File photo: Former Utah Attorney General John Swallow is seeking a preliminary hearing in the public-corruption case against him. He originally waived his right to the hearing last year, and has since changed his mind based on various factors, according to a motion filed in 3rd District Court on April 11, 2016, photo taken Salt Lake City, Utah, July 2015 | Photo courtesy of the Associated Press, St. George News

ST. GEORGE – A judge has ruled that the criminal charges case against former Utah Attorney General John Swallow will not be dismissed.

In a ruling filed Friday, 3rd District Judge Elizabeth Hruby-Mills said prosecutors did not violate Swallow’s attorney-client privileges covered under the Sixth Amendment.

In April, Swallow filed a motion to have the case against him dismissed, arguing that the Salt Lake County District Attorney’s Office and investigators had violated his rights by accessing and using thousands of privileged attorney-client emails.

The emails sent between Swallow and Rodney Snow, his attorney at the time, took place between 2012 and 2013. The emails were among the terabytes of information seized by FBI in June 2014 when they confiscated multiple computers from Swallow’s home. That data was later supplied to prosecutors.

According to Hruby-Mill’s ruling, the data was given to Salt Lake County District Attorney’s Office on a Blu-ray disc. On that disc was a folder bookmarked as having “’potential attorney-client’ materials.” However, when the data on the disc were processed into a PDF format, items in the folder were scattered throughout the final product that reached prosecutors. This process also eliminated “any special markings identifying the potential client-attorney material.”

Prosecutors didn’t know about the privileged emails until Swallow filed his motion. Once they were made aware of the situation, Hrudy-Mills wrote in her ruling that, “Prosecutors took steps to ameliorate the situation.”

Hrudy-Mills wrote further:

The prosecutors in this case did not read, review, or attempt to determine the substance of the potentially privileged material. The potential access by prosecutors was not intentional and because prosecutors did not read or review potentially privileged materials, there is no purposeful intrusion. Consequently, the Sixth Amendment prejudice standard has not been met.

While ruling against Swallow’s motion, Hruby-Mills admonished the Salt Lake County District Attorney’s Office for not recognizing the privileged emails sooner.

“The court admonishes the prosecution team to be cognizant of the deep responsibility that surrounds its handling of potentially privileged communications such as that at issue here,” the judge wrote.

According to Fox 13 News, Swallow’s lawyers have previously stated they would appeal the decision if the court ruled against them.

Swallow faces multiple felony and misdemeanor charges related to accusations of public corruption from before and during his time as the Attorney General. He resigned as Utah’s Attorney General in December 2013 amid the circling corruption accusations and the resultant investigations.

If convicted of the public corruption charges filed against him, Swallow could face up to 30 years in prison. Swallow has maintained he is innocent of the charges.

Mark Shurtleff, who was also charged with multiple counts of public corruption stemming from investigations also related to Swallow, had his case dropped by the same judge last week.

Resources

• Judge Hruby-Mills’ ruling not to dismiss Swallow’s case

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