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John Swallow has asked a state judge to toss out his criminal case, claiming in new court papers that prosecutors have violated his constitutional rights by seizing and using thousands of privileged emails exchanged between the former Utah attorney general and his former attorney.
The emails contain communications between Swallow and attorney Rodney Snow, who represented the former officeholder in 2012 and 2013, amid state and federal investigations of allegations of public corruptions and misconduct inside the attorney general's office.
Federal prosecutors declined to bring charges in 2013, and state prosecutors picked up the case. Swallow resigned his post as Utah's attorney general the same year, after less than a year in office.
A motion for dismissal, which was filed Monday in Salt Lake City's 3rd District Court, says the emails obtained when Swallow's computers were seized in 2014 should have been considered privileged, but instead appear to be the "evidentiary basis" for some of the criminal charges filed against Swallow, a Republican, by the Salt Lake County district attorney's office.
The communications include information about Swallow's actions before and during the FBI investigation and strategies or actions Swallow might employ and how those might impact any potential criminal charges.
"The extent of the breach is shocking," Swallow's current attorney, Scott C. Williams wrote, calling the seizures an act of "outrageous governmental conduct."
Williams lays blame for the violation at the feet of Salt Lake County District Attorney Sim Gill, who he says had control of "the entire investigative process" and was on notice that the material would be found.
Gill denied any inappropriate actions by his office.
"I can tell you with certainty that we have not looked at any files," he said Monday, "and whatever theories we have [about the case] are theories we developed separately."
In fact, Gill added, the decisions about whether to file charges and which charges to bring were made before the FBI had transferred all of its investigative files to the district attorney's office for copying and sharing with the defense.
The FBI was the lead agency gathering information on Swallow, Gill said, and his office had directed federal agents to screen out any privileged information so county prosecutors would not see it. He acknowledged, however, that state and federal agents were working on multiple investigations and that it is possible some commingling may have unintentionally occurred.
"The FBI was supposed to segregate it," Gill said.
Prosecutors are now going back to the bureau to review the handling of investigative files and find a mechanism for scrubbing them for any privileged communications, Gill said.
"If the goal was some malintent," he added, "then why turn around and give these materials [to Swallow] as part of discovery?"
Swallow has pleaded not guilty in state court to 14 felony and misdemeanor charges, including counts of money laundering, misuse of public funds, obstruction of justice and falsifying government records.
If convicted, he faces up to 30 years in state prison.
The next hearing in the case is set for Tuesday, although it wasn't immediately clear whether 3rd District Court Judge Elizabeth Hruby-Mills would address the dismissal request.
Court papers say that on June 2, 2014, when Swallow's computers were seized, Snow notified state, federal and county attorneys that the devices contained privileged communications that should not be viewed. He also suggested ways to protect the information, including a privilege log, court review and establishing an independent taint team.
No responses came to those communications, and the state never notified Swallow or any of the attorneys who have represented him that the emails had been obtained. Instead, the materials were stamped and added to the evidence.
"Present counsel for Mr. Swallow is apparently the first, besides the state, to realize the breach," Williams wrote, adding that Salt Lake County prosecutors have also not responded to his questions about the documents.
Williams says the state's actions violate Swallow's right to a fair trial.
"The attorney-client privilege is key to the constitutional guarantees of the right to effective assistance of counsel and a fair trial," he said in court papers. "To provide effective assistance, a lawyer must be able to communicate freely without fear that his or her advice and legal strategy will be seized and used against the client in a criminal proceeding."
Williams says the violation of Swallow's rights are so "voluminous, substantial and pervasive" that the case should be dismissed immediately.