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While a judge admitted that Steve Turley's rights were violated when a conversation between him and his lawyers were recorded by the Utah County Attorney's Office, he denied a defense attorney's motion to disqualify the attorney's office from the case.
Fourth District Judge James Taylor made the ruling Tuesday, after hearing evidence from defense attorneys claiming a March 2011 meeting at the county attorney's office violated the former Provo city councilman's rights.
Turley, 44, was charged in June 2011 with 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.
According to the defense attorney's motion, Turley, along with attorneys Brett Tolman and Craig Carlisle, met with prosecutors at the Utah County Attorney's Office in March 2011, in efforts to "clear up confusion" regarding allegations against Turley.
Both sides agreed the conversations would be audio recorded by an investigator though not used against Turley in court but Tolman wrote in the motion that defense attorneys were unaware that a video camera was recording them, and that other investigators and county prosecutor Chad Grunander were watching via a closed circuit television feed in an adjacent room.
During a 15-minute intermission, Turley and the attorneys had "confidential client-attorney communications," according to Tolman, which were recorded by the video camera but not the audio recording.
Once the defense attorneys found out the communications were being recorded, they spoke with Grunander and County Attorney Jeff Buhman, who agreed to destroy the CD that contained the video recording.
Tolman argued in the motion that Turley's rights were still violated because destroying the CD did not remedy the fact that Grunander and those in the observation room heard the conversation in real-time, and asked for the case to be handled by another county attorney's office.
Tolman said Wednesday he felt it was significant that Taylor found Turley's Sixth Amendment rights to a fair trial were violated when the privileged communications were recorded, but said he felt the violation should have been enough reason to disqualify the attorney's office.
"I think he [the judge] was focused on the harm, what is the level of the harm," Tolman said Wednesday. "Maybe that's where there is a difference of opinion. We argued that if you find that the state has violated the Sixth Amendment, we think that's significant and deserves a remedy, regardless of what they heard, regardless if it was important."
Deputy Utah County Attorney Ryan McBride said Grunander and the other investigators did observe some of the interview from another room, but did not see the privileged conversation in debate. Since the CD was immediately destroyed, he said no one saw or heard the conversations between Turley and his attorneys.
McBride said he expected the judge to deny the motion because their office never intended to violate Turley's rights.
"There certainly was no bad faith on the investigator's part or the county attorney's part," he said.
Turley's attorney also argued another motion Tuesday, firing off allegations that the county attorney's office withheld evidence from them. Though the judge denied some of their request, he did order prosecutors to produce emails between an investigator and Turley's political opponents to the defense team.
Turley's attorneys are not the first to accuse the Utah County Attorney's Office of withholding evidence. Attorneys for Martin MacNeill, accused of killing his wife in 2007, filed a similar motion in December alleging the office withheld 1,000 of pages of evidence. They also are asking for the county attorney's office to be disqualified, but a judge has not yet made a decision on the motion.
Tolman said he finds it concerning that defense attorneys in separate cases are making similar claims about discovery issues.
"I'm also concerned as to why there are so few people pounding their fists to get some answers as to why," he said. "Why that patterns seems to be developing."
Turley will be back in court on Aug. 8 for oral arguments regarding whether defense attorneys can have access to pre-sentence reports for alleged victims who have recently been charged with crimes in Utah County.