SALT LAKE CITY — Former Attorney General John Swallow wants the Utah Supreme Court to decide whether prosecutors in his criminal case violated his rights when they accessed emails between him and his former lawyer.
New lawyers for Swallow filed a petition Thursday with the Utah Court of Appeals asking it to reverse a district court ruling and dismiss the charges against him. It also asked the petition be transferred to the state Supreme Court because it's a case of "first impression" for Utah courts.
"There are no Utah cases that address the consequences when the prosecution intrudes into the defendant's attorney-client relationship, and the cases from other jurisdictions have taken a number of different approaches to resolve this important question," attorney Linda M. Jones wrote.
She argued that the issue is likely to recur in criminal cases in this digital age.
Jones and Clemens A. Landau, who also signed on to the case, specialize in appellate law.
Jones contends a 3rd District judge incorrectly ruled that the prosecution's intrusion into about 12,000 electronic images containing privileged communications between Swallow and his one-time defense attorney Rod Snow did not violate his constitutional right to a lawyer.
Judge Elizabeth Hruby-Mills earlier this month 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 computers.
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.
Short of dismissing the case, the petition seeks a hearing where Swallow's attorneys could challenge prosecutors' assertions that they didn't read the emails and question their handling of the communications.
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 the petition.
"Despite these repeated warnings from Mr. Swallow's defense team, the state did nothing to ensure that a proper 'taint team' was assembled or that proper procedures were in place to protect Mr. Swallow's Sixth Amendment right to counsel," Jones wrote.
Swallow's lawyers discovered the privileged emails during a basic keyword search of the electronic evidence prosecutors turned over to them to prepare for trial.
Assistant district attorney Chou Chou Collins contended in a court hearing last month that there is no prejudice against Swallow because prosecutors and investigators did not read the emails or use them to formulate theories in charging him.
Collins said they didn't know the seized computers contained attorney-client privileged emails and that it was a "mistake" that they were mingled with other electronic images.
Swallow's attorneys asked the court to hear the petition before the case progresses further. A trial is scheduled to start next February.