state of utah reply to doj's response to motion to compel the federal government

8/20/2019 State of Utah Reply to DOJ's Response to Motion to Compel the Federal Government

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TROY RAWLINGS, Bar No. 6969Davis County Attorney

Special Assistant Utah Attorney [email protected]

P.O. Box 618

Farmington, UT 84025Ph/ 801-451-4300Fx/ 801-451-4348

IN THE THIRD DISTRICT COURT, SALT LAKE DEPARTMENT

IN AND FOR THE COUNTY OF SALT LAKE, STATE OF UTAH

THE STATE OF UTAH

Plaintiff,

vs.

MARK LEONARD SHURTLEFF

DOB: 08/09/1957,2020 East Candle Spruce CoveSandy, Utah 84092

Defendant.

REPLY TO THE UNITED STATESDEPARTMENT OF JUSTICE

RESPONSE TO THE STATE OFUTAH’S MOTION TO COMPEL THE

UNITED STATES GOVERNMENT TOPROVIDE DISCOVERY AND BRADYMATERIAL TO PROSECUTORS FOR

THE STATE OF UTAH

Case No. 141907720

Judge: Elizabeth A. Hruby-Mills

Case No. 141907720, State of Utah vs. Mark Leonard Shurtleff, since

September of 2013, pursuant to a federal judicial decree, is a State of Utah

case, governed by State Statutes, State Rules of Criminal Procedure, the

mailto:[email protected]:[email protected]


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Constitution of the United States and the Constitution of the State of Utah. It is

not governed by the Department of Justice (“DOJ”). Before getting to the

substance of the State of Utah’s Reply to the October 23, 2015 DOJ Response

to the State’s Motion to Compel, two quick observations are in order. Counsel

for the DOJ writes as follows:

a.

DOJ Proposition 1: “The FBI has provided to the State hundreds of

thousands of pages of documents (or their equivalent in electronic

data) related to the investigations into Messrs. Shurtleff and Swallow.”

The State of Utah is grateful to the FBI for the effort that went into this

production and is not trying to demean or diminish what has been provided.

However, the State of Utah contends that the determinative legal framework,

such as constitutional rights , Rule 16 of the Utah Rules of Evidence and the body

of law developed around Brady v. Maryland , 373 U.S. 87 (1963), does not

depend upon the number of documents or items provided. The constitutions of

the State of Utah and the United States of America do not have provisions that

indicate once the government hands over 100,000 pages they are good to go

and can stop. If there is a 100,001st it must also be provided. Numeric

quantifications alone mean nothing when it comes to actually complying with

the government’s discovery obligations and a defendant’s rights (see End-Notes

1 & 2 , short summaries of relevant Brady case law and Utah law).

b.

DOJ Proposition 2: “The FBI provided those documents to the State

because the FBI determined that those documents were relevant to

the State’s investigation into Messrs. Swallow and Shurtleff. The FBI


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has not withheld any documents from the State that the FBI believes

are relevant to the State’s charges against Messrs. Swallow and

Shurtleff.”

In the State of Utah, the police do not get to determine what evidence is

provided to the defense and what is not. This is a State case. Consider the

above quote from the DOJ response as if it was in the following context, when

the State prosecutor is aware that the local police agency has additional

information the prosecutor believes to be relevant and material:

“[Bountiful City Police Department (BPD)] provided those documents to

[the Davis County Attorney’s Office (DCAO)] because the [BPD]

determined that those documents were relevant to the [City] investigation

into Messrs. Swallow and Shurtleff. [BPD] has not withheld any

documents from the [DCAO] that the [BPD] believes are relevant to

[DCAO’S] charges against Messrs. Swallow and Shurtleff.”

Who has the legal and ethical responsibility of making prosecutorial charging

and case management decisions? Who makes ultimate criminal charging, plea

or dismissal determinations? Who makes Utah Rules of Evidence Rule 16 and

Brady-Giglio decisions? Is it the prosecutor handling the case? The United

States Supreme Court says – yes. Is it the police who investigated? The United

States Supreme Court says – no. In defending against a motion to dismiss a

criminal case, or a bar complaint, can a prosecutor simply say to the judge, or

to the Utah State Bar: “well, the police decided they did not have to give it to

me.” Prosecutors from the State of Utah cannot delegate such discretionary


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decisions to the police, or any other entity. The United States Supreme Court

adamantly agrees. (Again, see critical End-Notes 1 & 2 , short summaries of

relevant Brady case law as well as Utah law).

The State of Utah wishes to make explicitly clear, since there has been

misinterpretation on this point, that the Motion to Compel is not accusing local

FBI agents of intentionally withholding material from the State vs. Mark L.

Shurtleff prosecution team. Being federal employees, FBI agents are bound by

DOJ constraints, even though this is a State case by judicial decree. In fact, a

good deal of the information the State of Utah is questing for is likely not

readily available to them (if even at all) and is in offices in other parts of the

country (the State has made request of various offices and entities). The State

of Utah also believes that DOJ Counsel from Colorado, Mr. Timothy Jafek, is

operating in good faith. Mr. Jafek most likely was and continues to be

insulated from documents, information and proffers from the State that were

already made, as well as historical events that did not take place within the

District of Colorado. One quick example illustrates this point. Even though

not recused and therefore not walled off, Mr. Jafek appears not to possess

significant information and evidence of which the DOJ as an entity is fully

aware. Such information was provided in the context of State of Utah cases by

[an immunized] Mr. Jeremy Johnson, which was then obtained by the recused

United States Attorney’s Office District of Utah without State prosecutors’

advance knowledge or consent. Assuming Mr. Jafek is so uninformed, he is

able to argue against the State of Utah Prudential Search Requests (“PSR’s”)


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with clean hands, except to the extent he is now on inquiry notice. He

personally would not know what is in the Johnson-provided information, which

clearly leads to material information in (among other places) the United States

Attorney’s Office for the Southern District of New York, DOJ-PIN itself and

overseas. Unlike Mr. Jafek himself, however, the DOJ knows exactly why the

State of Utah is pursing the PSRs. For example, the DOJ has the Johnson

evidence and material from the State of Utah cases (and so does the Federal

Election Commission (“FEC”), which is using the material Mr. Johnson

provided in the context of a State of Utah investigation [as of September - 2013]

and prosecution and under an immunity agreement against him). Remaining

uninformed of what is already within the DOJ’s knowledge, which fully

mandates the PSRs, is an obstacle Mr. Jafek must be able to overcome from

within the DOJ as information is imputed to him, their designee on this

case. The State of Utah respectfully requests that this Court enter an order

granting the Motion to Compel the United States Government.

Pursuant to the express permission of and authorization granted by the

Department of Justice, the Federal Bureau of Investigation (“FBI”) chose to

bring itself within this State’s and this Court’s jurisdiction after the DOJ

abandoned and closed its investigation. It did so of its own accord by offering

its assistance and then voluntarily joining a State investigation and later-State

prosecution. It willingly participated in procuring state-court-issued search

warrants. It willingly involved itself in preparing a declaration of probable

cause to support an arrest warrant and a criminal information. And, the DOJ


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and FBI, with the apparent assistance of then- and still-conflicted local Office

of the United States Attorney, sought and obtained a Court Order under Rule

6(e), Federal Rules of Criminal Procedure, in order to tear down any

jurisdictional fences that would otherwise impede full cooperation--and

information--extending from the United States to the State of Utah. This Court

has Jurisdiction to order full discovery compliance from the DOJ and FBI

because they acceded to this Court’s jurisdiction. The DOJ does not get a

mulligan because a State prosecutor is interested in the full scope of the case

and the defendant in the State case is interested in the same. Particularly

when, to their credit, local FBI agents were in-tune with the overlap of the full

scope of the case, but were not able to sit down and play that grand piano,

through no fault of their own. The State of Utah is confident that DOJ-PIN

already knows why most of the material being sought by the State of Utah is

relevant (see Exhibit F – to be filed under seal, as one demonstrative example in

the possession of the State of Utah, the DOJ and FBI that clearly leads to some

of the documents requested in the State of Utah PSR’s).

If any question remains, this Court should strongly encourage the United

States to cooperate in securing for this Court a necessary Federal Court Order

authorizing the unsealing of the September, 2013 Rule 6(e) Order.1 As a

reminder, in the initial Motion to Compel the United States Government to

1 The State of Utah again calls on the United States Department of Justice to take

action that will allow the Honorable Judge Elizabeth A. Hruby-Mills access to the keydocument she needs to properly analyze the jurisdictional issues the United States advances inresponse to the Motion to Compel. Without the benefit of the currently-sealed September 2013United States District Court Order as the primary exhibit, the State of Utah, and the Court,may feel hamstrung in their ability to fully address the inapplicability of Touhy problem.


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provide requested material, the State of Utah anticipated the United States’

response by making the following representation and request when describing

the various ways in which the United States had already subjected itself to the

jurisdiction of this Court:

1.

By seeking a September 17, 2013 Sealed Order from the United States

District Court for the District of Utah, Central Division. The Order is

clearly dispositive of the jurisdictional matter. The Order is sealed, so the

State cannot provide it. However, the DOJ, in their likely response to this

Motion to Compel, will not deny it exits. The DOJ, via the Colorado office,

may argue with the State’s interpretation of the Order, but Utah will then

ask them to stipulate that the Order be unsealed by the United States

District Court for this Honorable State Court to review.

The DOJ seems to pay little attention to the State’s request and directive

of the sealed federal Order. It appears that the United States Attorney’s Office

wants the Court to limit itself to considering the “single narrow jurisdictional

question” without the benefit of that September, 2013 United States District

Court Order. The DOJ largely ignores that Order’s existence in its Response to

the State Motion to Compel, other than a limited and vague reference at the top

of page 6 as follows:

In September 2013, PIN notified Shurtleff and Swallow’s counsel that itwas declining prosecution. That same month, the FBI receivedauthorization to disclose material obtained during the investigation to

state prosecutors conducting their own criminal investigations of Messrs.Shurtleff and Swallow.


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Today, the State of Utah again implores the United States Department of

Justice as follows: turn over all requested material, or join the State of Utah in

seeking Judge Hruby-Mills’ f ull access to the currently sealed United States

District Court Order from September of 2013. Do not seek to limit the

information the Judge needs to make a fully-informed decision. In the interest

of the public good (which is the duty of prosecutors2), in the spirit of full candor

to this Court, in the interests of protecting the constitutional rights of

defendant Shurtleff, and in the interest of gaining access to all material

information, the United States should have no qualms about joining with the

State in seeking to unseal the critical Order.

The US Attorney’s Office pleading, if viewed through the “single narrow”

paradigm it wants a state court judge to view it, is a well-written masterful

piece of rhetorical persuasion. The stripped down narrowly-framed question

posed by the United States Attorney’s Office virtually answers itself. The

2 National Prosecution Standards Third Edition / NDAA

1. THE PROSECUTOR’S RESPONSIBILITIES1-1.1 Primary Responsibility

The prosecutor is an independent administrator of justice in the criminal justice system, whichcan only be accomplished through the representation and presentation of the truth. The

primary responsibility of a prosecutor is to seek justice. This responsibility includes, but is notlimited to, ensuring that the guilty are held accountable, that the innocent are protected fromunwarranted harm, and that the rights of all participants, particularly victims of crime, arerespected.

1-1.2 Societal and Individual Rights and InterestsA prosecutor should zealously protect the rights of individuals, but without representing anyindividual as a client and therefore should put the rights and interests of society in aparamount position in exercising prosecutorial discretion in individual cases.


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question and answer are, however, far from complete. The actual real-life

questions posed to the State of Utah-Third District Court should be:

1 - Given the facts of this particular case, deciding the Motion to Compel

requires this court to determine the following: Does this State Court have

jurisdiction, given the mandate in a prior United States District Court Order

done under seal, to compel a federal agency, who has repeatedly submitted

itself to the jurisdiction of this court on this case through search warrant

seeking, arrest warrant seeking and investigative subpoena quests, to

continue producing documents to the prosecution when the federal

agency has already waived Touhy regulations and procedural hurdles for

items it wants to produce ?

2 - Given the prior related United States District Court Order as

home-base, does the United States Department of Justice still get to control

and determine:

a.

How the case is prosecuted (or not);

b.

What charges are prosecuted, or not, because in Utah, a

criminal information, Pursuant to Utah Rules of Criminal

Procedure Rule 4, may be amended as follows: “(d) The court

may permit an information to be amended at any time before

trial has commenced so long as the substantial rights of the

defendant are not prejudiced. If an additional or different

offense is charged, the defendant has the right to a

preliminary hearing on that offense as provided under these


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rules and any continuance as necessary to meet the

amendment. The court may permit an indictment or

information to be amended after the trial has commenced

but before verdict if no additional or different offense is

charged and the substantial rights of the defendant are not

prejudiced. After verdict, an indictment or information may

be amended so as to state the offense with such particularity

as to bar a subsequent prosecution for the same offense

upon the same set of facts.” The Department of Justice, not

knowing this, takes the erroneous view that the four corners

of the present information are set in stone and cannot be

altered in any fashion. Will the DOJ attend any trial that

may occur and tell State prosecutors what amendments to

make to the criminal information, or prevent amendments

the State prosecutor handling the case at trial may want to

make?;

c.

What witnesses and evidence are used (or not) to prosecute

the State case; therefore,

d.

What is followed up on and what is not (in other words, what

lines of inquiry are pursued and what lines are not and why);

e.

What possible co-defendants or potential parties to various

crimes may be followed up on (or ignored and why);


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f.

Brady-Giglio and Utah Rules of Criminal Procedure Rule 16

discretionary determinations with respect to what evidence is

presented in court and also otherwise made known to the

defense (and what is not and why);

g.

What witnesses get immunity (and who does not); and

ultimately,

h.

Appropriate determinations concerning case strategy and

disposition alternatives due to holding the information /

discovery cards.

3 - Does the Supremacy Clause of the United States Constitution

actually mean, in a State prosecution consented to and participated in by the

federal government, that the federal government can therefore limit, to

whatever degree they feel the need to and for whatever reason they alone

determine, both (1) Utah State Constitutional Rights, such as those in Article I

§ 12 and Article I § 7 that are afforded a criminal defendant in a state

prosecution; and (2) the ability of the state prosecutor to use prosecutorial

discretion and provide information to the defense?

4 - In short, is Touhy the process State prosecutors must follow by

revealing all they know (and whom they know it about – including within the

federal government) to the Department of Justice with a materiality and

relevance proffer in order to afford a criminal defendant, in a State case, State

constitutional protections when the State is pursuing federal records that may

reveal criminal conduct in those very records themselves? See: United States v.


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Andolschek et al., 142 F.2d 503 (2 Cir. 1944) here in fn.3 and more in End-Note

3( three) . 3

5 – Should a criminal defendant be required to reveal his strategy and

defenses in the defense of his case by satisfying the Touhy requirements being

imposed by an entity that has voluntarily acceded to the jurisdiction, and

therefore the Rules, Regulations, Statutes and Constitution, of the State of

Utah which State Rules, Regulations, Statutes and Constitution do not impose

any such requirements, but instead impose on the prosecution constitutional

disclosure obligations to the criminal defendant that are clearly being impaired

by this jurisdictional muscle-flex?

Relief Sought

The State of Utah asks that this court order the United States

Government to produce all discovery identified in the sealed requests (PSR’s).

This Court has jurisdiction to do so. The federal government has acquiesced

and United States v. Andolschek et al., 142 F.2d 503 (2 Cir. 1944) guts the

Touhy regulations in this case. If any jurisdictional question remains in this

3 The propriety of the exclusion must rest therefore upon the ground on which the judge put it:

i.e., that the regulation forbade the disclosure. It is true that in Boske v. Comingore, 177 U.S.459, 20 S.Ct. 701, 44 L.Ed. 846, the validity of a similar regulation was upheld; and Stegall v.

Thurman, D.C., 175 F. 813, and Ex parte Sackett, 9 Cir., 74 F.2d 922, are to the same effect.However, none of these cases involved the prosecution of a crime consisting of the very matters

recorded in the suppressed document, or of matters nearly enough akin to make relevant thematters recorded. That appears to us to be a critical distinction. While we must accept it aslawful for a department of the government to suppress documents, even when they will helpdetermine controversies between third persons, we cannot agree that this should include theirsuppression in a criminal prosecution, founded upon those very dealings to which thedocuments relate, and whose criminality they will, or may, tend to exculpate. So far as theydirectly touch the criminal dealings, the prosecution necessarily ends any confidentialcharacter the documents may possess; it must be conducted in the open, and will lay baretheir subject matter.

https://casetext.com/case/boske-v-comingorehttps://casetext.com/case/boske-v-comingorehttps://casetext.com/case/boske-v-comingorehttps://casetext.com/case/boske-v-comingorehttps://casetext.com/case/ex-parte-sacketthttps://casetext.com/case/ex-parte-sacketthttps://casetext.com/case/ex-parte-sacketthttps://casetext.com/case/ex-parte-sacketthttps://casetext.com/case/boske-v-comingorehttps://casetext.com/case/boske-v-comingore


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Court’s mind, the Court should strongly encourage the United States to assist

the State of Utah in seeking to unseal the United States District Court Order of

September, 2013 so this Court can enter appropriate follow-up orders. If the

DOJ is not willing to stipulate so this court can consider the existing federal

Order and how it relates to the first prong of the DOJ Touhy assessment

process as outlined by the DOJ responsive pleading of October 23rd, perhaps it

is because the DOJ may feel that without that Order as part of the

determinative law and record of this case, the State motion asking this Court to

compel the DOJ to produce relevant and material information is fatally flawed.

The State of Utah contends that the Motion to Compel the federal

government is not flawed and asks this Court to so find and enter a

corresponding order. Under Utah law, the prosecution bears a significant

burden to provide exculpatory evidence to the accused. If United States

Supreme Court decisions directly on point with the Mark L. Shurtleff case are

to be believed, when it comes to a defendant’s State constitutional rights, Utah

law trumps Touhy. “It is elementary that States are free to provide greater

protections in their criminal justice system than the Federal Constitution

requires.”- California v. Ramos , 463 U.S. 992, 1014 (1983). “No person shall be

deprived of life, liberty or property, without due process of law” (Constitution of

Utah, Article I § 7) . Does this mean nothing when the DOJ flashes Touhy ? This

Honorable Court has the jurisdictional and legal authority to tell the DOJ that

in addition to the United States Constitution and Brady , the Utah State

Constitution is alive, well and has meaning.


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DATED this 9th day of November, 2015

/s/ Troy Rawlings

Troy S. Rawlings

Davis County Attorney

Special Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing REPLY TO THEUNITED STATES DEPARTMENT OF JUSTICE RESPONSE TO THE STATE OFUTAH’S MOTION TO COMPEL UNITED STATES GOVERNMENT was servedupon the following, by email and by submission of the document for electronicfiling, on November 9, 2015:

Timothy Jafek

Assistant United States Attorney

United States Attorney’s Office for the District of Colorado

1225 17th Street, Suite 700

Denver, CO 80202

Doug Davis

In-House Attorney for the FBI

5425 Amelia Earhart Dr.

Salt Lake City, UT 84116

RICHARD A. VAN WAGONER (4690)

SNOW, CHRISTENSEN & MARTINEAU

10 Exchange Place, Eleventh Floor

Post Office Box 45000

Salt Lake City, Utah

End-Note 1 - Relevant excerpts from Brady v. Maryland Outline, The Public

Defender Service for the District of Columbia, Revised March, 2013:

“It is the trial prosecutor’s duty to learn of Brady information: A

prosecutor’s Brady disclosure obligation is not limited to information of

which a prosecutor has actual knowledge; rather, a prosecutor has a


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nondelegable “duty to learn of” Brady information in the case. Kyles v.

Whitley , 514 U.S. 419, 437 (1995).”

“Although Brady itself uses the term “evidence,” the Brady doctrine

encompasses any information, directly admissible or not, that would be

favorable to the accused in preparing her defense, including information

useful to preparation or investigation that may lead to admissible

evidence or have some meaningful impact on defense strategy. See Wood

v. Bartholomew , 516 U.S. 1 (1995).”

“Federal cases explicitly acknowledge that Brady information need not be

admissible to trigger the prosecution’s disclosure obligation. See, e.g.,

Ellsworth v. Warden , 333 F.3d 1 (1st Cir. 2003) (prosecution withheld

double-hearsay note that complainant had made false allegations in the

past and, even though inadmissible, it might have led to admissible

evidence); United States v. Gil , 297 F.3d 93, 104 (2d Cir. 2002) (Brady

information includes competent evidence, material that could lead to

competent evidence, or any information that “would be an effective tool in

disciplining witnesses during cross-examination by refreshment of

recollection or otherwise.”)”

“A prosecutor “has a duty to learn of any favorable evidence known to the

others acting on the government’s behalf in a case,” Kyles , 514 U.S. at

437, aka “the prosecution team.” DAG Guidance Memo, Step 1.A;

Brooks , 966 F.2d at 1503 (duty 22 to search for Brady extends to

“branches of government closely aligned with the prosecution”) (internal

quotations and citation omitted); United States v. Bryant , 439 F.2d 642,

650 (1971) (“The duty of disclosure affects not only the prosecutor, but

the Government as a whole, including its investigative agencies.”); see

also Cook v. United States , 828 A.2d 194, 202 (D.C. 2003) (quoting

Bryant); United States v. Auten , 632 F.2d 478, 481 (5th Cir. 1980) (“If

disclosure were excused in instances where the prosecution has not


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sought out information readily available to it, we would be inviting and

placing a premium on conduct unworthy of representatives of the United

States Government. This we decline to do.”); United States v. Wood , 57

F.3d 733, 737 (9th Cir. 1995) (imputing knowledge of FDA to federal

prosecutors because FDA was agency that administered the statute and

had consulted with the prosecutor at times during prosecution); United

States v. Kattar , 840 F.2d 118,127 (1st Cir. 1988) (“The Justice

Department's various offices ordinarily should be treated as an entity,

the left hand of which is presumed to know what the right hand is

doing.”); United States v. Barkett , 530 F.2d 189 (8th Cir. 1976) (“[O]ne

office within a single federal agency must know what another office of the

same agency is doing. This is no more than to hold the Government to

the same standard of conduct as governs private individuals in

transmitting notice from agent to principal.”); Mastracchio v. Vose , 274

F.3d 590, 600 (1st Cir. 2001) (imputing knowledge of witness protection

team and of the attorney general’s department to the prosecutor).”

“[The trial prosecutors duty m]ay extend across state-federal

jurisdictional boundaries. United States v. Antone , 603 F.2d 566, 569-70

(5th Cir. 1979) (imputing knowledge in state hands to federal prosecutors

because of degree of cooperation and interaction among the various

authorities during the general course of the investigation); United States

v. Naegele , 468 F.Supp.2d 150, 154 (D.D.C. 2007) (in case where

defendant was charged with making false statements in a bankruptcy

proceeding, government had an obligation under Brady to search the files

of the main office of the Region 4 [U.S.] Trustee in Columbia, South

Carolina). A general test is set forth in United States v. Risha , 445 F.3d

298, 303-06 (3d Cir. 2006): “(1) whether the party with knowledge of the

information is acting on the government’s ‘behalf’ or is under its ‘control’;

(2) the extent to which state and federal governments are part of a ‘team,’

are participating in a ‘joint investigation’ or are sharing resources; and


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(3) whether the entity charged with constructive possession has ‘ready

access’ to the evidence.”

End-Note 2 – A few provisions of relevant Utah Law:

Our law recognizes that prosecutors are ministers of justice. State v.

Saunders, 1999 UT 59, ¶ 31, 992 P.2d 951.

[A prosecuting attorney] is the representative not of an ordinary party to

a controversy, but of a sovereignty whose obligation to govern impartially

is as compelling as its obligation to govern at all; and whose interest,

therefore, in a criminal prosecution is not that it shall win a case, but

that justice shall be done. As such, he is in a peculiar and very definitesense the servant of the law, the twofold aim of which is that guilt shall

not escape or innocence suffer. He may prosecute with earnestness and

vigor--indeed, he should do so. But, while he may strike hard blows, he

is not at liberty to strike foul ones. It is as much his duty to refrain from

improper methods calculated to produce a wrongful conviction as it is to

use every legitimate means to bring about a just one. Id. (quoting Berger

v. United States , 295 U.S. 78, 88 (1935)).

One of the most fundamental duties of a prosecutor is to collect and

provide the defense with appropriate discovery. Rule of Criminal

Procedure 16 requires the prosecution to produce exculpatory evidence

and certain categories of inculpatory evidence on an ongoing basis. See

id. Utah Rule of Criminal Procedure 16 provides, in relevant part:

(a) Except as otherwise provided, the prosecutor shall disclose to the

defense upon request the following material or information of which he

has knowledge:

(1) relevant written or recorded statements of the defendant or

codefendants;

(2) the criminal record of the defendant;


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(3) physical evidence seized from the defendant or codefendant;

(4) evidence known to the prosecutor that tends to negate the guilt of

the accused, mitigate the guilt of the defendant, or mitigate the degree

of the offense for reduced punishment; and

(5) any other item of evidence which the court determines on good

cause shown should be made available to the defendant in order for

the defendant to adequately prepare his defense.

(b) The prosecutor shall make all disclosures as soon as practicable

following the filing of charges and before the defendant is required to

plead. The prosecutor has a continuing duty to make disclosure.

The prosecution’s discovery duties are in place because the prosecution

team members have natural and easy access to the information that is

essential to the understanding of their cases and the functioning of the

adversary process. Prosecutors are charged with knowledge of, and have

a duty to obtain and produce in discovery whatever discoverable

information may be held in the files of prosecution team members such

as the police. See, e.g., State v. Shabata , 678 P.2d 785, 788 (Utah 1984);

State v. Knight , 734 P.2d 913, 917 (Utah 1987).

Utah law recognizes that a due process violation may occur if the

prosecution and prosecution team members fail to provide

exculpatory evidence. See, e.g., State v. Jarrell , 618 P.2d 224, 228

(Utah 1980). Under Utah law, the prosecution bears a significant

burden to provide exculpatory evidence to the accused. “No person

shall be deprived of life, liberty or property, without due process of

law.” Constitution of Utah, Article I § 7 . Utah has repeatedly

recognized that the right to discovery is an essential element of due

process of law in criminal cases. E.g., State v. Anderson , 612 P.2d

778, 784 (Utah 1980), and State v. Easthope , 668 P.2d 528, 531

(Utah 1983). The prosecution’s duty to produce exculpatory


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evidence is based on constitutional due process, and extends to

the duty to produce evidence that might impeach a government

witness. See, e.g., Brady v. Maryland , 373 U.S. 83 (1963), United

States v. Bagley , 473 U.S. 667 (1985). Both federal and Utah law

recognize that the withholding of evidence by the prosecution,

either with or without intent, can constitute a violation of the

requirements of due process. As the Court held some 45 years ago

in Brady v. Maryland , 373 U.S. 83 (1963), “[S]uppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87.

End-Note 3 - United States v. Andolschek et al., 142 F.2d 503 (2 Cir. 1944)

Coming next to the alleged errors common to Ward, Nagle and

Herskowitz, the first is the exclusion of the reports of their dealings with"permittees". These reports were presumably competent, since they weremade in the course of official duties; and, although we cannot knowwhether they threw light upon the specific transactions proved at the

trial, as we have already said, the point was disposed of on theassumption that their contents might be relevant. If they related totransactions with those "permittees" who were alleged to have bribed theaccused, they certainly were relevant; and we think that they would nothave been too remote, though they showed only that the accused had inother instances been faithful and assiduous in the discharge of theirduties. The propriety of the exclusion must rest therefore upon theground on which the judge put it: i.e., that the regulation forbade thedisclosure. It is true that in Boske v. Comingore, 177 U.S. 459, 20 S.Ct.701, 44 L.Ed. 846, the validity of a similar regulation was upheld; and

Stegall v. Thurman, D.C., 175 F. 813, and Ex parte Sackett, 9 Cir., 74

F.2d 922, are to the same effect. However, none of these cases involvedthe prosecution of a crime consisting of the very matters recorded in thesuppressed document, or of matters nearly enough akin to make relevantthe matters recorded. That appears to us to be a critical distinction.While we must accept it as lawful for a department of the government tosuppress documents, even when they will help determine controversies

between third persons, we cannot agree that this should include theirsuppression in a criminal prosecution, founded upon those very dealings

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to which the documents relate, and whose criminality they will, or may,tend to exculpate. So far as they directly touch the criminal dealings, the

prosecution necessarily ends any confidential character the documentsmay possess; it must be conducted in the open, and will lay bare their

subject matter. The government must choose; either it must leave the

transactions in the obscurity from which a trial will draw them, or itmust expose them fully. Nor does it seem to us possible to draw any linebetween documents whose contents bears directly upon the criminaltransactions, and those which may be only indirectly relevant. Not onlywould such a distinction be extremely difficult to apply in practice, butthe same reasons which forbid suppression in one case forbid it in theother, though not, perhaps, quite so imperatively. We hold that theregulation should have been read not to exclude the reports here inquestion. We cannot of course know, as the record stands, howprejudicial the exclusion may have been, but that uncertainty alone

requires a new trial; for it does not affirmatively appear that the error

was insubstantial within the meaning of 28 U.S.C.A. § 391.

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