Although the Colorado Supreme Court acknowledged on Monday that a Saguache County judge was disqualified by law from presiding over a criminal case because she briefly represented the defendant before her appointment to the bench, a majority concluded there was nothing it could do because the defense knew about the conflict and stayed silent.

By 4-3, the Supreme Court decided it was highly improbable the public defenders assigned to represent Donald L. Garcia were clueless that now-Chief Judge Amanda C. Hopkins appeared at a single hearing on behalf of Garcia months before she inherited the case as a new judge.

“First, in our view, it’s reasonable to infer that an attorney usually knows who appears on their behalf when they cannot attend a hearing,” wrote Justice Maria E. Berkenkotter in the June 10 opinion.

The majority — consisting entirely of the four ex-trial judges on the Supreme Court — did not blame Hopkins herself for failing to notice and raise her conflict. Berkenkotter also did not assign fault to Garcia, who was not present when Hopkins appeared on his behalf, nor to the prosecutors who neglected to point out the conflict, too.

In response, Justice Richard L. Gabriel slammed the majority for singling out Garcia’s public defenders and for concluding their allegedly intentional decision not to speak up barred Garcia’s claim on appeal.

“No evidence in the record, however, supports any of these inferences and assumptions,” he wrote in dissent. “In the circumstances presented, I am not surprised that neither Judge Hopkins, any of the attorneys involved in this case, nor Garcia knew about or recalled Judge Hopkins’s one brief appearance.”

Before taking the bench in mid-2018, Hopkins managed the Alamosa public defender’s office, which represented Garcia in his aggravated motor vehicle theft case. Although she was not Garcia’s assigned attorney, Hopkins substituted on one occasion in April 2018. The proceeding was short, as Garcia failed to appear, and resulted in the reinstatement of Garcia’s cash bond and a rescheduling of the trial.

Following Garcia’s conviction, his appellate lawyer noticed Hopkins, who became Garcia’s trial judge upon her appointment, also briefly represented him. Garcia then challenged Hopkins’ handling of his case, claiming it ran afoul of the requirement in Colorado law that judges disqualify themselves from any criminal case in which they served as counsel.

By 2-1, a panel of the Court of Appeals agreed Hopkins’ non-recusal rendered her a “biased judge,” affecting the fundamental fairness of the trial. Although Garcia’s trial lawyers did not point out Hopkins’ need to recuse, wrote Judge Ted C. Tow III for the majority, “it is not clear from the record that Garcia’s attorneys recalled that Judge Hopkins had previously appeared in the case.”

Then-Judge John Daniel Dailey dissented, implying Garcia’s regular public defender might strategically want to keep Hopkins on the case as a sympathetic judge, rather than call attention to her former colleague’s need to recuse.

“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,” Dailey wrote.

Berknkotter, writing for the Supreme Court’s majority, agreed Hopkins was disqualified from handling Garcia’s case because, as Garcia’s attorney, Colorado law deemed her biased. However, the majority did not answer whether Hopkins’ participation was a structural error — one requiring automatic reversal because it altered the fundamental fairness of the trial. 

Instead, Berkenkotter concluded Garcia’s assigned public defenders, Kate Mattern and John Hoag, knew about Hopkins’ conflict and relinquished Garcia’s right to challenge it on appeal by staying silent.

“We further acknowledge that there’s no direct evidence in the record regarding what Garcia’s attorneys knew,” she conceded. But it “defies logic” to think Mattern and Hoag would not have communicated with Hopkins about the brief appearance or reviewed notes from that day. The fact that the public defender’s office handled fewer than five dozen criminal filings in the district court that year also suggested Garcia’s lawyers were aware of minute developments in his case.

“The rule that Garcia argues for, one that would require automatic reversal even where a defendant knows of the grounds for a judge’s statutory disqualification but fails to raise the issue, could create a perverse incentive,” Berkenkotter added. “A defendant who believes a statutorily disqualified judge might be favorable to their case may be tempted to keep their objection to themself, hoping for a favorable outcome. Then, if convicted, the defendant could assert the disqualification objection on appeal, arguing that it entitles them to automatic reversal of their conviction and a new trial.”

Gabriel countered in his dissent that Hopkins’ designation by law as a biased judge amounted to a structural error that should require automatic reversal of Garcia’s convictions. Unlike the majority, he felt the suggestion that Garcia’s lawyers knew about Hopkins’ conflict and strategically kept it to themselves “unnecessarily impugns the integrity of defense counsel.”

“The more logical explanation for what occurred here,” Gabriel added, “is that, acting in good faith, none of the exceptionally busy public servants involved in this case recalled Judge Hopkins’s one-time appearance at a brief, nonsubstantive conference.”

Justice Monica M. Márquez also authored a dissenting opinion for herself and Justice Melissa Hart. Márquez agreed with Gabriel’s conclusions, but hesitated to call for automatic reversal. Instead, she would have analyzed whether Hopkins’ erroneous participation was obvious in addition to substantially affecting the fairness of Garcia’s trial.

Because Márquez believed both conditions are satisfied when a judge who is biased by law handles a criminal case, she, too, would have ordered a new trial.

The state public defender’s office did not immediately respond to questions about the majority’s characterization of Mattern and Hoag’s conduct. The court executive for the 12th Judicial District also did not have an immediate comment from Hopkins.

The case is People v. Garcia.