The revelation that a Saguache County judge presided over a man’s trial despite representing him briefly as a public defender before her appointment prompted the state’s second-highest court to overturn the conviction and order a new trial on Thursday.

By 2-1, a three-judge panel of the Court of Appeals believed Donald L. Garcia had not relinquished his right to challenge District Court Judge Amanda C. Hopkins’ handling of his case on appeal. Because there was scarce documentation of Hopkins’ single appearance on behalf of Garcia during her time as a defense lawyer, wrote Judge Ted C. Tow III, it appeared Garcia’s other attorneys were unaware of her involvement by the time she became the trial judge.

Nevertheless, state law is clear: Judges must recuse themselves if they served as “counsel in the case.”

“Judge Hopkins appeared as counsel for Garcia at the pretrial readiness conference and was therefore required to disqualify herself,” he wrote in the July 28 opinion. “Her minimal level of representation at the hearing does not change our conclusion.”

The appellate panel also determined Hopkins’ failure to recuse amounted to a structural error affecting the fairness of Garcia’s trial, requiring the reversal of his conviction. Judge John Daniel Dailey did not dispute the reasoning of the majority, but believed Garcia had actually waived his right to challenge Hopkins’ involvement for the first time on appeal.

“In my view, it defies logic to suggest that the deputy state public defenders representing Garcia at trial would not have known” about Hopkins’ prior representation of Garcia, Dailey argued in dissent.

Garcia stood trial in 2019 for aggravated motor vehicle theft after he took someone else’s truck for a drive and caused more than $11,000 in damage. Garcia argued at trial he had standing permission from the owner to borrow the vehicle.

Hopkins, the judge who presided over the trial, previously managed the public defender’s office in Alamosa. At an April 2018 hearing in Garcia’s case, Hopkins appeared in court on behalf of Garcia. According to the transcript, the proceeding was brief — as Garcia failed to appear — and the judge only modified Garcia’s bond before adjourning. The court’s order summarizing the hearing did not indicate Hopkins had appeared.

Three months later, the governor appointed Hopkins as a district judge. She then took over Garcia’s case.

On appeal, Garcia cited the requirement in state law that judges recuse themselves from a case if they served as counsel and also the code of judicial conduct’s directive to recuse whenever a judge’s impartiality could be called into question.

“A judge cannot be fair when she has advocated for one side in a matter. Serving as Mr. Garcia’s lawyer meant Judge Hopkins had a former attorney-client relationship with him that prevented her from dealing fairly with either party,” Deputy State Public Defender Jacob B. McMahon argued.

During oral arguments, the appellate judges attempted to understand why Hopkins’ conflict in the case eluded the participants prior to the appeal.

“On a trial lawyer’s file, isn’t there something that says who handled the case in the past?” asked Tow.

“I would hope so,” responded McMahon. “And that’s exactly why Judge Hopkins should have known she was Mr. Garcia’s lawyer.”

On the other hand, continued Tow, “If she had no memory of it and had no way of having a memory of it, how could she have disclosed?”

“The judge should know who her former clients are,” McMahon contended.

The government downplayed the magnitude of Hopkins’ conflict, arguing there was no indication she even met Garcia other than momentarily representing him in a courtroom. The Colorado Attorney General’s Office referenced a recent decision of the state Supreme Court, which held that only a judge’s actual bias, rather than an appearance of bias, can be grounds for questioning the result of court proceedings.

Allowing a defendant to wait to challenge a judge who used to represent them, said Assistant Solicitor General Brittany Limes Zehner, could provide an incentive for defendants to keep quiet about the judge’s conflict at trial to see how the jury decides.

“If the verdict doesn’t end up going their way, they have a surefire ace-in-the-hole argument on appeal to get a new trial,” she warned.

Tow, in the majority opinion, stressed he was not faulting Hopkins for failing to recuse, given the apparent lack of recordkeeping for her April 2018 appearance. But he drew a parallel between Hopkins’ failure to recuse and the Supreme Court’s recent finding that structural error occurs when a person sits on a jury despite the law disqualifying them.

“We see no logical distinction to be made between a statutorily disqualified juror and a statutorily disqualified judge,” Tow wrote for himself and Judge Michael H. Berger.

Dailey disagreed with the majority’s decision to overturn Garcia’s conviction. Garcia’s regular defense attorney, for whom Hopkins briefly substituted, should have raised the conflict after her colleague’s appointment to the district court, Dailey believed.

“To suggest that she did not know who appeared on her behalf assumes a level of disregard for her cases that I am simply not willing to believe a competent defense attorney would display,” he wrote.

The appellate panel ordered a new trial in front of a different judge. The panel rejected Garcia’s remaining claim on appeal that the evidence was not sufficient to convict him of the aggravated theft felony.

The case is People v. Garcia.