The Colorado Supreme Court, by a 5-1 vote, concluded on Monday that an El Paso County judge mistakenly removed a prosecutor from a murder case after he was overheard saying he hoped the defendant would stab public defenders if he were released from custody.
As the prosecution and the defense litigated Rocky Wayne West’s competency to proceed, prosecutor Brien Cecil made inflammatory remarks to the victim’s family about defense counsel. A trial judge determined Cecil’s conduct compromised West’s ability to receive a fair trial, and removed both Cecil and the entire district attorney’s office from the case.
But a majority of the Supreme Court believed the judge neglected to explain why Cecil’s remarks were “so extreme” that they compromised the fairness of the trial.
“At the outset, we want to be clear that we, as a court, vigorously denounce the prosecutor’s comment. There is absolutely no place for that type of rhetoric,” wrote Justice Carlos A. Samour Jr. in the Nov. 10 opinion. But beyond the “unacceptable and indefensible” statement, the “question for us is whether the comment justified disqualifying both the prosecutor and his entire office.”
Justice Richard L. Gabriel agreed there were insufficient grounds to disqualify the entire DA’s office from prosecuting West. However, he would have upheld the order to remove Cecil, specifically, as the prosecutor.
“I am concerned about the message that the majority opinion conveys,” Gabriel wrote. Despite the majority’s condemnation, it “allows the prosecutor’s conduct to stand without any consequence. To me, this sends a mixed, and unfortunate, message.”
West faces a charge of first-degree murder for the killing of Isaiah Curtis Plair at the Springs Rescue Mission last year. Over the next several months, defense lawyers repeatedly sought to evaluate West’s competency to move forward.
On May 6, West’s public defenders moved to bring in prosecutors from another jurisdiction to handle the case. They alleged troubling behavior from Cecil that affected West’s right to a fair trial.
The motion accused Cecil of repeatedly claiming the defense was engaging in “delay tactics” by seeking to evaluate West’s mental issues. He also allegedly shared confidential information from a competency evaluation with Plair’s family.
More problematically, after an April 25 hearing in which Plair’s family was in attendance, the defense waited to exit because of the “obvious tension” that day. Upon leaving, they overheard Cecil talking to the family. He allegedly said West’s lawyers “are trying to get him out so he can stab more people. Hopefully, the next people he stabs are public defenders.”
The Ralph L. Carr Colorado Judicial Center in downtown Denver houses the Colorado Supreme Court and Court of Appeals. (Photo by Michael Karlik)
Defense counsel emailed Cecil to say his comments were disturbing and asked him to walk back his statements to the family. Cecil responded that he was “very frustrated and angry,” but he promised to clarify to Plair’s family that he did not intend for any public defenders to be harmed. Hours later, he confirmed he told the family that he was “not condoning violence against anyone, and certainly not against members of your office.”
In response to the motion to disqualify, the DA’s office argued Cecil was justified in his concern that West might never face trial as a result of the competency proceedings.
“Mr. Cecil’s comment to the family was him venting about frustrations in the case by making an off-handed remark to blow off steam,” wrote Deputy District Attorney Grant Libby. The statements show “Mr. Cecil is human, not unfair.”
After a hearing, then-District Court Judge David A. Gilbert disqualified Cecil and the entire office from prosecuting West’s case. He acknowledged it was not enough that Cecil’s conduct created an “appearance of impropriety.” But he believed the prosecution needed to operate “in a reasonable and appropriate way,” so no one would question whether “they couldn’t negotiate” a resolution.
“It’s beyond an appearance of impropriety. It is impropriety itself,” said Gilbert. “Brien Cecil is a higher-up supervisor of the district attorney’s office, and the office will still be seen to reflect Brien Cecil if the case goes forward.”
The prosecution appealed Gilbert’s decision to the Supreme Court, arguing that Gilbert’s observations about the DA’s office’s ability to plea-bargain had no bearing on whether West would receive a fair trial. Moreover, it was unclear whether Cecil’s remarks would have any effect on the jury if a trial were to occur.
“In the unlikely event that there are insufficient impartial jurors in El Paso County, the county where West’s alleged crime occurred, jurors could be drawn from Teller County, which is within the Fourth Judicial District,” wrote Senior Deputy District Attorney Doyle Baker.
The Supreme Court’s majority concluded that Cecil’s comments did not rise to the level of extreme circumstances that have justified the appointment of special prosecutors in the past. Samour wrote that a high bar was necessary to avoid “putting a strain on the system and causing significant problems.”
FILE PHOTO: Colorado Supreme Court Justice Carlos A. Samour Jr. speaks to students at Pine Creek High School during a Courts in the Community event in Colorado Springs on Thursday, Nov. 17, 2022. (The Gazette, Parker Seibold)
He focused on Gilbert’s statement that Cecil’s actions raised “an appearance of impropriety,” which was insufficient to signal an unfair trial.
“This smoking gun in the record establishes that the court applied the wrong legal standard,” Samour wrote. “The court did not say why that impropriety rendered it unlikely that West would receive a fair trial.”
He added that attorney regulators could potentially address Cecil’s behavior if it violated the rules of professional conduct.
“Our rebuke of the prosecutor’s comment could not be stronger,” Samour wrote.
Gabriel, in dissent, noted Gilbert had not simply found Cecil’s comments appeared improper. He actually said they were improper.
“To conclude otherwise, the majority goes to great lengths to reinterpret what the district court actually said,” Gabriel wrote. “The district court said what it said, and I do not believe that it is appropriate for the majority to recharacterize what that court said.”
“The comments made by our prosecutor and examined in the opinion issued by the Supreme Court certainly fall short of the high standards of conduct we expect from every member of our staff. Appropriately, this prosecutor has been removed from the case moving forward,” said Kate Singh, a spokesperson for District Attorney Michael Allen.
The union representing public defenders did not have an immediate statement on the opinion.
Justice Melissa Hart did not participate in the decision. As is the Supreme Court’s practice, there was no explanation for her abstention.
The case is People v. West.
Editor’s note: This article has been updated with a statement from the DA’s office.