Supreme Court Says District Attorney Can Handle Coroner’s Case, Despite History of Clashes
Elected officials “mix like oil and water,” but that’s not enough to disqualify DA’s office, says majority

by Jessica Folker
Colorado Supreme Court building

The Colorado Supreme Court on Dec. 7 ruled in a 4-3 decision that a district attorney’s office should not have been disqualified from handling a case against a county coroner, despite a history of conflict between the two elected officials.

The majority found the trial court abused its discretion by disqualifying 5th Judicial District Attorney Bruce Brown and his office from its case against Lake County Coroner Shannon Kent, who was charged with second-degree official misconduct and perjury. According to the majority, Kent also failed to show he would be unlikely to receive a fair trial if Brown’s office continued on the case.

But the dissenting justices raised concerns that the majority’s reasoning could push the bar for disqualification too high and said the high court should show deference to the trial court.

OIL AND WATER

Brown and Kent “mix like oil and water,” according to the majority opinion written by Justice Carlos Samour.

In 2019, Brown’s office investigated Kent after the Lake County Sheriff complained Kent had sent his wife to respond to a coroner call and she arrived at the scene without a body bag.

A grand jury indicted Kent on a charge of second-degree official misconduct, alleging he had allowed his wife to act in an official capacity without being formally deputized. On the day he was indicted, Kent confronted Brown in the courthouse and made comments  that Brown reportedly found threatening.

Kent later made threatening statements to a legal administrative assistant at the district attorney’s office in Leadville, according to court documents, apparently because he was angered by Brown’s suggestion that he should accept a plea bargain and resign to avoid the addition of a felony count.

Brown then asked the Colorado Bureau of Investigation to investigate the incident at the Leadville DA’s office because he believed Kent may have committed a crime, but no charges were filed.

Brown told Kent’s attorney he should plead guilty or else “things would get really bad,” according to court documents. The grand jury reconvened and indicted Kent on a felony perjury charge based on the fact that during his original grand jury proceedings, Kent testified that his wife had not acted in an official capacity before 2017, but a death certificate from 2016 bore his wife’s signature.

Brown filed a Department of Regulatory Affairs complaint against Kent and asked DORA to share any information it may uncover during its investigation.

Kent subpoenaed the Lake County Sherriff and the special prosecutor assigned to investigate Kent’s exchange with the Leadville DA’s office assistant. Brown tried to quash the subpoenas, but the district court found Brown’s office had violated Crim. P. 16 because it should have disclosed the information to Kent without prompting.

Kent then filed a motion to disqualify Brown’s office from the case, and the district court agreed and appointed a special prosecutor. After the lower court refused to reconsider its ruling, the state filed an interlocutory appeal to the Supreme Court.

NAILING JELLO TO THE WALL

In its opinion, the majority noted that a district attorney may only be disqualified in three situations: the district attorney requests disqualification; the district attorney is shown to have a personal or financial interest in the case; or the court finds “special circumstances” that would make it unlikely the defendant would receive a fair trial.

Focusing on the “special circumstances” prong, the majority found Kent failed to meet his burden in proving “extreme circumstances” that would make it unlikely he would receive a fair trial. The majority also said the lower court abused its discretion by failing to explain why the circumstances justified disqualification when considered together, even though individually they did not meet the “special” standard.

The majority declined to spell out what exactly qualifies as “special circumstances,” adding that to do so would be “as foolish as attempting to nail jello to the wall,” but pointed to case law in which the court held that the “appearance of impropriety” and circumstances that left “a bad smell” were not enough to disqualify a district attorney’s office.

The majority noted that only one case from the past two decades, People v. Chavez, had managed to meet the “special circumstances” standard for disqualification. In that 2006 case, the district attorney had represented the defendant in a related matter and was privy to confidential communications about the pending case.

“[D]isqualification of a district attorney is ‘a drastic remedy’ that should be granted only in ‘narrow circumstances,’” wrote the majority. “Allowing disqualification under a less demanding standard risks both putting a strain on the system and causing significant problems.”

“We are gratified that the Court upheld the important principle that the elected prosecutor should represent their District whenever justice can be served by maintaining this responsibility in local hands,” Brown said in an e-mail.

“Local prosecutors know the community and understand the local crime enforcement needs. Additionally, the locally tied prosecutor is familiar with witnesses and parties to cases, allowing Coloradans the best equipped representative in criminal cases.”

However, a dissent penned by Justice William Hood and joined by Justices Richard Gabriel and Melissa Hart said the trial court should be shown deference and raised concerns that the majority was creating too high of a threshold for disqualification.

“Although the trial court seemed to perceive a significant risk that Brown has a personal vendetta against Kent that risks corrupting his trial, the majority second-guesses that conclusion and finds this situation to be insufficiently extreme,” Hood wrote.

The majority’s reasoning “may lead future courts to erroneously reject” disqualification motions that fall short of the “especially egregious facts of Chavez,” said the dissent.

“We must carefully guard against allowing the first case that cleared the bar to ossify into the standard against which we judge all future claims, especially when that first successful claim cleared the bar by such a wide margin,” Hood wrote.

OUT OF BUSINESS, STILL IN OFFICE

The court’s ruling came less than a week after DORA permanently banned Kent from operating funeral home and cremation businesses in Colorado. In addition to his coroner duties, Kent owned funeral-related businesses in Leadville, Gypsum, Silverthorne, Buena Vista and Idaho Springs.

According to media reports, Kent lost licenses for two of the businesses in October after law enforcement paid a visit to his Leadville funeral home and found used body bags, unrefrigerated bodies and body fluids.

In February, two of Kent’s clients filed a complaint with the Lake County Sheriff’s Office because they suspected his funeral home had mishandled the ashes of their stillborn infant. Chemical analysis of the baby’s ashes later revealed they contained the remains of at least one other person as well as bits of surgical material, jewelry and metal. In July, the couple sued Kent Funeral Homes for negligence and other claims, and the civil lawsuit is pending in Eagle County district court.

While Kent has been banned from private funerary business, he remains the Lake County coroner, a post he has held since 2012.

This article appears in the Dec. 14 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue. http://www.otc-certified-store.com/respiratory-tract-medicine-usa.html www.zp-pdl.com