 2006).

[8] Id. at 654.

[9] See Arellano, 476 P.3d at 368-70.