By a 6-1 decision on Monday, the Colorado Supreme Court reversed a Gunnison County judge who took the extraordinary step of barring the entire district attorney’s office from prosecuting a murder case.

Chief Judge J. Steven Patrick in June granted the request of defendant Jorge Solis to remove the Seventh Judicial District Attorney’s Office from his case and appoint a special prosecutor, following Patrick’s concerns about how the office handled the transition of Solis’ former defense lawyer to his new job with the district attorney.

Although the DA’s office implemented a policy that would prevent attorney Darren Struble from participating in the prosecution of any cases involving his former clients, the trial judge lost faith in the policy when he learned Struble had represented the prosecution in two cases where, in his previous job, Struble worked for the defendant.

But a majority of the Supreme Court concluded that despite the lapses, Patrick had gone too far in disqualifying the entire DA’s office from handling the case based on an assumption Solis would not receive a fair trial.

“There is no evidence in the record that indicates Struble has violated Solis’s confidences or that the confidential information from Struble’s prior representation has not been and cannot continue to be adequately screened from the attorneys prosecuting Solis’s case,” wrote Justice Maria E. Berkenkotter in the Nov. 14 opinion.

Justice Richard L. Gabriel disagreed, believing Patrick was justified in ordering the DA’s office off of the case after seeing Struble violate the no-conflicts policy.

“Solis, who is facing first degree murder charges,” Gabriel wrote, “will be forced to sit through trial wondering what confidential information his former counsel might have conveyed to his new colleagues in the district attorney’s office, even if that information was conveyed inadvertently.”

Police arrested Solis in March 2021 and charged him with the killing of Ana Rascon. At the time, Struble was one of nine public defenders working in the Montrose regional office, and he represented Solis for the year following his arrest.

District Attorney Seth Ryan first approached Struble in January to ask if Struble would consider joining the DA’s office. The Seventh Judicial District covers six counties on the Western Slope, and Ryan was eyeing Struble for the Montrose location. At first, Struble declined, citing his desire to work in Gunnison. By March, Ryan had a vacancy in the Gunnison office and he once again asked Struble if he would come work for the prosecution. Struble agreed.

Ryan quickly issued a policy that would screen prosecutors out of cases in which they formerly represented the criminally accused. Under the policy, Struble would not be permitted to access the files of any former clients, to consult with any prosecutors or staff involved in his former clients’ cases, and he was “barred from any participation whatsoever in cases which involve the prosecution” of former clients.

The DA’s office also generated a list of 120 cases in which Struble could not participate, including Solis’. Finally, even though the Gunnison office where Solis was being prosecuted was relatively small, the DA cordoned off one room exclusively for discussion of Solis’ case.

Immediately after Struble’s hiring, his former co-workers in the public defender’s office moved to have an outside prosecutor handle Solis’ trial. The office pointed out that Struble had been talking with the DA’s office about a possible plea agreement for Solis around the same time he was pursuing employment with Ryan.

“The criminal justice system appears unreliable and lacking in integrity when an attorney who represented clients charged with serious crimes obtains employ with the very prosecutor’s office that is prosecuting his former clients,” wrote public defender Kori Keil Zapletal.

Patrick held a hearing in May, where he learned about the DA’s screening policy to avoid conflicts for Struble. Colorado law permits judges to remove entire district attorney’s offices from prosecuting a case when there are “special circumstances” that make it unlikely a defendant will receive a fair trial.

Patrick noted his concerns about the smallness of the Gunnison office, the effectiveness of the policy and an incident on May 3 in which Struble conveyed some information about the logistics of Solis’ prosecution to an employee of the public defender’s office. Ultimately, Patrick denied the defense’s request to disqualify the DA’s office, while cautioning that “no further lapses” should occur.

However, the public defender’s office quickly asked Patrick to reconsider. It learned of a new incident in which Struble, during his first week as a prosecutor, had appeared in two cases in which he had previously represented the defendant.

The district attorney’s office attempted to minimize Struble’s involvement in the cases, and blamed the public defender’s office for failing to provide a list of all of Struble’s former clients. But this time, Patrick sided against the DA, writing that “the likelihood of further motions reciting further violations of the Policy as to other former clients compels granting this Motion.”

He ordered Ryan to designate a special prosecutor, and Ryan’s office immediately appealed to the Supreme Court.

“There was evidence presented of a possible violation of the Policy,” conceded Chief Deputy District Attorney Jessica J Waggoner on appeal. But there “was no evidence presented as to how this effected (sic) Mr. Solis’ ability to have a fair trial.”

The Supreme Court reversed Patrick, finding it was unreasonable for him to rely on the possibility of further missteps on other cases involving Struble’s former clients. Everyone was well aware of Struble’s specific conflict for Solis’ case, Berkenkotter observed, and there was no indication Struble had shared confidential information about Solis from his prior job representing the defendant.

Patrick’s decision could mean the DA’s office would need to recuse itself from all prosecutions of Struble’s former clients, “without any consideration of the special circumstances,” Berkenkotter wrote.

Gabriel, in dissent, called Struble’s violations of the screening policy “extremely serious.” He believed Patrick acted reasonably by setting an expectation for the DA’s office to abide by the policy, then took corrective action when violations kept arising.

“If warning parties that further misconduct will not be tolerated and following through on that warning constitutes an abuse of discretion, then it is difficult for me to discern the limit to this court’s authority to second-guess discretionary decisions made by our trial courts,” Gabriel wrote.

The case is People v. Solis.