District attorney requests appeal dismissal of Shaun Cowley case


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SALT LAKE CITY — The Salt Lake County District Attorney's Office has asked the Utah Attorney General's Office to take a look at the Shaun Cowley manslaughter case and decide whether to appeal the judge's decision that dismissed the case at the preliminary hearing phase.

"The issue is really, was the right standard applied? And that's a normal request we would make," District Attorney Sim Gill said. "We're concerned whether the right standard was applied or not. But this is a normal process that we would normally go through."

On Oct. 9, 3rd District Judge L.A. Dever dismissed the criminal case against the former West Valley police detective who fatally shot Danielle Willard in 2012 during an undercover drug investigation.

Such a decision to dismiss at a criminal case's preliminary hearing phase is extremely rare. During a preliminary hearing, prosecutors only have to meet a low "probable cause" standard to convince a judge that there is enough evidence to show that a crime occurred and that it was likely committed by the defendant. In most cases, that standard is met and a case is bound over for trial where the state has to prove its case to a jury using a higher standard of "beyond a reasonable doubt."

Gill says he believes his office met that standard.

Dever, however, ruled that the state's own expert witnesses testified that Cowley's life was in danger and the use of deadly force was justified. Gill had earlier ruled that the actions of both Cowley and his former partner West Valley police detective Kevin Salmon — who fired four rounds at Willard — were not legally justified.

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Because county attorney offices in Utah do not have appellate divisions, all appeals are handled by the attorney general's office.

But while getting a phone call from a prosecutor to review a case for possible appeal isn't uncommon, Laura Dupaix, director of the Criminal Appeals Division for the attorney general's office, said actually agreeing to pursue an appeal is.

Even more rare is the division appealing a judge's decision not to bind a case over for trial. Since 2006, Dupaix said her office has only agreed to do it three times.

"We don't take very many appeals," she said. "The primary thing we look at in any appeal is, 'Will we win it?' Because if we think we won't win it, there's usually not much of a point in doing it."

But even if Dupaix believes a judge made a wrong decision, that alone isn't enough for her to take up an appeals request. She said her office will also consider the question, "If he got it wrong, how wrong?" In addition, her office will look at what legal precedent an appellate decision might set.

"Very often I have prosecutors call me and say, 'Look, the judge made this ruling and we think it's wrong.' And I'll look at it and say, 'You know what? You're right. I think the judge is wrong, too. But we're not going to take this appeal,'" she said.

If the attorney general's office wants to bring an issue to the forefront to establish precedent for all future cases, sometimes they might wait for a better case to spotlight, she said.

"Our role is different from the prosecution's role," she said. "At this stage what we worry about … (the appellate cases) become precedent for every other court in the state, so they're going to govern every future case.


Very often I have prosecutors call me and say, 'Look, the judge made this ruling and we think it's wrong.' And I'll look at it and say, 'You know what? You're right. I think the judge is wrong, too. But we're not going to take this appeal.'

–Laura Dupaix


"What kind of decision will we get and what will that written decision look like? Because it needs to be something we can live with. Because if we're going to end up with good law, well great. But if looks like there's a good chance we're going to end up with bad law, at least from the prosecution standpoint, then we're going to wait," Dupaix said.

The state has until Nov. 10 to decide whether to appeal. Dupaix said she is planning on having at least three of the division's senior members review the case with her, "so it's not just me saying it's my gut feeling."

The first step for her team will be to get copies of all the transcripts from the preliminary hearing and review them.

Although she realizes the Cowley case is high-profile, she said her office will treat it just like any other appeal request.

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Lindsay Jarvis, Cowley's attorney, said she is not surprised with the district attorney's decision to pursue a possible appeal and chalked it up to politics.

"It is a last-minute effort to gain additional political media attention. Fortunately, the attorney general's office, an agency with no ulterior motives in this case, will conduct an independent review absent political pressure. We have confidence in the A.G.'s criminal appellate team, and thus we foresee them denying an actual appeal, as Judge Dever's decision was solid and based on the evidence, or lack thereof, at the preliminary hearing."

The Fraternal Order of Police, which has been at odds with the district attorney's office since the shooting, had even stronger words for Gill on Friday. The police union released a statement saying it was "once again embarrassed" by the decision to pursue an appeal.

"His bizarre and increasingly desperate behavior regarding an officer-involved shooting is plainly political," the statement said. "His disdain for the legal findings of Judge L.A. Dever continues to erode the public trust."

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