v. Roehrs , 440 P.3d 1231 ( 2019 )

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
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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.
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JUDGE NAVARRO and JUDGE WELLING concur.
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