Utah Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 115 Utah cases in which defendants alleged prosecutorial error or misconduct. In 13, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In two, a dissenting judge or judges thought a prosecutor’s conduct prejudiced the defendant.

Of all the cases in which judges ruled a prosecutor’s conduct prejudiced the defendant, seven involved improper trial arguments and questions, two involved the prosecution withholding evidence from the defense, two involved improper indictment tactics, one involved improper communication with the defendant and one involved introducing false evidence.

In 1993, James M. Cope, a Salt Lake County deputy district attorney, prosecuted Kirk Saunders for sexually abusing his daughter. There was no medical or physical evidence of any kind. Six years later, the state Supreme Court reversed Saunders’ conviction and released him from prison.

The allegations surfaced in April 1991, during what the Utah Supreme Court characterized as hostile divorce and child custody proceedings between Saunders and his wife Deborah Smith. Smith first reported the allegations to Michael Mitchell, a detective with the West Valley Police Department. She said Saunders had touched his seven-year-old daughter inappropriately. When Mitchell questioned Saunders, he explained that his daughter had a rash, and he had applied Desitin to the affected areas. No charges were filed.

In June 1992, Saunders and Smith argued about child support payments. The following week, Smith called detective Mitchell a second time with new allegations of improper touching. Following Mitchell’s investigation into the second allegations, Cope filed charges.

“There were a number of cases being prosecuted by the same small group of prosecutors,” said Saunders’ defense attorney, Curtis Nesset, about sexual assault cases. “Some of them were using tactics that were less than honorable.”

At trial, Saunders’ nine-year-old daughter gave “somewhat conflicting, confused testimony” regarding the alleged abuse.

“She obviously had been coached, as evidenced by her use of adult anatomical vocabulary and conclusory legal terminology, such as that she had been ‘sexually abused’ by her father,” wrote state Supreme Court Justice Daniel Stewart in a 1999 opinion that reversed Saunders’ conviction.

Looking back on the case, Cope said the girl’s testimony is probably what persuaded the jury to find Saunders guilty. “I believe the young woman carried most of the weight of the prosecution,” Cope said.

He explained that a sexual assault allegation amidst divorce or custody proceeding begets extra scrutiny. “I try to be a lot more careful when I see something like that happening,” Cope said. “There is a lot more human emotion involved in that kind of case than a stranger doing that to somebody.”

The appellate court noted the marital status of the girl’s parents in its ruling.

“A charge by one spouse accusing the other spouse of sexually abusing a child and the recruitment of the child in the cause occurs not infrequently in divorce cases to gain leverage in custody and child support issues,” Stewart wrote. Later in the opinion Stewart wrote that Cope had “far exceeded appropriate prosecutorial zeal and seriously corrupted the integrity of the truth-finding function of the trial by his inexcusable disregard for fairness based on basic rules of evidence.” Cope declined to retry Saunders. “I didn’t want to put the little girl through that again,” he said.

The state Supreme Court noted that Saunders’ case was not unique. Between 1993 and 2000, Cope’s conduct in particular prompted Utah judges to reverse at least three sexual assault of a child convictions. In another case, the defendant alleged Cope withheld exculpatory evidence. The state Supreme Court said that Cope should have disclosed the evidence, but ruled his failure to do so did not affect the jury’s verdict.

In a 1997 case involving the alleged sexual assault of a child, Cope withheld blood evidence from the defense and waited until the trial was under way before testing it. He then surprised the defense and the court with the blood test results.

“The failure of the prosecution to perform the blood test and to disclose the resulting expert testimony before trial led the appellant’s trial counsel to believe that the prosecution had no physical evidence corroborating the allegations against appellant,” wrote Court of Appeals of Utah Justice Gregory K. Orme. He further noted that “the expert hastily found by appellant did not even have time to conduct additional testing to determine if the blood…matched either that of the alleged victim or the appellant.”

The appeals court also noted that several of Cope’s trial comments were improper and prejudicial. The appeals court reversed his conviction. On retrial, the jury found the defendant not guilty.

In a 1992 case of an alleged sexual assault of a child, Cope “not only argued facts not in evidence but argued facts directly contradictory to the evidence.” After noting six instances where Cope’s conduct deprived the defendant of a fair trial, the appeals court reversed the conviction.

The Center’s study found other questionable cases of alleged sexual assaults in Utah.

In 1986, Brian Namba, who currently runs the juvenile division at the Salt Lake County Attorney’s office, charged Arden Brett Bullock with sexually assaulting three boys. One of Bullock’s neighbors, suspicious of possible sexual activity, brought her 4-year-old son to Barbara Snow, a social worker specializing in sexual abuse treatment. The boy informed Snow that other children in the neighborhood, including Bullock’s son, sexually assaulted him. Snow notified the police and began interviewing children in the neighborhood. Eventually, Snow said the neighborhood boys told her they were mimicking what they had learned from Bullock while playing a “game.” She also said they told her Bullock threatened to harm their families or pets if they told anyone about it. All but two of Snow’s interviews with the children and their parents were unrecorded.

In 1986, after a six-day trial, a jury convicted Bullock of abusing the three boys.

In 1989, he appealed his conviction to the state Supreme Court. In a 3-2 decision, the Supreme Court upheld his conviction. In his dissenting opinion, Justice Daniel Stewart said Bullock was “tried and convicted on an avalanche of hearsay” and questioned the methods used to obtain Bullock’s conviction.

“…What is at stake here is whether the techniques that were used in the interrogation of the child accusers and preparation for their testimony for trial had the effect of brainwashing the boys,” he wrote. “In sum, the tainting, indeed the inducing of testimony in this case, was not benign—it was the product of a misdirected zealousness and the failure to adhere to any scientific standards for eliciting truthful testimony.”

Stewart explained that prior to Snow’s involvement in the case, there was no evidence implicating Bullock. Initially, three boys said the sexual acts occurred with each other and denied to their parents and Snow that Bullock was involved. One of the boys maintained that position to the end.

“I am aware that child sex abuse crimes are heinous,” Stewart wrote. “But in the natural rush to protect children from abuse, it is essential that the judicial procedures designed to sift truth from error not be compromised or perverted.”

Judges have examined Snow’s tactics in at least three other sexual assault cases. In 1990, the state Supreme Court remanded Alan Hadfield’s case for an evidentiary hearing in part because “testimony from law enforcement personnel that false information deliberately ‘fed’ by them to Barbara Snow in their investigatory work promptly appeared in the statements of children she interviewed,” and “a highly suspicious correlation between the factual patterns revealed in at least four child sex abuse investigations in which Barbara Snow was involved.”

Bullock is still in prison; he is scheduled to be paroled in May 2004.
  ¶ 3:13 AM