Henri Sisneros: Prosecution process: Why district attorneys are prosecuting state officials

Published: Sunday, Aug. 10 2014 12:00 a.m. MDT

A United States District Court emblem is seen in a courtroom as members of the media tour the new Salt Lake City Federal Courthouse, Wednesday, April 9, 2014.

Ravell Call, Deseret News

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With attention focused on charges filed by Salt Lake D.A. Sim Gill and Davis County D.A. Troy Rawlings against Mark Shurtleff and John Swallow, understanding how prosecutors make charging decisions is helpful.

Prosecution offices are established at various levels of government. A citizen might be a resident of Salt Lake City, Salt Lake County, the State of Utah and the United States, and there is a prosecution office associated with each level of government.

Naturally, prosecutors focus on priorities set by its founding level of government. A Salt Lake City prosecutor may focus on misdemeanor violations of city ordinances concerned with quality of life issues, such as traffic, zoning and public behaviors.

By contrast, U.S. attorney prosecutors, called AUSAs, charge only violations of federal law. The U.S. attorney for Utah is a political appointee who promotes national priorities set by the attorney general and the president.

A prosecution office may have an exclusive focus. Only the Department of Justice can enforce federal immigration law. As the Congressional Research Service notes, as Congress has the authority to determine who may enter or stay in this country, “the federal government has the power to sanction acts that subvert this system.”

The FBI, our national police agency, and the Department of Justice have a long history targeting wrongdoing by local and state officials.

The reasons for this are practical: (1) Federal agencies have resources to support an investigation. Consider the cost and expense to Utah taxpayers of the legislative report that exposed the alleged wrongdoing in the attorney general’s office. (2) The FBI and the DOJ have units specializing in wrongdoing by elected officials. Local offices are unlikely to have even a single specialist focused exclusively on public corruption. Expertise is often crucial to success. (3) Local officials may have a relationship with the target of an investigation and may themselves be a target or witness. (4) Local prosecution offices run the risk of having a prosecution labeled “partisan.”

D.A. Sim Gill’s frustration over the inaction of federal prosecutors bubbled over at the press conference when charges were announced: “This case is not something we should be prosecuting as local prosecutors” (Deseret News, July 15). Max Wheeler, Shurtleff’s attorney, agreed, arguing on KSL Newsradio that once the DOJ declined charges, the case should have been closed.

Yet local officials have concurrent jurisdiction. State laws proscribe corruption, and once a case is presented for screening, prosecutors must determine whether there is sufficient evidence to sustain charges and whether charges are appropriate.

Wheeler failed to mention three important facts: First, DOJ declined prosecution at that time. Investigations are dynamic, and as facts emerge, its position may change. Second, a bipartisan investigation sponsored by the House of Representatives found wrongdoing after the declination. And third, as the case involves state officeholders, the interested level of government is the Utah Attorney General’s Office. Attorney general attorneys and staff may be targets, or witnesses, and at a minimum have a core conflict of interest.

The prosecution of state-level officeholders by county district attorneys is a natural consequence of allegations of wrongdoing in the Utah Attorney General’s Office.

It is also crucial to understand the screening process, which led to specific charges.

The National District Attorney’s Association states: “The primary responsibility of a prosecutor is to seek justice … which includes, but is not limited to, ensuring that the guilty are held accountable, that the innocent are protected from unwarranted harm and that the rights of all participants … are respected.”

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