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Removal – Recusal of a judge in the Colorado court system is difficult and not to be taken lightly. This article addresses the laws that apply to this issue and hopefully assists in making the decision to pursue a motion to recuse.
A judge is not qualified to hear a case if he is in any way interested or prejudiced with respect to the case, the parties, or counsel. 16-6-201(1)(d), C.R.S. 2009.
A judge should disqualify himself in a proceeding in which the judges impartiality might reasonably be questioned. C.J.C. 3(C)(1).
Thus, a judge should recuse himself whether bias is actual or merely apparent.
However, the judge has a duty to sit on a case unless a reasonable person could infer from the facts alleged in the motion and supporting affidavits that the judge is actually or apparently prejudiced or biased against a party to the litigation.
Mere [s]uspicion, surmise, speculation, rationalization, conjecture, [or] innuendo is insufficient to form a basis for disqualification.
In one case prior to trial, defendant moved for the trial judge to recuse himself because the judge had prosecuted defendant for similar charges seven years earlier when the judge was a deputy district attorney. That case had ended in dismissal following defendants successful motion to suppress. Defendant argues that the circumstances created a reasonable doubt as to whether an appearance of impropriety existed, specifically because:
(1) the charges in the two cases were similar;
(2) the prior case was relatively recent; and
(3) the prior case was resolved unfavorably to the current judges former client, the People.
Here, defendant was prosecuted by the trial judge on a factually distinct charge seven years earlier. However, the trial judge had no knowledge of evidentiary facts concerning the current proceeding, and no connection at all to the investigation, preparation, and presentation of the case. Therefore, we conclude that the trial judge was not required to recuse himself merely because he had prosecuted defendant in a different case.
Because the facts alleged would not raise a reasonable question about the trial judges impartiality in the mind of an observer who is well-informed, thoughtful, and objective.
Crim. P. 21(b)(1)(IV) provides that a motion for substitution may be based on the ground that “[t]he judge is in any way interested or prejudiced with respect to the case, the parties, or counsel.” Crim. P. 21(b)(3) provides in pertinent provision that “[i]f the motion and supporting affidavits state facts showing grounds for disqualification, the judge shall immediately enter an order disqualifying himself or herself.”
A motion for recusal and its accompanying affidavits are legally sufficient if, considered together, they ” ‘state facts from which it may reasonably be inferred that the respondent judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with a party.’ “
In determining whether a motion for recusal is legally sufficient, a trial judge may consider only the verified motion and supporting affidavits and must accept the facts contained in those documents as true.
In addition, in assessing the sufficiency of the motion and affidavits the judge must consider not only the reality but also the appearance of bias, for the integrity of the judicial process is impaired when the public perceives partiality on the part of a judge.
If the motion and supporting affidavits state facts establishing grounds for recusal, the judge has no discretion but must immediately disqualify himself or herself. Crim. P. 21(b)(3);
Unless a reasonable person could infer from the facts that the judge would in all probability be prejudiced against the party, the judge must preside over the case. A trial judge’s decision regarding the legal sufficiency of a motion for recusal and accompanying affidavits is a question of law, and is therefore subject to independent review on appeal.
H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.
If you feel you need his representation and have the need to discuss your case right now with H. Michael please call his cell (720) 220-2277, otherwise call his office during normal business hours, or fill out the Contact form on this site.
For aggressive representation and sound legal counsel, contact H. Michael Steinberg. Please fill out the short intake form or call him at (303) 627-7777.