In Colorado criminal cases, the defense or the prosecution can make a motion to recuse a judge. This is a motion to remove the judge from the case, and have the judge replaced by another judge, because of the existing judge’s actual or perceived impartiality or conflict of interest.

The most common grounds for recusing a judge are that he or she

1. Is related to the defendant;
2. Is related to any attorney engaged in the case;
3. Has been “of counsel” in the case;
4. Is interested or prejudiced with respect to the case, the parties, or counsel; or
5. Where the offense charged is alleged to have been committed against the person or property of the judge or of some related person.

In this article, our Denver Colorado criminal defense lawyers will address:

• 1. What is a “motion to recuse a judge”?
• 2. How do I file a motion to change judges?
• 3. What are the potential grounds for recusal?
  • 3.1. Prejudiced Against the Accused
  • 3.2. Prejudiced for the Victim
  • 3.3. Prejudiced Against the Defense Lawyer
  • 3.4. Prejudiced Against the Case
  • 3.5. Judge is Related
• 4. When should I request a judicial recusal?

1. What is a “motion to recuse a judge”?

A “motion to recuse a judge” is a court motion to have a judge taken off a case because of a conflict of interest. Also known as a “motion for a change of judges,” or “judicial qualification,” there are a number of reasons why a party may want to have a judge removed from a case. As the adjudicator, a judge should be recused if he or she may not be impartial because of a personal or financial interest in the parties, counsel, or another aspect of the case.¹

Under the Due Process Clause of the Constitution, everyone is entitled to an impartial judiciary in a criminal case.²

Generally, a judge who has a reason to recuse himself or herself from a case is expected to do so on his or her own.³ Even if there does not appear to be a conflict, judges should generally recuse themselves if there is the appearance of a possible conflict. However, judges may fail to recuse themselves because they do not think there is a conflict or they want to remain on the case because of their personal interest.

When a judge in Colorado does not recuse himself or herself, it is up to the plaintiff or defendant to file a motion for judicial disqualification. The motion must be supported by affidavits showing the existence of grounds for disqualification.⁴

The judge may rule on the motion as to whether or not he or she should be recused, or he or she may nominate another to rule on the motion.⁵ If the motion for judicial disqualification is denied, the party may appeal the decision to a higher authority.

2. How do I file a motion to change judges?

To request a change of judges or judicial qualification, the defendant must file a motion. This generally is filed as part of the pre-trial hearings in Colorado.

A motion for change of judges for any reason must be verified and supported by:

• Affidavits of at least two credible persons;
• Not related to the defendant; and
• Stating facts showing the existence of grounds for disqualification.⁶

If the verified motion and supporting affidavits state facts showing grounds for disqualification, judges are required to enter an order disqualifying themselves.⁷

After a judge disqualifies himself or herself, he or she can require a hearing on the issues raised in the motion. A hearing on the motion to change judges shall be heard before another judge. The other judge will make a finding of fact regarding the issues raised in the motion and make those findings part of the trial court record.⁸

3. What are the potential grounds for recusal?

According to Colorado criminal proceedings, judges shall be disqualified from trying a case, under certain situations. This includes where the judge:

1. Is related to the defendant;
2. Is related to any attorney engaged in the case;
3. Has been “of counsel” in the case;
4. Is interested or prejudiced with respect to the case, the parties, or counsel; or
5. Where the offense charged is alleged to have been committed against the person or property of the judge or of some related person.⁹

Judges shall be disqualified from trying a case where they are interested or prejudiced in any way, with respect to the case, the parties, or counsel. This could mean any interest in the case could be a reason to change judges.

3.1. Prejudiced Against the Accused

Judges should be recused if they are prejudiced against the accused. This could include having a grudge against the specific accused person or by stereotyping the accused. Judges may have a prejudice against the accused because of:

• Past experience with the accused
• Experience with the accused’s family or relatives
• Listening to someone else’s opinion about the accused
• Judging the accused based on appearance
• Judging the accused based on his or her race, religion or cultural identity

The Colorado Code of Judicial Conduct requires judges to perform their duties without bias or prejudice. Judges shall refrain from using words or conduct that show bias or prejudice, or engage in harassment.¹⁰

Example: The accused is the son of a local real estate developer. Years ago, the judge got into a business deal with the developer than lost money. Although no criminal charges were ever filed, real estate fraud was always suspected. The judge still harbors a grudge against the developer. When the judge learns that the accused is the son of the real estate developer, the judge may have a prejudice against him because of his relation to the business loss.

If a judge’s name sounds familiar or if he or she makes a comment about your appearance, family, or other discriminatory remark, you should mention this to your criminal defense attorney. Your attorney can do some research and may find a basis for judicial disqualification.

3.2. Prejudiced in Favor Of the Accuser

Judges may also have a predetermined notion about the alleged victim in the crime. If the judge automatically assumes the victim is telling the truth without hearing the facts, this could prejudice the accused.¹¹ A judge may lean in favor of the so-called victim because:

• The judge knows the accuser
• The judge knows the accuser’s family
• The way the accuser dresses or acts
• The judge shares some other affiliation with the accuser

Example: The accused is charged with sexual assault in a Denver nightclub. The judge recognizes the accuser as someone who goes to the judge’s church. Before the judge hears any evidence or testimony, the judge takes the side of the accused because the judge does not think that someone from the same church would lie. As a result, the accused may not have the chance of a fair trial because of the judge’s prejudice.

3.3. Prejudiced Against the Defense Lawyer

A judge could also have a prejudice in favor of the prosecutor or against the defendant’s own lawyer. The defendant may be totally unaware of any bias from previous interactions.

Example: A defense attorney could have reported a judge for some ethical violation in a previous case. The ethical violation caused the judge to get reprimanded and the judge was embarrassed for getting called out.

In a later case, the same defense attorney comes before the judge in a totally different case. The judge was still upset that the defense attorney reported them and plans to punish the defense lawyer because of it. The defendant cannot get a fair trial where the judge is prejudiced against the attorney.

3.4. Prejudiced Against the Case

Judges could also have a generalized prejudice against the accused because of the type of crime they are charged with. This could be based on political or religious beliefs, or based on a prior experience with a similar case.

For example, a defendant was driving on a suspended license for a prior DUI and is charged with drunk driving and causing an accident. The judge has a grandchild who was injured in a drunk driving accident. The judge wants to make sure anyone charged with a drunk driving accident gets the maximum penalty, regardless of the situation. The judge’s prejudice against anyone arrested for drunk driving may make it impossible for the defendant to get a fair trial.

3.5. Judge is Related

A judge is considered “related” to the defendant or attorney if they are within three (3) degrees of relation by blood, adoption, or marriage.¹² Third-degree relation includes:

• Cousins
• Brother/Sister-in-Law
• Aunt/Uncle
• Niece/Nephew
• Great Grandchild
• Great Grandparent

Under the Colorado Code of Judicial Conduct, disqualification because of relation is much broader. This includes anyone related to the judge’s spouse or domestic partner. A judge should disqualify himself or herself if the judge knows:

• A party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
• A person who has more than a de minimis interest that could be substantially affected by the proceeding; or
• A person likely to be a material witness in the proceeding¹³

4. When should I request a judicial recusal?

According to the Colorado Rules of Criminal Procedure, after a case has been assigned to the court, a motion to have a substitution of judges should be filed within ten (10) days.¹⁴

However, in some cases, the defendant may not find out about the reason for disqualification until after 10 days. After 10 days, a motion for judicial disqualification can only be filed if good cause is shown to the court why it was not filed within the original 10 days.¹⁵

If you know of a reason why the judge should be recused, you should file the motion for judicial disqualification within 10 days after the case is assigned to a judge. If the motion is not filed within 10 days, you have to show a good reason for why the motion was not filed in time. This includes showing that you only learned about the basis for recusal later, or the judge hid their conflict of interest from the parties.

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