1
2                Opinions of the Colorado Supreme Court are available to the
3            public and can be accessed through the Judicial Branch’s homepage at
4              http://www.courts.state.co.us. Opinions are also posted on the
5              Colorado Bar Association’s homepage at http://www.cobar.org.
6
7                                                         ADVANCE SHEET HEADNOTE
8                                                                       May 21, 2018
9
0                                         2018 CO 40
1
2   No. 18SA24, People v. Ehrnstein—Special Prosecutors—Colo. RPC 3.7—Post-trial
3   Proceedings.
4
5         In this interlocutory appeal, the supreme court reviews the trial court’s order

6   appointing a special prosecutor for the purpose of litigating the defendant’s post-trial

7   motion for a new trial. In his motion, the defendant alleged that the prosecution had

8   improperly instructed a witness to evade a defense subpoena. The trial court concluded

9   that the Colorado Rules of Professional Conduct compelled it to appoint a special

0   prosecutor for the purposes of the hearing on this motion because, subject to exceptions

1   not pertinent here, Colo. RPC 3.7 prohibits an attorney from acting as both an advocate

2   and a witness during the same proceeding.

3         The supreme court now reverses the trial court’s order and remands this case for

4   further proceedings. The court concludes that the trial court abused its discretion in

5   appointing a special prosecutor because that court misapplied the law when it found

6   that Colo. RPC 3.7 required the appointment of a special prosecutor in the
1   circumstances present here. Specifically, Colo. RPC 3.7 serves to prevent prejudice that

2   arises from jury confusion in cases in which an attorney serves as both counsel and

3   witness.   Because this proceeding arises in the context of a post-trial motion, that

4   concern is not implicated.
1                        The Supreme Court of the State of Colorado
2                          2 East 14th Avenue • Denver, Colorado 80203


3                                         2018 CO 40

4                             Supreme Court Case No. 18SA24
5                         Interlocutory Appeal from the District Court
6                       Adams County District Court Case No. 16CR2367
7                            Honorable Robert Kiesnowski, Judge

8                                     Plaintiff-Appellant:
9                             The People of the State of Colorado,
0                                              v.
1                                    Defendant-Appellee:
2                                       David Ehrnstein.

3                                       Order Reversed
4                                           en banc
5                                         May 21, 2018
6
7   Attorneys for Plaintiff-Appellant:
8   Dave Young, District Attorney, Seventeenth Judicial District
9   Cameron Munier, Senior Deputy District Attorney
0   Michael Whitney, Deputy District Attorney
1    Brighton, Colorado
2
3   Attorneys for Defendant-Appellee:
4   Samler & Whitson, P.C.
5   Eric A. Samler
6    Denver, Colorado
7
8
9
0
1
2
3
4   JUSTICE GABRIEL delivered the Opinion of the Court.
¶1    The District Attorney for the Seventeenth Judicial District tried appellee David

Ehrnstein on the charge of incest against L.E. After a jury convicted him, Ehrnstein filed

a motion for a new trial, alleging that one of his trial prosecutors and the victim

advocate in his case had instructed L.E. to avoid a defense subpoena. Prior to holding a

hearing on that motion, the trial court found that it was compelled by the rules of

professional conduct to appoint a special prosecutor for purposes of the hearing.

Pursuant to sections 16-12-102(2) and 20-1-107(3), C.R.S. (2017), the district attorney

filed an interlocutory appeal in this court, and we must now determine whether the trial

court abused its discretion in appointing the special prosecutor.1 We conclude that the

trial court abused its discretion because it misapplied the law when it concluded that

Colo. RPC 3.7 required the appointment of a special prosecutor for purposes of the

hearing on the new trial motion in this case.

¶2    Accordingly, we reverse the trial court’s order and remand this case for further

proceedings.

                           I. Facts and Procedural History

¶3    As pertinent here, the district attorney charged Ehrnstein and a jury convicted

him of one count of incest. Thereafter, Ehrnstein filed a motion for a new trial. In this

1 We note that in their Notice of Interlocutory Appeal, the People framed the issue in
this case as follows: “Did the district court err when it disqualified the District
Attorney?” It is not clear to us, however, that the trial court in fact “disqualified” the
district attorney from all further proceedings in this case, rather than simply ruling that
the district attorney could not ethically participate in the hearing on the new trial
motion. Accordingly, for purposes here, we will treat the district court’s ruling as an
order disqualifying the district attorney and appointing a special prosecutor for
purposes of the hearing on the new trial motion only, and we limit our review to
whether the district court abused its discretion in entering that narrow order.


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motion, he alleged that at trial, he had attempted to call a witness to testify regarding

prior inconsistent statements made by L.E. He anticipated that the witness would

testify that shortly after the events at issue, L.E. had told the witness that she did not

remember any details of what had happened and that she speculated that she must

have been drugged. The prosecution objected to Ehrnstein’s request to call the witness

because Ehrnstein had not previously confronted L.E. with those statements, as

required before impeaching a witness with prior inconsistent statements. See CRE

613(a). As a result, Ehrnstein attempted to serve L.E. with a subpoena to secure her

further appearance at trial in order to lay a proper foundation for impeaching her

testimony.

¶4    According to the new trial motion, Ehrnstein’s investigator attempted to serve

the subpoena at L.E.’s home.      When the investigator knocked on L.E.’s door, an

unknown person answered and asked the investigator to wait while he or she asked if

L.E. would come to the door. L.E., however, did not come to the door. Instead, the

investigator apparently heard someone inside the residence make a telephone call and

inquire as to how to handle the situation. The individual returned and told the defense

investigator that L.E. would not accept the subpoena.

¶5    Ehrnstein’s motion further asserted that his counsel then brought this issue to the

attention of the trial court and requested assistance from the court and the prosecutor in

securing service on L.E.    The prosecutor objected, however, and the court denied

Ehrnstein’s request.




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¶6     Thereafter, according to the motion, two of Ehrnstein’s family members

informed counsel that they were in court during the discussion of the subpoena and

overheard a conversation between the victim advocate and one of the deputy district

attorneys prosecuting the case, in which the deputy district attorney instructed the

victim advocate to direct L.E. not to answer the door of the residence. The motion

observed that statutory law prohibits attempting to or inducing a witness to avoid legal

process and that Ehrnstein had suffered irreparable harm by the prosecutor’s actions,

thereby necessitating a new trial.

¶7     The trial court convened a hearing to consider the motion for a new trial, and

prior to taking any testimony, the court sua sponte asked Ehrnstein’s counsel whether

the trial court “need[ed] to appoint a special prosecutor” for purposes of the motion.

Defense counsel responded, “I imagine so.”

¶8     After then taking testimony from the victim advocate and from both of the

family members who had reported the above-noted conversation between the advocate

and one of the prosecutors, the trial court took a recess, and when it returned to the

bench stated, “Under the circumstances, I am compelled to, over the government’s

objection, appoint a special prosecutor and set this matter for an evidentiary hearing.”

The court directed the prosecution to contact another jurisdiction to consider its

appointment as special prosecutor and to set the matter for a status conference to

determine who the new prosecutor would be.

¶9     Prior to the scheduled conference, the district attorney filed a motion to

reconsider the trial court’s appointment of a special prosecutor, arguing that a


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prosecutor could only be disqualified under the provisions of section 20-1-107, C.R.S.

(2017), and that the requirements of that statute had not been met in this case. The

motion further argued that the allegations were “wholly without merit” and were

“merely a stall tactic designed to circumvent the jury’s verdict and the application of

justice in sentencing.” Finally, the motion asserted that “the defendant has received a

fair trial and the case is no longer procedurally at a phase where the district attorney

can be disqualified.”

¶10       The parties subsequently appeared for the scheduled status conference, and at

that conference, the trial court denied the motion to reconsider. In so ruling, the court

stated:

          We’re at post trial. When we have a situation where, for example, an
          allegation of improper unethical conduct post trial issue [sic] comes to
          light, the [disqualification] statute can’t possibly apply. We default to the
          case law that gives me broad discretion under the circumstances to
          appoint a special prosecutor if I deem that most appropriate.

          There is an appearance, although I have not determined one way or the
          other whether any unethical conduct occurred. There has been raised the
          appearance of prosecutorial misconduct. You may not act as witness and
          lawyer simultaneously. It’s the [sic] violation of the code of professional
          responsibility under the circumstances.

¶11       The prosecution then filed a motion to stay the hearing on the merits of the new

trial motion as well as the present interlocutory appeal, asking this court to review the

district court’s order.

                                         II. Analysis

¶12       We first address the standard of review governing orders appointing a special

prosecutor. We then discuss Colo. RPC 3.7 and conclude that because that Rule is


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generally inapplicable in the context of a post trial motion, the trial court abused its

discretion in relying on that Rule to appoint a special prosecutor on the facts of this

case.

                                A. Standard of Review

¶13     We review a district court’s decision to appoint a special prosecutor for an abuse

of discretion. See People v. Cty. Court, 902 P.2d 413, 413 (Colo. App. 1994) (affirming

the district court’s determination that the county court had abused its discretion by

requiring the appointment of a special prosecutor); People v. Cty. Court, 854 P.2d 1341,

1343 (Colo. App. 1992) (reviewing for an abuse of discretion a county court order that,

among other things, appointed a special prosecutor); cf. People v. Epps, 2017 CO 112,

¶ 14, 406 P.3d 860, 864 (noting that district courts have broad discretion in determining

whether to disqualify a district attorney from prosecuting a particular case). A district

court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or

unfair. Epps, ¶ 14, 406 P.3d at 864. This standard is satisfied when, among other things,

the court misapplies or misconstrues the law. See id.; DeLong v. Trujillo, 25 P.3d 1194,

1197 (Colo. 2001).

                        B. Appointment of Special Prosecutor

¶14     In this case, the trial court premised its decision to appoint a special prosecutor

entirely on the so-called “advocate-witness rule.” Fognani v. Young, 115 P.3d 1268,

1272 (Colo. 2005). The trial court concluded that under this rule, the assistant district

attorneys who had prosecuted Ehrnstein could not litigate the new trial motion because

a person cannot act as a witness and lawyer simultaneously. Although the court did


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not specifically reference Colo. RPC 3.7, the record makes clear that this is the Rule on

which the court relied, and we proceed to address whether the court correctly did so.2

¶15    Under Colo. RPC. 3.7(a), “[a] lawyer shall not act as advocate at a trial in which

the lawyer is likely to be a necessary witness,” subject to certain exceptions not

pertinent here. As we have explained, this Rule “is directed at the lawyer’s courtroom

activity, preventing the lawyer from acting as an ‘advocate at trial.’” Fognani, 115 P.3d

at 1276. “The basic reason for [this] limitation is to protect the integrity of the adversary

process by separating the lawyer’s role as an advocate from that of a witness.”

People v. Garcia, 698 P.2d 801, 805 (Colo. 1985).

¶16    The overriding purpose of Colo. RPC 3.7 is to avoid prejudice associated with

jury confusion. See Fognani, 115 P.3d at 1276–77. Accordingly, an attorney who is also

a necessary witness should not participate in activities that would reveal the attorney’s

dual role to a jury.    See id. at 1277.    Such concerns are generally not implicated,

however, in the context of pre- and post-trial litigation in front of a judge. Id. at 1270


2 We acknowledge that our prior case law raises a question as to whether a violation of
Colo. RPC 3.7 could provide a basis on which to disqualify a district attorney. See, e.g.,
People in Interest of N.R., 139 P.3d 671, 674–75 & n.3 (Colo. 2006) (noting that section
20-1-107 defines the sole grounds under which disqualification of a district attorney is
proper but leaving open the question of whether the legislature’s claim of exclusive
authority to determine the bases on which a district attorney may be disqualified
conflicts with the judiciary’s inherent authority to protect its dignity, independence, and
integrity); id. at 678–79 (Bender, J., concurring in part and dissenting in part)
(disagreeing that section 20-1-107 provides the sole means by which a trial court may
disqualify a district attorney and opining that trial courts retain their inherent authority
to act in this area absent legislative authorization). We need not decide that question
here, however, because we conclude that even if the Rule could provide a basis for
disqualification, the trial court erred in relying on that Rule to appoint a special
prosecutor on the facts of this case.


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(“Because the advocate-witness rule is directed at the attorney’s trial activity, we limit

the scope of that disqualification to advocacy at trial.”); see also People in Interest of

S.G., 91 P.3d 443, 450 (Colo. App. 2004) (“[Colo. RPC 3.7(a)] has been interpreted to

permit a lawyer who may be a necessary witness to continue to represent a client ‘in all

litigation roles short of trial advocacy.’”) (quoting Colo. Bar Ass’n Ethics Comm.,

Formal Op. 78 (revised 1997)); Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell,

239 F. Supp. 2d 1170, 1174 (D. Colo. 2003) (“Rule 3.7(a) is a prohibition only against

acting as an ‘advocate at trial.’ Its purpose is to avoid jury confusion at trial. It does not

automatically require that a lawyer be disqualified from pretrial activities, such as

participating in strategy sessions, pretrial hearings, settlement conferences, or motions

practice.”).   Trial courts retain discretion, however, to preclude an attorney from

playing “a role in the presentation short of trial” when such activity could be admissible

at trial and would therefore “reveal the attorney’s dual role to the jury,” thus

undermining the purpose of Colo. RPC 3.7. Fognani, 115 P.3d at 1276–77.

¶17    Here, as we understand it, the trial court’s order appointing a special prosecutor

extended only to a post-trial hearing on a motion for a new trial. The jury had already

been excused and thus would never have learned that members of the district attorney’s

office had acted as both the prosecution and witnesses.

¶18    Accordingly, based on the above-discussed authorities, we conclude that Colo.

RPC 3.7 is inapplicable here, and because the trial court believed that that Rule

compelled its decision, we conclude that the trial court misconstrued the law and

therefore abused its discretion. See Epps, ¶ 14, 406 P.3d at 864; DeLong, 25 P.3d at 1197.


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¶19   In reaching this conclusion, we emphasize its narrow nature. Specifically, as

noted above, we are addressing only the trial court’s order, premised on Colo. RPC 3.7,

appointing a special prosecutor for purposes of the hearing on the new trial motion.

Although the parties have raised a number of other issues in their briefs, including the

applicability of section 20-1-107 generally and Ehrnstein’s right to call the deputy

district attorneys as witnesses during the hearing on the new trial motion, we view

those questions as beyond the scope of the narrow issue before us, and we express no

opinion on them.

                                   III. Conclusion

¶20   For these reasons, we conclude that the trial court abused its discretion in relying

on Colo. RPC 3.7 to appoint a special prosecutor for purposes of the hearing on

Ehrnstein’s new trial motion. We therefore reverse that order and remand this case for

further proceedings consistent with this opinion.




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