In response to criminal charges recently filed against former Utah Attorneys General Mark Shurtleff and John Swallow, many Utahns are asking: How could this happen?
Acknowledgement: I’m not disinterested. I represent some of the principal accusers in those matters. I have also been litigating a class action on behalf of Utah homeowners against Bank of America for illegal foreclosure practices – a case Shurtleff allegedly attempted to undermine before going to work for the bank’s D.C. law firm. But this is not a commentary on any one case, especially active matters.
I also have personal interests. I was born in Salt Lake, the grandson of a Goldwater Republican dairy farmer on my father’s side and an FDR, labor-union iron worker on my mother’s. I was raised in the Cache Valley, and after practicing law for 10 years in New York City and Los Angeles, my wife and I moved to Utah to establish our family’s roots. We are invested in Utah’s future.
Sociologists explain the origins of crime, and specifically how much a community is willing to tolerate, in terms of "broken windows" – a theory that focuses on signaling and norm-setting. To reduce serious crime – burglary, arson, drugs, etc. – eliminate the signals or norms that invite it – i.e., vandalism.
What were the "broken windows" here? How did this happen? The answer is simple and uncomfortable: because no one stopped it.
First, those responsible for enforcing Utah’s laws were too deferential to Shurtleff and Swallow. The few questions raised by employees were feeble, concluding with a variant of "oh well, you’re the boss" – often in a discussion about loyalty and work advancement. Even those who questioned the methods the Attorney General’s "fixer" used apparently did not question the need for a "fixer" in the first place.
Second, these cases show how Utah lawmakers have passed too many indeterminate laws that leave too much discretion to prosecutors. This is part of a nationwide trend. A popular book estimates the average American unwittingly commits at least three felonies a day, giving prosecutors the power to destroy businessmen, doctors, accountants, and others without ever having to prove anything. In a sense, the "pay to play" operation Shurtleff and Swallow ran was simply taking advantage of the market opportunity such an environment presents.
Third, our courts bear some responsibility. A notable federal judge recently blamed courts for the "epidemic" of prosecutorial misconduct in America. Prosecutors don’t care about ensuring fair trials, he wrote, "because courts don’t make them care."
Consider the following example from a hearing in 2006:
[Defense lawyer, questioning ties that indicated the complaining witness paid Shurtleff to prosecute the case]: … on [date], you contributed $5,000 to [Shurtleff’s] campaign?
[Prosecutor]: Objection. Irrelevant
[Defense lawyer]: You’re not going to let me ask that question, Judge?
[Judge]: I’ve sustained the objection.
Now maybe that was the right call in that case. But the exchange shows a vexing lack of curiosity. No doubt the judge assumed a clever defense lawyer was trying to confuse issues. But such assumptions reverse the burden of proof. Imagine how things would have played out differently if, in 2006, a judge had allowed questions revealing payments the Attorney General received corresponding with his prosecution of the case.
Utah is conservative. We defer to authority, give police and prosecutors expansive powers and full-time public relations departments, and we assume they are acting in "good faith." Courts build up doctrines to help the state avoid the consequences of any overreach, e.g., excusing violations of a person’s rights as "harmless" errors, or "technicalities."
But over time these "broken windows" create an environment where our Attorneys General stand charged with having operated their offices as a "pay to play" scheme.
Our courts and lawmakers can fix these matters with less deference and more scrutiny. The judge who mentored me came from an era in Utah, in his words, where there were three church sermons: "go to church, pay your tithing, … and they’re coming to get us." We laugh. But this perspective, among other things, led him to apply greater scrutiny to state actions. And if anyone tried to minimize a violation of constitutional rights, he would respond, unmoved: "but they’re all technicalities."
To avoid the next Shurtleff or Swallow, Utahns should adopt a similar perspective and demand that our leaders fix some of these "broken windows."
Marcus R. Mumford is a Salt Lake City attorney.
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