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appearance of impropriety and implicated impropriety itself. But impropriety,
without more, falls short of the governing standard as well. The district court
never found that the comment constituted an extreme circumstance that rendered
it unlikely that the defendant would receive a fair trial. Nor could the court have
made such a finding on the record before it. Because the defendant did not
demonstrate, through actual facts and evidence in the record, that the comment in
question was an extreme circumstance that impugned the likelihood of his
receiving a fair trial, he failed to satisfy his burden on his motion for a special
prosecutor.
Accordingly, the district court’s disqualification order is reversed, and the
matter is remanded to the district court for further proceedings consistent with
this opinion.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2025 CO 61
Supreme Court Case No. 25SA193
Interlocutory Appeal from the District Court
El Paso County District Court Case No. 24CR3128
Honorable David A. Gilbert, Judge
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Rocky Wayne West.
Order Reversed
en banc
November 10, 2025
Attorneys for Plaintiff-Appellant:
Michael J. Allen, District Attorney, Fourth Judicial District
Doyle Baker, Senior Deputy District Attorney
Colorado Springs, Colorado
Attorneys for Defendant-Appellee:
Megan A. Ring, Public Defender
Jennifer Charlier Cox, Supervising Deputy Public Defender
Rachel Armstrong, Deputy Public Defender
Colorado Springs, Colorado

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JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, and JUSTICE
BERKENKOTTER joined.
JUSTICE GABRIEL concurred in part and dissented in part.
JUSTICE HART did not participate.

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JUSTICE SAMOUR delivered the Opinion of the Court.
¶1 They say that actions speak louder than words. That time-honored adage
certainly rings true in this interlocutory appeal. In granting the defense’s motion
to appoint a special prosecutor, the district court uttered the correct legal standard,
but its actions reflect that it applied the wrong one.
¶2 We now conclude that the district court misapplied the law, and thus
abused its discretion, in disqualifying both the prosecutor assigned to this case and
the entire district attorney’s office for the Fourth Judicial District. Because the
defense failed to satisfy its burden of showing actual facts and evidence in the
record amounting to extreme circumstances that would render it unlikely that
Rocky Wayne West would receive a fair trial, Colorado law required the court to
deny the motion for a special prosecutor. Accordingly, we reverse the
disqualification order and remand the case for further proceedings consistent with
this opinion.
I. Facts and Procedural History
¶3 The People have charged West with first degree murder. In one of the first
court appearances, the defense raised concerns about West’s competency. The
district court ordered a competency evaluation by the Colorado Mental Health
Hospital in Pueblo (“CMHHIP”), and CMHHIP subsequently conducted an
evaluation. A psychologist at CMHHIP then submitted a report opining that West

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was competent. The defense objected and requested a hearing. Additionally, it
filed an evaluation report prepared by a privately retained psychologist who had
found West incompetent. Following an evidentiary hearing during which the
dueling expert opinions were presented, the court concluded that West was
competent.
¶4 Approximately two months later, the defense again raised the issue of
competency, asking the court to order a second competency evaluation. Over the
People’s objection, the court ordered another evaluation by CMHHIP. At the end
of this court appearance, the primary prosecutor assigned to the case (“the
prosecutor”) met with the victim’s family in the hallway outside the courtroom.
West’s attorneys, all members of the Colorado State Public Defender’s Office,
exited the courtroom while that meeting was in progress. As they walked past the
prosecutor, they overheard him make a statement to the victim’s family to the
effect of: The public defenders are “trying to get [West] out so he can stab more
people and hopefully the next people he stabs are public defenders.”
¶5 The primary defense attorney assigned to the case (“defense counsel”)
emailed the prosecutor hours later to inform him that she and her colleagues had
heard his improper comment. She noted that she and the prosecutor had
experienced a “decent working relationship” for some years. Further, she
acknowledged her belief that the improper comment was the result of the

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prosecutor’s frustration over the defense’s request for a second competency
evaluation. She added that she knew the prosecutor would never advocate for
someone to physically assault her and her colleagues for doing their jobs. Still, she
expressed significant concern about the improper comment: “[H]onestly [it] freaks
me out a little because I am already aware that this is a family who has suffered a
traumatic and horrible loss.” She thus asked the prosecutor to contact the victim’s
family to make clear that West’s attorneys were just doing their jobs and that acting
violently toward them was unacceptable.
¶6 The prosecutor promptly responded. He apologized for his comment, made
clear that he didn’t want anyone to be stabbed, and confirmed that he uttered the
malediction out of frustration and anger based on the order requiring a second
competency evaluation just a couple of months after the court found that West was
competent. He then promised to inform the victim’s family that his comment was
not meant to suggest that West’s defense counsel deserved to be harmed.
¶7 About an hour later, the prosecutor sent a follow-up email to defense
counsel, informing her that he had contacted the victim’s family and explained
that he wasn’t “condoning violence against anyone, and certainly not against you
or members of your office, who I clarified were just doing their jobs.” He then
reported that all of the victim’s family members with whom he had spoken had
“made it clear” to him that they understood he was not advocating violence.

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¶8 Eleven days after the email exchange between the prosecutor and defense
counsel, West’s attorneys filed a motion for a special prosecutor. They argued that
several actions by the prosecutor throughout the pendency of the case, including
his improper comment to the victim’s family in the hallway outside the courtroom,
reflected that he was biased and that a special prosecutor was necessary for their
client to receive a fair trial.1
¶9 The People opposed the motion, emphasizing that the prosecutor had made
an improper “off-handed remark to blow off steam,” not a comment reflecting
“genuine animus,” and had immediately apologized for his conduct. The
prosecutor is “human, not unfair,” asserted the People, and the regrettable
comment was “an intemperate but fleeting expression of frustration” due to the
continuing delays caused by the defense’s requests to have West evaluated for
competency.
¶10 After holding a hearing, the district court orally granted the defense’s
motion. The court disqualified both the prosecutor and his entire office (the office
of the District Attorney in the Fourth Judicial District). Consequently, it ordered
the appointment of a special prosecutor. The People then filed this interlocutory
1 The district court rejected all of the contentions in the motion save for the one
grounded in the prosecutor’s improper comment. The People’s interlocutory
appeal is accordingly limited to that comment.

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appeal pursuant to section 20-1-107(3), C.R.S. (2025), and section 16-12-102(2),
C.R.S. (2025).
¶11 Before analyzing the merits of the People’s interlocutory appeal, there are
two important housekeeping matters we must address. First, we need to ensure
we have jurisdiction. Second, we must identify the standard of review.
II. Jurisdiction
¶12 Section 20-1-107(3) allows the People to file an interlocutory appeal from a
district court’s order disqualifying a district attorney. Such an appeal must be filed
in this court “pursuant to section 16-12-102(2).” § 20-1-107(3). Reciprocally,
section 16-12-102(2) states that the People may file an interlocutory appeal in this
court “from a ruling on a motion to disqualify a district attorney pursuant to
section 20-1-107.” Thus, under both statutes, we have jurisdiction over this
interlocutory appeal.
III. Standard of Review
¶13 An appellate court reviews an order disqualifying a prosecutor for an abuse
of discretion. People v. Espinoza, 195 P.3d 1122, 1127 (Colo. App. 2008). Likewise,
a ruling disqualifying an entire district attorney’s office is subject to review for an
abuse of discretion. People v. Kent, 2020 CO 85, ¶ 28, 476 P.3d 762, 768. A trial court
abuses its discretion when its decision is “manifestly arbitrary, unreasonable, or
unfair,” or based on a misapplication of the law. Id. (noting that when a trial court

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“grants a motion to disqualify a prosecuting office based on a misapplication of
the law, it abuses its discretion”).
IV. Analysis
¶14 As usual, the launch point of our analysis is the law—specifically, the
Colorado statute controlling motions to disqualify district attorneys
(section 20-1-107) and our jurisprudence interpreting it. Against this backdrop,
we examine the district court’s order, addressing first the disqualification of the
prosecutor and then the disqualification of his office. We ultimately conclude that
the district court abused its discretion by misapplying the law on both fronts.
A. Colorado Law on Motions to Disqualify District
Attorneys
¶15 The office of district attorney in this state was created by the Colorado
Constitution. Colo. Const. art. VI, § 13. Our General Assembly has recognized
that it is vested by the state constitution with the exclusive authority to prescribe
the duties of the office of district attorney. § 20-1-107(1). Relatedly, our General
Assembly has declared that it is “necessary to protect the independence of persons
duly elected to the office of district attorney.” Id. To that end, our General
Assembly has enacted section 20-1-107. Id.
¶16 Under section 20-1-107(2), there are only three available grounds for a court
to disqualify a district attorney in a particular case: (1) at the district attorney’s
own request; (2) following the court’s determination that the district attorney has

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a personal or financial interest in the case; or (3) upon a finding by the court that
“special circumstances exist that would render it unlikely that the defendant
would receive a fair trial.” Only the third category is implicated here.
¶17 The pivotal question when a defendant asserts that special circumstances
require the district attorney’s disqualification is whether the defendant would be
likely to receive a fair trial without the appointment of a special prosecutor.
People v. Loper, 241 P.3d 543, 546 (Colo. 2010). A defendant moving for
disqualification under the special circumstances prong has the burden of showing
that disqualification is necessary because otherwise a fair trial would be unlikely.
Id. To satisfy this burden, a defendant must rely on “actual facts and evidence in
the record supporting the contention.” Id. Mere hypothetical information cannot
suffice. Id.
¶18 We have not attempted to formulate an exhaustive list of special
circumstances that would render it unlikely that a defendant would receive a fair
trial. Id. This would be a fool’s errand, as trying to predict every possible relevant
scenario would be as fruitful as trying to carry water in a sieve. See Kent, ¶ 20,
476 P.3d at 766 (comparing the task to nailing Jell-O to the wall). Nevertheless,
our case law on the special circumstances prong is not without value. Id. Our
jurisprudence teaches that the special circumstances asserted “must be extreme to
justify disqualifying the district attorney.” Loper, 241 P.3d at 546. Indeed, even

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potential wrongdoing by the prosecutor does not automatically amount to a
special circumstance requiring disqualification. See People v. Jimenez, 217 P.3d 841,
857–58 (Colo. App. 2008) (disagreeing that disqualification was required based on
allegations that investigators and prosecutors in the district attorney’s office had
violated the federal confidentiality statute and were thus exposed to criminal
liability).
¶19 Notably, although we have reviewed plenty of section 20-1-107(2) orders
during the last two decades, we have determined that there were special
circumstances sufficiently extreme to justify disqualification in only two
cases: People v. Chavez, 139 P.3d 649 (Colo. 2006), and People v. Arellano, 2020 CO
84, 476 P.3d 364. In Chavez, the district attorney had previously represented the
defendant in a substantially related matter and had received confidential
communications regarding the pending case. 139 P.3d at 654. More recently, in
Arellano, a murder case, an employee of the district attorney’s office was married
to (although separated from) the victim at the time of the crime and was a
potentially significant witness in the case because she possessed (and had already
provided to the district attorney’s office) information tending to undermine
Arellano’s claim of self-defense. ¶ 3, 476 P.3d at 365. In both cases, we concluded
that there were extreme circumstances that made it unlikely the defendant would
receive a fair trial without the appointment of a special prosecutor. Chavez,

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139 P.3d at 654; Arellano, ¶ 34, 476 P.3d at 370. Outside of these extreme factual
scenarios, however, we have uniformly reversed orders of disqualification issued
pursuant to section 20-1-107(2) based on the “special circumstances” criterion.
¶20 Of particular relevance here, we have declined to find special circumstances
justifying disqualification in cases where the primary concern was the appearance
of impropriety but the facts and the record had no bearing on the defendant’s
likelihood of obtaining a fair trial. In People in Interest of N.R., 139 P.3d 671, 675
(Colo. 2006), we made clear that the 2002 amendment to section 20-1-107(2) did
away with the “appearance of impropriety” standard our case law had previously
endorsed. We explained that following the 2002 amendment, a district attorney
may only be disqualified pursuant to one of the three grounds identified in section
20-1-107(2). Id. at 676. We ultimately concluded that there were no special
circumstances warranting disqualification where the district attorney had
previously received substantial support for his political campaign from the
victim’s family and had thereafter reversed his predecessor’s decision not to
prosecute the case. Id. at 678. That the district attorney seemed indebted to the
victim’s family, arguably giving rise to an appearance of impropriety, was of no
import to our decision because it had no bearing on whether it was likely N.R.
would receive a fair trial. Id.

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¶21 N.R. is not alone; it has lots of company. In Loper, for example, where the
victim’s mother was a probation officer in the judicial district in which the case
was pending, we reversed the district court’s order disqualifying the prosecuting
office notwithstanding concerns about the appearance of impropriety. 241 P.3d at
544. We acknowledged that the probation officer had been involved in the
incident, had provided the most important information presented at the
preliminary hearing, and “may have influenced the district attorney in bringing
the charges against Loper.” Id. at 544–45, 547. We reasoned, however, that even
if the probation officer had affected the decision to charge Loper, “this influence
[did] not jeopardize the likelihood that Loper [would] receive a fair trial.” Id. at
547. That these circumstances may have left “a bad smell” was of no moment. Id.;
see also People v. Kendrick, 2017 CO 82, ¶¶ 46–47, 396 P.3d 1124, 1132 (reversing the
section 20-1-107(2) disqualification order because it was based on the court’s
“lingering concern that . . . there clearly [was] at least an appearance that the
defendant would not receive a fair trial”); People v. Perez, 201 P.3d 1220, 1232 (Colo.
2009) (concluding that it was error to disqualify the prosecuting office based on
appearance concerns where one of the prosecutors had previously represented the
defendant); Dunlap v. People, 173 P.3d 1054, 1094 (Colo. 2007) (rejecting Dunlap’s
contention that his allegation—that the district attorney’s office had committed a

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crime by stealing his medical records—created an appearance of impropriety and
thus required the office’s disqualification).
¶22 Although the circumstances in these cases may well have cast doubt on the
district attorney’s “motives and strategies,” they fell short of the special
circumstances standard in section 20-1-107(2) because “they [did] not play a part
in whether [the] defendant [would] receive a fair trial.” Loper, 241 P.3d at 547.
Such circumstances arguably satisfied the old “appearance of impropriety”
standard, but they missed the mark under the amended standard.
¶23 In sum, our case law establishes that the disqualification of a district
attorney is a “drastic remedy” that should be available only in “narrow
circumstances.” Kent, ¶ 39, 476 P.3d at 770 (quoting Loper, 241 P.3d at 547). Section
20-1-107(2) imposes a heavy burden on defendants because otherwise they would
have the “unfettered option of disqualifying a prosecutor.” Id. (quoting Loper,
241 P.3d at 547–48). Were we to use a less rigorous metric, it would risk putting a
strain on the system and causing significant problems. Id.
B. The District Court Abused Its Discretion Because It
Misapplied the Law
¶24 At the outset, we want to be clear that we, as a court, vigorously denounce
the prosecutor’s comment. There is absolutely no place for that type of rhetoric in
our bar. Regardless of the level of frustration and anger the prosecutor felt after

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the judge ordered a second CMHHIP evaluation, his statement is unacceptable
and indefensible.2
¶25 But the question for us isn’t whether the prosecutor’s comment was
improper. Indeed, there is no dispute about that: The People themselves condemn
the statement as reprehensible. The question for us is whether the comment
justified disqualifying both the prosecutor and his entire office. To answer, we
consider the district court’s ruling, focusing first on the disqualification of the
prosecutor and then on the disqualification of his office.
1. The Disqualification of the Prosecutor
¶26 The court stated right off the bat that the “appearance of impropriety”
standard no longer applies to motions to disqualify district attorneys. Were it
otherwise, said the court, “it would be an easier issue” because, in its view, the
improper comment gave rise to “the appearance of unethical conduct” and thus
“the appearance of impropriety.” Then, relying on our jurisprudence, the court
noted that “the party moving to disqualify the district attorney based on special
2 Any criticism about this opinion sending the wrong message is misplaced. Our
rebuke of the prosecutor’s comment could not be stronger. However, we must
vigilantly guard against the temptation to alter our legal analysis based on the
passions excited by the shocking and outrageous nature of the prosecutor’s
comment. If the Office of Attorney Regulation Counsel perceives that the
prosecutor’s comment violated the Colorado Rules of Professional Conduct, it is
up to that office to take appropriate action.

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circumstances bears the burden of showing that absent disqualification, they will
not receive a fair trial.” Continuing, the court observed that the special
circumstances “must be extreme.” The court then reiterated that “a mere
appearance of impropriety is insufficient.”
¶27 The court was spot-on in reciting the governing legal standard. But its
ensuing actions demonstrate that it applied a different standard. The court did
just what it recognized it couldn’t do: It granted the motion to disqualify based
largely on its concerns regarding the appearance of impropriety.
¶28 Early on in its ruling, the court framed the issue as whether, “looking at it
from the citizen’s point of view, [an] ordinary person’s point of view, does [the
prosecutor’s comment] raise the specter that someone would not be able to get a fair
trial if the prosecutor . . . appears to be acting beyond their mandate to . . . do justice
[and] make sharp arguments when necessary”? (Emphases added.) The court
then answered: “[C]learly, in my mind, this raises an appearance of impropriety.”
(Emphasis added.) This smoking gun in the record establishes that the court
applied the wrong legal standard.
¶29 Other parts of the record corroborate our reading of the trial court’s ruling.
The court identified “[t]he problem” in this case as follows: “[N]ow everything can
be looked at through this prism of what this Court considers an outrageous
statement . . . .” (Emphasis added.) Moments later, the court stressed that “[t]he

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problem is [that] an unusually outrageous, shocking statement . . . was made that
unfortunately changes . . . the public’s view [or] the legal system’s view” about whether
this case could be properly prosecuted without granting the defense’s motion.
(Emphasis added.) And shortly thereafter, the court indicated that this case will
“always [be] seen through the prism” of the prosecutor’s comment. (Emphasis
added.)3
¶30 Thus, after concluding that the prosecutor’s comment created an
appearance of impropriety, the court conveyed, in no uncertain terms, that its chief
concern was how this would look to the public, how it would be perceived by the
legal system, and the prism the case would be seen through in the future.
Unfortunately, the court’s observations, while valid, were misdirected. As the
court itself recognized, appearance of impropriety is no longer the standard. See
N.R., 139 P.3d at 675. It hasn’t been for almost a quarter of a century—since the
2002 amendment to section 20-1-107(2). Id.
¶31 West contends, however, that the district court said that this was “beyond
an appearance of impropriety”; it was “impropriety itself.” Fair enough. It is true
that although the court focused almost exclusively on appearances, it did also say
3 To safeguard against the risk of inaccurately rewriting or paraphrasing the
court’s comments, we use actual quotes. Far from being cherry-picked, these
quotes constitute the bulk of the ruling.

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that the prosecutor’s comment constituted impropriety. But this argument has no
legs either.
¶32 The presence of actual impropriety (as opposed to the mere appearance of
impropriety) is neither here nor there; again, the fundamental inquiry is whether
special circumstances exist that are so extreme that they make it unlikely that the
defendant will receive a fair trial. In the instant matter, though, the court’s analysis
stopped at the impropriety of the prosecutor’s comment. The court did not say
why that impropriety rendered it unlikely that West would receive a fair trial.
Under our precedents, the failure to bridge this analytical gap is fatal.
¶33 And, to the extent the court used the word “extreme” in its actual
application of the law, it did so only once and only to describe the outrageous
nature of the prosecutor’s comment. Hence, that part of the court’s analysis suffers
from the same shortcoming: The failure to explain why the circumstances of this
case were so extreme as to render it unlikely that West would receive a fair trial.
¶34 West nevertheless pushes back, contending that (1) the prosecutor’s
comment “is evidence of clear animus and bias” and (2) the court must have
recognized as much. We are unpersuaded.
¶35 Our decision in Kent, ¶ 35, 476 P.3d at 769, is instructive on this point. In
Kent, where the elected district attorney prosecuted his judicial district’s elected
coroner, we vacated a disqualification order that was grounded in concerns about

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the prosecutor’s animus and bias that far exceed in gravity those present here. In
granting the motion to disqualify there, the district court was reasonably worried
that the case was “significantly different than most” other cases and that there was
“something personal about the case” for the district attorney. Id. at ¶ 4, 476 P.3d
at 764.
¶36 First, Kent had made a comment to the district attorney in the hallway of
the courthouse that the district attorney found threatening. Id. at ¶ 7, 476 P.3d at
764. Second, Kent had thereafter made threatening comments directed at the
district attorney during a contentious interaction with a legal administrative
assistant at the district attorney’s office. Id. at ¶ 8, 476 P.3d at 764–65. Third, the
district attorney had responded by asking the Colorado Bureau of Investigation to
investigate Kent because he believed Kent was unstable and may have committed
a crime while visiting his office. Id. at ¶ 8, 476 P.3d at 765. Fourth, the district
attorney had then told Kent’s counsel that if Kent didn’t accept the plea bargain
offer on the table, “things would get really bad,” and that people who had
threatened the district attorney in the past had ended up with felony convictions.
Id. at ¶ 9, 476 P.3d at 765. Fifth, at the district attorney’s urging, the grand jury had
reconvened, and a second true bill had added a perjury charge against Kent. Id. at
¶ 10, 476 P.3d at 765. Sixth, without notifying Kent or his counsel, the district
attorney had lodged a complaint against Kent with the Department of Regulatory

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Agencies (“DORA”), and he’d asked DORA to share any information it uncovered
in its investigation of Kent. Id. at ¶ 12, 476 P.3d at 765. And last, the district
attorney had recently moved to quash two subpoenas duces tecum served by Kent,
and in the court’s view, those subpoenas were appropriate and sought information
that should have been disclosed pursuant to Crim. P. 16 without any prompting.
Id. at ¶ 13, 476 P.3d at 765.
¶37 We acknowledged that these circumstances may have “cast doubt” on the
district attorney’s “motives and strategies.” Id. at ¶ 5, 476 P.3d at 764 (quoting
Loper, 241 P.3d at 547). And we perceived that the district court was
understandably apprehensive about the same. Id. at ¶ 35, 476 P.3d at 769. Indeed,
the district court had pointed out in its disqualification order that the DORA
complaint reflected that the district attorney “was seeking to penalize Kent above
and beyond the criminal prosecution.” Id. Along the same lines, the district court
had questioned the district attorney’s ability to be fair in the case given his animus
and bias. Id.
¶38 We nevertheless concluded that the circumstances that led the court “to
harbor suspicions” about the district attorney’s “motives and strategies” did not
warrant disqualification because they didn’t “render it unlikely that the defendant
would receive a fair trial.” Id.; see also Loper, 241 P.3d at 547 (same). And because

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Kent had failed to meet his burden, we reversed the disqualification order. Kent,
¶¶ 38, 40, 476 P.3d at 769–70.
¶39 The district court’s speculation in this case about whether the prosecutor
would be able to be fair moving forward is of the same ilk as that involved in Kent.
Specifically, the court wondered whether the prosecutor would be able to fairly plea
bargain with West. It indicated that it needed to ensure that the prosecutor would
operate “in a reasonable and appropriate way, so that going forward it cannot be
said that the District Attorney’s Office had . . . made such an . . . outrageous
presentation here that they couldn’t back off, . . . couldn’t negotiate, . . . and that
they were overly zealous potentially in certain steps that were taken . . . .”
¶40 Even overlooking the fact that these remarks, too, are arguably related to
appearances and thus misaligned, they fall flat. Just as in Kent, the court’s
speculation, while understandable, cannot suffice to warrant disqualification
under the special circumstances prong. That it’s possible a prosecutor will treat a
defendant unfairly in plea negotiations in the future doesn’t show that the
defendant will likely be deprived of a fair trial. Thus, like Kent, West failed to
make the requisite showing to prevail on his motion for disqualification.
¶41 We stress that the district court here made no finding of actual animus, bias,
or inability to be fair (including in plea negotiations). At most, it surmised that the
prosecutor might be unfair moving forward in this case.

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¶42 Perhaps more compellingly, any concerns of animus, bias, or unfairness are
allayed by the judge’s candid remarks regarding the prosecutor’s character.
Although the judge was appropriately critical of the prosecutor’s improper
comment, he spoke highly of the prosecutor’s disposition:
I know [the prosecutor] as a very good man, and a very good person,
and someone I’ve always found in the past to be anchored firmly to
the notion of what’s fair and what’s not fair, someone who has offered
many excellent opportunities to people who deserve excellent
opportunities, and a man who also has firmly and . . . earnestly
prosecuted people who deserve to be prosecuted and in prison. So he
does both things, and he is someone who shows himself to be very
good at what he does.
¶43 These tell-tale statements in no way reflect concern that the prosecutor
would harbor animus or act in a biased or unfair manner in future dealings with
West. In a similar vein, while the court believed that the prosecutor was “more
than upset, more than frustrated, [and] more than angry” when he made the
improper comment, it viewed the comment as “impulsive,” which suggests to us
that the court did not consider the comment reflective of animus, bias, or an
inability or unwillingness to be fair.
¶44 In short, the circumstances in this case fell woefully short of being so
extreme as to render it unlikely that West would receive a fair trial. In ruling
otherwise, the district court abused its discretion by misapplying the law.

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2. The Disqualification of the Prosecutor’s Office
¶45 Having disqualified the prosecutor, the district court proceeded to
disqualify the entire district attorney’s office in the Fourth Judicial District. In
doing so, it repeated its earlier misstep: It focused on appearances. The court
reasoned that it had to disqualify the prosecutor’s office because the prosecutor
was “a higher-up supervisor” there, and his office would “be seen” in the same
light as the prosecutor. But because West similarly made no showing that he was
unlikely to receive a fair trial, he failed to satisfy his burden as to this aspect of his
motion for a special prosecutor. In finding otherwise, the district court misapplied
the law and thus abused its discretion.
V. Conclusion
¶46 For the foregoing reasons, we reverse the district court’s order disqualifying
the prosecutor and his entire office. We remand the case for further proceedings
consistent with this opinion.
JUSTICE GABRIEL concurred in part and dissented in part.

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JUSTICE GABRIEL, concurring in part and dissenting in part.
¶47 I fully agree with the majority’s conclusion that the district court erred in
disqualifying the Fourth Judicial District Attorney’s Office from prosecuting
Rocky Wayne West. I cannot, however, agree with the majority’s determination
that the district court abused its discretion in disqualifying the primary prosecutor
assigned to this case (the “prosecutor”). Unlike the majority, I believe that the
district court applied the appropriate legal standard and acted well within its
discretion in disqualifying the prosecutor, given his outrageous conduct in this
case. In my view, the prosecutor’s comments reflected extreme animus toward
West and West’s counsel and necessarily implicated West’s right to receive a fair
trial from a prosecutor who is motivated to do justice and not just win, which is
an ethical obligation of every prosecutor. See Berger v. United States, 295 U.S. 78, 88
(1935) (stating that a prosecutor “is the representative not of an ordinary party to
a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done”);
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005) (“The prosecutor’s
actions during a criminal trial must always comport with the sovereign’s goal that
justice be done in every case and not necessarily that the prosecution ‘win.’”).

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¶48 For these reasons, and because I believe that the majority’s decision sends
the wrong message regarding the kind of conduct that is acceptable from any
attorney, much less a representative of the People of this state, I respectfully concur
in part and dissent in part.
I. Factual Background
¶49 The majority adequately sets forth the pertinent facts, particularly regarding
the prosecutor’s conduct. As the majority observes, after West’s counsel raised the
issue of competency for a second time and the district court, over the People’s
objection, ordered a second competency evaluation, the prosecutor met with the
victim’s family in the hallway and stated that West’s public defenders were
“trying to get [West] out so he can stab more people and hopefully the next people
he stabs are public defenders.” Maj. op. ¶ 4.
¶50 Because my analysis of the question before us turns on the applicable
standard of review, I briefly highlight the portions of the district court’s ruling that
are central to my analysis.
¶51 As the majority concedes in the very first paragraph of its opinion, id. at ¶ 1,
the district court began its ruling by reciting the correct legal standard. Relying
on our recent opinion in People v. Chapman, 2025 CO 19, __ P.3d __ (per curiam),
the district court correctly observed that in order to disqualify a district attorney
based on “special circumstances” under section 20-1-107(2), C.R.S. (2025), the

3
moving party may not rely on the appearance of impropriety. Rather, the movant
must show that absent disqualification, the defendant will not receive a fair trial.
The district court further opined, again indisputably correctly, that the special
circumstances must be “extreme.”
¶52 The district court then proceeded to explain why, on the facts of this case,
that standard was satisfied here. The court began by noting that the prosecutor’s
outrageous comments “raise[d] the specter that someone would not be able to get
a fair trial if the prosecutor is acting beyond—appears to be acting beyond their
mandate to . . . do justice . . . .” The court then explained that in this case, it is
possible that the District Attorney’s Office might find itself in a position to
negotiate a disposition, rather than proceed to trial. The court noted that in that
circumstance, one would expect the District Attorney’s Office to be able to “do
what’s right and fair and appropriate for the community, for victims of crime, and
for anyone else who has an interest here.” This, however, would require the Office
to be able to exercise reasonable discretion and to maintain a reasonable ability to
weigh the pros and cons of going to trial versus entering into a disposition.
¶53 As the court put it:
And so we need to make sure that the arm of the Prosecution is still
operating in a reasonable and appropriate way so that going forward
it cannot be said that the District Attorney’s Office had . . . made such
an . . . outrageous presentation here that they couldn’t back off. They
couldn’t change. They couldn’t negotiate. They couldn’t discuss, and
that they were overly zealous potentially in certain steps that were

4
taken, which may only seem overzealous in light of the extreme
statement that was made by [the prosecutor]. So that creates a
problem.
¶54 The problem, the court went on, “is an unusually outrageous, shocking
statement” that, in the court’s view, changed the public’s view as to whether the
District Attorney’s Office was the proper entity to address this case. The court
thus concluded:
And [the prosecutor] got mad, and he said something that I believe
can’t be taken back to the extent that we will be able to have a case
that is not always seen through the prism of, well, maybe if he gets
out, he’ll kill a few public defenders. That will show you. And he
didn’t say that, but that was the import of what was going on there.
And, to me, that’s shocking. It’s beyond an appearance of
impropriety. It is impropriety itself. And it is extreme in the manner
of the Chapman case, in my opinion.
¶55 Accordingly, the district court disqualified both the prosecutor and the
Fourth Judicial District Attorney’s Office.
¶56 The People then filed the present interlocutory appeal.
II. Analysis
¶57 I begin by setting out the applicable legal principles. I then apply those
principles to the facts before us.
A. Applicable Legal Principles
¶58 District courts are afforded “broad discretion” to determine whether to
disqualify a prosecutor, and we review a district court’s decision to do so for an
abuse of discretion. Chapman, ¶ 6. Accordingly, we will not overturn a district

5
court’s decision to disqualify a prosecutor unless the court’s decision was
manifestly arbitrary, unreasonable, unfair, or premised on a misapplication of the
law. Id.
¶59 Section 20-1-107(2) provides that a motion to disqualify a prosecutor shall
not be granted unless, as pertinent here, “the court finds that . . . special
circumstances exist that would render it unlikely that the defendant would receive
a fair trial.”
¶60 The party seeking to disqualify a prosecutor based on such “special
circumstances” thus “bears the burden of showing that, absent disqualification,
they will not receive a fair trial.” Chapman, ¶ 8. Moreover, we have observed that
“the special circumstances must be ‘extreme,’ and a mere appearance of
impropriety is insufficient.” People v. Arellano, 2020 CO 84, ¶ 25, 476 P.3d 364, 368
(quoting People v. Loper, 241 P.3d 543, 546 (Colo. 2010)).
¶61 Having thus set out the governing legal principles, I turn to the issue now
before us.
B. Application
¶62 As the foregoing makes clear—and as the majority concedes, Maj. op. ¶¶ 1,
27—the district court correctly recited the applicable legal standards. Specifically,
the court correctly observed that an appearance of impropriety is insufficient. It
also correctly observed that the party moving to disqualify a prosecutor must

6
show that absent disqualification, the movant would not receive a fair trial. And
it correctly observed that the special circumstances at issue must be extreme.
¶63 The court then proceeded to explain, in detail and with extensive factual
findings, all of which are amply supported by the record, why this standard was
satisfied here. In particular, the court noted the extreme, shocking, and outrageous
nature of the comments made by the prosecutor. The court further explained how,
in light of those comments, there are serious questions as to whether the
prosecutor would be able to exercise reasonable discretion going forward in this
case. The court then discussed how the prosecutor’s ethical duty to do justice,
which is necessarily informed by public perception of the court system, has been
irreparably undermined due to the prosecutor’s conduct. And the court ended by
finding that the conduct at issue was “beyond an appearance of impropriety. It
[was] impropriety itself. And it is extreme in the manner of the Chapman case . . . .”
¶64 I cannot agree with my colleagues in the majority that such findings and
conclusions were manifestly arbitrary, unreasonable, or unfair. Nor can I agree
that the district court in any way misapplied the law. The court recited the
applicable legal principles almost verbatim from our opinion in Chapman, and the
court then explained why, absent the prosecutor’s disqualification, West would
not receive a fair trial in this case.

7
¶65 I am not persuaded otherwise by the majority’s view that although the
district court uttered the correct legal standard, its actions reflected that it applied
the wrong one. Maj. op. ¶ 1. For the reasons set forth above, the district court
uttered the correct standard and applied it to the undisputed facts before it.
¶66 To conclude otherwise, the majority goes to great lengths to reinterpret what
the district court actually said. For example, despite the court’s express statement
that it was finding more than a mere appearance of impropriety, the majority
opines that the court had, in fact, granted the disqualification motion based on its
concerns regarding the appearance of impropriety. Id. at ¶ 27. In support of this
determination, the majority quotes the portion of the district court’s ruling in
which the court said that the prosecutor’s conduct raised an appearance of
impropriety. Id. at ¶ 28. The majority even describes this statement as a “smoking
gun in the record establish[ing] that the court applied the wrong legal standard.”
Id. In so concluding, however, the majority cherry picks a quote that, when taken
out of context, tends to support its opinion but then deems it of no import that the
district court repeatedly recognized that an appearance of impropriety is not
enough, ultimately finding, “It’s beyond an appearance of impropriety. It is
impropriety itself. And it is extreme in the manner of the Chapman case . . . .”
(Emphasis added.) See Maj. op. ¶ 32.

8
¶67 The majority cannot have it both ways. It cannot say, on the one hand, that
the district court applied the wrong legal standard by applying an appearance of
impropriety test and then conclude, on the other hand, that the district court’s
language showing, explicitly, that it did not do so does not matter. Nor can the
majority elide the district court’s findings as to why the prosecutor’s conduct
rendered it unlikely that West would receive a fair trial and then say that the court
did not provide that explanation. See id. The district court said what it said, and I
do not believe that it is appropriate for the majority to recharacterize what that
court said to reach the result that the majority would have reached were it deciding
this case in the first instance. As we all agree, our review here is not de novo.
¶68 In addition, I am concerned about the message that the majority opinion
conveys regarding what trial courts may demand of the attorneys who appear
before them.
¶69 The district court properly recognized that it could not condone the
“outrageous” and “shocking” comments made by the prosecutor in this case,
which, among other things, advocated violence against public defenders. Such
comments, even if said in anger or frustration, manifestly reflect the prosecutor’s
inordinate focus on winning this case, rather than ensuring that justice is done.
And because, as the district court recognized, such comments cannot be
successfully retracted, if allowed to stand without consequence, they undermine

9
public confidence in our court system and, thus, establish that it is unlikely that
West will receive a fair trial. See Chapman, ¶ 8.
¶70 Although, to be sure, the majority denounces the prosecutor’s comments,
Maj. op. ¶ 24, in reversing the district court’s disqualification order, the majority
allows the prosecutor’s conduct to stand without any consequence. To me, this
sends a mixed, and unfortunate, message.
III. Conclusion
¶71 For these reasons, although I agree with the majority’s determination that
the district court erred in disqualifying the Fourth Judicial District Attorney’s
Office, I believe that the court acted well within its broad discretion in
disqualifying the prosecutor, based on the prosecutor’s outrageous statements in
this case and the effect that his conduct would necessarily have on West’s ability
to receive a fair trial, both from West’s perspective and from that of the public,
whose confidence in our courts is indispensable to our system of justice.
¶72 Accordingly, I respectfully concur in part in and dissent in part from the
majority’s opinion.

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
November 10, 2025

# 2025 CO 61

No. 25SA193, People v. West-Disqualification of a Prosecutor -Special
Circumstances Justifying Disqualification- Appearance of Impropriety
Insufficient-§ 20-1-107, C.R.S. (2025) -People v. Loper, 241 P.3d 543 (Colo.
2010) - People v. Kent, 2020 CO 85, 476 P.3d 756.

In this interlocutory appeal brought by the People, the supreme court
reverses the district court's order disqualifying both the individual prosecutor in
this case and his entire office. The supreme court concludes that the district court
misapplied the law, and thus abused its discretion, in granting the defense's
motion for a special prosecutor.

Although the district court articulated the correct legal standard, its ensuing
actions reflect that it applied the wrong one. The district court incorrectly focused
almost exclusively on the appearance of impropriety engendered by an improper
comment made by the prosecutor to the victim's family in the hallway outside the
courtroom. But appearance of impropriety ceased constituting sufficient grounds
to disqualify a prosecutor in Colorado more than two decades ago. True, the
district court also stated that the prosecutor's comment went beyond the

appearance of impropriety and implicated impropriety itself. But impropriety,
without more, falls short of the governing standard as well. The district court
never found that the comment constituted an extreme circumstance that rendered
it unlikely that the defendant would receive a fair trial. Nor could the court have
made such a finding on the record before it. Because the defendant did not
demonstrate, through actual facts and evidence in the record, that the comment in
question was an extreme circumstance that impugned the likelihood of his
receiving a fair trial, he failed to satisfy his burden on his motion for a special
prosecutor.

Accordingly, the district court's disqualification order is reversed, and the
matter is remanded to the district court for further proceedings consistent with
this opinion.

# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2025 CO 61

Supreme Court Case No. 25SA193
Interlocutory Appeal from the District Court
El Paso County District Court Case No. 24CR3128
Honorable David A. Gilbert, Judge

Plaintiff-Appellant:
The People of the State of Colorado,

V.
Defendant-Appellee:
Rocky Wayne West.

Order Reversed
en banc
November 10, 2025

Attorneys for Plaintiff-Appellant:

Michael J. Allen, District Attorney, Fourth Judicial District

Doyle Baker, Senior Deputy District Attorney

Colorado Springs, Colorado

Attorneys for Defendant-Appellee:

Megan A. Ring, Public Defender

Jennifer Charlier Cox, Supervising Deputy Public Defender

Rachel Armstrong, Deputy Public Defender

Colorado Springs, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, and JUSTICE
BERKENKOTTER joined.

JUSTICE GABRIEL concurred in part and dissented in part.
JUSTICE HART did not participate.

JUSTICE SAMOUR delivered the Opinion of the Court.

11
They say that actions speak louder than words. That time-honored adage
certainly rings true in this interlocutory appeal. In granting the defense's motion
to appoint a special prosecutor, the district court uttered the correct legal standard,
but its actions reflect that it applied the wrong one.

T2
We now conclude that the district court misapplied the law, and thus
abused its discretion, in disqualifying both the prosecutor assigned to this case and
the entire district attorney's office for the Fourth Judicial District. Because the
defense failed to satisfy its burden of showing actual facts and evidence in the
record amounting to extreme circumstances that would render it unlikely that
Rocky Wayne West would receive a fair trial, Colorado law required the court to
deny the motion for a special prosecutor. Accordingly, we reverse the
disqualification order and remand the case for further proceedings consistent with
this opinion.

## I. Facts and Procedural History

T3
The People have charged West with first degree murder. In one of the first
court appearances, the defense raised concerns about West's competency. The
district court ordered a competency evaluation by the Colorado Mental Health
Hospital in Pueblo ("CMHHIP"), and CMHHIP subsequently conducted an
evaluation. A psychologist at CMHHIP then submitted a report opining that West

was competent. The defense objected and requested a hearing. Additionally, it
filed an evaluation report prepared by a privately retained psychologist who had
found West incompetent. Following an evidentiary hearing during which the
dueling expert opinions were presented, the court concluded that West was
competent.

14 Approximately two months later, the defense again raised the issue of
competency, asking the court to order a second competency evaluation. Over the
People's objection, the court ordered another evaluation by CMHHIP. At the end
of this court appearance, the primary prosecutor assigned to the case ("the
prosecutor") met with the victim's family in the hallway outside the courtroom.
West's attorneys, all members of the Colorado State Public Defender's Office,
exited the courtroom while that meeting was in progress. As they walked past the
prosecutor, they overheard him make a statement to the victim's family to the
effect of: The public defenders are "trying to get [West] out so he can stab more
people and hopefully the next people he stabs are public defenders."

15 The primary defense attorney assigned to the case ("defense counsel")
emailed the prosecutor hours later to inform him that she and her colleagues had
heard his improper comment. She noted that she and the prosecutor had
experienced a "decent working relationship" for some years. Further, she
acknowledged her belief that the improper comment was the result of the

prosecutor's frustration over the defense's request for a second competency
evaluation. She added that she knew the prosecutor would never advocate for
someone to physically assault her and her colleagues for doing their jobs. Still, she
expressed significant concern about the improper comment: "[H]onestly [it] freaks
me out a little because I am already aware that this is a family who has suffered a
traumatic and horrible loss." She thus asked the prosecutor to contact the victim's
family to make clear that West's attorneys were just doing their jobs and that acting
violently toward them was unacceptable.

16 The prosecutor promptly responded. He apologized for his comment, made
clear that he didn't want anyone to be stabbed, and confirmed that he uttered the
malediction out of frustration and anger based on the order requiring a second
competency evaluation just a couple of months after the court found that West was
competent. He then promised to inform the victim's family that his comment was
not meant to suggest that West's defense counsel deserved to be harmed.

17 About an hour later, the prosecutor sent a follow-up email to defense
counsel, informing her that he had contacted the victim's family and explained
that he wasn't "condoning violence against anyone, and certainly not against you
or members of your office, who I clarified were just doing their jobs." He then
reported that all of the victim's family members with whom he had spoken had
"made it clear" to him that they understood he was not advocating violence.

18 Eleven days after the email exchange between the prosecutor and defense
counsel, West's attorneys filed a motion for a special prosecutor. They argued that
several actions by the prosecutor throughout the pendency of the case, including
his improper comment to the victim's family in the hallway outside the courtroom,
reflected that he was biased and that a special prosecutor was necessary for their
client to receive a fair trial.1

19 The People opposed the motion, emphasizing that the prosecutor had made
an improper "off-handed remark to blow off steam," not a comment reflecting
"genuine animus," and had immediately apologized for his conduct. The
prosecutor is "human, not unfair," asserted the People, and the regrettable
comment was "an intemperate but fleeting expression of frustration" due to the
continuing delays caused by the defense's requests to have West evaluated for
competency.

110 After holding a hearing, the district court orally granted the defense's
motion. The court disqualified both the prosecutor and his entire office (the office
of the District Attorney in the Fourth Judicial District). Consequently, it ordered
the appointment of a special prosecutor. The People then filed this interlocutory

1 The district court rejected all of the contentions in the motion save for the one
grounded in the prosecutor's improper comment. The People's interlocutory
appeal is accordingly limited to that comment.

appeal pursuant to section 20-1-107(3), C.R.S. (2025), and section 16-12-102(2),
C.R.S. (2025).

111 Before analyzing the merits of the People's interlocutory appeal, there are
two important housekeeping matters we must address. First, we need to ensure
we have jurisdiction. Second, we must identify the standard of review.

## II. Jurisdiction

112 Section 20-1-107(3) allows the People to file an interlocutory appeal from a
district court's order disqualifying a district attorney. Such an appeal must be filed
in this court "pursuant to section 16-12-102(2)." § 20-1-107(3). Reciprocally,
section 16-12-102(2) states that the People may file an interlocutory appeal in this
court "from a ruling on a motion to disqualify a district attorney pursuant to
section 20-1-107." Thus, under both statutes, we have jurisdiction over this
interlocutory appeal.

## III. Standard of Review

113 An appellate court reviews an order disqualifying a prosecutor for an abuse
of discretion. People v. Espinoza, 195 P.3d 1122, 1127 (Colo. App. 2008). Likewise,
a ruling disqualifying an entire district attorney's office is subject to review for an
abuse of discretion. People v. Kent, 2020 CO 85, 1 28, 476 P.3d 762, 768. A trial court
abuses its discretion when its decision is "manifestly arbitrary, unreasonable, or
unfair," or based on a misapplication of the law. Id. (noting that when a trial court

"grants a motion to disqualify a prosecuting office based on a misapplication of
the law, it abuses its discretion").

## IV. Analysis

114 As usual, the launch point of our analysis is the law-specifically, the
Colorado statute controlling motions to disqualify district attorneys
(section 20-1-107) and our jurisprudence interpreting it. Against this backdrop,
we examine the district court's order, addressing first the disqualification of the
prosecutor and then the disqualification of his office. We ultimately conclude that
the district court abused its discretion by misapplying the law on both fronts.

## A. Colorado Law on Motions to Disqualify District Attorneys

115 The office of district attorney in this state was created by the Colorado
Constitution. Colo. Const. art. VI, § 13. Our General Assembly has recognized
that it is vested by the state constitution with the exclusive authority to prescribe
the duties of the office of district attorney. § 20-1-107(1). Relatedly, our General
Assembly has declared that it is "necessary to protect the independence of persons
duly elected to the office of district attorney." Id. To that end, our General
Assembly has enacted section 20-1-107. Id.

116 Under section 20-1-107(2), there are only three available grounds for a court
to disqualify a district attorney in a particular case: (1) at the district attorney's
own request; (2) following the court's determination that the district attorney has

a personal or financial interest in the case; or (3) upon a finding by the court that
"special circumstances exist that would render it unlikely that the defendant
would receive a fair trial." Only the third category is implicated here.

117 The pivotal question when a defendant asserts that special circumstances
require the district attorney's disqualification is whether the defendant would be
likely to receive a fair trial without the appointment of a special prosecutor.
People v. Loper, 241 P.3d 543, 546 (Colo. 2010). A defendant moving for
disqualification under the special circumstances prong has the burden of showing
that disqualification is necessary because otherwise a fair trial would be unlikely.
Id. To satisfy this burden, a defendant must rely on "actual facts and evidence in
the record supporting the contention." Id. Mere hypothetical information cannot
suffice. Id.

118 We have not attempted to formulate an exhaustive list of special
circumstances that would render it unlikely that a defendant would receive a fair
trial. Id. This would be a fool's errand, as trying to predict every possible relevant
scenario would be as fruitful as trying to carry water in a sieve. See Kent, 1 20,
476 P.3d at 766 (comparing the task to nailing Jell-O to the wall). Nevertheless,
our case law on the special circumstances prong is not without value. Id. Our
jurisprudence teaches that the special circumstances asserted "must be extreme to
justify disqualifying the district attorney." Loper, 241 P.3d at 546. Indeed, even

potential wrongdoing by the prosecutor does not automatically amount to a
special circumstance requiring disqualification. See People v. Jimenez, 217 P.3d 841,
857-58 (Colo. App. 2008) (disagreeing that disqualification was required based on
allegations that investigators and prosecutors in the district attorney's office had
violated the federal confidentiality statute and were thus exposed to criminal
liability).

119 Notably, although we have reviewed plenty of section 20-1-107(2) orders
during the last two decades, we have determined that there were special
circumstances sufficiently extreme to justify disqualification in only two
cases: People v. Chavez, 139 P.3d 649 (Colo. 2006), and People v. Arellano, 2020 CO
84, 476 P.3d 364. In Chavez, the district attorney had previously represented the
defendant in a substantially related matter and had received confidential
communications regarding the pending case. 139 P.3d at 654. More recently, in
Arellano, a murder case, an employee of the district attorney's office was married
to (although separated from) the victim at the time of the crime and was a
potentially significant witness in the case because she possessed (and had already
provided to the district attorney's office) information tending to undermine
Arellano's claim of self-defense. 13, 476 P.3d at 365. In both cases, we concluded
that there were extreme circumstances that made it unlikely the defendant would
receive a fair trial without the appointment of a special prosecutor. Chavez,

139 P.3d at 654; Arellano, 1 34, 476 P.3d at 370. Outside of these extreme factual
scenarios, however, we have uniformly reversed orders of disqualification issued
pursuant to section 20-1-107(2) based on the "special circumstances" criterion.

120 Of particular relevance here, we have declined to find special circumstances
justifying disqualification in cases where the primary concern was the appearance
of impropriety but the facts and the record had no bearing on the defendant's
likelihood of obtaining a fair trial. In People in Interest of N.R., 139 P.3d 671, 675
(Colo. 2006), we made clear that the 2002 amendment to section 20-1-107(2) did
away with the "appearance of impropriety" standard our case law had previously
endorsed. We explained that following the 2002 amendment, a district attorney
may only be disqualified pursuant to one of the three grounds identified in section
20-1-107(2). Id. at 676. We ultimately concluded that there were no special
circumstances warranting disqualification where the district attorney had
previously received substantial support for his political campaign from the
victim's family and had thereafter reversed his predecessor's decision not to
prosecute the case. Id. at 678. That the district attorney seemed indebted to the
victim's family, arguably giving rise to an appearance of impropriety, was of no
import to our decision because it had no bearing on whether it was likely N.R.
would receive a fair trial. Id.

[21 N.R. is not alone; it has lots of company. In Loper, for example, where the
victim's mother was a probation officer in the judicial district in which the case
was pending, we reversed the district court's order disqualifying the prosecuting
office notwithstanding concerns about the appearance of impropriety. 241 P.3d at
544. We acknowledged that the probation officer had been involved in the
incident, had provided the most important information presented at the
preliminary hearing, and "may have influenced the district attorney in bringing
the charges against Loper." Id. at 544-45, 547. We reasoned, however, that even
if the probation officer had affected the decision to charge Loper, "this influence
[did] not jeopardize the likelihood that Loper [would] receive a fair trial." Id. at
547. That these circumstances may have left "a bad smell" was of no moment. Id .;
see also People v. Kendrick, 2017 CO 82, 11 46-47, 396 P.3d 1124, 1132 (reversing the
section 20-1-107(2) disqualification order because it was based on the court's
"lingering concern that . . . there clearly [was] at least an appearance that the
defendant would not receive a fair trial"); People v. Perez, 201 P.3d 1220, 1232 (Colo.
2009) (concluding that it was error to disqualify the prosecuting office based on
appearance concerns where one of the prosecutors had previously represented the
defendant); Dunlap v. People, 173 P.3d 1054, 1094 (Colo. 2007) (rejecting Dunlap's
contention that his allegation - that the district attorney's office had committed a

crime by stealing his medical records -created an appearance of impropriety and
thus required the office's disqualification).

122 Although the circumstances in these cases may well have cast doubt on the
district attorney's "motives and strategies," they fell short of the special
circumstances standard in section 20-1-107(2) because "they [did] not play a part
in whether [the] defendant [would] receive a fair trial." Loper, 241 P.3d at 547.
Such circumstances arguably satisfied the old "appearance of impropriety"
standard, but they missed the mark under the amended standard.

T23 In sum, our case law establishes that the disqualification of a district
attorney is a "drastic remedy" that should be available only in "narrow
circumstances." Kent, 139, 476 P.3d at 770 (quoting Loper, 241 P.3d at 547). Section
20-1-107(2) imposes a heavy burden on defendants because otherwise they would
have the "unfettered option of disqualifying a prosecutor." Id. (quoting Loper,
241 P.3d at 547-48). Were we to use a less rigorous metric, it would risk putting a
strain on the system and causing significant problems. Id.

## B. The District Court Abused Its Discretion Because It Misapplied the Law

T24 At the outset, we want to be clear that we, as a court, vigorously denounce
the prosecutor's comment. There is absolutely no place for that type of rhetoric in
our bar. Regardless of the level of frustration and anger the prosecutor felt after

the judge ordered a second CMHHIP evaluation, his statement is unacceptable
and indefensible.2

125 But the question for us isn't whether the prosecutor's comment was
improper. Indeed, there is no dispute about that: The People themselves condemn
the statement as reprehensible. The question for us is whether the comment
justified disqualifying both the prosecutor and his entire office. To answer, we
consider the district court's ruling, focusing first on the disqualification of the
prosecutor and then on the disqualification of his office.

## 1. The Disqualification of the Prosecutor

[26 The court stated right off the bat that the "appearance of impropriety"
standard no longer applies to motions to disqualify district attorneys. Were it
otherwise, said the court, "it would be an easier issue" because, in its view, the
improper comment gave rise to "the appearance of unethical conduct" and thus
"the appearance of impropriety." Then, relying on our jurisprudence, the court
noted that "the party moving to disqualify the district attorney based on special

2 Any criticism about this opinion sending the wrong message is misplaced. Our
rebuke of the prosecutor's comment could not be stronger. However, we must
vigilantly guard against the temptation to alter our legal analysis based on the
passions excited by the shocking and outrageous nature of the prosecutor's
comment. If the Office of Attorney Regulation Counsel perceives that the
prosecutor's comment violated the Colorado Rules of Professional Conduct, it is
up to that office to take appropriate action.

circumstances bears the burden of showing that absent disqualification, they will
not receive a fair trial." Continuing, the court observed that the special
circumstances "must be extreme." The court then reiterated that "a mere
appearance of impropriety is insufficient."

127 The court was spot-on in reciting the governing legal standard. But its
ensuing actions demonstrate that it applied a different standard. The court did
just what it recognized it couldn't do: It granted the motion to disqualify based
largely on its concerns regarding the appearance of impropriety.

128 Early on in its ruling, the court framed the issue as whether, "looking at it
from the citizen's point of view, [an] ordinary person's point of view, does [the
prosecutor's comment] raise the specter that someone would not be able to get a fair
trial if the prosecutor . .. appears to be acting beyond their mandate to .. . do justice
[and] make sharp arguments when necessary"? (Emphases added.) The court
then answered: "[C]learly, in my mind, this raises an appearance of impropriety."
(Emphasis added.) This smoking gun in the record establishes that the court
applied the wrong legal standard.

129 Other parts of the record corroborate our reading of the trial court's ruling.
The court identified "[t]he problem" in this case as follows: "[N]ow everything can
be looked at through this prism of what this Court considers an outrageous
statement .... " (Emphasis added.) Moments later, the court stressed that "[t]he

problem is [that] an unusually outrageous, shocking statement ... was made that
unfortunately changes ... the public's view [or] the legal system's view" about whether
this case could be properly prosecuted without granting the defense's motion.
(Emphasis added.) And shortly thereafter, the court indicated that this case will
"always [be] seen through the prism" of the prosecutor's comment. (Emphasis
added.)3

130 Thus, after concluding that the prosecutor's comment created an
appearance of impropriety, the court conveyed, in no uncertain terms, that its chief
concern was how this would look to the public, how it would be perceived by the
legal system, and the prism the case would be seen through in the future.
Unfortunately, the court's observations, while valid, were misdirected. As the
court itself recognized, appearance of impropriety is no longer the standard. See
N.R., 139 P.3d at 675. It hasn't been for almost a quarter of a century - since the
2002 amendment to section 20-1-107(2). Id.

131 West contends, however, that the district court said that this was "beyond
an appearance of impropriety"; it was "impropriety itself." Fair enough. It is true
that although the court focused almost exclusively on appearances, it did also say

3 To safeguard against the risk of inaccurately rewriting or paraphrasing the
court's comments, we use actual quotes. Far from being cherry-picked, these
quotes constitute the bulk of the ruling.

that the prosecutor's comment constituted impropriety. But this argument has no
legs either.

132 The presence of actual impropriety (as opposed to the mere appearance of
impropriety) is neither here nor there; again, the fundamental inquiry is whether
special circumstances exist that are so extreme that they make it unlikely that the
defendant will receive a fair trial. In the instant matter, though, the court's analysis
stopped at the impropriety of the prosecutor's comment. The court did not say
why that impropriety rendered it unlikely that West would receive a fair trial.
Under our precedents, the failure to bridge this analytical gap is fatal.

133 And, to the extent the court used the word "extreme" in its actual
application of the law, it did so only once and only to describe the outrageous
nature of the prosecutor's comment. Hence, that part of the court's analysis suffers
from the same shortcoming: The failure to explain why the circumstances of this
case were so extreme as to render it unlikely that West would receive a fair trial.

134 West nevertheless pushes back, contending that (1) the prosecutor's
comment "is evidence of clear animus and bias" and (2) the court must have
recognized as much. We are unpersuaded.

135 Our decision in Kent, 1 35, 476 P.3d at 769, is instructive on this point. In
Kent, where the elected district attorney prosecuted his judicial district's elected
coroner, we vacated a disqualification order that was grounded in concerns about

the prosecutor's animus and bias that far exceed in gravity those present here. In
granting the motion to disqualify there, the district court was reasonably worried
that the case was "significantly different than most" other cases and that there was
"something personal about the case" for the district attorney. Id. at | 4, 476 P.3d
at 764.

136 First, Kent had made a comment to the district attorney in the hallway of
the courthouse that the district attorney found threatening. Id. at 1 7, 476 P.3d at
764. Second, Kent had thereafter made threatening comments directed at the
district attorney during a contentious interaction with a legal administrative
assistant at the district attorney's office. Id. at 1 8, 476 P.3d at 764-65. Third, the
district attorney had responded by asking the Colorado Bureau of Investigation to
investigate Kent because he believed Kent was unstable and may have committed
a crime while visiting his office. Id. at 1 8, 476 P.3d at 765. Fourth, the district
attorney had then told Kent's counsel that if Kent didn't accept the plea bargain
offer on the table, "things would get really bad," and that people who had
threatened the district attorney in the past had ended up with felony convictions.
Id. at 1 9, 476 P.3d at 765. Fifth, at the district attorney's urging, the grand jury had
reconvened, and a second true bill had added a perjury charge against Kent. Id. at
T 10, 476 P.3d at 765. Sixth, without notifying Kent or his counsel, the district
attorney had lodged a complaint against Kent with the Department of Regulatory

Agencies ("DORA"), and he'd asked DORA to share any information it uncovered
in its investigation of Kent. Id. at [ 12, 476 P.3d at 765. And last, the district
attorney had recently moved to quash two subpoenas duces tecum served by Kent,
and in the court's view, those subpoenas were appropriate and sought information
that should have been disclosed pursuant to Crim. P. 16 without any prompting.
Id. at 1 13, 476 P.3d at 765.

137 We acknowledged that these circumstances may have "cast doubt" on the
district attorney's "motives and strategies." Id. at [ 5, 476 P.3d at 764 (quoting
Loper, 241 P.3d at 547). And we perceived that the district court was
understandably apprehensive about the same. Id. at 1 35, 476 P.3d at 769. Indeed,
the district court had pointed out in its disqualification order that the DORA
complaint reflected that the district attorney "was seeking to penalize Kent above
and beyond the criminal prosecution." Id. Along the same lines, the district court
had questioned the district attorney's ability to be fair in the case given his animus
and bias. Id.

138 We nevertheless concluded that the circumstances that led the court "to
harbor suspicions" about the district attorney's "motives and strategies" did not
warrant disqualification because they didn't "render it unlikely that the defendant
would receive a fair trial." Id .; see also Loper, 241 P.3d at 547 (same). And because

Kent had failed to meet his burden, we reversed the disqualification order. Kent,
TT 38, 40, 476 P.3d at 769-70.

139 The district court's speculation in this case about whether the prosecutor
would be able to be fair moving forward is of the same ilk as that involved in Kent.
Specifically, the court wondered whether the prosecutor would be able to fairly plea
bargain with West. It indicated that it needed to ensure that the prosecutor would
operate "in a reasonable and appropriate way, so that going forward it cannot be
said that the District Attorney's Office had . . . made such an . . . outrageous
presentation here that they couldn't back off, .. . couldn't negotiate, ... and that
they were overly zealous potentially in certain steps that were taken .... "

140 Even overlooking the fact that these remarks, too, are arguably related to
appearances and thus misaligned, they fall flat. Just as in Kent, the court's
speculation, while understandable, cannot suffice to warrant disqualification
under the special circumstances prong. That it's possible a prosecutor will treat a
defendant unfairly in plea negotiations in the future doesn't show that the
defendant will likely be deprived of a fair trial. Thus, like Kent, West failed to
make the requisite showing to prevail on his motion for disqualification.

141 We stress that the district court here made no finding of actual animus, bias,
or inability to be fair (including in plea negotiations). At most, it surmised that the
prosecutor might be unfair moving forward in this case.

142 Perhaps more compellingly, any concerns of animus, bias, or unfairness are
allayed by the judge's candid remarks regarding the prosecutor's character.
Although the judge was appropriately critical of the prosecutor's improper
comment, he spoke highly of the prosecutor's disposition:

I know [the prosecutor] as a very good man, and a very good person,
and someone I've always found in the past to be anchored firmly to
the notion of what's fair and what's not fair, someone who has offered
many excellent opportunities to people who deserve excellent
opportunities, and a man who also has firmly and .. . earnestly
prosecuted people who deserve to be prosecuted and in prison. So he
does both things, and he is someone who shows himself to be very
good at what he does.

T43
These tell-tale statements in no way reflect concern that the prosecutor
would harbor animus or act in a biased or unfair manner in future dealings with
West. In a similar vein, while the court believed that the prosecutor was "more
than upset, more than frustrated, [and] more than angry" when he made the
improper comment, it viewed the comment as "impulsive," which suggests to us
that the court did not consider the comment reflective of animus, bias, or an
inability or unwillingness to be fair.

144 In short, the circumstances in this case fell woefully short of being so
extreme as to render it unlikely that West would receive a fair trial. In ruling
otherwise, the district court abused its discretion by misapplying the law.

## 2. The Disqualification of the Prosecutor's Office

145 Having disqualified the prosecutor, the district court proceeded to
disqualify the entire district attorney's office in the Fourth Judicial District. In
doing so, it repeated its earlier misstep: It focused on appearances. The court
reasoned that it had to disqualify the prosecutor's office because the prosecutor
was "a higher-up supervisor" there, and his office would "be seen" in the same
light as the prosecutor. But because West similarly made no showing that he was
unlikely to receive a fair trial, he failed to satisfy his burden as to this aspect of his
motion for a special prosecutor. In finding otherwise, the district court misapplied
the law and thus abused its discretion.

## V. Conclusion

146 For the foregoing reasons, we reverse the district court's order disqualifying
the prosecutor and his entire office. We remand the case for further proceedings
consistent with this opinion.

JUSTICE GABRIEL concurred in part and dissented in part.

JUSTICE GABRIEL, concurring in part and dissenting in part.

147 I fully agree with the majority's conclusion that the district court erred in
disqualifying the Fourth Judicial District Attorney's Office from prosecuting
Rocky Wayne West. I cannot, however, agree with the majority's determination
that the district court abused its discretion in disqualifying the primary prosecutor
assigned to this case (the "prosecutor"). Unlike the majority, I believe that the
district court applied the appropriate legal standard and acted well within its
discretion in disqualifying the prosecutor, given his outrageous conduct in this
case. In my view, the prosecutor's comments reflected extreme animus toward
West and West's counsel and necessarily implicated West's right to receive a fair
trial from a prosecutor who is motivated to do justice and not just win, which is
an ethical obligation of every prosecutor. See Berger v. United States, 295 U.S. 78, 88
(1935) (stating that a prosecutor "is the representative not of an ordinary party to
a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done");
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005) ("The prosecutor's
actions during a criminal trial must always comport with the sovereign's goal that
justice be done in every case and not necessarily that the prosecution 'win."").

148 For these reasons, and because I believe that the majority's decision sends
the wrong message regarding the kind of conduct that is acceptable from any
attorney, much less a representative of the People of this state, I respectfully concur
in part and dissent in part.

## I. Factual Background

149 The majority adequately sets forth the pertinent facts, particularly regarding
the prosecutor's conduct. As the majority observes, after West's counsel raised the
issue of competency for a second time and the district court, over the People's
objection, ordered a second competency evaluation, the prosecutor met with the
victim's family in the hallway and stated that West's public defenders were
"trying to get [West] out so he can stab more people and hopefully the next people
he stabs are public defenders." Maj. op. 1 4.

150 Because my analysis of the question before us turns on the applicable
standard of review, I briefly highlight the portions of the district court's ruling that
are central to my analysis.

151 As the majority concedes in the very first paragraph of its opinion, id. at | 1,
the district court began its ruling by reciting the correct legal standard. Relying
on our recent opinion in People v. Chapman, 2025 CO 19, _ P.3d _ (per curiam),
the district court correctly observed that in order to disqualify a district attorney
based on "special circumstances" under section 20-1-107(2), C.R.S. (2025), the

moving party may not rely on the appearance of impropriety. Rather, the movant
must show that absent disqualification, the defendant will not receive a fair trial.
The district court further opined, again indisputably correctly, that the special
circumstances must be "extreme."

152 The district court then proceeded to explain why, on the facts of this case,
that standard was satisfied here. The court began by noting that the prosecutor's
outrageous comments "raise[d] the specter that someone would not be able to get
a fair trial if the prosecutor is acting beyond - appears to be acting beyond their
mandate to ... do justice .... " The court then explained that in this case, it is
possible that the District Attorney's Office might find itself in a position to
negotiate a disposition, rather than proceed to trial. The court noted that in that
circumstance, one would expect the District Attorney's Office to be able to "do
what's right and fair and appropriate for the community, for victims of crime, and
for anyone else who has an interest here." This, however, would require the Office
to be able to exercise reasonable discretion and to maintain a reasonable ability to
weigh the pros and cons of going to trial versus entering into a disposition.

153 As the court put it:

And so we need to make sure that the arm of the Prosecution is still
operating in a reasonable and appropriate way so that going forward
it cannot be said that the District Attorney's Office had . . . made such
an ... outrageous presentation here that they couldn't back off. They
couldn't change. They couldn't negotiate. They couldn't discuss, and
that they were overly zealous potentially in certain steps that were

taken, which may only seem overzealous in light of the extreme
statement that was made by [the prosecutor]. So that creates a
problem.

154
The problem, the court went on, "is an unusually outrageous, shocking
statement" that, in the court's view, changed the public's view as to whether the
District Attorney's Office was the proper entity to address this case. The court
thus concluded:

And [the prosecutor] got mad, and he said something that I believe
can't be taken back to the extent that we will be able to have a case
that is not always seen through the prism of, well, maybe if he gets
out, he'll kill a few public defenders. That will show you. And he
didn't say that, but that was the import of what was going on there.
And, to me, that's shocking. It's beyond an appearance of
impropriety. It is impropriety itself. And it is extreme in the manner
of the Chapman case, in my opinion.

155
Accordingly, the district court disqualified both the prosecutor and the
Fourth Judicial District Attorney's Office.

156
The People then filed the present interlocutory appeal.

## II. Analysis

157 I begin by setting out the applicable legal principles. I then apply those
principles to the facts before us.

### A. Applicable Legal Principles

158
District courts are afforded "broad discretion" to determine whether to
disqualify a prosecutor, and we review a district court's decision to do so for an
abuse of discretion. Chapman, 16. Accordingly, we will not overturn a district

court's decision to disqualify a prosecutor unless the court's decision was
manifestly arbitrary, unreasonable, unfair, or premised on a misapplication of the
law. Id.

159 Section 20-1-107(2) provides that a motion to disqualify a prosecutor shall
not be granted unless, as pertinent here, "the court finds that ... special
circumstances exist that would render it unlikely that the defendant would receive
a fair trial."

160 The party seeking to disqualify a prosecutor based on such "special
circumstances" thus "bears the burden of showing that, absent disqualification,
they will not receive a fair trial." Chapman, 1 8. Moreover, we have observed that
"the special circumstances must be 'extreme,' and a mere appearance of
impropriety is insufficient." People v. Arellano, 2020 CO 84, 1 25, 476 P.3d 364, 368
(quoting People v. Loper, 241 P.3d 543, 546 (Colo. 2010)).

161 Having thus set out the governing legal principles, I turn to the issue now
before us.

## B. Application

162 As the foregoing makes clear - and as the majority concedes, Maj. op. 11 1,
27 - the district court correctly recited the applicable legal standards. Specifically,
the court correctly observed that an appearance of impropriety is insufficient. It
also correctly observed that the party moving to disqualify a prosecutor must

show that absent disqualification, the movant would not receive a fair trial. And
it correctly observed that the special circumstances at issue must be extreme.

163 The court then proceeded to explain, in detail and with extensive factual
findings, all of which are amply supported by the record, why this standard was
satisfied here. In particular, the court noted the extreme, shocking, and outrageous
nature of the comments made by the prosecutor. The court further explained how,
in light of those comments, there are serious questions as to whether the
prosecutor would be able to exercise reasonable discretion going forward in this
case. The court then discussed how the prosecutor's ethical duty to do justice,
which is necessarily informed by public perception of the court system, has been
irreparably undermined due to the prosecutor's conduct. And the court ended by
finding that the conduct at issue was "beyond an appearance of impropriety. It
[was] impropriety itself. And it is extreme in the manner of the Chapman case . ... "
164 I cannot agree with my colleagues in the majority that such findings and
conclusions were manifestly arbitrary, unreasonable, or unfair. Nor can I agree
that the district court in any way misapplied the law. The court recited the
applicable legal principles almost verbatim from our opinion in Chapman, and the
court then explained why, absent the prosecutor's disqualification, West would
not receive a fair trial in this case.

165 I am not persuaded otherwise by the majority's view that although the
district court uttered the correct legal standard, its actions reflected that it applied
the wrong one. Maj. op. 11. For the reasons set forth above, the district court
uttered the correct standard and applied it to the undisputed facts before it.

166 To conclude otherwise, the majority goes to great lengths to reinterpret what
the district court actually said. For example, despite the court's express statement
that it was finding more than a mere appearance of impropriety, the majority
opines that the court had, in fact, granted the disqualification motion based on its
concerns regarding the appearance of impropriety. Id. at | 27. In support of this
determination, the majority quotes the portion of the district court's ruling in
which the court said that the prosecutor's conduct raised an appearance of
impropriety. Id. at 1 28. The majority even describes this statement as a "smoking
gun in the record establish[ing] that the court applied the wrong legal standard."
Id. In so concluding, however, the majority cherry picks a quote that, when taken
out of context, tends to support its opinion but then deems it of no import that the
district court repeatedly recognized that an appearance of impropriety is not
enough, ultimately finding, "It's beyond an appearance of impropriety. It is
impropriety itself. And it is extreme in the manner of the Chapman case .... "
(Emphasis added.) See Maj. op. 1 32.

167 The majority cannot have it both ways. It cannot say, on the one hand, that
the district court applied the wrong legal standard by applying an appearance of
impropriety test and then conclude, on the other hand, that the district court's
language showing, explicitly, that it did not do so does not matter. Nor can the
majority elide the district court's findings as to why the prosecutor's conduct
rendered it unlikely that West would receive a fair trial and then say that the court
did not provide that explanation. See id. The district court said what it said, and I
do not believe that it is appropriate for the majority to recharacterize what that
court said to reach the result that the majority would have reached were it deciding
this case in the first instance. As we all agree, our review here is not de novo.

168 In addition, I am concerned about the message that the majority opinion
conveys regarding what trial courts may demand of the attorneys who appear
before them.

169 The district court properly recognized that it could not condone the
"outrageous" and "shocking" comments made by the prosecutor in this case,
which, among other things, advocated violence against public defenders. Such
comments, even if said in anger or frustration, manifestly reflect the prosecutor's
inordinate focus on winning this case, rather than ensuring that justice is done.
And because, as the district court recognized, such comments cannot be
successfully retracted, if allowed to stand without consequence, they undermine

public confidence in our court system and, thus, establish that it is unlikely that
West will receive a fair trial. See Chapman, 1 8.

170 Although, to be sure, the majority denounces the prosecutor's comments,
Maj. op. 1 24, in reversing the district court's disqualification order, the majority
allows the prosecutor's conduct to stand without any consequence. To me, this
sends a mixed, and unfortunate, message.

## III. Conclusion

171 For these reasons, although I agree with the majority's determination that
the district court erred in disqualifying the Fourth Judicial District Attorney's
Office, I believe that the court acted well within its broad discretion in
disqualifying the prosecutor, based on the prosecutor's outrageous statements in
this case and the effect that his conduct would necessarily have on West's ability
to receive a fair trial, both from West's perspective and from that of the public,
whose confidence in our courts is indispensable to our system of justice.

172 Accordingly, I respectfully concur in part in and dissent in part from the
majority's opinion.

November 10, 20252025 CO 61, 25SA193, People v. West

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