Former Attorney General John Swallow wants criminal charges against him thrown out

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SALT LAKE CITY — Ex-Attorney General John Swallow wants the criminal charges against him thrown out because he says investigators wrongfully seized protected emails between him and his former lawyer.

The thousands of emails retrieved from Swallow's computers and electronic devices include communications with his onetime lawyer, Rod Snow, about detailed defense strategies and legal advice, according to a motion filed in 3rd District Court.

"The scope of the breach in this case is frankly staggering," Scott Williams, Swallow's current attorney, said Tuesday after a court hearing on another issue in the prolonged case.

Williams said the attorney-client privilege is sacrosanct, and violations usually lead cases to be dismissed.

But Salt Lake County District Attorney Sim Gill said prosecutors have not read the emails, and that correspondence did not figure into the case against Swallow as his lawyer claims.

"We have not reviewed them. We have not seen them," he said, adding that the charges were filed before his office received terabytes of information from federal and state investigations into Swallow.

If prosecutors had nefarious intent, Gill said, why would they make those emails available to the defense?

"If we were smart enough to and clever enough to plan this out, then the last thing we would want to do is share with the world," he said.

Judge Elizabeth Hruby-Mills scheduled a July 13 hearing on the issue.

Swallow has said little publicly since state prosecutors charged him with 11 felonies and two misdemeanors including racketeering, bribery, evidence tampering, misuse of public money and falsifying government records two years ago. He pleaded not guilty.

On Tuesday, he told reporters outside the courtroom that he's "absolutely" confident he will be vindicated but wouldn't say more.

"There's a lot I'd like to say, but I've been asked not to say it," Swallow said. "I think Scott is an excellent attorney. Other than that, I'll get in trouble if I say anything else. But I'd love to answer your questions, but I can't right now."

In court documents, Williams says Snow informed investigators about the emails when they searched Swallow's home and confiscated his computers and other electronic devices in June 2014.

"Mr. Snow suggested means by which such a circumstance could and should be undertaken to protect Mr. Swallow’s constitutional rights. However, the notice was ignored," Williams wrote.

Gill said prosecutors don't want the information. He said his office asked the FBI to segregate that data, and if it had been commingled with other electronic material, it would be separated out again.

"When you're talking about terabytes of data, you may run across stuff," he said. "It happens in complex cases."


Williams contends the judge "should have no problem" finding that Swallow's constitutional rights were violated. The intrusion is too voluminous, substantial and pervasive to imagine how the state could ever prove that it wouldn't prejudice the case, he said.

Gill said the case has been complicated from day one.

"We've tried to do our job honorably, professionally and ethically. No one is trying to slip one past the goalie here," he said.

In court Tuesday, Williams asked Hruby-Mills to order the state to seek and provide the same evidence Davis County Attorney Troy Rawlings is pursuing in the parallel case against former Attorney General Mark Shurtleff.

Williams contends prosecutors aren't making an effort get that information, including records in the Federal Trade Commission civil case against St. George businessman Jeremy Johnson. A key witness in the Swallow and Shurtleff cases, Johnson was convicted in criminal court last month of making false statements to a bank and awaits sentencing.

Deputy district attorney Fred Burmester told the judge that prosecutors have and will continue to provide evidence to the defense. He said Williams just needs to identify what he's after and tell the district attorney's office.

Hruby-Mills said she would issue a written ruling.

Swallow has also asked for preliminary hearing in which a judge decides if there's enough evidence to hold a trial. He waived that right before Williams became his lawyer.

Williams said it would force the prosecution to show what evidence it has and possibly narrow the charges against Swallow. Hruby-Mills put off argument on that matter for now.


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