Matthew R.

Lewis (7919)
Brett L. Tolman (8821)
Paul C. Burke (7826)
Katherine E. Priest (14758)
RAY QUINNEY & NEBEKER P.C.
36 South State Street, Suite 1400
P.O. Box 45385
Salt Lake City, Utah 84145-0385
Telephone: (801) 532-1500
Fax: (801) 532-7543
Email: mlewis@rqn.com
Email: btolman@rqn.com
Email: pburke@rqn.com
Email: kpriest@rqn.com
Attorneys for Kirk Torgensen

IN THE THIRD DISTRICT COURT, SALT LAKE DEPARTMENT

SALT LAKE COUNTY, STATE OF UTAH

STATE OF UTAH,
Plaintiff,
v.

MEMORANDUM IN SUPPORT OF
EXPEDITED MOTION TO UNSEAL
PRIVATE DOCUMENTS IN SUPPORT
OF MATERIAL WITNESS WARRANT

JOHN EDWARD SWALLOW

Case No. 141907718
Defendant.
Judge Elizabeth Hruby-Mills

Witness Kirk Torgensen (Witness), through undersigned counsel, hereby submits this
Memorandum In Support of Expedited Motion to Unseal Private Documents in Support of Material
Witness Warrant (the Motion).

INTRODUCTION
This expedited motion seeks the immediate public release of the affidavits submitted by
the prosecution (the Affidavits) in support of its application to jail its own witness in this highprofile case. The deprivation of liberty by the government of any citizens freedom is inherently
a matter of significant public concern. These interests are further heightened in this public
corruption case because an innocent whistleblower from the Attorney Generals Office was
wrongfully arrested and has now served more time in jail than has the former Attorney General
whom the prosecution has accused of crimes.
This expedited motion seeks the immediate release of the Affidavits accompanying the
governments Application for Material Witness Warrant (the Application). The Affidavits are
currently designated as private records. There is no legal basis for maintaining this designation.
On the other hand, there are compelling reasons to immediately release the Affidavits.
The Affidavits should be immediately released so that the public will know whether or
not the government complied with the law when it obtained the warrant to arrest the Witness.
Rule 7(l) of the Utah Rules of Criminal Procedure establishes a clear two-step procedure to be
followed if the prosecution fears that a material witness may not appear to testify. First, upon a
showing of good cause that the witness will not appear, Rule 7(l) authorizes a magistrate to issue
an order compelling the witness to post a bond guaranteeing the witnesss appearance. See Utah
R. Crim. P. 7(l)(1). Second, [i]f the witness fails or refuses to post bond with the clerk of the
court, Rule 7(l)(2) then provides that the magistrate may issue a warrant and commit the
witness to jail until the witness complies or is otherwise legally discharged. See Utah R. Crim.
P. 7(l)(2) (emphasis added).

The release of the Affidavits is necessary to show whether or not the government
complied with Utah law by following these two basic steps. The prosecutions Application
consists of a single page bearing only two sentences. See Application, filed January 9, 2017.
The Application itself asserts no factual basis to suggest that the Witness might not appear to
testify. Nor does the Application refer to the prior issuance of a bond requirement or any failure
or refusal by the Witness to post such a bond. Instead, the second sentence of the Application
states that [t]his motion is based upon affidavits herein by the undersigned. See Application.
The States reliance on the Affidavits now justifies their release.
The Affidavits must be made available so it will be publicly evident whether or not the
government complied with Rule 7(l) of the Utah Rules of Criminal Procedure in seeking the
arrest and detention of the Witness. The public deserves to know whether or not its prosecutors
skipped a step required by Utah law when they rushed to arrest the Witness rather than seeking a
bond. The public deserves to know if the actions of their prosecutors have harmed an innocent
citizen and created liability for the State.
The Witness, who was a loyal civil servant of the State of Utah for nearly two decades,
was arrested by seven federal agents shortly after attending his mothers burial. His reputation
has been significantly harmed by his wrongful arrest. His mugshot and photos of him in a jail
jumpsuit and shackles have been posted permanently in cyberspace and plastered throughout the
local media. The Witness has a compelling interest in the release of the Affidavits in order to
demonstrate to the public that the State violated Utah law and wrongfully arrested him.
The tremendous powers of the government were targeted in this instance against an
innocent citizen whose freedom was wrongfully taken and whose reputation has been

besmirchedunfairly, unnecessarily, irreparably and without due process of law. Prosecutors

should lock up and shackle criminals, not innocent citizens. This Motion should be granted
without delay so that the public will have access to the records showing that the State in this case
failed to follow the law and wrongfully jailed a whistleblower as a result.
ARGUMENT
I.

THERE IS NO BASIS TO SHIELD THE AFFIDAVITS FROM THE PUBLIC.

This Motion should be granted because there is no legal justification to continue

classifying the Affidavits as private records. Court records are presumptively public unless
specifically classified or ruled private. See Utah Code Jud. Admin. R. 4-202.02; see also State v.
Allgier, 2011 UT 47, 10, 258 P.3d 589. This presumption of public access serves the public
interest in having an open government. Utah Code Jud. Admin. R. 4-202(1). Indeed, there are
many important purposes for public access to court records, such as: the publics ability to
obtain information concerning the conduct of the publics business; the education of the public
about the workings of government and the decisions being made on the publics behalf; the
ability of the public to hold public officers and employees accountable; and to increase public
confidence. Id.
Rule 4-202.02(2)(D) of the Utah Rules of Judicial Administration expressly designates
arrest warrants (after service) as public court records. In this case, the Application is currently
publicbut not its supporting affidavits. The State has the burden to rebut the presumption of
public access for the Affidavits. Allgier, 2011 UT 47 at 14. Because these affidavits do not
contain any protected or private information as outlined in Rule 4-202.02 of the Utah Code of
Judicial Administration, and because there is no other basis for designating them as private, this
motion should be granted to make the Affidavits public.
4

II.

THE AFFIDAVITS SHOULD BE MADE PUBLIC TO REVEAL THE STATES

FAILURE TO FOLLOW UTAH LAW.
The presumption of public access is particularly important in this casewhere a free

citizen lost his liberty on the basis of affidavits that are currently unavailable to the public. The
public should be most on . . . guard to protect liberty when the governments purposes are
beneficent. Olmstead v. U.S., 277 U.S. 438, 479, 48 S.Ct. 564 (1928) (overruled in part on
other grounds). Men born to freedom are naturally alert to repel invasion of their liberty by
evil-minded rules . . . [as] [t]he greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding. Id.
Allowing public access to the Affidavits will also grant the public the opportunity to
independently determine whether the State violated its highest ethical duty in ensuring liberty to
its citizens. Granting access will further allow the public to hold the State accountable for its
actions so as to repel [the] invasion of their liberty. Utah Code Jud. Admin. R. 4-402(1)(D);
Olmstead, 277 U.S. at 479. The publics confidence in government will also increase with
access to the Affidavits as it will be able to hold the government accountable and ensure that
such violations will not happen again. Accordingly, this Court should grant public access to the
Affidavits as doing so is in the publics interest.
CONCLUSION
This expedited motion should be granted so that the entire Application will be public as
contemplated by Utah law. Public access to the Affidavits is critical so that the public can judge
whether or not the State acted appropriately and in accordance with law. The Affidavits should
be immediately re-classified as public records.

DATED this 12th day of January, 2017.

RAY QUINNEY & NEBEKER P.C.

/s/ Paul C. Burke

Matthew R. Lewis
Brett L. Tolman
Paul C. Burke
Katherine E. Priest
Attorneys for Witness Kirk Torgensen

CERTIFICATE OF SERVICE
I hereby certify that on the 12th of January, 2017, the foregoing EXPEDITED
MOTION TO UNSEAL PRIVATE DOCUMENTS IN SUPPORT OF MATERIAL
WITNESS WARRANT was filed the Courts electronic filing system which sent notice to the
following:

Chou Chou Collins

B. Fred Burmester
Samuel P. Sutton
Salt Lake County District Attorneys Office
111 East Broadway, Suite 400
Salt Lake City, Utah 84111

/s/ Dawn E. Bouvier

Dawn E. Bouvier

1399571