This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
John Swallow has asked a state judge to order the Salt Lake County district attorney's office to pursue a cache of FBI evidence gathered as part of the federal agency's investigation of the beleaguered former Utah attorney general.
Defense attorney Scott C. Williams filed the "motion to compel" in 3rd District Court last week.
According to court papers, Williams believes the evidence — contained in an estimated 1.5 terabytes of electronic records — may include information that could clear Swallow of criminal charges filed in connection with a bribery and corruption scandal that ensnared him and his predecessor, ex-Utah Attorney General Mark Shurtleff.
In a joint effort, Davis County Attorney Troy Rawlings and Shurtleff's defense lawyers are seeking the documents and have asked a state judge to order the FBI and the U.S. Department of Justice to turn over the material.
"In stark contrast," court papers say, "the [Salt Lake County district attorney] has steadfastly refused to make any inquiry of the various federal agencies for material and information."
Salt Lake County prosecutors have told Williams they "simply would not make requests of the federal government," citing no reason for their position. Williams contends it is the professional and ethical duty of prosecutors to obtain and share the information. Failing to do so violates Swallow's constitutional right to due process, court papers say.
Deputy Salt Lake County District Attorney Chou Chou Collins has asked Judge Elizabeth Hruby-Mills to give the district attorney's office until Jan. 27 to file a response to Williams' request, court documents show.
In the past, Salt Lake County District Attorney Sim Gill has said he supports Rawlings' efforts to obtain the information, but that his office had decided against it because of differences in the Swallow and Shurtleff prosecutions.
Rawlings filed his own petition with Hruby-Mills in the fall and has had some success in obtaining the federal government's cooperation. Gill's office has promised to provide Williams with any material it obtains as a result of the Rawlings effort, but that is not enough, the defense attorney wrote.
"This position is untenable," Williams wrote. "Such a promise is not binding on the state in any meaningful way and cannot be enforced in the legal process."
It is also not clear that the Salt Lake County district attorney's office could share the information. The court could limit the ability of Rawlings to disseminate the information, particularly if the Salt Lake County district attorney's office tells a judge it doesn't need it, the Davis County attorney said in a Dec 25, 2015, email, which Williams included as a footnote in his filing.
"I don't know where this will leave Mr. Williams and Mr. Swallow," Rawlings' email states.
The email goes on to say that if Rawlings loses in state court, he would consider filing a similar petition in federal court.
Hruby-Mills will hear oral arguments on the issue in Shurtleff's case Feb. 17. Williams has asked the judge to expand the hearing to include Swallow's motion.
Shurtleff and Swallow, both Republicans, have each pleaded not guilty to state felony and misdemeanor charges, which stem from a multiyear investigation by state police and the FBI. The charges were filed in state court after the Justice Department declined to bring federal charges.
Rawlings has said that a sealed federal court order specifically mandates U.S. agencies to cooperate with the prosecutions of both men, including sharing all of the gathered evidence, some of which is tied to the federal civil and criminal prosecutions of St. George businessman Jeremy Johnson.
A onetime contributor to both of the former attorneys general's campaigns, Johnson was one of several individuals whose allegations of a pay-to-play climate in the state's highest law enforcement office sparked the investigations of Shurtleff and Swallow.
Johnson is expected to be called as a witnesses in both men's trials.