The Utah County Attorney's Office uses an "E-discovery process" to send defense attorneys evidentiary information through an online server, Pead wrote. But not all the MacNeill documents were placed there.
"The State has no duty to send everything it has to the defense via the E-discovery process," Pead wrote. "It only has the duty of making these materials available."
Prosecutors have sent discovery materials to MacNeill's attorneys on 20 occasions, Pead wrote, and on at least five occasions Spencer and Gustin were invited to come to Pead's office and review the case. But the defense attorneys maintain that all the records should have been sent to them, as prosecutors are required to share any evidence that could help prove innocence.
Fourth District Court Judge Samuel McVey is expected to hear evidence on the issue on March 5.
On Thursday, another defense attorney, Brett Tolman, filed a motion alleging similar conduct by the Utah County Attorney's Office. Tolman, who represents former Provo Municipal councilmen Steve Turley, who is facing fraud charges, asks a judge in his 166-page filing to either order prosecutors to hand over more evidence or to dismiss the case.
"As [I] began to review the discovery in order to defend the case, it became apparent that significant portions of evidence had either been inadvertently withheld from the production, or were purposely not disclosed to the defense for some reason," wrote Tolman.
Turley is facing seven counts of communications fraud, two counts of exploiting a vulnerable adult and one count of engaging in a pattern of criminal activity, all second-degree felonies stemming from private business dealings in which he allegedly took money and property from several people in order to illegally obtain more property.
No date has been set yet for a judge to hear arguments in Turley's case.
Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, said the Utah County Attorney Office's open record policy is problematic and puts the burden on defense attorneys when, legally, the burden to provide that information should be on prosecutors.
"I think this case points out something really important that the public doesn't think about," Hart said. "We put an incredible amount of trust in the police and prosecutors. If evidence doesn't see the light of day, we are all at risk. It's kind of scary when you think about it. ... This is what we're supposed to do: present everything in court and the truth will come out. It doesn't work if the opponent doesn't have access to the information."
Hart said he believes the best policy for prosecutors is to send a case file in its entirety to defense attorneys.
"Anything less than turning everything [over] to the defense is a smokescreen for potentially withholding evidence," he said.
Open record policies are common in Utah, said Paul Cassell, a former federal judge and current University of Utah law professor. The practice can prevent disputes about whether all the evidence has been provided because it gives defense attorneys a way to double check, he said.
"The constitution requires the evidence be made available," Cassell said. "In terms of how it is made available, that is a matter of discretion. … Asking defense attorneys to come and [review a case file] is not unusual."
Salt Lake District Attorney Sim Gill said his office also has an open record or discovery policy. Gill said prosecutors try to send as much information as possible to attorneys, but that the attorneys are welcome to view the case file at his office.
"We want to err on the side of caution," Gill said. "We want to move towards disclosure. … There's no reason to try to slip one past the goalie. We don't get paid to do that."
MacNeill's wife, Michele MacNeill, was found dead in her bathtub in April 2007. According to court documents, MacNeill was having an affair at the time of his wife's death and devised a plan to kill her in order to continue the affair.
On April 11, 2007, MacNeill's young daughter found her mother in a bathtub that was a quarter full of reddish-brown water.
MacNeill called 911, but allegedly lied to the dispatcher about performing resuscitation and lied to police about events surrounding her death in an effort to hinder, delay or prevent any investigation, according to the charges.
After an autopsy in 2007, Michele MacNeill's manner of death was ruled "natural," the result of chronic hypertension and myocarditis. However, after a review in 2010, the manner of death was changed to "undetermined," and attributed to heart disease and drug toxicity.
MacNeill has pleaded not guilty to murder and obstruction of justice. His trial is slated to begin in March.