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(Al Hartmann | Tribune file photo) Sen. Mark Madsen, R-Eagle Mountain.
Analysis: State’s subpoenas rarely reflect sense of ‘urgent’ action

An administrative subpoena averages a 37-day lag time after a suspected crime.

First Published Jan 05 2014 09:31 am • Last Updated Mar 24 2014 11:31 pm

When Utah lawmakers passed a law in 2009 empowering state prosecutors to bypass a judge to get phone and Internet records of suspects in child-pornography cases, there wasn’t a single opposing vote. They had been sold on the premise that quick, urgent action was needed to save young kidnap victims and find missing kids.

Every minute matters in such cases, and proponents said that requiring prosecutors to go to court for a warrant or to federal agents for a subpoena could mean delays of hours, days or even weeks — leading to victims’ injury or death.

At a glance

Administrative subpoenas

1,060 » Number issued by Utah attorney general’s office from 2009 through 2012

260 » Number of subpoenas made available in response to a Tribune open-records request

37 » Average number of days between time of suspected crime and issuance of subpoena

11 » Subpoenas issued the same day as the suspected offense

343 » Longest number of days between time of suspected offense and issuance of subpoena

Three » Subpoenas that referenced suspected abuse

0 » Subpoenas that referenced a child kidnapping or missing child

77 » Number of subpoenas to Comcast

68 » Subpoenas to Qwest

115 » Subpoenas issued to all other ISPs or telephone companies

Source: Subpoenas provided by attorney general’s office

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But, in fact, speed appears to be of little consideration in most investigations initiated with these nonjudicial subpoenas.

The Salt Lake Tribune found in a review of scores of them that the average lag time between the commission of a suspected offense and issuance of an administrative subpoena was 37 days. Just 11 of the 260 subpoenas reviewed from a stack provided by the Utah attorney general’s office through an open-records request were issued the same day as the suspected crime. Twenty-three had a lag time of three months or more. One was signed 343 days after a suspected crime.

None of the subpoenas provided by the attorney general listed suspected kidnapping or a missing child as the basis for the inquiry.

The vast majority were based on suspicion of possession or distribution of child porn, sexual exploitation of a minor, dealing materials harmful to a minor or enticement of a minor. Three referenced allegations of suspected molestation or abuse.

Prosecutors stand by the basic soundness of the subpoenas and the argument that they are a critical, effective tool of law enforcement. They acknowledge there’s a lack of solid information about the number or types of criminal prosecutions or convictions that result from probes originating with administrative subpoenas — but say there is simply no practical way of tracking that.

That could soon change.

New legislation » Sen. Mark Madsen, chairman of the Senate Judiciary Committee and among the Legislature’s most vocal skeptics of administrative subpoenas, is drafting legislation designed to shed light on the uses or abuses of these orders, which previously have been exposed to little scrutiny outside the agencies issuing them.

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"My focus will be to dramatically improve the reporting," Madsen said in an interview. "Under the really thin requirements in the law itself, there was really no useful information for public oversight or public policy."

Indeed, the law’s only requirement is that state and county prosecutors annually report the number of administrative subpoenas they issue.

Madsen’s legislation, which he says will be made available for public inspection in the next few days, would require each subpoena to have a unique number that would allow tracking it all the way through the courts if it leads to a prosecution, or to the dead-end file if it does not. This mechanism, in theory, would permit collection of data on such things as the category of crime investigated, success rate of prosecution and how often emergencies — like the kidnappings described to the Legislature — were in play.

"The objective is to get real information, then take that and have meaningful discussion and policy analysis," said Madsen, an Eagle Mountain conservative who is working with the American Civil Liberties Union and other civil libertarians. "The larger issue will loom whether we want to even use these as a tool."

Rare cases » Craig Barlow is chief of the children’s justice division in the attorney general’s office. His name appeared as the authorizing prosecutor on every one of the administrative subpoenas supplied to The Tribune — about a quarter of the 1,060 issued by the office through 2012.

Asked about the apparent lack of urgency in most of these investigations, Barlow quickly acknowledged just a small fraction qualify as emergencies.

"I’m not going to try to polish a cow pie," he said, also agreeing that the type of life-and-death case highlighted in debate on Utah’s Capitol Hill was rare.

"The number of true child abductions or kidnappings is small. They are cases that capture the public’s attention," Barlow said. "I do know arguments were made that those more high-profile cases would be one reason getting an administrative subpoena quickly would be an advantage."

But the rarity of such cases doesn’t diminish their importance, he said.

"I don’t want to overdramatize the issue, but in my mind a single child at risk justifies greater urgency, even if it’s only one a year."

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