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Denver judge who once prosecuted defendant was not biased, appeals court rules

By May 11, 2023 | updated 2 years ago

09xx22-dg-news-RalphLCarrColoradoJudicialCenterMug01.JPG
The Ralph L. Carr Colorado Judicial Center, on Tuesday, Sept. 13, 2022, in Denver, Colo. (Timothy Hurst/The Denver Gazette)
Timothy Hurst

A man serving 414 years in prison has not shown his lawyer was ineffective for failing to ask the trial judge — who previously prosecuted the defendant — to recuse herself, Colorado’s second-highest court ruled on Thursday.

Relatedly, a three-member panel for the Court of Appeals agreed the judge was not actually biased against Scott Shorts, despite her prior prosecutorial experience with him.

In 2012, a Denver jury found Shorts guilty of murdering 27-year-old Brandon Sigala by shooting him at a motel. Shorts claimed he was acting in self-defense. Shorts was also sentenced for multiple drug offenses and for being a “habitual criminal,” which is Colorado’s version of a “three strikes” law.

Around the time of sentencing, Shorts’ defense lawyer asked then-District Court Judge Sheila A. Rappaport to recuse herself. As a former deputy district attorney, she was the prosecutor in two of Shorts’ prior criminal cases — offenses that were used to label Shorts a habitual criminal with a correspondingly harsher sentence.

“I don’t remember them at all, obviously. That’s 20 years ago,” Rappaport responded. “I have no independent recollection or knowledge, certainly, no bias against Mr. Shorts because I don’t even remember the cases.”

Rappaport denied the request to recuse herself. After the Court of Appeals first affirmed Shorts’ convictions in 2015, Shorts filed a petition for relief, alleging, among other things, his lawyer was constitutionally ineffective for neglecting to disqualify Rappaport from the case sooner.

“No reasonable person would want a judge who not once but twice prosecuted them successfully,” wrote Shorts, representing himself, “and no Judge can true fully state they are not bias against someone they prosecuted.”

In 2020, then-District Court Judge Lisa Teesch-Maguire denied Shorts’ request for postconviction relief. She acknowledged a judge must recuse when they are “in any way interested” in a case or when their involvement creates “the appearance of impropriety.”

But even if Rappaport should have recused herself at the time, that concern was “separate from the issue of whether her failure to do so in 2012 can now underwrite Defendant’s ineffective assistance of counsel claim.”

Shorts appealed, prompting the government to cite a 2022 decision from the Colorado Supreme Court involving a disgraced trial judge who admitted she exhibited racial bias. The Supreme Court clarified that the outcome of a case will only be questioned if a party can show the judge was actually biased in the proceedings, not simply if they appear so.

The Court of Appeals panel embraced that directive in agreeing Shorts was not entitled to relief for Rappaport’s involvement in his case.

“Shorts did not allege in his postconviction motion that the trial judge was actually biased against him,” wrote Judge David H. Yun in the panel’s May 11 opinion. “Moreover, even had he done so, the record refutes an allegation of actual bias because the judge said that she did not remember him or the cases in which she had prosecuted him twenty years earlier.”

Earlier this year, the Supreme Court accepted an appeal on the subject of judicial recusal. In that pending case, the judge who presided over a defendant’s trial briefly represented him during her prior career as a public defender. The Court of Appeals ordered a new trial for the defendant, even while acknowledging there was no indication the judge was actually biased.

The case is People v. Shorts.

Michael Karlik

Reporter

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