SALT LAKE CITY — A retired judge has been asked by the Salt Lake County District Attorney’s Office to prosecute the criminal cases of nine people accused of vandalizing the district attorney’s building during recent protests.
But the unusual move is already raising eyebrows and has become the latest chapter in an already controversial situation.
District Attorney Sim Gill announced this week that former 3rd District Judge Dane Nolan, who retired in 2017, will serve as “conflict counsel” for the vandalism cases. That means Nolan will handle the cases of those accused of breaking windows and spreading gallons of red paint around the district attorney’s office building following the ruling that the shooting death of a Salt Lake man by police was legally justified.
But to at least one of those who Nolan has been hired to prosecute, Gill’s choice for conflict counsel is a conflict itself.
Protester Madalena Rose McNeil called it an “unconscionable abuse of power” that Gill filed the charges and picked a prosecutor in a case when he or his building is the alleged victim.
“Once again, the District Attorney shows no sense of responsibility for his power over other people’s lives,” she posted on Twitter Thursday.
“What do you think it means that the DA chose to bring a prosecutor from his own city *out of retirement* rather than defer to a currently working prosecutor in another city, as is standard practice? Hm? Because I bet it doesn’t mean anything good.”
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McNeil has received international attention because of the fact that she, along with others accused of vandalizing the building, is charged with a first-degree felony, which carries a maximum penalty of five years to life in the Utah State Prison.
‘Unethical’ charging?
On July 9, hours after Gill determined the fatal shooting of Bernardo Palacios-Carbajal by two Salt Lake police officers was justified, protesters took over the street in front of his downtown office on 500 South to denounce the decision. The protest turned to vandalism when gallons of red paint were poured on and around the building and on the street, and large windows were broken. Police estimated that the total damage could be as high as $200,000.
Ever since the riot in downtown Salt Lake City on May 30, the district attorney’s office has been charging people with criminal mischief, a first-degree felony, and rioting, a third-degree felony, for their roles in vandalizing a Salt Lake police patrol car, vandalism at the state Capitol, and vandalism at a TRAX station, the Matheson Courthouse as well as other downtown businesses. Many of those charged with spray-painting the Capitol were charged with second-degree felonies.
On Aug. 5, four people were charged in connection to the vandalism of Gill’s building, bringing the total at that time to eight. A total of nine people have ultimately been linked as co-defendants as of Friday in connection with the vandalism and the clash with police after officers in riot gear moved in to break up the protest, according to court records.
It was after those charges were filed that concerns started being raised about protesters being charged with serious first-degree felonies.
“This is the highest degree felony. This is usually reserved for murders and rapists,” said attorney Brent Huff, who represents Madison Alleman.
“No one should get life in prison for putting paint on a building,” said attorney Jesse Nix, who represents protester Viviane Turman.
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McNeil, 28, who police say was one of the leaders at the protest and purchased the red paint used to cover the road and paint the district attorney’s building, believes the charges are retaliatory.
On her Twitter page, McNeil has been vocal about the charges, writing, “This is political repression — the state wants to silence dissent. Don’t let them. Be loud.”
She sarcastically has stated on Twitter she faces prison time for shopping at Home Depot.
Despite filing first-degree felony charges, even Gill says, “No one is going to go to prison for life.”
But that doesn't make McNeil feel any better.
“You know how you could make sure nobody goes to prison for this? By dropping the charges that you created you total jerk,” she tweeted. “It’s insulting for Sim to keep parroting this line of ‘nobody is going to prison’ when he should know better. He knows people go to prison for less all the time. He knows it’s a distinct possibility. He knew that when he brought the charges, he does not care what happens to us.”
McNeil worked with a number of nonprofit groups in Utah, including Alliance for a Better Utah. The group also issued a statement after McNeil was charged, criticizing the severity of the counts.
“In bringing exorbitant charges for low-level offenses against activists and organizers, the Salt Lake County District Attorney’s Office, whether intentional or not, is sending a message to the public about the way it sees protests against police brutality. By choosing to bring disproportionate felony charges, District Attorney Sim Gill is reinforcing the narrative of an unjust, punitive criminal justice system that people have been protesting in the first place,” Executive Director Chase Thomas said in a prepared statement.
“If Gill is serious about respecting the Black Lives Matter movement and ending police brutality, he has a responsibility to reflect that by carefully deciding how to respond to civil disobedience. These overly aggressive charges will only continue to erode the trust the public has in our law enforcement and criminal justice systems when Gill should be doing everything he can to restore that trust.”
On Thursday, McNeil tweeted, “I am pretty sad and also pretty scared!! This is the first time I’ve felt this way since my arrest. The adrenaline is wearing off and I’m looking down a long road ahead and it’s scary. I am scared.”
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The Salt Lake County Black Democratic Caucus also issued a strongly worded statement criticizing Gill’s decision to file first-degree felonies.
“We remain disappointed in Sim Gill’s actions and misuse of prosecutorial power by charging demonstrators who were practicing civil disobedience with first-degree felonies for protesting outside the district attorney’s office.
“First-degree felonies come with a severe sentence and are meant to be reserved for the most violent criminals. These charges are an unethical and inappropriate use of his power. It is equally disturbing that Sim Gill is making a baseless allegation that this protest was connected to gang activity. Associating this act to gang activity plays into the perpetuated stereotype of Black Lives Matter protesters, and we are deeply disappointed with that connotation,” the statement continued.
Gang enhancement
Gill, however, said he is filing appropriate charges based on the information presented to him by police and investigators.
“That is a factually accurate statement of what was presented to us by law enforcement,” he said of the level of charges.
Under Utah law, any theft of property or services or damage that totals at least $5,000 qualifies as a second-degree felony. Under the state’s gang enhancement statute, the crime is elevated to a first-degree felony.
The gang enhancement clause states that if a crime is committed “in concert with two or more persons,” the charge can be elevated one degree.
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But some, like Sen. Daniel Thatcher, R-West Valley City, say that was never the intent of the law.
Thatcher said the gang enhancement clause was meant to be used against actual street gangs and organized crime and to target issues such as violent crimes and drug trafficking, not protesters.
“Clearly applying a gang enhancement was not appropriate in this case,” he said Friday.
The problem with the statute, he said, is the language used to define a “gang.” Thatcher said he will be working with other lawmakers to amend the statute, possibly to have it tied to specific crimes.
While Thatcher is not defending the protesters, saying what some of them did crossed the line of free speech and into criminal behavior, he believes paying restitution in cases like these would be more appropriate than a gang enhancement.
“You should be held accountable when you break the law,” he said. “You have a constitutional First Amendment right to protest, You do not have a constitutional right to commit a crime, to damage property.”
A petition has been started online to have the charges against those accused of vandalizing the district attorney’s office dropped. McNeil has also been encouraging people to call Gill’s office and demand that the charges be dismissed.
Defense attorney Alex Ramos, who is representing Emanuel Alan Hill and Michelle Claire Mower, also feels it’s important that those charged receive proper justice.
“I think this is an important case, I think these are important cases. I want to make sure I’m on the right side of history. And I think we have a duty as defense attorneys in these situations to offer our services if we can without expectation of renumeration.”
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Ramos said he has been gathering defense attorneys who are willing to represent those charged in connection with the vandalism to work pro bono or low bono, meaning at no cost or low cost.
He said this case is important to him because it reflects “everything we’ve seen in the state and the nation” over the past few months.
“These cases are bringing to light a lot of the issues that we who toil in and see on a daily basis in this system know all too well, and I personally will not continue to be complacent in the daily injustices that don’t just permeate our system but have come to define it in some degree,” he said.
Conflict counsel
Gill said Nolan “will have complete autonomy and authority to prosecute these cases, as he deems appropriate.”
He will also have access to the tools that Gill provides to all of his prosecutors, which include private investigators if needed. He does not believe that constitutes a conflict of interest.
“Making resources available is different from independent judgment of a person who has that responsibility,” Gill said. “(Nolan) understands conflict and independent responsibility probably as good as anybody else.”
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Gill also said he has the authority to ask someone else to prosecute a case because of a potential conflict, and picking Nolan does not constitute a conflict of interest. He said Nolan will have “complete, unfettered, independence” to proceed with the cases as he sees fit, which could include reducing the charges if that’s what Nolan believes is appropriate.
During his career, Nolan also served as an attorney with the Utah Legal Clinic, the Utah Attorney General’s Office, the district attorney’s office, and he was a founding member of the Utah Minority Bar Association and presided over the first Juvenile Mental Health Court in the state.
He did not respond to a request seeking comment for this story.
Some have questioned why Gill’s office filed the charges in the first place, particularly since he decided it’s a conflict to prosecute the defendants. Those people believe the case should have been passed off to another county attorney to decide what charges should be filed.
Gill said his office made the decision to file criminal charges against those accused of vandalizing his building, but only as a kind of “place holder.” He said he “always knew it would be conflicted out.”
But in light of the age of COVID-19 and the “unique circumstances of the times,” plus the timeliness in needing to file charges due to ongoing protests, Gill said his office felt it would be best to file the charges quickly rather than wait to try and find an agency that had the time to take up the case.
Questions have also been raised about whether Gill purposely overcharged the group, possibly to persuade the defendants into taking plea deals.
But Gill said he can exercise discretion on both the front and back end of cases. So while “everyone is treated equally” when charges are filed, he said individual cases are evaluated separately based on factors such as a person’s previous criminal history.
In other words, “No one is going to go to prison for life,” he said.
The protesters were charged just as the protesters accused in the May 30 riot were, and how anyone else would be, Gill said. But by saying the charges are unfair, “What they are saying is they want me to treat them differently,” he said.
“This is not about suppressing protesters, it’s about addressing unlawful behavior,” he said. “Objectively, nobody is going to prison for life. But nobody (who broke the law) is going to escape accountability either.”
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The defendants
McNeil, Richard Lovell Davis, 31; Marvin Buck Oliveros, 39; Alleman, 25; Mower, 25; Turman, 23; Sofia Linda Alcala, 18; and Emmanuel Alan Hill, 21, are each charged with criminal mischief, a first-degree felony, and rioting, a third-degree felony.
Davis and Hill used metal poles to shatter windows at the building, charging documents state. McNeil is accused of purchasing the paint, inciting other protesters and appeared to “slam” into an officer who blocked her with his shield, the charges say.
Alleman and Turman dumped 5-gallon containers of red paint “onto the driveway and splashed it onto the glass exterior of the building,” according to the charges. The women, along with Alcala, “then put paint on their own hands and used it to make handprints on the exterior windows, columns, concrete barrier and/or metal fences.”
Mower helped paint the concrete barriers in front of the building, according to the court documents, and kicked an officer. Buckets of red paint, rollers and a ladder were allegedly found inside Oliveros’ van.
Hurija Mustafic, 26, is charged with rioting, a third-degree felony, and two counts of assault on a police officer, a class A misdemeanor. She kicked an officer in the groin, stomach and legs and grabbed the officer’s baton and shield, according to charges, and then kicked a second officer.
Contributing: Associated Press
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