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Lawyers for a former chief deputy to two Utah attorneys general say the state should pay the legal bills he incurred after the Salt Lake County District Attorney's Office had the career prosecutor arrested to ensure he would show up to testify in John Swallow's trial.

Kirk Torgensen was booked into jail Jan. 9, nearly a month before the Feb. 7 start date of the trial and hours after Torgensen attended a funeral service for his mother.

The arrest was triggered by a remark Torgensen made when he was served a subpoena, indicating he had an international trip booked for the same time as Swallow's 16-day trial and would be unavailable. Torgensen also wants to be compensated for that trip — a visit to Guatemala with his son.

Court papers filed Feb. 10 — the same day Torgensen testified in the Swallow trial — characterize the arrest as an illegal detention designed "to intimidate a witness."

"This is not Hitler's Germany, Stalin's Russia or Pinochet's Chile," Torgensen's lawyers wrote. "The state may not subject a citizen of the state of Utah and the United States of America — who has not even been charged with a crime — to the extreme remedy of being arrested, booked and incarcerated with the danger, public humiliations, inconvenience that inevitably come with it without respecting the due process of law."

The 3rd District Court filing is a response to a judge's request for argument on compensation. Torgensen was released from jail after about 24 hours in custody, but was ordered to testify.

Torgensen contends his due-process rights were violated when the state had him arrested instead of working to resolve the conflict between his travel plans and the desire to secure his testimony. Court papers say the state is statutorily obligated to work toward such resolutions and compensate witnesses for their time and travel.

In a transcript of the recorded subpoena service, Torgensen told an investigator he had informed prosecutors of his travel plans and that he was happy to comply if they paid for his lost expenses or find an alternate way for him to provide testimony.

"If they want to make arrangement to do something different, then they better make arrangement to do something different," Torgensen said in the transcript. "There are ways to do that, but I'm not going — I cannot change plans that I've had for six to eight months."

Prosecutors offer their own characterization of the events in their own filing.

They contend the burden to resolve the travel issue was Torgensen's and said he "never offered to change or postpone his trip." Torgensen also failed to provide any documentation of his plans or the costs associated with changing his itinerary and "had proposed no satisfactory way to secure his trial testimony."

According to prosecutors, Torgensen also failed to produce documents to verify any information about his travel plans, including when the trip was booked.

"The state had good cause to believe that Mr. Torgensen would not honor the subpoena and appear at trial when it applied for a material witness warrant," prosecutors wrote. "While Mr. Torgensen claims that he was willing to cooperate, such cooperation was at all times conditioned on the state's accommodating his travel plans."

Nothing in court papers indicates how much it might cost to pay for Torgensen's attorneys or for his Guatemala trip. The document does not say if Torgensen missed all or just part of the trip.

jdobner@sltrib.com