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SALT LAKE CITY — A judge declined Friday to dismiss the criminal charges against former Utah Attorney General John Swallow over claims that prosecutors accessed privileged emails between him and a lawyer.
But 3rd District Judge Elizabeth Hruby-Mills also scolded the Salt Lake County District Attorney's Office for the way it handled files gleaned from Swallow's electronic devices.
Hruby-Mills found prosecutors did not purposefully intrude into communications between Swallow and his former attorney, Rod Snow.
"The potential access by prosecutors was not intentional and because prosecutors did not read or review the potentially privileged materials, there is no purposeful intrusion," she wrote.
The judge, however, said she does not condone the prosecutors' apparent lack of stringent practices to safeguard against access to potentially privileged communications it identified.
"The court admonishes the prosecution team to be cognizant of the deep responsibility that surrounds handling of potentially privileged communications such as that at issue here," Hruby-Mills wrote.
Swallow's attorney, Scott Williams, contended investigators reviewed, managed, characterized and bookmarked electronic communications between Swallow and his former attorneys. He didn't buy prosecutors' assertion that they neither read nor used in their case emails and text messages about Swallow's defense strategy.
Williams questioned whether Swallow should face trial on the promise of his accusers that they didn't see the contents.
Investigators purposefully circumvented a "taint team" process that had been used before to look at Swallow's privileged emails and gave them to prosecutors and to lawyers in the now dismissed criminal case against former Attorney General Mark Shurtleff, Williams argued.
Assistant district attorney Chou Chou Collins denied that prosecutors and investigators read the thousands of emails and text messages, and said there could be no prejudice against Swallow. She said they didn't know the seized computers contained attorney-client privileged communications and called it a "mistake" that they were mingled with other electronic evidence provided to the defense.
"Prosecutors immediately took steps to ameliorate the situation," Hruby-Mills wrote.
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 not scheduled, but Hruby-Mills wrote in her order that she hopes to set one at an Aug. 12 telephone conference with lawyers in the case.