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Firing of Davis County prosecutor upheld by Utah appeals court

By Dennis Romboy | Posted - Apr 3rd, 2014 @ 6:42pm

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SALT LAKE CITY — The Utah Court of Appeals has upheld the firing of an assistant Davis County attorney for misconduct in connection with a 2010 aggravated robbery trial.

The county fired Tyler James Larsen for using a tainted witness in an attempt to convict Joseph Apadaca and failing to correct the record when he had a chance to do so, court records state.

While preparing for trial, Larsen visited the site of the robbery, a Clearfield clothing store, to meet with two eyewitnesses. He later acknowledged that after "having a hard time communicating” with one of them, he showed her a black-and-white photo of Apadaca. But a Clearfield police officer who was with him said Larsen showed a color photo to both witnesses, according to the appeals court.

At the trial, Larsen called one of the eyewitnesses as his first witness. On cross-examination, the defense asked the witness if he had "been shown a photo or seen … a photo ID" of the suspect. The eyewitness said no. Larsen made no attempt to correct the record, according to the appeals court.

When cross-examining the second eyewitness, the defense asked her whether "she had ever been shown a lineup or photo array," and she answered yes. As a result, the defense moved for a mistrial, and the court granted the motion.

The U.S. and Utah supreme courts have ruled that police showing witnesses one photograph of a suspect can taint their opinions and lead to misidentification issues. A Utah Court of Appeals case that is also cited in the decision found that "a prosecutor's failure to immediately correct testimony he knows to be false constitutes misconduct."

After learning about the conduct, Davis County Attorney Troy Rawlings signed a letter placing Larsen on administrative leave. Rawlings fired Larsen after holding an informal hearing about the case and other past errors.

Larsen appealed to the Davis County Career Service Council, which upheld the firing. He then appealed to the district court, which set aside the decision, saying the county failed to give Larsen adequate notice of all of the reasons for his termination.

The county then took the case the Utah appeals court, which reversed the district court ruling and reinstated the career service council decision. The appeals court found that the Apadaca trial was the focus of Larsen’s pretermination hearing, his termination letter, and his hearing before the council.

"The council held an appropriate hearing and concluded, in brief but unmistakable findings, that the charged misconduct alone warranted termination," the court wrote.

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