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.”
A prosecutor is the gatekeeper to the justice system determining whether a person will be charged and what charges to file through a screening process, arguably one of the most important functions of a prosecutor.
Charges have separate parts, elements that must be proved beyond a reasonable doubt. A prosecutor considers evidence and decides whether or not the charges encompass the accused’s criminal conduct, and whether admissible evidence on every element can be offered at trial.
Screening reflects the focus of its founding government. In Salt Lake City prosecutions charges are filed based on an officer’s report and citation. A district attorney may have an attorney, and support staff review officers’ reports and file charges that meet prosecution standards.
Federal case screening is likely most similar to what was done in the Shurtleff and Swallow caes. Agents begin an investigation, and once they believe they have evidence to support charges, or if they want to consult on an investigation, they meet with an AUSA for screening. Agents provide detailed reports, evidence and analysis in support of their case.
After the meeting, an AUSA prepares a memorandum summarizing the charges, evidence and issues likely to arise in the case. The memorandum is reviewed by a supervising attorney and then by a screening committee of experienced attorneys who approve the presentation to a grand jury. The grand jury weighs evidence and issues (or not) charges via an indictment.
In complex investigations, the process amps up exponentially, as if on steroids. Prosecutors and agents form a team and plan an investigation. The team may use subpoenas, search warrants and wiretaps. Where there have been multiple searches and subpoenas, there has also been heightened scrutiny by a grand jury or a judge.
The investigation may prove challenging and time-consuming. Because computers and personal devices contain huge amounts of information, they require a showing of the need for the device and a protocol to govern the search. Deleted evidence may need to be recovered by experts or by searches at Internet providers. Experts may need to be consulted. The testimony of witnesses may need to be preserved.
Different offices will have unique screening and prosecution standards. The participation of two separate offices in Shurtleff and Swallow is unique. It seems reasonable, perhaps even wise, that Gill and Rawlings joined forces to protect themselves from charges of partisanship.
In practical terms, the extensive screening process inherent in any complex investigation was more than doubled as a team, from two offices, joined with agents from several law enforcement agencies. It is likely that final charging decisions were made only after each office, in consultation with investigative agencies, went through this elaborate process independently.
In complex investigations, charges represent the tip of the iceberg. Beneath the surface of the sea is a labor intensive, deliberate and substantive pre-trial investigation and screening process.
Henri Sisneros is a criminal lawyer and justice system leader from Salt Lake City, Utah. After graduating from Stanford Law School, he worked as an Assistant United States Attorney and Assistant Federal Defender.