People v. Solis
| Citation | 2022 CO 53 |
| Decision Date | 14 November 2022 |
| Docket Number | 22SA200 |
| Parties | The People of the State of Colorado, Plaintiff-Appellant v. Jorge Solis. Defendant-Appellee |
| Court | Supreme Court of Colorado |
Interlocutory Appeal from the District Court Gunnison County District Court Case No. 21CR15 Honorable J. Steven Patrick Judge
Attorneys for Plaintiff-Appellant: Seth D. Ryan, District Attorney, Seventh Judicial District Jessica J. Waggoner Chief Deputy District Attorney Montrose, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public Defender Kori Zapletal, Deputy Public Defender Jon W. Grevillius, Deputy Public Defender Denver, Colorado
OPINION
¶1 In this interlocutory appeal, the People challenge the trial court's order granting Jorge Solis's motion to disqualify the entire District Attorney's Office for the Seventh Judicial District ("DA's Office") and to appoint a special prosecutor. Solis filed his motion after Darren Struble, who formerly represented Solis as a public defender in the underlying case, began working for the DA's Office that is prosecuting the case against Solis. There is no question, of course, that Struble is disqualified from working on Solis's case.[1] The issue presented here is whether, as Solis argued before the trial court, Struble's former representation of Solis constituted "special circumstances" under section 20-1-107(2), C.R.S. (2022), requiring not just Struble's disqualification, but also disqualification of the entire DA's Office.
¶2 Following a half-day hearing, the trial court found that the DA's Office had a screening policy in place and that it had taken additional precautions to wall Struble off from Solis's prosecution. The court thus concluded Solis had failed to establish that special circumstances existed such that "it [was] unlikely that [he] would receive a fair trial." Id. The trial court, accordingly, denied the motion to disqualify the entire DA's Office.
¶3 Eight days later, Solis filed a motion for reconsideration after learning that Struble appeared for the DA's Office during his second day on the job in two unrelated cases involving a different former client, Mr. Flores-Molina, in violation of the screening policy. The trial court concluded, upon reconsideration, that there was a "potential, if not likelihood," that Struble would further violate the screening policy, so it granted Solis's motion, disqualified the entire DA's Office, and ordered the appointment of a special prosecutor.
¶4 We conclude that the trial court abused its discretion in granting Solis's motion. The trial court's determination that Struble could potentially deviate from the screening policy in the future was based on his appearance in Mr. Flores-Molina's case; it was not a determination that Struble would violate the screening policy in this case or that confidential information from Struble's prior representation had not been or could not continue to be adequately screened from the attorneys prosecuting Solis's case. Because there is no evidence in the record that Solis is unlikely to receive a fair trial, we vacate the trial court's order disqualifying the entire DA's Office. See People v. Kent, 2020 CO 85, ¶ 19, 476 P.3d 762, 766.
¶5 Solis is charged with murder in the first degree, § 18-3-102(1)(a), C.R.S. (2022), criminal attempt to commit first degree arson, § 18-4-102(1), C.R.S. (2022); § 18-2-101, C.R.S. (2022), and first degree criminal trespass, § 18-4-502, C.R.S. (2022). The DA's Office is prosecuting this case out of its Gunnison Office.
¶6 The Montrose Regional Office of the State Public Defender ("the PD's Office") has represented Solis throughout this case. Struble, who began his employment as an attorney with the PD's Office after graduating from law school in 2020, was among the public defenders representing Solis.
¶7 In January 2022, the elected District Attorney for the Seventh Judicial District, Seth Ryan, contacted Struble regarding employment opportunities with the DA's Office. Struble indicated that while he was interested in possible alternative employment, he sought a position that was at least partially based in Gunnison, and at that time, there were no openings in the DA's Gunnison Office. On March 14, 2022, after learning about an opening in the Gunnison Office, Ryan contacted Struble again to discuss possible employment. Struble accepted a position in the DA's Gunnison Office on March 25, 2022, and resigned from his position with the PD's Office that day, after he had a conversation with the regional head of the PD's Office. Struble did not take any files, computers, or notes regarding any of his cases when he left.
¶8 Struble was slated to begin work at the DA's Office on or about April 18, 2022. On April 13, 2022, Solis filed a motion for appointment of a special prosecutor, asking the court to disqualify Struble and the entire DA's Office from prosecuting his case. In support of his motion, Solis argued that Struble obtained a great deal of confidential information during the time he represented Solis, and that his new role as a deputy district attorney created a conflict for him and the entire DA's Office.
¶9 The DA's Office responded the same day, conceding that Struble, who had not yet started work, would indeed be disqualified from Solis's case. It argued, however, that special circumstances did not exist that required disqualification of the entire DA's Office because it had taken a number of steps, in anticipation of Struble's pending employment, to insulate Struble from the prosecution of any of his former clients. These included its April 7, 2022 implementation of a new policy establishing a protocol for screening prosecutors from participating in the prosecution of former clients ("the screening policy").
¶10 The screening policy provided that employees were "barred from any participation whatsoever in cases which involve the prosecution of [their] former clients, or anyone with whom the employee[s] developed an attorney-client relationship, in the same or a substantially related matter." The screening policy further prohibited employees from, among other things, accessing files related to former clients; consulting with the prosecutor or staff involved with the prosecution of former clients; "access[ing] any of the photographs, documents, recorded interviews, recorded surveillance activities, tangible evidence, criminal charges, criminal records, motions filed by either party, orders of the court, or any other matter related to any case" involving former clients; and sharing confidential information revealed during their representation of former clients. The screening policy also barred employees from appearing on behalf of the DA's Office in any court proceedings involving former clients. Every employee (including Struble once he started work there) was required to sign the screening policy.
¶11 The DA's Office further noted that when Ryan hired Struble, it obtained a list from "judicial" identifying those cases in which Struble was listed as counsel. Ryan shared the list and the screening policy with the PD's Office and asked it to confirm the list's accuracy.
¶12 Finally, the DA's Office argued that, because it knew Struble had represented Solis, the prosecutors took extra precautions-beyond those required by the screening policy-with respect to Solis's case. For instance, the DA's Office, which is paperless, has blocked Struble from using the e-filing system in this case. It has also done so with respect to all 120 clients on the list Ryan sent to the PD's Office. Additionally, all work on Solis's case is confined to the DA's conference room, which had screens erected to cover the room's windows and blockers put on the door to ensure no one can look into the room. No files are kept outside the conference room. Exhibits and other evidence in the case are kept there as well. And, as an additional precaution, all meetings regarding the case take place in this conference room. The DA's Office further represented that all major witnesses were advised regarding the conflict and instructed to restrict discussions regarding the case to that room.
¶13 The trial court then set the motion for an evidentiary hearing on May 10, 2022.
¶14 On May 3, 2022, an investigator for the PD's Office travelled to the DA's Gunnison Office to serve Struble and another prosecutor with subpoenas to appear at the May 10, 2022 hearing. Struble accepted the subpoena from the investigator, whom Struble knew from working at the PD's Office. The other attorney would not accept service, Struble told the investigator, adding that the attorney was researching whether he would be prohibited from prosecuting Solis's case if he accepted the subpoena.
¶15 The trial court held the hearing on the motion to appoint a special prosecutor on May 10, 2022, and denied the motion six days later in a thoughtful, detailed order. The court concluded that Solis had not met his burden of proving that it was unlikely he would receive a fair trial if his case were prosecuted by the DA's Office, "assuming compliance with the policy." Further, the court noted that no evidence had been presented indicating that Struble had disclosed-or would ever disclose-any confidential information to the DA's Office. In this regard, the trial court credited Struble's testimony that he had not and would not disclose any information from his representation of Solis to anyone, including anyone associated with the prosecution of the case, due to the obvious ethical issues. The trial court found that Struble's testimony was not only...
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