Retired judge will prosecute the protesters facing life in prison for alleged vandalism

The Salt Lake County district attorney’s office has announced a retired juvenile court judge will prosecute cases filed against protesters accused of damaging the district attorney’s building during a July protest.

Dane Nolan served as a 3rd District Juvenile Court judge from May 2003 to July 2017. He worked as a prosecutor at the county and with the Utah attorney general’s office prior to becoming a judge. And, as a Latino, he was the first minority to be elected to the Utah State Bar Commission.

District Attorney Sim Gill said his office would find an independent prosecutor to try the cases because of the apparent conflict of interest, since Gill’s office was the target of the alleged crimes.

“As with every case we refer to an outside prosecutor, Judge Nolan will have complete autonomy and authority to prosecute these cases, as he deems appropriate,” according to a statement released by the district attorney’s office on Wednesday. “No matter the outcome, we trust Judge Nolan to ensure justice is done.”

It’s not clear how Nolan will be compensated for prosecuting the cases. Nolan confirmed to The Salt Lake Tribune that he is being paid for the position, but declined to say how much.

A spokesman for the district attorney’s office declined to release Nolan’s contract without an open records request, which The Tribune has filed.

Gill’s office received international attention after charging eight protesters with felonies for allegedly painting the street and facade of his office building red and breaking some windows during a July 9 protest. Seven of them are facing first-degree felony charges with gang enhancements that could result in life in prison.

The protest was about Gill’s decision not to file charges against two Salt Lake City police officers who shot and killed Bernardo Palacios-Carbajal as he ran from them. Gill said the officers’ reasonably feared for their safety, in part because Palacios-Carbajal had a gun. His decision led to a tense protest and confrontations with police.

Defense attorneys and Salt Lake City elected officials have called the charges that stemmed from that protest excessive, and said it was a conflict of interest for Gill’s office to make the decision on what charges to file.

Nolan said Wednesday that he is “looking forward to the challenge” of reviewing the cases.

“I’ve always found public service to be rewarding,” he added.

He moved to Salt Lake City in 1983 to go to law school, graduating from the University of Utah’s program three years later. He then worked for the Utah Legal Clinic and later the Utah attorney general’s office. Nolan was hired to work at the Salt Lake County attorney’s office after that, where he stayed for 12 years, with the last bit spent as a prosecutor in the special victims unit.

He was appointed to the juvenile court bench in 2003. He also helped found and served as president of the Utah Minority Bar Association.

He said that, as a minority, he understands the cases that he’ll be overseeing. But he declined to speak on any details, saying it would be an ethics violation.

Nolan said when the district attorney’s office approached him with the idea of acting as the prosecutor, he looked over the proposal and agreed to step in.

Asking a retired judge to take on a case is unusual. It’s more typical for an agency to request a county attorney in a nearby jurisdiction to handle the case, or ask the attorney general’s office to prosecute.

“It’s a common practice among elected county attorneys to help each other out with conflict cases,” said Utah County Attorney David Leavitt.

But Gill said it was “politely communicated” to his office last year that those sister jurisdictions preferred that Salt Lake make other arrangements because the cases they got were often complicated — though he didn’t say which counties asked him to stop bringing cases.

“We knew there would be more than one case,” he said. “And so our folks were mindful of that. And then of course, right now, in the middle of a pandemic, everybody is stretched thin.”

Davis County Attorney Troy Rawlings said his office didn’t make that request, and noted that they’ve taken cases for Gill’s office in the past.

“I personally haven’t seen or heard of it in 25 years now of practicing criminal law in Utah,” Rawlings said of hiring a retired judge to handle a case.

Salt Lake County also has hired another law firm on retainer to take conflict cases for his office, but Gill said they opted to ask Nolan to take on the case because it was “nuanced” and “complicated.”

Madalena McNeil, one of the accused protesters, spoke out about the decision on Twitter, calling it an “unconscionable abuse of power.”

“The conflict of interest is present in every level of DA Gill’s involvement. Were he an elected official with any sense of public accountability, he would have removed himself by now,” she wrote. “Hand-picking his prosecutor shows that his personal vendetta outweighs his sense of justice.”