"[Gill] has prejudiced Mr. Shurtleff with his relentless media campaign and the endless reports conjoining Mr. Shurtleff's name with allegations that are exclusive to Mr. Swallow and painting Mr. Shurtleff with the same prejudicial broad brush, thereby misleading the public and potential jury pool into believing both men must be responsible for the alleged motives and conduct of the other as part of some grand conspiracy," Van Wagoner wrote. "The cases are not and were never joined for any purpose."
Gill, who said his office would file a motion opposing Shurtleff's request, declined to respond directly to Van Wagoner's accusations.
"I'm sure there are going to be many motions and many different rulings in this case," the Democratic district attorney said Thursday. "We're not going to discuss every single one. We'll respond in normal course by filing a motion with the court."
Swallow's attorney, Stephen McCaughey, said his client would not fight Shurtleff's push to split the cases. It's something, he said, that he had expected to come up sooner or later.
"They're separate cases that should have been filed as separate cases," McCaughey said. "Whether it's now or eventually, the cases will have to be separated."
The ties between the two former attorneys general are well known:
Swallow was Shurtleff's top deputy and anointed successor. The men have been widely accused of accepting gifts from and associating with some of the same questionable characters. They were arrested, booked into and released from jail on July 15. In their first appearance in court July 30, the men appeared side by side as co-defendants.
Shurtleff and Swallow face a combined 23 counts, 21 of them felonies, in the most sweeping political scandal in Utah history. In convicted, each could be sentenced to up to 30 years in prison.
But this only tells part of the story, according to Thursday's motion.
Van Wagoner claims his client is demonstrably less entrenched in the alleged crimes than Swallow, who was forced from office in December amid the ballooning scandal and multiple investigations.
"Mr. Shurtleff is charged with 10 counts and Mr. Swallow 13. Mr. Shurtleff is charged with felonies. Mr. Swallow is charged with felonies and misdemeanors," Van Wagoner wrote. "The state does not appear to allege that a single count in the respective [charges] arises from the 'same act or conduct or ... same criminal episode.' "
That one or both of the defendants would want to break off his case from the other is not surprising experts widely anticipated a move like this, though most didn't expect such a motion to come until after a preliminary hearing, at which prosecutors would have to persuade a judge to order the men to stand trial.
Shurtleff's concern over keeping the cases attached largely hinges on ensuring his constitutionally protected right to a fair trial with an "untainted" jury pool.
"Even if these were not extraordinarily high-profile cases of which every aspect has been and will be publicly scrutinized, joinder would be improper and in violation of Mr. Shurtleff's right to due process as a matter of law," Van Wagoner wrote. "Given the public attention the cases have garnered and will continue to generate, the prejudice of a joinder would compound exponentially."
Prosecutors generally argue to keep conjoined cases together on the basis of efficiency a speedier trial, using less time and fewer resources. And with a case as publicized and politically charged as this, experts have said seating one jury may be easier than trying to fill two.
Shurtleff who spent a dozen years as Utah's attorney general and two as a Salt Lake County commissioner has been charged with 10 felonies, including receiving or soliciting bribes, accepting gifts, tampering with witnesses and evidence and participating in a pattern of unlawful activity.
Swallow who served less than 11 months as attorney general was charged with 11 felonies and two misdemeanors, including multiple counts of receiving or soliciting bribes, accepting gifts, tampering with evidence, obstructing justice and participating in a pattern of unlawful conduct.
Neither has been charged with conspiracy.
Both men have maintained their innocence. They are scheduled to appear together in court Oct. 20.