Friday , July 18, 2014 - 12:09 PM
The headlines this week about two of Utah’s former attorneys general being arrested prompted a lot of articles and commentary. From a legal perspective, my first impulse is to give a reminder that in our system the accused is innocent until proven guilty. I firmly believe that, but being human and watching how people react, we can all do with a reminder that our system does not and should not convict on media hype or public sentiment, but rather within the rules and confines of the court system which are designed to look as objectively as possible to determine the facts and whether crimes have been committed.
The editorial in the Standard on Thursday said that “the onus of these cases has shifted to the prosecution.” The burden of proof has never shifted, it has always remained with the prosecution. The prosecution’s job by definition is to provide the proof beyond a reasonable doubt that the alleged crimes have been committed. When someone is charged it is always the onus or burden of the prosecution to prove the case. I have no doubt that Sim Gill and Troy Rawlings are well aware of their responsibilities as prosecutors.
High-profile cases in particular have the uncanny ability to warp the justice system. Judges, lawyers and jurors are all humans and are influenced by the media and public sentiment. The system is designed to make every effort to assist the humans involved in a criminal case from becoming prejudiced or slanted by the media onslaught, by providing consistent reminders to the actual participants of the duty for impartiality and fairness.
The odd complication in this particular criminal case is that both the accused are attorneys and former elected officials. I know everyone wants to insert unethical attorney or politician jokes at this point, but as a society we want our attorneys and politicians to achieve higher ethics in the performance of their duties. The position of trust required from attorneys and elected officials demands a higher ethical performance.
Yet ethics violations are not necessarily crimes (although crimes are ethics violations) and the two should not be conflated. Any ethical violations by Swallow and Shurtleff that reflect on the practice of law will be subject to action by the Utah State Bar, not the criminal courts. The Utah Legislature in its investigation of Swallow made it quite clear that he had committed ethics violations as an elected state official, finding that Swallow had compromised the integrity and principles of his office and going on to state, “While the corruption of any public office is unacceptable, the corruption of the office specifically tasked with ensuring equal justice under the law is particularly harmful because it undermines the public’s faith that justice in the state is being dispensed equally and without regard to economic, social or political status.”
Ethics violations erode the trust within the system. Criminal violations break the laws of the system. A fine line, but a line nonetheless.
Attorneys are used to dealing with conflicting ethical demands and have an intricate set of rules laid out to avoid ethical violations. Adding political concerns on top of ethical demands can seem like an almost inhuman task, which is why the comment from Davis County Prosecutor Troy Rawlings in Loretta Park’s article on Tuesday struck me. Rawlings stated that county attorneys "should be unaffiliated to a political party,“ and ”The office is based on evidence, facts and law.“
Yet our current system has us electing attorneys to represent us at the county and state level through the political party system. I do agree with Mr. Rawlings' sentiments and maybe his words should be a guide in how you should choose an elected legal representative, by choosing one who has loyalty to the law above loyalty to any political party. If we all vote that way, then maybe we avoid headlines like we saw this week.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or firstname.lastname@example.org.
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