     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 7, 2019

                                2019COA31

No. 16CA2229, People v. Roehrs — Judges — Extrajudicial
Source Doctrine — Code of Judicial Conduct — Impartiality —
Disqualification

     A division of the court of appeals considers whether a trial

judge is disqualified from presiding over a criminal trial where she

has witnessed part of the alleged offense occur in her courtroom.

Examining the scope of the extrajudicial source doctrine, the

division concludes that although knowledge gained in the course of

a judge’s courtroom duties does not normally prevent a trial judge

from presiding over subsequent, related proceedings, when a trial

judge witnesses all or part of a crime in the courtroom, she has

“personal knowledge of facts that are in dispute” within the

meaning of Rule 2.11(A)(1) of the Colorado Code of Judicial
Conduct. Therefore, her impartiality may reasonably be questioned,

raising an appearance of impropriety.

     In this case, because the trial judge failed to recuse herself

from a criminal trial although she had witnessed part of the crime,

the division reverses the judgment of conviction and remands with

directions to grant the appellant a new trial before a different judge.
COLORADO COURT OF APPEALS                                        2019COA31


Court of Appeals No. 16CA2229
Teller County District Court No. 15CR57
Honorable Theresa M. Cisneros, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dana Roehrs,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                  Division VI
                         Opinion by JUDGE RICHMAN
                        Navarro and Welling, JJ., concur

                           Announced March 7, 2019


Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado,
for Defendant-Appellant
¶1    Defendant, Dana Roehrs, appeals the judgment of conviction

 entered on a jury verdict finding her guilty of retaliation against a

 witness and harassment. We reverse the judgment of conviction

 and remand with directions to grant Roehrs a new trial before a

 different judge.

                           I.    Background

¶2    Roehrs was an interested party in a dependency and neglect

 hearing at which Judge Theresa M. Cisneros presided. At the

 hearing, Sergeant Couch, of the Teller County Sheriff’s Department,

 testified concerning Roehrs’s presence at the scene of an

 investigation that he was conducting. During Sergeant Couch’s

 testimony, Roehrs stood up, walked toward the witness stand, and

 said, “You’re a liar. I am going to have your job.” Judge Cisneros

 asked Roehrs to leave the courtroom, a directive that Roehrs

 followed. After testifying, Sergeant Couch left the courtroom. On

 his way to the clerk’s office, he passed Roehrs, who was sitting on a

 bench in the hallway. As he passed, he heard Roehrs say, “I’m

 going to fuck you up.” Sergeant Couch responded, “What did you

 say. . . . Are you threatening me?” Roehrs responded, “I’m going to



                                    1
 sue you.” Sergeant Couch replied, “What did you say before that?”

 Roehrs answered, “I said, I am going to sue you.”

¶3    As a result of Roehrs’s behavior at the courthouse, the People

 charged her with retaliation against a witness, harassment, and

 intimidating a witness. § 18-8-704(1)(a), C.R.S. 2018; § 18-8-706,

 C.R.S. 2018; § 18-9-111(1)(h), C.R.S. 2018. 1 As the presiding judge

 at the dependency and neglect hearing, Judge Cisneros witnessed

 some of the behavior and statements that were at issue in the later

 criminal trial on these charges. The substance, tone, and intent of

 Roehrs’s courtroom statements were disputed at trial, as was her

 location within the courtroom when she made the statements.

 Moreover, according to Sergeant Couch, Judge Cisneros later called

 him and the attorneys into her chambers to discuss what had

 happened outside the courtroom. During that meeting, Sergeant

 Couch told Judge Cisneros about the incident with Roehrs.

 Nonetheless, Judge Cisneros was assigned to preside over the trial

 on these criminal charges.



 1 The People also charged Roehrs with harassment under section
 18-9-111(1)(b), C.R.S. 2018, but later dismissed that charge on the
 first day of trial.
                                  2
¶4    Before trial, Roehrs’s counsel moved to recuse 2 Judge Cisneros

 on the grounds that because Judge Cisneros had personal

 knowledge of the facts to be tried and was a material witness to

 Roehrs’s conduct, there was an appearance of bias or prejudice.

 Judge Cisneros denied the motion, ruling that Roehrs had failed to

 prove bias or personal knowledge of disputed facts.

¶5    Judge Cisneros then presided over all proceedings in the

 district court. The jury found Roehrs guilty of retaliation against a

 witness and harassment. Roehrs was acquitted on the charge of

 intimidating a witness. Judge Cisneros sentenced Roehrs to four

 years in the custody of the Department of Corrections and five years

 of parole for the retaliation conviction, in addition to six months in

 county jail for the harassment conviction, to run concurrently to

 her four-year prison sentence.

¶6    On appeal, Roehrs contends that the trial court erred in

 denying her motion to recuse and in imposing an unduly punitive




 2 We note that what Roehrs called a “motion to recuse” is also called
 a “motion to disqualify.” We will use “recusal” and “disqualification”
 interchangeably here. C.J.C. 2.11 cmt. 1 (“The term ‘recusal’ is
 sometimes used interchangeably with the term ‘disqualification.’”).
                                    3
 sentence. Because we reverse and remand for a new trial based on

 the denial of the motion to recuse, we do not reach the sentencing

 issue.

                               II.   Recusal

                          A.     Applicable Law

¶7    We review a trial court’s ruling on a motion to disqualify a

 judge de novo. Smith v. Dist. Court, 629 P.2d 1055, 1056 (Colo.

 1981). When evaluating a motion to recuse, we must bear in mind

 that a judge must not be tainted by bias or partiality. People v.

 Julien, 47 P.3d 1194, 1197 (Colo. 2002). A criminal defendant has

 a constitutional right to have an impartial judge sit on her case at

 all stages of the proceedings. People v. Hagos, 250 P.3d 596, 611

 (Colo. App. 2009). “A fair trial in a fair tribunal is a basic

 requirement of due process.” In re Murchison, 349 U.S. 133, 136

 (1955).

¶8    Also essential to our review are the statutes, rules, and codes

 that govern judicial conduct in Colorado. Smith v. Beckman, 683

 P.2d 1214, 1216 (Colo. App. 1984) (stating that when a judge

 considers the sufficiency of a motion for disqualification, she must

 consider the applicable statutes and rules of procedure as well as

                                     4
  the Code of Judicial Conduct). These laws delineate three

  fundamental limitations on a judge’s authority to preside over a

  criminal case where the judge has knowledge of the allegedly

  criminal actions.

¶9     First, section 16-6-201(1)(d), C.R.S. 2018, and Colorado Rule

  of Criminal Procedure 21(b)(1)(IV) provide that a judge shall be

  disqualified when she is “in any way interested or prejudiced 3 with

  respect to the case, the parties, or counsel.”

¶ 10   Second, Canon 2 of the Colorado Code of Judicial Conduct

  states that “[a] judge shall perform the duties of judicial office

  impartially, competently, and diligently.” Implementing that canon

  with respect to disqualification, Rule 2.11(A) states as follows:

             A judge shall disqualify himself or herself in
             any proceeding in which the judge’s
             impartiality might reasonably be questioned,
             including but not limited to the following
             circumstances:




  3 Prejudice is “a leaning toward one side of a question involved, from
  other considerations than those belonging to it, or a bias in relation
  thereto which would in all probability interfere with fairness in
  judgment . . . .” Walker v. People, 126 Colo. 135, 146, 248 P.2d
  287, 294 (1952), superseded by rule on other grounds as stated in
  People in Interest of E.G., 2016 CO 19, ¶ 13 n.3.
                                      5
             (1) The judge has a personal bias or prejudice
             concerning a party or a party’s lawyer, or
             personal knowledge of facts that are in dispute
             in the proceeding.

  C.J.C. 2.11(A) (emphasis added).4 Thus, Rule 2.11(A)(1) goes

  further than section 16-6-201(1)(d) and Crim. P. 21(b)(1)(IV) in

  explicitly including not only personal bias and prejudice as a basis

  for disqualification but also reasonable questions regarding

  partiality that arise when a judge has “personal knowledge of facts

  that are in dispute” in a proceeding. Accordingly, CRE 605 provides

  that the judge presiding at trial may not testify in that trial as a

  witness, even if no objection is made.

¶ 11   Third, C.J.C. Rule 2.11(A)(2)(d) further states that a judge’s

  impartiality might reasonably be questioned if a judge knows that

  she is “likely to be a material witness in the proceeding.”

¶ 12   To determine whether recusal is warranted in light of these

  limitations, a judge must evaluate the sufficiency of the motion and




  4 Under the code, “impartiality” means the “absence of bias or
  prejudice in favor of, or against, particular parties or classes of
  parties, as well as maintenance of an open mind in considering
  issues that may come before a judge.” “Knowledge” means “actual
  knowledge of the fact in question. A person’s knowledge may be
  inferred from circumstances.” C.J.C., Terminology.
                                     6
  affidavits, accepting the facts stated therein as true. People v.

  Botham, 629 P.2d 589, 595 (Colo. 1981), superseded by rule on

  other grounds as stated in People v. Garner, 806 P.2d 366, 370

  (Colo. 1991). A motion is legally sufficient when it states “facts from

  which it may reasonably be inferred that the judge has a bias or

  prejudice that will prevent him from dealing fairly with the

  defendant.” Id. The court must examine both the actuality and the

  appearance of fairness in light of the facts alleged. Id.; see Estep v.

  Hardeman, 705 P.2d 523, 526 (Colo. 1985) (“Thus, either actual

  prejudice on the part of the trial judge or its mere appearance can

  require the disqualification of that judge.”). Even if the judge is

  entirely convinced of her own impartiality, she must take care not

  to allow the justice system to be impugned by an appearance of

  partiality. Botham, 629 P.2d at 595. This concern must be given

  the “highest consideration in ruling on a motion for disqualification”

  to secure the confidence of litigants and maintain public respect for

  the courts. Smith, 683 P.2d at 1216.

         B.   Procedural Sufficiency of the Motion and Affidavit

¶ 13   As an initial matter, the People argue that Roehrs’s motion

  fails on procedural grounds. They correctly note that section

                                     7
  16-6-201(3) and Crim. P. 21(b)(1) require that the motion be

  supported by affidavits from at least two credible persons who are

  not related to the defendant. Roehrs’s motion was supported by

  only one affidavit from her counsel.

¶ 14   The record does not contain any indication that the

  prosecution objected to the motion to recuse on this basis when it

  was filed. The motion was also renewed at a pretrial hearing, and

  the prosecution again made no objection on this basis. However, a

  party can ordinarily defend the judgment of the trial court on any

  ground supported by the record. People v. Eppens, 979 P.2d 14, 22

  (Colo. 1999). Nonetheless, due to the unusual facts at issue in this

  case and the resulting strong appearance of impropriety, we decline

  to dispose of this claim on procedural grounds for several reasons.

¶ 15   The judge was aware of the facts on which the motion was

  based and did not dispute those facts. See People v. Owens, 219

  P.3d 379, 385-86 (Colo. App. 2009) (reviewing the merits of a

  petition for rehearing in which a motion to recuse a judge was made

  without affidavits, because the judge was aware of the facts alleged

  and did not dispute them). Also, the affidavit was sufficient to

  verify the facts set forth in the motion. Botham, 629 P.2d at 596

                                    8
(stating that the affidavits need not contain all the essential facts

but must verify those facts set forth in the motion). Moreover, had

this technical deficiency been raised before the trial court, Roehrs

may well have been able to cure it by submitting a second affidavit.

Owens, 219 P.3d at 386 (noting that in the interests of judicial

economy, review on the merits is warranted where a court

anticipates that a defendant could immediately supplement the

motion with the proper affidavits). Finally, the trial court addressed

the merits of the motion and denied it only on the merits. We

therefore also choose to address the merits.5 See People v.

Fitzgibbons, 909 P.2d 1098, 1101 (Colo. 1996) (noting that the

respondent filed no affidavit, but the hearing board reached the

merits of the case and the court would do likewise); People in




5We note that because Roehrs submitted an affidavit in support of
her motion, this case is distinguishable from other cases in which
courts declined to review motions for disqualification due to more
substantial procedural inadequacies. Altobella v. People, 161 Colo.
177, 184, 420 P.2d 832, 835 (1966) (declining to consider a
defendant’s second motion for change of judge where the defendant
attempted, unsuccessfully, to incorporate previously filed affidavits
by reference); People v. Taylor, 131 P.3d 1158, 1166-67 (Colo. App.
2005) (holding that the trial court properly denied a defendant’s
motion for recusal where no affidavits were attached to the motion).
                                   9
  Interest of C.Y., 2018 COA 50, ¶¶ 11-12 (considering the merits of a

  motion to disqualify the judge, despite the lack of affidavits, where a

  judge solicited the motion and addressed it in open court on the

  merits). 6

                   C.   Merits of the Motion and Affidavit

¶ 16    In support of her motion, Roehrs alleged the following facts:

           •   The probable cause affidavit supporting the criminal

               charges stated that Roehrs stood up at the “defense”

               table at the dependency and neglect hearing, accused

               Sergeant Couch of lying, and threatened to “have his

               job.” Roehrs began walking to the witness box, and

               Sergeant Couch stood up to defend himself if necessary.

               Judge Cisneros ordered Roehrs out of the courtroom.

           • This series of events occurred in front of Judge Cisneros

               and constituted more than half the contents of the

               probable cause affidavit.



  6 Even had no motion been made, based upon her own knowledge
  of the factual basis for the motion, Judge Cisneros had a duty to
  recuse herself sua sponte if the statutes and rules governing
  disqualification precluded her from presiding over this case.
  § 16-6-201(2), C.R.S. 2018; Crim. P. 21(b)(2); C.J.C. 2.11(A).
                                      10
          • The probable cause affidavit also alleged that Roehrs told

            Sergeant Couch, “I’m going to fuck you up!”

          • Judge Cisneros called the attorneys and Sergeant Couch

            into her chambers to discuss what had happened in the

            hallway outside the courtroom. During that discussion,

            Sergeant Couch told the judge about the incident with

            Roehrs.

¶ 17   Based on these statements, Roehrs argued that Judge

  Cisneros had personal knowledge of disputed facts and was a

  material witness to Roehrs’s conduct, creating an appearance of

  bias or prejudice with regard to “trial procedure, including but not

  limited to, [the] preliminary hearing, argument on [the] motions for

  judgment of acquittal, objections, defendant testimony and

  evidentiary rulings.” (In fact, at trial, Roehrs admitted only that she

  had accused Sergeant Couch of lying on the stand and that she had

  threatened to sue him during their confrontation in the hallway.

  The remaining facts were disputed.)

¶ 18   Judge Cisneros found the motion insufficient on three

  grounds. First, citing Comiskey v. District Court, 926 P.2d 539, 545

  (Colo. 1996), she noted that “information a judge learns in the
                                    11
  performance of his or her judicial duties is generally not sufficient

  grounds for disqualification.” Because the behavior recounted in

  the supporting affidavit largely occurred during a hearing, Judge

  Cisneros found that any knowledge she gained during the hearing

  was not a proper basis for disqualification. Second, she noted that

  the motion was silent about what she, Sergeant Couch, and the

  attorneys had discussed in chambers, and, therefore, it did not

  establish that she had personal knowledge of disputed facts. Third,

  she found that none of the alleged facts established that she was

  biased or prejudiced against Roehrs.

¶ 19   We agree with Judge Cisneros’s conclusion that the facts

  alleged in the motion fail to establish actual bias or prejudice on her

  part, nor does the record demonstrate that the judge harbored

  actual bias or prejudice against Roehrs during any part of the trial.

  It is clear that Judge Cisneros’s conduct was competent and

  professional.

¶ 20   With respect to the in-chambers meeting with Sergeant Couch

  and the attorneys, the record does not support the judge’s assertion

  that the motion was silent about what was discussed. The motion

  stated that in chambers they discussed “what happened outside the

                                    12
  courtroom.” This claim is supported in the affidavit, wherein

  Roehrs’s counsel noted that “Sergeant Couch told the Honorable

  Judge Cisneros about the incident” in chambers. As a result,

  Judge Cisneros had knowledge of Sergeant Couch’s version of the

  events in the hallway. This occurrence, however, did not give the

  judge personal knowledge of disputed facts. Neither party disputed

  that, before trial, Sergeant Couch recited roughly the same version

  of the events in the hallway that he testified to at trial. Therefore,

  we do not find the in-chambers meeting relevant to our analysis of

  whether Judge Cisneros should be disqualified except insofar as it

  contributes to an overall appearance of bias or prejudice.

¶ 21   With regard to Judge’s Cisneros’s knowledge of what

  transpired in the courtroom, the court’s order is also correct when

  it asserts that what a judge learns in her judicial capacity is

  ordinarily an appropriate basis for her observations and “the use of

  such information is not the kind of matter that results in

  disqualification.” Smith, 629 P.2d at 1057. Conversely, when a

  judge learns something from a source unconnected to her judicial

  role, she may be disqualified on that basis. United States v. Grinnell

  Corp., 384 U.S. 563, 583 (1966) (noting that in order to be

                                     13
  disqualifying, the alleged bias must come from an extrajudicial

  source, not what the judge observed while presiding over the case);

  Comiskey, 926 P.2d at 545.

¶ 22   This rule has come to be known as the “extrajudicial source

  doctrine,” and its application will ordinarily protect a judge from

  disqualification based on knowledge gained in the course of her

  judicial duties. Liteky v. United States, 510 U.S. 540, 544 (1994)

  (recognizing the doctrine and explaining that to be disqualifying,

  alleged bias and prejudice must “stem from an extrajudicial source”

  (quoting Grinnell, 384 U.S. at 583)). The doctrine applies where a

  defendant moves to disqualify a judge on the basis that she has

  previously ruled against him. People v. Boehmer, 767 P.2d 787, 790

  (Colo. App. 1988). It similarly prevents comments demonstrating a

  negative opinion of the parties or witnesses from serving as a basis

  for disqualification as long as such comments arose from knowledge

  gained during court proceedings. People v. Dobler, 2015 COA 25,

  ¶ 26 (noting that judicial statements that are “critical or

  disapproving of, or even hostile to, counsel, the parties, or their

  cases, ordinarily do not support a bias or partiality challenge,”

  unless the opinion comes from an extrajudicial source (quoting

                                    14
  Liteky, 510 U.S. at 555)). The extrajudicial source doctrine even

  counsels against disqualification where a judge has formed an

  opinion regarding the guilt or innocence of a defendant unless the

  opinion is so pronounced that it is likely to affect the judge’s ability

  to be impartial at trial. Walker v. People, 126 Colo. 135, 145, 248

  P.2d 287, 293 (1952), superseded by rule on other grounds as stated

  in People in Interest of E.G., 2016 CO 19, ¶ 13 n.3. 7

¶ 23   We therefore consider the following question in this case:

  When a judge has witnessed an alleged criminal offense in her

  courtroom, does the extrajudicial source doctrine allow her to

  preside over the criminal trial of the offense? To answer this

  question, we must consider the doctrine’s limitations and whether,

  in this case, its protections must yield to serious concerns about

  the appearance of partiality.




  7 Walker was decided under chapter 170, section 1 of the 1935
  Colorado Statutes Annotated, which contained a narrower standard
  requiring that a judge be deemed incompetent to hear or try the
  case where she is “interested or prejudiced” and not including the
  modern standard stated in C.J.C. 2.11(A)(1).
                                     15
          D.    The Scope of the Extrajudicial Source Doctrine

¶ 24   Contrary to the People’s position, the extrajudicial source

  doctrine does not automatically shield a judge from disqualification

  due to a judge’s courtroom knowledge or activities. In Liteky, the

  Supreme Court noted that “[s]ince neither the presence of an

  extrajudicial source necessarily establishes bias, nor the absence of

  an extrajudicial source necessarily precludes bias, it would be

  better to speak of the existence of a significant (and often

  determinative) ‘extrajudicial source’ factor, than of an ‘extrajudicial

  source’ doctrine, in recusal jurisprudence.” 510 U.S. at 554-55.

  The doctrine has repeatedly been defined as limited in scope. See,

  e.g., Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (noting that

  the extrajudicial source doctrine is but one factor in the

  disqualification analysis); Davis v. Bd. of Sch. Comm’rs, 517 F.2d

  1044, 1051 (5th Cir. 1975) (noting that there is an exception to the

  doctrine where pervasive bias and prejudice have been

  demonstrated), superseded by statute on other grounds, Act of Dec.

  5, 1974, Pub. L. No. 93-512, 88 Stat. 1609.

¶ 25   Importantly, our supreme court has declined to view the

  extrajudicial source doctrine as a protection against disqualification

                                     16
in all cases, including those cases where a judge’s impartiality is

questioned based on knowledge she gained from courtroom

proceedings. In Wright v. District Court, 731 P.2d 661, 665 (Colo.

1987), the supreme court disqualified a judge because his

participation in successive cases raised an appearance of

impropriety. The trial judge presided over a case in which the

plaintiff claimed that his attorney had committed malpractice.

During the trial, the judge heard evidence concerning the attorney’s

unprofessional conduct toward the plaintiff. Consequently, the

judge filed a grievance with the Colorado Supreme Court Grievance

Committee recommending “harsh discipline” against the attorney.

Id. at 663. Subsequently, the same judge was assigned to preside

over a different malpractice case against the attorney’s firm and

several of its other partners. Counsel for the firm requested the

judge’s recusal and notified the court that he wished to take the

judge’s deposition in the grievance proceedings. Id. at 664. The

judge denied the motion for disqualification. In reversing the trial

court’s order, the Wright court concluded that because the judge

might appear as a witness against the attorney in the grievance

proceeding, his participation in the malpractice case against the

                                  17
  attorney’s partners and firm created an appearance of impropriety.

  Id. This appearance of impropriety arose entirely from opinions

  formed as a result of the judge’s duties in the preceding case.

¶ 26   Similarly, in In re Estate of Elliot, 993 P.2d 474 (Colo. 2000), a

  judge gained knowledge of a potential crime while presiding over a

  civil contempt case and later referred the case to the district

  attorney for criminal prosecution. Noting that the judge appeared

  to be personally involved in the conflict and that she was a potential

  witness in the subsequent criminal trial, the supreme court held

  that a different judge should be substituted in the contempt

  proceedings on remand.8 Id. at 481-82. The fact that the judge

  had gained her knowledge of the facts while performing her judicial

  duties did not preclude her disqualification. See also Estep, 705

  P.2d at 525-27 (requiring disqualification where a judge who had




  8Our holding here should not be construed to narrow a judge’s
  ability to participate in contempt actions arising from a case in
  which she presided where it is otherwise proper under the statutes,
  rules, or common law and where she is not presiding over a case in
  which she is likely to be a witness. See § 18-1-104(3), C.R.S. 2018;
  C.R.C.P. 107; People v. Barron, 677 P.2d 1370, 1372-74 (Colo.
  1984) (examining a court’s common law power to punish a
  defendant for criminal contempt).
                                    18
  reviewed a defendant’s postconviction motion stated, “I hope this

  witness is more credible than your other witness” in response to the

  defendant’s request to depose a new witness).

¶ 27     In addition, where Colorado courts have declined to require

  disqualification based on a judge’s participation in prior

  proceedings, they have repeatedly emphasized that there was no

  obligation to recuse because the judge was not presiding over a case

  in which she might be a witness. People v. Schupper, 2014 COA

  80M, ¶¶ 63-65 (declining to disqualify a judge who had witnessed

  perjury in his courtroom because the perjury case had been

  transferred to another court, and he was therefore not presiding

  over a case in which he was “likely to be a material witness in the

  proceeding” (quoting C.J.C. 3(C)(1)(d)(IV) (2009))); 9 Hagos, 250 P.3d

  at 612-13 (declining to disqualify a judge because the affidavit

  “indicated that the judge did not personally observe or hear any

  threats during the hearing”).

¶ 28     Most significantly, the People do not cite any Colorado case,

  and we have found none, in which the extrajudicial source doctrine



  9   This language now appears in C.J.C. 2.11(A)(2)(d).
                                     19
  protects against disqualification when a judge witnesses a crime or

  part of a crime in her courtroom and then presides over the trial

  concerning that very same crime. Because Colorado law does not

  contain a case extending the extrajudicial source doctrine to cover

  this circumstance, we do not perceive that the extrajudicial source

  doctrine prevents disqualification here.

                            E.    Application

¶ 29   Roehrs suggests that the judge was subject to disqualification

  under C.J.C. 2.11(A)(2)(d) because she was likely to be a material

  witness. However, she does not develop that argument in her brief.

  A material witness is one whose testimony goes to a “fact affecting

  the merits of the cause and about which no other witness might

  testify.” Schupper, ¶ 65 (quoting Ex parte Jones, 86 So. 3d 350, 352

  (Ala. 2011)). Roehrs does not specify any facts about which only

  the judge could testify, and we note that the attorneys and Sergeant

  Couch were all witnesses to Roehrs’s in-court behavior. They all

  could have testified in the criminal case, obviating the need for

  Judge Cisneros’s testimony. Accordingly, we decline to base our

  ruling on the thread that the judge was subject to disqualification

  as a material witness.

                                    20
¶ 30   However, even if Judge Cisneros was not a likely material

  witness, a judge need not be a likely material witness for

  disqualification to be mandated under the Code of Judicial

  Conduct. Rather, all that is required under Rule 2.11(A)(1) is

  personal knowledge of facts that are in dispute, which Judge

  Cisneros had in this case.

¶ 31   Based on the judge’s personal knowledge of disputed facts,

  there was a substantial appearance of impropriety. This knowledge

  calls into question her ability to be impartial. “[A] judge cannot be,

  or cannot appear to be, impartial if he has personal knowledge of

  evidentiary facts that are in dispute.” 10 In re M.C., 8 A.3d 1215,



  10 Although the motion at issue in this case did not cite CRE 605
  and the parties also failed to cite it on appeal, CRE 605 precludes a
  judge from presiding at trial in a case where she is a witness,
  demonstrating a concern for the appearance of partiality raised in
  such a circumstance. In fact, under substantially similar versions
  of CRE 605, courts in other states have noted the propriety of
  disqualifying judges who have personal knowledge of disputed facts
  even where a judge does not testify because the judge’s knowledge,
  nonetheless, raises an appearance of partiality.

             The problem attendant to a judge having
             personal knowledge of the facts is that he may
             thereby be transformed into a witness for one
             party. . . . Whether, in a bench trial, a judge
             can avoid an involvement destructive of
                                    21
  1229 (D.C. 2010) (quoting United States v. Alabama, 828 F.2d 1532,

  1545 (11th Cir. 1987) (per curiam)).

¶ 32   In addition, the judge’s knowledge of disputed facts would

  have affected her performance as a presiding judge. See Tripp v.

  Borchard, 29 P.3d 345, 346-47 (Colo. App. 2001) (disqualifying a

  judge from presiding over a malpractice case, in part, because he

  had acted as the settlement judge in prior litigation and therefore

  had personal knowledge of disputed evidentiary facts). For

  example, during the course of her participation in this case, Judge

  Cisneros presided over the preliminary hearing on the charge of

  retaliation against a witness. This charge required the State to

  show that Roehrs intentionally used a threat or act of harassment




            impartiality where he has personal knowledge
            of material facts in dispute is a question that
            cannot be answered satisfactorily . . . .

  State v. Barker, 420 N.W.2d 695, 700-01 (Neb. 1988) (quoting Price
  Bros. Co. v. Phila. Gear Corp., 629 F.2d 444, 447 (1980)); see State
  v. Gardner, 661 N.W.2d 116, 118 (Iowa 2003) (declining to reverse a
  conviction because the judge was not a witness in the same
  proceeding at which he presided but noting that the rule prohibiting
  a judge from being a witness “is violated whenever the judge
  functions as a witness, even though the judge may not actually take
  the stand to testify”).
                                   22
  on Sergeant Couch as retaliation against him. See § 18-8-706(1).

  Sergeant Couch testified and was cross-examined at this hearing,

  providing testimony regarding whether Judge Cisneros forcefully

  ordered Roehrs to leave the dependency and neglect hearing or

  politely asked her to leave. This line of questioning was relevant to

  whether the judge seemed alarmed by Roehrs’s behavior. Judge

  Cisneros was tasked with deciding whether the prosecution had

  demonstrated probable cause for the charges. In doing so, she was

  necessarily called on to examine the sufficiency of the evidence with

  respect to facts that she had personally observed, including

  whether Roehrs demonstrated sufficient intent to commit the crime

  and whether the judge herself had been alarmed by Roehrs’s

  behavior when she ordered her out of the courtroom.

¶ 33   Though a judge is ordinarily protected from disqualification

  based on opinions, attitudes, and knowledge gained during her

  participation in judicial proceedings, the extrajudicial source

  doctrine does not prevent disqualification where those opinions,

  attitudes, and knowledge raise reasonable questions about a judge’s

  ability to impartially weigh the testimony. While it is true that

  “[i]mpartiality is not gullibility,” it is also true that to conduct a fair

                                       23
  trial, a judge must not know too much. Liteky, 510 U.S. at 551

  (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)).

  She should not be in a position to contrast the evidence presented

  at hearings and at trial with her own memory of the conduct at

  issue. Accordingly, Roehrs’s motion was sufficient to raise an

  appearance of bias or prejudice, making Judge Cisneros’s

  continued participation improper.

¶ 34   The trial judge’s actions in this case deviate from the standard

  delineated in C.J.C. 2.11(A) and the resulting appearance of bias

  requires us to reverse the conviction. Botham, 629 P.2d at 603

  (reversing a criminal conviction, in part, on the basis that there was

  an appearance of prejudice against the defendant); see, e.g., C.Y.,

  ¶¶ 14, 24-25 (reversing a termination decision where the judge

  operated under an appearance of impropriety); Wood Bros. Homes,

  Inc. v. City of Fort Collins, 670 P.2d 9, 10 (Colo. App. 1983)

  (reversing a judgment due to an appearance of partiality caused by

  a violation of the code).

                              III.   Conclusion

¶ 35   We reverse the judgment of conviction and remand with

  directions to grant Roehrs a new trial before a different judge.

                                      24
JUDGE NAVARRO and JUDGE WELLING concur.




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