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Prosecutors in Salt Lake County have asked the state attorney general's office to appeal a judge's decision to throw out the manslaughter case against former West Valley City Detective Shaun Cowley.
"We've looked at it, and there was a concern that maybe the legal standard … was not appropriately applied," Salt Lake County District Attorney Sim Gill said on Thursday.
After a three-day preliminary hearing earlier this month, 3rd District Judge L.A. Dever ruled that prosecutors had not provided enough evidence that Cowley was guilty of a crime when he shot 21-year-old Danielle Willard to death as she backed her car out of a parking stall in 2012.
Cowley and his partner approached Willard in her car during an undercover drug investigation; Cowley said when Willard backed out of the parking space, he thought she was trying to run him over.
In his decision, Dever wrote that prosecutors presented no evidence that Cowley's "conduct was not legally justifiable," pointing to a consulting detective's testimony that Cowley could have thought Willard was trying to kill him.
But Gill said Thursday that the standard for a judge to advance a case to trial is "quite low in terms of any reasonable evidence" and requires the judge to review the case "in the light most favorable" to prosecutors, who must only show probable cause that a defendant committed a crime.
"That's a standard we believe was met," Gill said.
Gill said he and his senior prosecutors also asked the state's appellate lawyers to review whether Dever's ruling took testimony "out of context, based on what was presented."
Dever's ruling did not address other testimony by investigators, who said Cowley's account — that he fired a round before being struck by Willard's car — did not match bullet trajectories.
Willard's mother, Melissa Kennedy, said Thursday she was "so glad" to hear Gill had sought an appeal.
"I didn't know he would actually try and do that," Kennedy said. "But I don't want to be too excited. I feel like I keep getting let down because these cops keep getting off. I'm tired, but I'm not going to stop the fight, because I know that he murdered her. I know that he did."
Cowley's attorney, Lindsay Jarvis, said she anticipates there will be no appeal.
"I'm confident the attorney general's office will reach the same conclusion [as Dever]: that there was no probable cause because the evidence that was presented at the hearing clearly showed that Det. Cowley was justified in his actions. Therefore, probable cause in an unlawful death doesn't exist.
"Judge Dever's conclusions were really solid. They're going to have a hard time getting around it."
The decision to appeal a judge's order to throw out a case ultimately rests with the attorney general's office. But Laura Dupaix, director of criminal appeals for the office, said her division does not get many requests from district attorneys to appeal cases thrown out after preliminary hearings, for one major reason: "The standard is so low that most cases do get bound over [for trial]."
And the division seldom grants prosecutors' requests to appeal a judge's refusal to bind over criminal defendants. Only three such cases have been appealed since 2006, Dupaix said. Two were reversed by the Utah Supreme Court.
The third, which is pending, involves charges against a law enforcement officer in a case that also was dismissed by Judge Dever.
Kamas Police Chief Adam Jones was charged in 2012 with third-degree felony witness tampering and misdemeanor counts of official misconduct.
Investigators say Jones was called to his brother's house just before the end of his shift because of a household fight.
The brother allegedly had a history of domestic violence and was drunk, so Jones put him to bed and told him and his girlfriend to stay away from each other.
Shortly thereafter, sheriff's deputies were called to the house to find the girlfriend and her son bruised and crying. Jones' brother was arrested.
Prosecutors argued that Jones' failure to take action amounted to misconduct under the state Domestic Violence Act, and that he tampered with a witness by later telling the brother he was passed out at the time of the assault. Prosecutors say Jones told his brother that so Jones could clear himself of failing to act on a domestic violence allegation.
Dever dismissed the case, finding that Jones went to his brother's house as a family member, and that it did not become a domestic violence case until after he left. He also dismissed the witness tampering charge, saying Jones had no reason to think he himself would be under investigation. The Utah Court of Appeals in June upheld Dever's dismissal, and the state has asked the Supreme Court to hear the case, Dupaix said.
In Cowley's case, the AG's office has until Nov. 10 to decide whether to appeal Dever's dismissal, Dupaix said. She said she has requested the transcript of the preliminary hearing and will evaluate the evidence with a group of senior attorneys.
"It's an emotional case on both sides," Dupaix said. "Given that, our plan is to review this as neutrally and fairly as possible.
Dupaix said her department looks first at the quality of the case "to make sure there was enough evidence to do the bind over. Even then, we may not take it."
A case where the alleged crime is not very serious or where a trial conviction is ultimately unlikely may not compete with the hundreds of other pending cases that require the division's resources, Dupaix said.
Appellate lawyers also must consider the risk of creating disadvantageous case law should the higher courts rule against them.
"What kind of law might we end up with if we do take an appeal?" she asked.
"If the case is close, we might be leery of taking it up because we might end up with a precedent that is difficult for the rest of the state to live with."
Cowley, 34, was fired from the West Valley City police department, but for allegedly mishandling evidence, not in connection with Willard's death.
Fraternal Order of Police responds
In a statement Friday, the 2,300-strong F.O.P. decried Salt Lake County District Attorney Sim Gill's request for an appeal.
"[Gill's] disdain for the legal findings of Judge L.A. Dever continues to erode the public trust," the statement read.
The F.O.P., which has long criticized Gill's handling of Cowley's case, called the appeal efforts "plainly political, coming on the eve of an election." The Order has endorsed Gill's opponent, Steve Nelson.