SALT LAKE CITY — A defense lawyer implored a judge Wednesday to dismiss the charges against John Swallow, arguing state investigators looked at protected emails gleaned from the former Utah attorney general's seized electronic devices.
And Scott Williams contends new information agents gave him last week shows the state continues to violate attorney-client privilege rules.
Williams isn't buying prosecutors' assertion that they neither read nor used in their case emails and text messages about defense strategy between Swallow and his former lawyer.
"We'll believe their claims so long as they believe my client's claim that he's innocent. Why don't we swap promises?" Williams said after a hearing Wednesday in 3rd District Court.
Williams and assistant Salt Lake County district attorney Chou Chou Collins sparred over whether FBI and state agents and prosecutors accessed or even filtered out some 12,000 images on Swallow's computer and phone.
Collins repeatedly told Judge Elizabeth Hruby-Mills that prosecutors and investigators didn't read the thousands of images on Swallow's electronic devices.
"We didn't even try to access that information at all," she said, adding that she knows the defense doesn't believe that. "In this case, there is simply no prejudice."
Collins said investigators and prosecutors didn't know the seized computers contained attorney-client privileged emails and called it a "mistake" that they were mingled with other electronic information.
"There's nothing suspicious about it," she told the judge.
Hruby-Mills didn't issue a ruling nor did she say when she would make a decision. She scheduled a conference call with attorneys for Aug. 12.
Swallow is charged with 11 felonies and two misdemeanors, including racketeering, bribery, evidence tampering, misuse of public money and falsifying government records. He has pleaded not guilty to the charges.
Williams said investigators purposefully circumvented a "taint team" process that had been used before to look at Swallow's privileged emails and gave them to prosecutors and to lawyers in the criminal case against former Attorney General Mark Shurtleff.
"That should be the end of the story. It's the fatal act, the fatal stage," Williams told the judge.
Williams further contends investigators also reviewed, managed, characterized and bookmarked electronic communications between Swallow and his former attorneys. He questioned whether Swallow should face trial on the promise of his accusers that they didn't see the contents.
"It's counterintuitive that no one ever saw any content," he told Hruby-Mills. "You can't make bookmarks without knowing the content."
Dismissing the charges would not be appropriate because there was no intentional intrusion into the thousands of images, Collins said.
"It seems like it's unbelievable, but think of how much information is in those terabytes," she told judge.
Collins said prosecutors wouldn't be "stupid enough" to read the attorney-client privileged emails and then turn them over to the defense. If they were going to hide something, they would hide it, she said.
"In this case, there is simply no prejudice," Collins said. Prosecutors, she said, didn't use the emails to formulate theories in charging Swallow.
Williams contends prejudice is presumed because the state accessed the communications, and he doesn't believe the information didn't find its way into the case.
"How could we ever know? How would you know? How would anybody know?" Williams said after the hearing. "Would you want to sit at trial knowing they had 12,000 images of your defense strategy with your prior lawyer and just hope that they didn't use it against you?"
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