TROY RAWLINGS, Bar No.

6969
Davis County Attorney
Special Assistant Utah Attorney General
troy@daviscountyutah.gov
P.O. Box 618
Farmington, UT 84025
Ph/ 801-451-4300
Fx/ 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 Cove
Sandy, Utah 84092

REPLY TO THE UNITED STATES

DEPARTMENT OF JUSTICE
RESPONSE TO THE STATE OF
UTAHS MOTION TO COMPEL THE
UNITED STATES GOVERNMENT TO
PROVIDE DISCOVERY AND BRADY
MATERIAL TO PROSECUTORS FOR
THE STATE OF UTAH
Case No. 141907720

Defendant.
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

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 Utahs Reply to the October 23, 2015 DOJ Response
to the States 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 governments discovery obligations and a defendants 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 States investigation into Messrs. Swallow and Shurtleff. The FBI

has not withheld any documents from the State that the FBI believes
are relevant to the States 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 Attorneys 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
[DCAOS] 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

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 Attorneys 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 (PSRs)

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
Attorneys 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 DOJs 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 States and this Courts 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

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 Courts 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 PSRs).
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 key
document she needs to properly analyze the jurisdictional issues the United States advances in
response to the Motion to Compel. Without the benefit of the currently-sealed September 2013
United 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.

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 States 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 States request and directive
of the sealed federal Order. It appears that the United States Attorneys 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 Orders 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 Swallows counsel that it
was declining prosecution. That same month, the FBI received
authorization to disclose material obtained during the investigation to
state prosecutors conducting their own criminal investigations of Messrs.
Shurtleff and Swallow.

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 full 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 Attorneys 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 Attorneys Office virtually answers itself. The

National Prosecution Standards Third Edition / NDAA

1. THE PROSECUTORS RESPONSIBILITIES

1-1.1 Primary Responsibility
The prosecutor is an independent administrator of justice in the criminal justice system, which
can 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 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, particularly victims of crime, are
respected.
1-1.2 Societal and Individual Rights and Interests
A prosecutor should zealously protect the rights of individuals, but without representing any
individual as a client and therefore should put the rights and interests of society in a
paramount position in exercising prosecutorial discretion in individual cases.

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

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);

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.

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

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 (PSRs).
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

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 the
matters recorded. That appears to us to be a critical distinction. While we must accept it as
lawful for a department of the government to suppress documents, even when they will help
determine controversies between third persons, we cannot agree that this should include their
suppression in a criminal prosecution, founded upon those very dealings 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 documents may possess; it must be conducted in the open, and will lay bare
their subject matter.

Courts 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 defendants 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.

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 THE
UNITED STATES DEPARTMENT OF JUSTICE RESPONSE TO THE STATE OF
UTAHS MOTION TO COMPEL UNITED STATES GOVERNMENT was served
upon the following, by email and by submission of the document for electronic
filing, on November 9, 2015:
Timothy Jafek
Assistant United States Attorney
United States Attorneys 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 prosecutors duty to learn of Brady information: A
prosecutors Brady disclosure obligation is not limited to information of
which a prosecutor has actual knowledge; rather, a prosecutor has a

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 prosecutions 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 governments 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

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 generals 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 governments 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

(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 definite
sense 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;

(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 prosecutions 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 prosecutions duty to produce exculpatory

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 were
made in the course of official duties; and, although we cannot know
whether they threw light upon the specific transactions proved at the
trial, as we have already said, the point was disposed of on the
assumption that their contents might be relevant. If they related to
transactions with those "permittees" who were alleged to have bribed the
accused, they certainly were relevant; and we think that they would not
have been too remote, though they showed only that the accused had in
other instances been faithful and assiduous in the discharge of their
duties. 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
the matters recorded. That appears to us to be a critical distinction.
While we must accept it as lawful for a department of the government to
suppress documents, even when they will help determine controversies
between third persons, we cannot agree that this should include their
suppression in a criminal prosecution, founded upon those very dealings

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 documents
may 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 it
must expose them fully. Nor does it seem to us possible to draw any line
between documents whose contents bears directly upon the criminal
transactions, and those which may be only indirectly relevant. Not only
would such a distinction be extremely difficult to apply in practice, but
the same reasons which forbid suppression in one case forbid it in the
other, though not, perhaps, quite so imperatively. We hold that the
regulation should have been read not to exclude the reports here in
question. We cannot of course know, as the record stands, how
prejudicial 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.