Experts doubt Swallow, Shurtleff will be tried together
By Marissa Lang
The Salt Lake TribuneFirst published Jul 27 2014 01:01AM
Much ado has been made about the ties between Utah’s embattled former Attorneys General Mark Shurtleff and John Swallow.
Swallow was Shurtleff’s top deputy and his handpicked Republican successor. The men have been widely accused of accepting gifts from and engaging with the same questionable characters. In text messages and emails, they refer to one another in familiar terms.
On Wednesday, when the former attorneys general appear in 3rd District Court for the first time, they will stand before the judge as co-defendants.
But as the two attempt to defend themselves against multiple felony counts, experts said, each will likely try to separate himself from the other.
Swallow and Shurtleff have been charged with a litany of crimes that could land each in prison for up to 30 years.
As their cases continue toward possible trial, expect Swallow or Shurtleff — or both — to ask a judge to split his case off from the other, thereby allowing the men to face separate juries.
It’s called a severance.
"Ultimately, severing a trial depends on whether evidence presented will hurt the other defendant," said Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers. "If I were either of their attorneys, I would be very worried that jurors would lump all the evidence together and could, therefore, convict both of them based on the sum total of evidence, rather than what is specifically relevant to each of their cases."
Defense attorney Stephen McCaughey, who represents Swallow, said severance is a common tactic in cases with suspects linked as co-defendants — and one he anticipates using to defend his high-profile client.
"The big advantage is the jury concentrates on one person as opposed to two, and you’re not forced to lump all the evidence together," he said. "Eventually, there’s going to come a time where there’s a request for severance. It’s not always granted, but it’s something, my guess is, that both parties in this case would probably want."
Other benefits include being able to conduct a cleaner trial — without objections and concerns from multiple defendants and complicated instructions that may confuse a jury.
"It’s a strategic decision," said Monte Sleight, president of the Utah Association of Criminal Defense Lawyers. "What it boils down to is do you want to be associated with the guy at the table next to you? Do you want the shadow of that person’s case hanging over yours? Or do you want a clean jury all to yourself without that other person in the room?"
Prosecutors generally argue to keep conjoined cases together on the basis of "efficiency" — a speedier trial, using less time and fewer resources.
One trial means having to seat only one jury. With a case as publicized and politically charged as that of Swallow and Shurtleff, he added, it may be easier to seat one jury than two.
"There’s been a lot of publicity, so getting a fair jury is going to be difficult, but very important," Hart said. "In a lot of cases, moving a trial from Salt Lake County to another county is usually the remedy to finding an unbiased jury, but with this case, it’s had so much publicity and it’s affected the entire electorate in such a way that, I think, there will be a big concern over how to ensure a fair trial."
Despite these concerns, Sleight said, there may be advantages for the defense if the cases remain linked.
If part of either Swallow’s or Shurtleff’s strategy includes trying to blame the other for the alleged crimes, it may help to have them both in the same room.
"When you have a jury looking to blame someone, in cases like this, you can serve up the other guy," Sleight said. "It’s a decision that’s 100 percent strategic."
The lawyers all emphasized that it’s too early to predict how the cases against Utah’s former top prosecutors will be resolved — or whether either will land before a jury. If either case is settled in a plea agreement, the issue of severance would be irrelevant.
Prosecutors declined to comment on whether they would entertain a request for severance or whether plea negotiations are underway.
For their part, Swallow and Shurtleff have proclaimed their innocence from the start and have vowed to mount vigorous defenses.
Swallow, who resigned from office in December less than a year into his first term amid accusations, has been charged with 11 felonies and two misdemeanors, including multiple counts of receiving or soliciting bribes, accepting gifts, tampering with evidence, obstructing justice and participating in a pattern of unlawful conduct.
Shurtleff, who served 12 years as the state’s attorney general, has been charged with 10 felonies, including receiving or soliciting bribes, accepting gifts, tampering with witnesses and evidence and participating in a pattern of unlawful conduct.
Because neither man was charged with conspiracy, experts said, the cases may be easier to sever. But, ultimately, it would be a judge’s call.
Salt Lake County District Attorney Sim Gill, who, along with Davis County Attorney Troy Rawlings, brought the charges, said the case will be handled primarily by two Salt Lake County prosecutors: Fred Burmester and Chou Chou Collins.
The case has not yet been assigned to a judge.