Estimated read time: 2-3 minutes
This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.
SALT LAKE CITY — State prosecutors oppose a Utah appeals court intervening in the ongoing criminal case against former Attorney General John Swallow to decide if they delved into private emails between him and his former lawyer.
Utah assistant solicitor general John Nielsen argues in a new court filing that no one on the prosecution team, including investigators, law clerks and paralegals, read any of the communications.
"Because there was no actual intrusion into privileged material, defendant cannot show the trial court erroneously denied him relief — there was no harm to remedy," he wrote.
Swallow's lawyers filed a petition last month asking the Utah Court of Appeals to reverse a 3rd District judge's decision and dismiss the charges against him. They also asked that the petition be transferred to the Utah Supreme Court, contending prosecutors intruding into a defendant's attorney-client relationship is a new legal issue in Utah.
Judge Elizabeth Hruby-Mills ruled in August that prosecutors' accessing about 12,000 electronic images containing communications between Swallow and his one-time defense attorney Rod Snow did not violate his constitutional rights.
She denied Swallow's motion to dismiss the charges, finding that prosecutors did not purposefully intrude into or read the emails. But she scolded the Salt Lake County District Attorney's Office for the way it handled data gleaned from Swallow's electronic devices.
Swallow is charged with 11 felonies and two misdemeanors, including racketeering, bribery, evidence tampering, misuse of public money and falsifying government records. He has pleaded not guilty to the charges. A trial is scheduled to start next February.
Nielsen also argues in the new filing that allowing an appeal now would "short-circuit" the trial process and prolong the already more than 2-year-old case. He contends the case should go to trial before the Utah appeals court weighs in.
"If defendant is convicted, this court will benefit from having a more complete record on which to determine prejudice — if any. And if defendant is acquitted, there will be nothing to appeal," Nielsen wrote.
Investigators seized Swallow's computer and other electronic devices during a search of his Sandy home in June 2014.
Snow informed the district attorney's office in an email that the devices contained emails and other documents protected by attorney-client privilege. After receiving no response, Snow followed up with a letter 10 days later.
Snow also provided a 158-page log referencing thousands of communications, including trial strategy, between himself and Swallow, according to Swallow's attorneys.
Despite those warnings, Swallow's attorneys say, the state did nothing to ensure that a proper "taint team" was assembled or that proper procedures were in place to protect his right to a lawyer.
