Will Former Utah Attorney Generals Swallow and Shurtleff be Tried Together?
It may be surprising to many people that criminal co-defendants are not automatically granted their own trial. That is, a co-defendant may be tried along with a co-conspirator or individual who allegedly worked with the accused. However in many, if not in most, instances it is not in the defendant’s best interest to proceed with a consolidated defense. But, because courts generally favor the consolidation of matters, or one criminal trial of all defendants, it can be a difficult battle to convince a judge to sever the defendants so that you can proceed as the sole defendant in the matter. But an experienced criminal defense attorney, like Darwin Overson of Overson Law, can increase the likelihood of of a favorable result.
Such may be the scenario for co-defendants and former Utah Attorney Generals Mark Shurtleff and John Swallow. The two individuals are charged with shared and unique crimes that are generally white collar crimes in nature. Some of the charges that have been filed against the former AGs include:
- Pattern of unlawful activity (racketeering)
- Evidence tampering
- Obstruction of justice
- Falsifying or altering government records
- Illegally accepting gifts or loans
- Receiving or soliciting bribes by a public official
- Failure to disclose a conflict of interest
These charges include both misdemeanors and felonies stemming from transactions and dealings with many of the same individuals. They are currently scheduled to appear as co-defendants before the 3rd District Court of Utah. However many observers expect one or both of the defendant’s attorneys to file a motion to sever so that each defendant can face their own jury.
Motions to Sever Defendants in Utah
Under the Utah Rules of Criminal Procedure, 77-8a-1, defendants are to be tried together as co-defendants unless otherwise ordered by the court. Co-defendants can face the same jury if:
- They are based on the same conduct or acted together; or
- They are alleged to work together in a common plan or scheme
However, “if the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.” 77-8a-1(4)(a).
But, as per 77-8a-1(4)(a), a defendant or his criminal attorney must make the motion to sever at least 5 days prior to trial. If the attorney does not make the motion previous to this point, the defendant’s right to sever is waived.
Why Would a Defendant Want to Sever their Criminal Trial?
There are a broad-array of reasons why an attorney would advise a client to sever his or her criminal trial from a co-defendant. Such advice is often a strategic decision, though in some circumstances Constitutional rights may be implicated. Concerns that an experienced criminal defense lawyer may address by moving to sever may include:
- Avoid a collective trial – When evidence is presented together as a lump-sum, there is always the risk that jurors will fail to distinguish between the defendants. An experienced attorney would want to avoid the potential of a conviction due to the sum total of the evidence rather than the evidence that is relevant.
- Conduct a cleaner trial – As the number of defendants increase, the potential that an attorney will object or engage in lengthy motion practice increases. Such
- Avoid jury confusion – As the number of defendants increases, jury instructions may become more confusing as the court attempts to accommodate many competing interests.
- Protect the defendant’s Constitutional rights – Perhaps the most common Constitutional objection for severance stems from the Sixth Amendment’s Confrontation Clause, as incorporated to the States via the Fourteenth Amendment. The clause essentially guarantees a criminal defendant the right to confront witnesses through cross-examination. When witnesses are also co-defendants, excessive restrictions on cross-examination may violate one or both defendant’s rights.
One or more of these factors may induce the criminal defense attorneys to file a motion to sever for strategic reasons. But, like all decisions of this type there are two schools of thought. On one hand some observers believe that the guilt by association effect should be avoided at all costs. However other criminal defense attorneys may be inclined to take a different approach to the matter. If part of the strategy is to deflect blame, it may be useful to have the target of the blame present before the jury in the same room. Difficult decisions like these illustrate the importance and value of an experience criminal defense attorney.
Put our Criminal Defense Experience to Work for you
For more than 15 years, the attorneys of Overson Law have protected the rights of those charged with a crime in Utah. If you are facing serious charges call our offices at (801) 758-2287 or contact us online.