1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                            ADVANCE SHEET HEADNOTE
7                                                                           July 3, 2017
8
9                                          2017 CO 82
0
1   No. 17SA14, People v. Kendrick—Disqualification—Special Circumstances.
2
3          In this interlocutory appeal, the supreme court reviews the district court’s

4   decision to disqualify the District Attorney’s Office for the Fourth Judicial District from

5   re-prosecuting the defendant’s case after a second mistrial. The court concludes that the

6   district court misinterpreted the “special circumstances” prong of section 20-1-107(2),

7   C.R.S (2016), in finding that the circumstances at issue satisfy the high burden required

8   to bar an entire district attorney’s office from prosecuting a defendant.

9          Accordingly, the court concludes that the district court abused its discretion in

0   disqualifying the District Attorney’s office, reverses the district court’s order, and

1   remands the case for further proceedings.
1

2

3                        The Supreme Court of the State of Colorado
4                          2 East 14th Avenue • Denver, Colorado 80203


5                                          2017 CO 82

6                               Supreme Court Case No. 17SA14
7                           Interlocutory Appeal from the District Court
8                       El Paso County District Court Case No. 15CR2069
9                                Honorable Jann P. DuBois, Judge

0                                     Plaintiff-Appellant:
1                              The People of the State of Colorado,
2                                               v.
3                                     Defendant-Appellee:
4                                    Maurice Dee Kendrick.

5                                       Order Reversed
6                                            en banc
7                                          July 3, 2017
8
9   Attorneys for Plaintiff-Appellant:
0   Daniel H. May, District Attorney, Fourth Judicial District
1   Jennifer Darby, Deputy District Attorney
2   Stephanie Redfield, Deputy District Attorney
3   Doyle Baker, Senior Deputy District Attorney
4     Colorado Springs, Colorado
5
6   Attorneys for Defendant-Appellee:
7   The Kohn Law Firm
8   Molly Hostetler
9   Shimon Kohn
0    Colorado Springs, Colorado
1
2
3
4
5
6   JUSTICE GABRIEL delivered the Opinion of the Court.
¶1       Prosecutors from the District Attorney’s Office for the Fourth Judicial District

(the “District Attorney”) twice brought the defendant, Maurice Dee Kendrick, to trial on

numerous charges related to allegations that he threatened several women with a gun

and then fired the gun at two occupied houses. Each trial ended in a mistrial, and after

ordering the second mistrial, the district court found, pursuant to section 20-1-107(2),

C.R.S. (2016), that “special circumstances” rendered it unlikely that Kendrick would

receive a fair trial if he were again tried by the District Attorney. Accordingly, the court

disqualified the District Attorney from re-prosecuting the case and ordered that a

special prosecutor be appointed to try Kendrick a third time. The People then filed

what they deemed an interlocutory appeal pursuant to C.A.R. 4.1, requesting that we

reverse the disqualification order.1

¶2       As a threshold matter, we note that the People erred in filing the current

proceeding under C.A.R. 4.1. That rule enumerates specific grounds for interlocutory

appeals in criminal cases, and district attorney disqualification is not one of those

grounds. As discussed more fully below, however, section 16-12-102(2), C.R.S. (2016),

specifically allows the People to file an interlocutory appeal in the circumstances

presented here, and we will treat the People’s appeal as having been filed under that

statute. Turning then to the merits, we conclude that the district court misinterpreted

the “special circumstances” prong of section 20-1-107(2) in finding that the



1   In their “Notice of Interlocutory Appeal,” the People raised the following issue:
        Did the district court err in disqualifying the District Attorney for the
        Fourth Judicial District from prosecuting the case against defendant?


                                               2
circumstances of this case satisfy the high burden required to bar an entire district

attorney’s office from prosecuting a defendant.

¶3    Accordingly, we conclude that the district court abused its discretion in

disqualifying the District Attorney, and we therefore reverse the district court’s order

and remand this case for further proceedings consistent with this opinion.

                          I. Facts and Procedural History

¶4    Late one night, Kendrick visited the home of his friend A.B., where she and four

other women were drinking and “hanging out.”           According to several witnesses,

Kendrick began flirting with two of the women, but they were not interested in him.

This upset Kendrick, and he brandished a gun and threatened the women. A.B. then

told him to leave, and he went outside, where a car was waiting for him.

¶5    Witnesses further reported that after Kendrick got into the car, he drew his gun

and fired several rounds toward A.B.’s house and a neighboring house. Some of the

women who had been visiting A.B. were in A.B.’s front yard, the rest were inside A.B.’s

house, and A.B.’s neighbor and the neighbor’s six-year-old son were in their house. The

police found three bullets at A.B.’s house and four bullet holes on the exterior of the

neighbor’s house (two bullets had ended up in the neighbor’s living room, a third was

found by an easy chair, and the fourth was found in a desk in the son’s room).

¶6    The District Attorney subsequently charged Kendrick with numerous counts,

including seven counts of attempted first-degree murder (extreme indifference), seven

counts of attempted first-degree assault, five counts of felony menacing, and one count

of illegal discharge of a firearm. Kendrick pleaded not guilty to all of the charges, and


                                           3
the case proceeded to trial twice.2 What follows relates only to the second trial, which

began the day after the first trial ended in a mistrial.

¶7     At the beginning of Kendrick’s second trial, his counsel gave an opening

statement in which he stated, “[A.B.], we expect her to testify that when things started

boiling up, she walked [Kendrick] out to the car. We expect her to testify that she saw

him shooting at the ground and saw sparks flying off the ground.” Counsel further

contended that none of the prosecution’s expert testimony would repudiate A.B.’s

statement.

¶8     The record suggests that Kendrick’s expectations regarding A.B.’s testimony

arose from an interview that defense counsel and his investigator had conducted with

A.B. at counsel’s office about six months prior to the trial. Counsel memorialized A.B.’s

statements during that meeting in a memorandum labeled “Confidential attorney work

product” on each of its five pages.

¶9     According to that memorandum, A.B. told the attorney and the investigator that

“they were all pretty drunk that evening, even [Kendrick].” She did not, however,

mention any drugs. She further said that “she would only talk about the things that she

knew she could remember for sure.” She then recalled that Kendrick “was walking

around and talking with everyone” but that one of the women who was there told him

that she “didn’t talk to black guys” and then started giving Kendrick “a hard time.”

2 During the first trial, the district court declared a mistrial before the jury had been
sworn. The mistrial was precipitated by the facts that (1) one prospective juror had said
in open court that she had worked with Kendrick at the jail (and therefore could not be
fair to him) and (2) two other prospective jurors observed that Kendrick was wearing a
leg brace and therefore was in custody.


                                              4
A.B. said that this woman “got in [Kendrick’s] face,” and so A.B. told Kendrick to “just

leave.” Kendrick then started walking toward the door, and A.B. retrieved a gun that

she had been holding in the closet for him. As Kendrick was leaving, however, the

women other than A.B. “all started talking shit to him” and “ganging up on him.” Only

A.B., out of the five women, defended Kendrick.

¶10    The attorney and the investigator then asked A.B. several questions regarding

the gun. A.B. clarified that while Kendrick was in the house, “the gun was never

pointed directly anywhere or at anyone” and that “she never saw [Kendrick’s] finger on

the trigger.” When Kendrick stepped outside and into a waiting car, however, she saw

the gun aimed at the ground. She was standing “right by” the vehicle when the gun

went off, and she heard approximately four or five shots and saw “sparks” on the

ground when the gun went off. She was not frightened, however, because she knew

Kendrick, “and he would never mean to hurt anyone.”

¶11    In contrast to the statements that A.B. had made during the interview, when the

prosecutor called her to testify at Kendrick’s trial, she recalled few details of the night in

question, except that she was drinking and using cocaine. For example, she did not

remember whether Kendrick had a gun with him when he arrived at her house, and she

denied storing one for him while he was there. Nor did she remember Kendrick’s

flirting with several of the women or his advances being rejected by them. And she did

not recall giving Kendrick a gun and did not know whether he had pointed a gun at

anyone in the house. A.B. agreed with the prosecutor that Kendrick eventually went




                                              5
outside where a car was waiting for him, but she did not remember whether he shot at

the house after getting into the car.

¶12    Defense counsel began his cross-examination of A.B. by asking about her level of

intoxication on the night in question, as well as her memory. He then asked, “And it

sounds like you have spoken with me and my private investigator, . . . correct?” A.B.

replied, “Yes,” at which point the prosecutor requested a copy of “the Defense report,”

reasoning that she was “entitled to any Defense report of any witness that they intend

to cross-examine.” The court asked whether the defense had provided the report to the

prosecution, and defense counsel replied that it was a defense report and that he was

not required to produce it until he used it to impeach a witness. Without addressing

the merits of either side’s argument, the court then ordered defense counsel to give the

memorandum to the prosecutor.           Counsel did so and proceeded with his

cross-examination.

¶13    In the course of this cross-examination, defense counsel asked A.B. about many

of the statements that the memorandum attributed to her. A.B. remembered saying that

one of the women at her house had “got[ten] into Mr. Kendrick’s face as he was getting

ready to leave” and that “the other girls” had “started talking shit to Mr. Kendrick.”

Although she did not recall saying that she had retrieved a gun for Kendrick, she

acknowledged telling the investigator that the gun had never been “pointed directly at

anyone while [Kendrick] was in the house” and that she “never saw a finger on the

trigger.” She also remembered saying that later, when she was outside standing next to




                                           6
the car, Kendrick had been aiming the gun at the ground when she “saw sparks on the

ground” and heard several shots.

¶14    On re-direct examination, the prosecutor confronted A.B. about the inconsistent

stories that she had told at trial, in her pre-trial statement to the defense, and in a

notarized letter that she had sent to the judge shortly after the incident and in which she

stated that she felt like she was “coerced” by the police “into making a false statement

against Maurice Kendrick due to [her] being under the influence of a drug or alcohol.”

A.B. told the prosecutor that her memory was better at trial than it had been on the

night in question because she had since talked about the events of that evening with

“the girls.” She now specifically denied that Kendrick had “shot up [her] house,” and

when the prosecutor asked whether “bullets just magically ended up in [her] sliding

glass door,” she demurred, reasoning that she “live[d] in the ‘hood, so it [i.e., a

shooting] could happen any time.” The prosecutor then proceeded to suggest that A.B.

had made up the fact that Kendrick was pointing the gun at the ground, a fact that she

had revealed for the first time in her interview with the defense team, after learning of

the “severity” of the “extreme indifference” charges.

¶15    After A.B.’s testimony was complete, the court took a recess.            When the

proceedings resumed, the court stated, outside the jury’s presence, that it felt it needed

to make a record regarding “two possible concerns.”

¶16    First, the court reported that during the recess, a juror had seen Kendrick in

handcuffs being escorted across the hallway by two sheriff’s deputies. The court asked

both sides for comment. Defense counsel responded that the incident had so prejudiced


                                            7
Kendrick that it required a mistrial. The prosecutor, in contrast, argued that under

applicable case law, a mistrial was not required in these circumstances.

¶17    Second, the court returned to the issue of the defense memorandum that the

court had required Kendrick to provide to the prosecutor.         Defense counsel again

argued that he should not have had to give that memorandum to the prosecution. He

further stated, in response to the court’s question as to whether A.B.’s testimony would

be admissible in a re-trial, that he “would be arguing against that, because [he] would

never have gone through [his] investigator’s report point by point if [he] hadn’t had to

turn it over.”

¶18    Ultimately, the court noted that people’s fear of Kendrick had “come up” at trial

and “the obvious custody of the sheriff with his hands cuffed behind his back . . . can

only mean that the sheriff felt he needed that.” The court thus expressed concern about

the likelihood that jurors might “assume that [Kendrick] would do the sort of thing it’s

claimed he’s done, get mad at people and wave a gun around, shoot at them.”

¶19    The court also acknowledged that it “may have made an error” in ordering the

defense to turn over the memorandum of its interview with A.B. Even accepting the

prosecutor’s assertion that she was entitled to any interview used to impeach a witness

at trial, the court did not think that “it would have been necessary for Defense Counsel

in this case to impeach [A.B.] very much, because she didn’t say very much during her

direct examination that needed impeachment.”

¶20    For both of these reasons, the court declared a second mistrial.




                                            8
¶21    About a month and a half later—and three days before his third trial was

scheduled to begin—Kendrick filed a motion asking the district court to disqualify the

District Attorney and appoint a special prosecutor. Pursuant to section 20-1-107(2),

Kendrick argued that “special circumstances” existed rendering it unlikely that he

would receive a fair trial. Specifically, Kendrick asserted that “[A.B.’s] testimony was as

helpful to the defense as the defense could have hoped for under the circumstances,”

and therefore, “[i]t was obvious that there was no need for defense counsel to impeach

[A.B.].” Defense counsel further contended that once he was ordered to turn over the

memorandum, he “had no choice but to go through his defense report point by point

with [A.B.].” He reasoned that had he left anything out, the prosecutor would have

used the omission “to continue her tactic of implying that [A.B.] was colluding with the

defense and that the defense was untrustworthy.” Accordingly, counsel stated that he

“had to completely alter how he had originally intended to handle the witness.”

¶22    The result of the foregoing sequence of events, Kendrick averred, “was the

complete destruction of any credibility that [A.B.] may have had.” He claimed that the

prosecutor had used “the dates, times, and locations” of A.B.’s meetings with the

defense, which were contained in the memorandum, to “paint a picture of collusion and

impropriety.”    Therefore, in his view, nothing short of disqualification and the

appointment of a special prosecutor could remedy the fact that the District Attorney

possessed “defense work product and knowledge from that defense work product” that

“they never had a right to possess in the first place.”




                                             9
¶23   Because a new judge had taken over the case, and given the significance of

Kendrick’s motion, the court vacated the upcoming trial, gave the People thirty-one

days to respond to Kendrick’s motion to disqualify the District Attorney, and set a

hearing to consider the parties’ arguments.

¶24   The People subsequently filed a response, arguing that the disclosure of the

defense memorandum did not warrant disqualification and the appointment of a

special prosecutor because, among other things, “[t]he People were already apprised of

the majority of the information in the [memorandum] via [a statement in Kendrick’s

expert’s report] and statements made by the Defense in opening.”

¶25   The court then conducted the scheduled motions hearing, and the parties

reiterated their previous positions. Specifically, Kendrick argued that “the only way to

level the playing field in this issue is to appoint a special prosecutor.” The People

countered that the district court had not erred in requiring Kendrick to produce the

memorandum and even if it had erred, the error was harmless because “[t]here[] [was]

nothing in that report that the People didn’t know from other resources.“

¶26   Taking into account the parties’ arguments and written pleadings, which

included a transcript of the proceedings before the prior judge, the court found that the

memorandum was work product and that the defense was obligated to provide it to the

prosecution only if the defense was “in an impeachment posture.” Kendrick, however,

had not used the memorandum to impeach A.B. Thus, the court found that the prior

judge had erred in ordering Kendrick to turn over the memorandum to the prosecution.




                                              10
¶27    The court then turned to the question of prejudice and found that this disclosure

“impacted how Defense was approaching questioning of that witness. It may have

impacted other witnesses that were called by either side, by either Prosecution or

Defense.” Consequently, the court expressed a “lingering concern that because the

People ha[d] this information in hand, that there clearly [was] at least an appearance

that [Kendrick] would not receive a fair trial, if not an actual problem of him not

receiving a fair trial.”

¶28    Based on these findings, the court (1) granted the motion for appointment of a

special prosecutor, (2) ordered that the District Attorney tender the memorandum back

to the court and stated that the court would “maintain it under seal for appellate

purposes,” (3) prohibited the District Attorney (including all of its “investigators, et

cetera”) from disclosing the contents of the memorandum to the new special prosecutor,

and (4) granted Kendrick’s request to seal the transcript of A.B.’s cross- and re-direct

examinations.

¶29    Less than one month later, the People filed what they deemed a “Notice of

Interlocutory Appeal” pursuant to C.A.R. 4.1, requesting this court’s review of the

district court’s order.

                                   II. Jurisdiction

¶30    As an initial matter, we must address our jurisdiction to resolve the issue

presented.

¶31    The People filed this appeal pursuant to C.A.R. 4.1, a rule that vests this court

with jurisdiction to hear interlocutory appeals in criminal cases under “’extremely


                                           11
narrow’ circumstances.” See People v. Smith, 254 P.3d 1158, 1160 (Colo. 2011) (quoting

People v. Null, 233 P.3d 670, 674 (Colo. 2010)). C.A.R. 4.1(a) thus states, in pertinent

part:

        The state may file an interlocutory appeal in the Supreme Court from a
        ruling of a district court granting a motion under Crim. P. 41(e) and (g)
        and Crim. P. 41.1(i) made in advance of trial by the defendant for return of
        property and to suppress evidence or granting a motion to suppress an
        extra-judicial confession or admission[.]

¶32     The basis for this appeal—the disqualification of the District Attorney—does not

arise from an adverse ruling on a Crim. P. 41 or 41.1 motion, and therefore, the issues

presented here do not fall within those rules. Cf. Smith, 254 P.3d at 1160 (“Because the

suppression order had no basis in Crim. P. 41(e) and did not conceivably implicate

Crim. P. 41(g) or 41.1(i), this Court lacks any proper grounds to review the order under

C.A.R. 4.1(a).”). As a result, C.A.R. 4.1 does not afford this court a proper basis on

which to review the order at issue, and the question becomes whether we nonetheless

may do so.

¶33     Section 16-12-102(2) provides, in pertinent part, that the prosecution may file an

interlocutory appeal from a ruling on a motion to disqualify a district attorney pursuant

to section 20-1-107. That statute is directly pertinent here and authorizes the appeal

now before us. Accordingly, we will treat the People’s appeal as having been filed

pursuant to that statute.

¶34     Having thus clarified our jurisdiction over this appeal, we proceed to the merits

of the matter now before us.




                                            12
                                      III. Analysis

¶35    After describing the standard of review applicable to district courts’

disqualification orders, we turn to the rules that govern such disqualifications. We then

apply these principles to the facts of the present case to determine whether the district

court erred in disqualifying the District Attorney and ordering the appointment of a

special prosecutor.

                                A. Standard of Review

¶36    District courts have broad discretion in determining whether to disqualify a

district attorney’s office from prosecuting a particular case. People v. Palomo, 31 P.3d

879, 882 (Colo. 2001); accord Dunlap v. People, 173 P.3d 1054, 1094 (Colo. 2007).

Accordingly, we will not disturb the court’s decision to disqualify a district attorney’s

office unless the court’s decision was manifestly arbitrary, unreasonable, or unfair. See

People v. Jefferson, 2017 CO 35, ¶ 25, 393 P.3d 493, 498–99. In affording the district

court discretion, however, we may not abdicate our responsibility to review that court’s

determinations. Id. at ¶ 25, 393 P.3d at 499. And as we have previously observed, a

misapplication of the law necessarily constitutes an abuse of discretion. Id.; Wal-Mart

Stores, Inc. v. Crossgrove, 2012 CO 31, ¶ 7, 276 P.3d 562, 564.

          B. Disqualification of the District Attorney and Appointment
                             of a Special Prosecutor

¶37    The General Assembly enacted section 20-1-107 “to protect the independence of

persons duly elected to the office of district attorney.” § 20-1-107(1). Section 20-1-107(2)

thus authorizes the disqualification of a district attorney (or a district attorney’s office)



                                             13
in a particular case “only” under three circumstances: (1) “at the request of the district

attorney,” (2) “upon a showing that the district attorney has a personal or financial

interest” in the prosecution, or (3) if the court “finds special circumstances that would

render it unlikely that the defendant would receive a fair trial.” People in Interest of

N.R., 139 P.3d 671, 676 (Colo. 2006); see also People v. Perez, 201 P.3d 1220, 1228 (Colo.

2009) (noting that section 20-1-107(2) covers both district attorneys and district

attorneys’ offices).

¶38    In turn, section 20-1-107(4) states, in pertinent part, “If the district attorney is

disqualified in any case which it is his or her duty to prosecute or defend, the court

having criminal jurisdiction may appoint a special prosecutor to prosecute or defend

the cause.”

¶39    Until 2002, an earlier version of section 20-1-107(4) had stated, “If the district

attorney is interested or has been employed as counsel in any case which it is his duty

to prosecute or defend, the court having criminal jurisdiction may appoint a special

prosecutor to prosecute or defend the cause.” Ch. 210, sec. 4, § 20-1-107(4), 2002 Colo.

Sess. Laws 757, 759.

¶40    Relying on the word “interested,” this court interpreted the pre-2002 version of

section 20-1-107(4) to include, as a basis for the disqualification of district attorneys, the

“appearance of impropriety.” Palomo, 31 P.3d at 882; see also People v. C.V., 64 P.3d

272, 275 (Colo. 2003) (defining “appearance of impropriety” as a circumstance in which,

although the district attorney has no “direct interest” in the case, he or she nevertheless

“has ‘an interest’ in the matter aside from his or her ‘professional responsibility of


                                             14
upholding the law’”) (quoting People ex rel. Sandstrom v. Dist. Court, 884 P.2d 707, 711

(Colo. 1994)).

¶41    As pertinent here, however, the 2002 amendments (1) added section 20-1-107(2),

which enumerated specific grounds for disqualification, and (2) replaced the phrase

“interested or has been employed as counsel” with the word “disqualified.”             See

ch. 210, sec. 4, § 20-1-107, 2002 Colo. Sess. Laws 757, 758–59. Construing the foregoing

statutory changes in N.R., 139 P.3d at 675, we concluded that the 2002 amendments had

eliminated “appearance of impropriety” as a basis for the disqualification of district

attorneys. We thus clarified that disqualification pursuant to section 20-1-107 is proper

only when (1) the district attorney requests his or her own disqualification, (2) the

district attorney has a personal or financial interest in the prosecution, or (3) special

circumstances exist that would render it unlikely that the defendant would receive a

fair trial if prosecuted by the district attorney. Id. at 676; accord § 20-1-107(2).

¶42    Nothing in the record before us indicates that the District Attorney either

(1) requested that the court disqualify his office from prosecuting Kendrick or (2) had a

personal or financial interest in this prosecution.           Moreover, throughout these

proceedings, Kendrick has based his arguments for the District Attorney’s

disqualification and the appointment of a special prosecutor on section 20-1-107(2)’s

third prong—the existence of “special circumstances.” Consequently, we will limit our

analysis to whether, pursuant to section 20-1-107(2), special circumstances existed

rendering it unlikely that Kendrick would receive a fair trial if he were prosecuted by

the District Attorney.


                                              15
¶43    We have never specifically defined what circumstances qualify as “special

circumstances” that would render a fair trial so unlikely that they warrant

disqualification of the district attorney. People v. Loper, 241 P.3d 543, 546 (Colo. 2010).

We have, however, noted that the “special circumstances” must be “extreme.” Id. And

in practice, we have identified only one scenario in which the circumstances were

sufficiently extreme so as to justify disqualifying a district attorney under section

20-1-107(2). Id.

¶44    Specifically, in People v. Chavez, 139 P.3d 649, 654 (Colo. 2006), we upheld an

order disqualifying an assistant district attorney in a case in which (1) the assistant had

an attorney–client relationship with the defendant and (2) this relationship was

“substantially related” to the prosecution then before the court.            Under those

circumstances, we concluded that the defendant could not likely receive a fair trial were

he to be prosecuted by the assistant district attorney at issue. Id. at 653; cf. Osborn v.

Dist. Court, 619 P.2d 41, 44–45 (Colo. 1980) (affirming the disqualification of an attorney

and her law firm when the attorney had participated in the defendant’s prosecution

before joining the law firm, reasoning, in part, that as a prosecutor, the attorney had

formed an ongoing relationship with the juvenile victim and “[t]he advantage that such

a relationship could give a defense lawyer on cross-examination of the victim is

obvious”).

¶45    In contrast, we have declined to find such “special circumstances” when the

circumstances of a case had no bearing on whether the defendant would be likely to

receive a fair trial, even if those circumstances may have raised concerns of impropriety.


                                            16
Loper, 241 P.3d at 547. In Loper, for example, we disagreed with the district court’s

determination that involvement in the prosecution by the victim’s mother—a probation

officer who worked for the judicial district—amounted to “special circumstances”

justifying disqualification of the district attorney’s office. Id. at 544, 548. Although, in

the district court’s view, this fact “[left] a bad smell,” that smell “concern[ed] the

potential impropriety of the district attorney, which [was] no longer relevant under

section 20-1-107, rather than whether [the defendant] would be unlikely to receive a fair

trial.” Id. at 547. Thus, even if the victim’s mother had influenced the district attorney’s

decision to charge the defendant, “this influence [did] not jeopardize the likelihood that

[he would] receive a fair trial.” Id.; see also Perez, 201 P.3d at 1230–32 (concluding that

the district court had erred in disqualifying the entire district attorney’s office based on

an assistant district attorney’s prior representation of the defendant and the consequent

appearance of impropriety because the appearance of impropriety was not a proper

ground for disqualification and the record showed that the assistant had no confidential

information to pass on to other prosecutors working on the case).

¶46    Here, the district court ordered the disqualification of the District Attorney based

on the court’s “lingering concern that because the People have [the defense

memorandum] in hand, . . . there clearly is at least an appearance that the defendant

would not receive a fair trial, if not an actual problem of him not receiving a fair trial.”

(Emphasis added.) The court also agreed with Kendrick’s argument that ordering the

disclosure of the memorandum forced defense counsel to change the way he




                                            17
cross-examined A.B. and “may have impacted other witnesses that were called by either

side.”

¶47      Insofar as the district court based its ruling on a perceived “appearance” of

impropriety, we conclude that the court applied an incorrect legal standard because, as

noted above, the appearance of impropriety is no longer a valid basis for disqualifying a

district attorney. See Perez, 201 P.3d at 1232.

¶48      Moreover, applying the proper “special circumstances” standard, which requires

the circumstances at issue to be “extreme,” Loper, 241 P.3d at 546, we conclude that the

memorandum’s disclosure (and the proceedings that followed) did not warrant the

District Attorney’s disqualification. As the People contend, they were privy to most, if

not all, of the information contained in the memorandum long before the district court

ordered Kendrick to produce it.        For example, on the evening of the incident in

question, A.B. gave a statement to a responding police officer that substantially tracked

what she would later tell defense counsel and his investigator. In addition, defense

counsel revealed the essential portions of the memorandum in his opening statement,

when he told the jury what he expected A.B. would say at trial. And certain of the

information at issue was set forth in Kendrick’s expert’s report.

¶49      For all of these reasons, as in Perez, 201 P.3d at 1230, we are not convinced that

any confidential information was, or could have been, passed to other members of the

prosecutor’s office.

¶50      We are not persuaded otherwise by Kendrick’s broad assertions of prejudice.

According to Kendrick, the District Attorney’s “knowledge of the report may influence


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their strategy in the presentation of witnesses, in the questions they ask of witnesses,

and in how they anticipate defense questions” in a future, third trial.           Kendrick

provides no specifics, however, instead claiming that, like the prosecutor in Chavez,

“[t]he District Attorney’s office actually has in their [sic] possession improperly

obtained confidential work-product.” But as discussed above, the factual scenario in

Chavez is quite different from that at issue here.       In Chavez, 139 P.3d at 654, the

assistant district attorney had an attorney–client relationship with the defendant, and

this relationship was substantially related to the prosecution there at issue. In this case,

in contrast, the District Attorney had no prior relationship with Kendrick, and the

pertinent information that the District Attorney learned from the memorandum was

available elsewhere, most notably from the statement that A.B. gave to a responding

police officer on the night of the incident in question, from defense counsel himself, and

from Kendrick’s expert’s report.

¶51    Nor are we persuaded that disclosure of the memorandum gave the prosecutor

an ability to attack A.B.’s credibility that she did not have before. As noted above,

A.B.’s statement to the responding police officer, her notarized letter to the district

court, and her trial testimony all contained a number of inconsistent statements.

Accordingly, even without the memorandum, the prosecutor had substantial

information on which she could have relied to challenge A.B.’s credibility.

¶52    And we are unconvinced by Kendrick’s reliance on United States v. (Under Seal),

757 F.2d 600 (4th Cir. 1985). In that case, which involved a grand jury investigation, an

assistant United States attorney and, it appears, two investigative agents had reviewed


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a number of documents subject to the attorney–client privilege. Id. at 601. The attorney

informed the court that privileged documents had been reviewed and apparently

agreed that she would return those documents to the appellees’ counsel and not make

further use of them. Id. at 602.

¶53    The district court, however, did not find the government’s proposed remedy to

be sufficient:

      [T]he remedy suggested by the United States, namely, no further use by
      the government of the privileged documents and their return to counsel for
      the [appellees], will not adequately maintain the integrity of the
      confidential attorney-client privilege, and cannot insure that those who
      have viewed the documents will not, even subconsciously, be affected by
      knowledge gained thereby in pursuing the investigation of the [appellees].
      The court further concludes that the only adequate appropriate remedy is
      disqualification of the Assistant United States Attorney and two agents
      from further participation in the investigation.

Id.

¶54    The district court therefore ordered, among other things, that the assistant

United States attorney and the two investigators involved be “disqualified and

prohibited from directly or indirectly participating in the [grand jury] investigation”—

an order that, it appears, the attorney ignored when she participated fully in the grand

jury proceedings that subsequently resulted in the appellees’ indictment. Id.

¶55    The government appealed, but the Fourth Circuit did not reach the

disqualification issue, ruling instead on mootness grounds. Id. at 602–03. Specifically,

although noting its “discomfort” with a ruling that allowed the government to escape

accountability for its disobedience of the district court’s orders, the appellate court

agreed with the government that the grand jury proceedings had terminated with the


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return of indictments, thereby making it impossible for the court to provide effective

relief. Id.

¶56    Because the Fourth Circuit did not address the disqualification issue, we do not

perceive (Under Seal) as particularly helpful here. Even had the court addressed the

issue, however, we see nothing in that case that undermines our conclusion that

pursuant to section 20-1-107 and pertinent Colorado case law, no “special

circumstances” existed in this case that would render it unlikely for Kendrick to receive

a fair trial if prosecuted by the District Attorney.

                                      IV. Conclusion

¶57    For these reasons, we reverse the district court’s order disqualifying the District

Attorney and ordering the appointment of a special prosecutor, and we remand this

case for further proceedings consistent with this opinion.




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