Legal community criticizes Utah County Attorney for case involving brother's LDS mission companion

UTAH COUNTY, Utah — Criticism from the Utah legal community is mounting against Utah County Attorney David Leavitt after he admitted to dismissing criminal charges against a campaign donor who served an LDS mission with his brother.

Mark Stewart Allen's charge of felony stalking against a woman was dismissed without prejudice in October.

Multiple attorneys not affiliated with the matter tell FOX 13 they believe the way Leavitt handled the case should be concerning, from an ethical and taxpayer standpoint.

Some agreed to speak with FOX 13 on condition of anonymity

FOX 13 Investigates: Utah County Attorney accused of dismissing his friend and donor's criminal stalking case

More than a month prior to dropping the charges, Leavitt met with Koehler. She recorded the conversation and raised concerns about flowery messages she had seen Allen publish online about Leavitt.

"I'm just saying that (Allen) is a huge supporter of you and a fan," Koehler said. "This is very concerning to me... I was concerned about it being a conflict of interest."

Leavitt responded in part by saying "it is what it is."

"(Allen is) completely obsessing about this," Leavitt told her. "I know it because I saw it three times a week, or three times a day sometimes when I was running for (Utah) Attorney General."

Leavitt disclosed to Koehler that Allen had donated $49.99 to his campaign but insisted it was not a problem because his loyalty is not for sale.

Linda F. Smith, an attorney and member of the Utah State Bar Ethics Advisory Opinion Committee, said she believes Leavitt should have never taken the case away from the prosecutor who was originally assigned.

"(Leavitt) should not have personally involved himself in the case," Smith said. "There was nothing to gain and everything to lose."

In an interview with FOX 13 News, Leavitt said he understood his actions could be perceived by some people, at the very least, as the appearance of a conflict.

"Absolutely," Leavitt said. "Absolutely, to some people it will. I think if people look at the whole picture, they'll see it for what it is. I didn't solicit this donation. I didn't seek it out. My job is to be as open and transparent with everyone that I can be."

"A government lawyer, particularly a government lawyer who is elected, should always be aware of the appearance of a conflict of interest because that’s what gives the citizens confidence in the enforcement of the law," Smith said. "If there’s any credible argument that you have a conflict of interest, it’s wiser to not involve yourself."

Smith said she was especially concerned to learn the suspect tried to reach out to Leavitt through Leavitt's brother.

"The defendant prepared a fairly large binder of information about the victim," Leavitt described. "He gave it to my brother, his former missionary companion."

"The defendant's strategy clearly was to get Leavitt involved," Smith said. "That's the most suspicious thing, the degree to which people were coming up to him saying, 'Hey David, dismiss this case. Handle it this way.' ... The very fact that he was being solicited to intervene in the case is what’s most suspicious here."

Leavitt said the suspect reaching out "certainly was one of the reasons" he took on the case personally.

Another reason, he said, is because the original prosecutor refused to drop charges against the suspect.

"It’s my case. It’s not his case. It’s my case," Leavitt said. "Every case that my deputies work on, they work on my direction... He valued the prosecution of the case more than protecting the victim in the short run. To me, that’s unacceptable."

An attorney familiar with the Utah County Attorney's Office told FOX 13 it is very rare for Leavitt to work cases personally.

“It’s one or two cases maybe in a year," the attorney estimated. "He got involved in a death penalty case and probably a couple other cases here and there... Never would he get involved in a (stalking) case like that."

Koehler, through her attorney, accused Leavitt of failing to provide the same level of protection as the original prosecutor, who she believes wanted "to obtain the highest level of protection available... (by) proceeding with trial."

Leavitt said dropping charges was the smartest decision because the trial was being delayed by the COVID-19 pandemic and he thought it would get the suspect to stop harassing Koehler. When that did not work he refiled the charges, he said.

"My job is to fashion some sort of protection for this woman," Leavitt said, adding that Koehler approved of his idea during the recorded meeting.

"It shouldn't have been dismissed in the first place," said Lorie Hobbs, a victim's rights attorney representing Koehler. "It should have gone to trial. That's what the victim desired."

Hobbs said she believes Leavitt "thought it would be better to protect himself," which is why the Utah County Attorney's Office refiled the charges.

Koehler is now asking for the case to be prosecuted by a different agency.

"He was (likely) doing a favor for his brother," one attorney said. "He doesn't seem to be able to see ethical issues or conflicts of interest... Whether or not he was actually influenced, he should have known it was wildly inappropriate."

Leavitt said he still does not view any of his ties to the suspect as a conflict of interest, regardless of what the victim thinks. However, he said he will not try the case personally.

"Can (the victim and defendant) bully their way into a prosecutor giving the case to somebody else?" Leavitt said. "Not with this prosecutor they can't."

"Obviously (the defendant and his attorney) thought that there was some pressure that they could apply to Leavitt personally," Smith said. "That didn’t work with an objective prosecutor that didn’t personally know this defendant, and hadn’t gotten contributions from this defendant, and hadn’t been praised by this defendant on websites."