Prosecutor says he’s walking away from Shurtleff case for sake of justice

Davis County Attorney Troy Rawlings said he had little choice — despite the flak he might get — but to seek dismissal Monday of all criminal charges against former Utah Attorney General Mark Shurtleff.

"It does not matter how high profile a case may be, which branch of government is at fault, or how many people will be disappointed and angry," Rawlings wrote in a motion filed in Salt Lake City's 3rd District Court. "When a prosecutor determines, for reasons based on fact or law, including constitutional provisions, that there is no longer a reasonable probability of conviction, the case is over."

A parallel case against Shurtleff's handpicked successor, however, isn't. Salt Lake County District Attorney Sim Gill reaffirmed Monday that his prosecution of former Attorney General John Swallow is proceeding.

Shurtleff could be a witness in that case and even others. Rawlings' motion cited an ongoing "cooperation agreement" in which Shurtleff agreed to provide information and testify in other matters.

But the chief Davis County prosecutor argued the case against Shurtleff could not continue. He pointed to a recent U.S. Supreme Court ruling that narrows the prosecution of political corruption, along with his inability to pry possibly key evidence out of federal hands and concerns about potential violations of Shurtleff's right to a speedy trial.

News of the motion from Rawlings, a Republican, like Shurtleff and Swallow, stunned Utah's political and legal circles, with some warning the move could undermine public trust in the justice system.

"Any time you have a high-profile case where you are left still wanting answers, I think it causes that potential problem," said Brett Tolman, a former U.S. attorney for Utah.

No prosecutor ever wants to be in a position of scrapping a case, he added. "But I think sometimes it takes a lot more courage to dismiss a case than it does to bring it."

Rawlings' motion seeks to dismiss five felony and two misdemeanor charges against the former three-term attorney general, including accepting a prohibited gift, bribery to dismiss a criminal proceeding, official misconduct and obstruction of justice.

The document doesn't note whether Rawlings wants to reserve the right to refile the charges in the future.

In a statement, Shurtleff's attorney, Richard Van Wagoner, said he was "gratified" by Rawlings' decision and noted that the motion "concedes, for the most part, the basis for and strength of Mr. Shurtleff's" own petitions for tossing the case.

In a response filed late Monday, Van Wagoner asked the court to dismiss the case with prejudice — so it cannot be brought again — but on grounds cited in Shurtleff's own motions, not the prosecutor's. Such a determination could allow Shurtleff to recoup legal costs.

Either way, the decision to dismiss ultimately rests with 3rd District Judge Elizabeth Hruby-Mills, who also is handling the Swallow case.

Swallow has pleaded not guilty to 14 felony and misdemeanor counts. He and Shurtleff were originally charged as co-defendants in July 2014, but the prosecutions were separated a few months later, with Gill, a Democrat, taking on the Swallow case.

In a statement, he said Rawlings alone has responsibility for how to handle Shurtleff's case.

"This does not alter our prosecution of Mr. Swallow," Gill said, "nor our commitment to the presentment of our case."

Scott C. Williams, Swallow's attorney, disagrees. The cases were investigated and initially charged as one, he said, so any issues related to missing evidence and the impact of the Supreme Court ruling on political corruption should be the same.

"We see no difference," Williams said. "All of the prejudice that is discussed in the [Rawlings] motion applies equally to Mr. Swallow."

Tolman and Salt Lake City attorney Clayton Simms share Williams' view and say the Rawlings motion amps up the pressure on Gill. Swallow's case, they note, raises the same questions about of missing evidence, speedy-trial concerns and the high-court ruling.

"I don't see how you can dismiss the case against Shurtleff and not against Swallow," Simms said.

Over the past month, Shurtleff's attorneys have filed multiple motions seeking dismissal. The first argued that their client's constitutional right to a speedy trial had been violated, even though his lawyers had supported Rawlings' efforts to force the FBI and the U.S. Department of Justice to turn over additional evidence gathered during their probe.

Shurtleff also has argued that his case was unfairly built on "false statements and material omissions" of fact by investigators and prosecutors.

A second petition sought the dismissal of three felony gift counts, asserting that state law doesn't allow individuals to be charged with accepting improper gifts when a bribery statute addresses the same conduct.

Rawlings countered Shurtleff's motions by asking for an evidentiary hearing to challenge those claims.

Last week, however, the judge chided the prosecutor, calling the request improper. She ordered him either to object to Shurtleff's motions or move to dismiss the case himself.

Rawlings' motion Monday cited five reasons to dismiss the case.

An ongoing cooperation agreement • Shurtleff has provided "significant and important" information and will testify as needed in pending cases.

That could include taking the stand to provide evidence to a state grand jury that Rawlings wants to impanel as part of a wider probe into the actions of federal investigators and prosecutors in cases involving Swallow, Sen. Harry Reid, D-Nev., and the campaign of Sen. Mike Lee, R-Utah.

A U.S. Supreme Court decision • The justices recently tossed out a bribery conviction of former Virginia Gov. Bob McDonnell. The ruling "significantly narrowed the scope" of public corruption charges, making it tougher to proceed with five of the seven counts against Shurtleff.

Lack of Department of Justice cooperation • Rawlings asserts that federal prosecutors haven't provided all of the evidence he believes the defense is entitled to receive and has fought the issue, with Shurtleff's support, in court for nearly a year.

Rawlings said he warned federal prosecutors that a dismissal may result without that evidence.

"The state of Utah tried. Hard," the motion states. "It did not work."

In a statement Monday, the Justice Department noted the FBI had turned over "hundreds of thousands of documents" in the case. "The FBI believes it has shared all relevant documents and information in its possession related to the prosecution of Mr. Shurtleff."

Insufficient evidence • Rawlings questions whether there's enough evidence to convict Shurtleff of charges that he took prohibited trips and lodging from campaign donors and others who needed the then-attorney general's help with their own legal problems. Shurtleff has offered "alternative and potentially innocent explanations" for those favors, the prosecutor wrote.

Pretrial publicity • Rawlings questions whether Shurtleff can get a fair trial, given the case's "high-profile" publicity. Prosecutors might prevail in a fair-trial argument, he added, but the state is not willing to "waste taxpayer money doubling down on that bet."

Sometimes, Rawlings concluded, justice is not what people want it to be, noting that the Constitution is designed to protect all defendants, including Shurtleff.

"At times, justice requires the prosecutor to know when to stand down," he wrote. "We are at that time."

jdobner@sltrib.com

tharvey@sltrib.com

— Reporters Jessica Miller and Pamela Manson contributed to this story