Sim Gill accused of filing excessive charges against protesters for broken windows, paint on the street

(Francisco Kjolseth | The Salt Lake Tribune) The Salt Lake County’s District Attorney’s office sustains damage by protesters reacting to the announced ruling by Salt Lake County District Attorney Sim Gill on Thursday, July 9, 2020, that the shooting death of 22-year-old Bernardo Palacios-Carbajal in May by police officers was legally justified.

Protesters painted the street blood red. Some smashed windows at the Salt Lake County District Attorney’s Office. Less than a month later, prosecutors believe they know who is responsible and they’ve charged them with felonies that carry a potential life sentence.

Now, District Attorney Sim Gill faces accusations that he filed excessive charges and questions about why he filed the charges at all, since there is an apparent conflict of interest: the vandalism was carried out against his building, and protesters denounced Gill by name that night, as a police helicopter hovered overhead and police in riot gear formed a perimeter around demonstrators.

“They will feel the wrath of the f---ing community today,” organizer Sofia Alcalá told demonstrators on July 9.

Weeks later, some of those protesters are feeling what defense attorneys have described as the wrath of Gill.

All were charged with felony rioting. Seven face first-degree felonies for allegations they helped buy, transport and/or spread the paint on the street, or broke windows. The punishment for such crimes — among the most severe in Utah, the kind of offenses normally reserved for murder, rape and aggravated robbery — is five years to life in prison.

So far, Alcalá, Marvin Oliveros, Madalena McNeil, Madison Alleman, Viviane Turman, Michelle Mower and Emanuel Hill have been charged with criminal mischief, which normally tops out as a second-degree felony, but prosecutors argued the charge should be upgraded using a “gang enhancement.” The seventh defendant, Hurija Mustafic, was charged with two misdemeanor counts of alleged assault against a police officer.

The Salt Lake Tribune has reached out to the attorneys for each of the charged protesters, or the protesters themselves. Alcala’s attorney and the lawyer for Mower and Hill, Alexander Ramos, declined to comment. Oliveros has not yet responded.

Brent Huff, who represents Alleman, said the charges were “retaliatory,” claiming they are “aimed at politics rather than justice.” Cliff Venable, who represents Mustafic, said the charges against his client are “not warranted.” Jesse Nix, an attorney for Turman, called the charges “despicable” and “an absolute conflict.”

“I’m disappointed that they didn’t recognize the conflict and send it out to someone else to decide what to charge,” Nix said, “because right now, it feels like Sim Gill is upset at the damage to his beautiful building so he’s going to do everything he can to scare protesters.”

Gill defended the charges Wednesday, saying prosecutors weren’t the ones trying to make it political. He said they looked at the evidence in front of them: that those charged allegedly caused more than $5,000 in damage and they worked in a group to cause that damage.

That’s why what is normally a second-degree felony, he says, was bumped to a first-degree.

The power of the prosecutor

Last month, Gill said his office wouldn’t prosecute the cases at all, saying he didn’t want a conflict of interest since he — or at least, his office building — is the alleged victim.

He said Wednesday that while his office did end up filing the charges, he will have someone else handle the case from here on. That’s been tough to negotiate, he said, because of government budget restrictions tied to the pandemic and because it is a case involving multiple defendants.

Does Gill see it as a conflict for his office to screen the cases and file the initial charges?

“It’s not the ideal situation,” Gill said.

He said the charges in this protest are a continuation of his office’s work investigating crimes from rallies back in May, including one where people flipped a police car and burned it.

Jason Groth, smart justice coordinator for the American Civil Liberties Union of Utah, said there’s nothing forcing Gill to make these charging decisions.

“That’s one of the powerful things about being a prosecutor,” he said. “You do have those options. You can make those decisions. And how you decide or decide not to make those decisions not only impacts the trajectory of an individual’s case, but the entire criminal justice system.”

‘An obvious overreaction’

Staring down a possible felony conviction is unsettling for McNeil. One can do just a little bit of digging and see the repercussions: It’s harder to get a job, or a home. You lose voting rights in many states, but not Utah.

And a life sentence? It’s impossible, she said, to face that punishment and not be scared.

“I haven’t done anything to even remotely warrant spending the rest of my life in prison,” McNeil said, “and no one else did either.”

She added that while she couldn’t speculate about Gill’s intention in this prosecution, there’s no way these charges — what she called “an obvious overreaction” — don’t stymie activism, especially when so many of those charged are so young and some are people of color, who are already overpoliced.

McNeil said the gang enhancement feels particularly cruel.

“That’s essentially calling protesters a gang, with all of the connotations that come with that,” she said.

Utah law says that the criminal penalties can be enhanced if prosecutors can show someone committed a crime as part of a criminal gang or “in concert with two or more persons.”

Groth said it was a law passed in the 1990s to combat organized street gangs and the sales of crack cocaine, not protesters.

“The idea that you could be considered a member of gang-related activity for engaging in protests,” he said, “I think really defeats the spirit of our democracy.”

Groth said Gill’s decision to file charge, then hand off the case, “seems like a wink and a nod” to whomever the case is given to — and not a truly independent process.

“You’re providing the context for the rest of the prosecutor’s decision, even if they are from another office,” he said. “That prosecutor is going to start with a first-degree felony with a gang enhancement that carries a life sentence. That is the starting point.”

While McNeil wouldn’t guess Gill’s intentions with the filing, Huff would. Alleman’s defense attorney believes this is a case of “plea charging,” in which a prosecutor files an intentionally severe charge knowing the defendant would rather plead to a lower offense than risk going to trial.

”There is no way in the world that Sim Gill or anyone in the world actually believes that they’re actually going to take [Alleman] to trial and convict her of a first-degree felony,” he said.

Ramos, the attorney for Hill and Mower, said he wouldn’t talk on behalf of his clients, but he said he hoped Gill would reflect on this decision compared to his past words.

He pointed to a 2018 commentary Gill wrote in The Tribune, discussing the important role of the office, saying it’s more than a title. “It is an opportunity to put our best effort forward, in the service of our community, guided by our ideals of justice, fairness, equality and truth,” Gill wrote. “It is about solving problems, righting wrongs, giving voice to the hopeless and advocating for the unheard and forgotten.”

Community reaction

It’s not just defense attorneys and the accused who are speaking out against the charges. Salt Lake City Mayor Erin Mendenhall said Wednesday that she felt they were excessive.

“If a crime is committed, there should be a consequence,” she said in a video on Twitter. “But that consequence needs to be proportionate to the crime itself. And in this case, where we’re seeing the potential for an individual to spend a lifetime in prison for buying paint, that is too extreme. I don’t agree with the extent and the potential for these charges. And I hope the criminal justice system won’t take it that far.”

Gill said that while prosecutors do have wide discretion, he said that it’s his prosecutors’ jobs to look at the facts and apply the laws equally to everyone. He said what they did with these protesters is no different than how they analyze every other case.

But Gill’s office did use that discretion recently, declining to file charges against protesters after more than 40 people were arrested for curfew violations during one of Salt Lake City’s first anti-police demonstrations, on May 30.

He called it “a matter of fairness” because people have the right to protest.

“Especially when the exercise of those rights does not involve injury or harm to people or property,” the office said later in a statement.

McNeil says these charges prove a claim protesters have been making for weeks, that officials seem to value property more than people.

“Is that really the society we want to live in?” McNeil asked. “Where the facade of a building is much more important than actual human life?”