Mimesis Law
28 June 2017

Choosing Between a Bright Line and Taking Their Word for It

July 15, 2016 (Fault Lines) — Prosecutors in the public corruption case against former Utah Attorney General John Swallow may have reviewed some emails between Swallow and his lawyer, prompting Swallow to ask for a dismissal of the entire case:

Attorneys for John Swallow were in court Wednesday arguing why the former Utah Attorney General’s entire public corruption case should be thrown out.

The defense argues the state did not properly weed out attorney client privileged emails while pouring through evidence obtained from Swallow’s personal computers.

On its face, this is the sort of defense argument that bothers a lot of people. People tend to have this vague background feeling that every criminal defendant probably did something wrong or they wouldn’t have been charged in the first place. At trial, courts specifically instruct the jury they shouldn’t think that, something that may have the effect of suggesting that line of reasoning to people who wouldn’t otherwise think if it, but more importantly, a pretty good sign that sort of mindset is fairly common. It makes a dismissal for anything short of a compelling argument that the defendant is actually innocent pretty unappealing to most people.

There’s also a pretty common sentiment among people that there’s a lot of very shady, unethical stuff going on between lawyers and their clients. Maybe it’s decades of television shows portraying lawyers as co-conspirators, accomplices after the fact who fix whatever trouble someone has gotten themselves into using often less than ethical means to do so.

Either way I get questions about how to help someone get away with something after the fact almost as much as I get the classic, “how can you defend those people?” question when people find out what I do. When most people want to avoid punishment for themselves, they love the idea of a lawyer with some tricks up his sleeve. They hate it when other people appear to benefit in the same way.

Taking that into account, throwing out a big case for what many likely view as a technicality is going to rile up some people.  Swallow’s lawyer makes a good point, though:

Scott Williams, Swallow’s attorney, wants his client’s 11 felonies and 2 misdemeanors, ranging from racketeering and bribery to misuse of public money and tampering with evidence out, tossed out on the chance privileged attorney client emails have been reviewed by investigators.

“Would you want to sit at trial knowing they had 12,000 images of your defense strategy with your prior lawyer and hope they didn’t use it against you?” said Williams.

Williams argued going forward with the case at this point would be unconstitutional.

Like it or not, defense strategy has a real impact on the outcome of cases. It’s not that Swallow’s lawyers were plotting anything illegal or unethical to get a good result for their client, but more likely that they were developing an approach to the case. Every case has strengths and weaknesses. It takes a lot of communication with a client to identify those areas. It takes even more to figure out how best to present strengths and address weaknesses. Most of that sort of planning incorporates information prosecutors would never know unless they interfered with the attorney-client relationship. Giving them that information would put the defense at a huge disadvantage.

Furthermore, the prosecution’s advantage wouldn’t just be limited to the information they otherwise wouldn’t have had along with the defense’s strategy for litigating the case. Knowing that information, prosecutors could then go on to independently verify it. They could have investigators tie up the holes in their case defense was planning to exploit too. It wouldn’t take long for prosecutors and law enforcement to be in a position where they were one step ahead of the defense in reality due to them violating privilege, but they would have a plausible explanation for how they got the same information lawfully. All they have to do is deny getting it from privileged communications and claim they got it some other way.

Unsurprisingly, prosecutors admit to possessing the emails but deny seeing the information:

The prosecution, led by Assistant DA Chou Chou Collins, admits privileged emails were put in digital files labeled as such and sent out and in a massive data dump to the defense attorneys as a part of disclosure.

“It was a mistake, but we would not be stupid enough if we were being sneaky and send it out and say here you go,” said Collins.

Collins argues the privileged files were sent by mistake, but have not been read by anyone working on the case where prosecutors and investigators have been digging through terabytes of information.

Referencing a prior ruling, Collins told the judge, “potential opportunity to access doesn’t count as intrusion.” She reiterated that her team “did not actually read or view” the information that was sent to the defense team deemed as privileged.

Maybe Collins is telling the truth. Maybe not. The problem is that there may be no way of proving it either way. It may be that the only thing we can know for sure is that prosecutors had the opportunity. The only real chance Swallow has to prove they did in fact look at them might be through the crucible of cross-examination, and the prosecution doesn’t even want to give them that: 

The defense is pushing for an evidentiary hearing to show Judge Hruby-Mills what the prosecutors may have seen, but the state says a hearing would be useless.

“It’s not like you put one of our people who wrote the affidavit on the stand and you have a Perry Mason moment. They (affiants) state the truth things are not going to change. That’s the way it is, it’s the truth. We didn’t see it.”

It sure would be convenient for prosecutors if that argument worked for all motions and at trial. I can just imagine the prosecutor telling the judge before a motion hearing, “c’mon your honor, the officer said he had cause for the stop, and he told the truth, so why waste his time testifying? Nothing is going to change.” It would be even sillier at trial: “your honor, this is ridiculous. The case agent said he’s guilty and has the facts to support that conclusion, so there’s no need for a jury.” Last time I checked, we don’t do trial by affidavit in this country, though Swallow’s prosecutor would clearly prefer it.

The defense wants a bright line rule:

Williams said if there’s even a chance the prosecution read the strategies between attorney and client, the case must be thrown out.

“We will believe their (prosecutor) claims so long as they believe my clients claim he is innocent,” said Williams. “Why don’t we swap promises?” 

What’s especially interesting about that offer for a promise swap is the fact Swallow was the state’s attorney general, the chief legal officer for all of Utah. The lowly trial prosecutor wants the judge to take her word for it, and yet she’s prosecuting someone who was once the highest-ranking public lawyer in the jurisdiction because she isn’t willing to take his word for it when it comes to his innocence.

At the end of the day, the prosecution’s is probably right to say a hearing is unnecessary, but it’s because the court should adopt the defense’s bright line test and not for the reasons the prosecution claims. It may be painful to dismiss what might be a valid case, but the situation requires it.

Like Collins explained, state witness after state witness will get up there and say they didn’t see it, and it will likely be a waste of time with no Perry Mason moment. It isn’t necessarily because they’re telling the truth, however. It could just be that they’re practiced liars. Swallow and his lawyers would have no way to fight that.

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  • Wrongway
    15 July 2016 at 8:53 pm - Reply

    If I was the Judge, I’d dismiss until the ADA changed their name to anything other than ‘Chou Chou’. With a name like that, she can’t be trusted..