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SALT LAKE CITY — An officer criminally charged in a shooting that the district attorney recently ruled unjustified is seeking a gag order in his case.
Defense attorneys for Andrew Reed O'Gwin, 48, argued in a motion filed Friday that the 3rd District Court should "hold an emergency hearing and immediately enter an order preventing counsel from making extrajudicial statements regarding this case."
The motion contends that the Salt Lake County District Attorney's Office, as well as the attorney of the shooting victim, "prejudiced Agent O'Gwin's constitutional interests and undermined the integrity of these proceedings."
O'Gwin was charged April 9 with second-degree felony aggravated assault in connection with the shooting of Joe Alvin Gomez on May 13, 2017. The same day O'Gwin was charged, the district's attorney's office released its final report on the shooting, saying that "other than agent O’Gwin’s statements, we cannot find a basis to conclude that the use of deadly force was necessary to prevent death or serious bodily injury to (himself)."
"And we cannot find any corroborating evidence to support agent O’Gwin’s statements; indeed, the evidence of which we’re aware seems to contradict agent O’Gwin’s statements," the report says.
On the day of the shooting, O'Gwin, an Adult Probation and Parole officer, was stopped in an unmarked police car at the intersection of 4500 S. Main. O'Gwin's charges state he claimed Gomez "hopped out of the vehicle, threw something at my window ... and he hit my vehicle again."
"O'Gwin said that after Gomez punched the car window the third time, O'Gwin fired his gun at Gomez," the charges state.
Gomez, 30, told investigators that he was throwing a cigarette outside his car window when part of it fell onto his lap and burned him, according to court documents.
Two witnesses in other cars reported seeing Gomez exit his car and walk toward O'Gwin's window as though he wanted to have a word with him, and that he raised his arms, but neither person saw Gomez touch O'Gwin's car or brandish a weapon, the charges state.
Investigators said O'Gwin fired five shots at Gomez, hitting him three times. Gomez suffered wounds to his chest and arm, but survived.
On the day that the report was finalized and charges were filed against O'Gwin, Gomez's attorney, Karra Porter, held a press conference saying the officer's explanation "made no sense," stating at one point it was "so obvious to me it was a lie."
"The totality of Ms. Porter's statements ... were obviously prejudicial and raise serious concerns regarding whether Ms. Porter was attempting to, or did, influence the public and potential jurors regarding Agent O'Gwin's guilt or innocence," states the motion filed Friday by attorneys Nate Nelson, Jeremy Jones and Bret Rawson.
The motion also calls into criticism an interview Salt Lake County District Attorney Sim Gill gave on KSL Newsradio on April 10.
In that interview, the motion said Gill "asserted that the nearly yearlong investigation was due, first, to his office's efforts to be 'very thorough' and second 'because of the things that Mr. O'Gwin's lawyers had wanted us to look at ... we continued to follow through on what they had requested ... that delayed it.'"
"Mr. Gill attempted to explain away his office's protracted investigation by implying fault on the part of the defense counsel, which is false, and raises immediate questions about whether the D.A. intended to prejudice the public and potential jury against the defense or in favor of the prosecution," the filing argues.
Gill said Friday that the interview he gave did not carry any intent to incite public bias against the defense, but was simply a good faith explanation of the timeline of the investigation.
"(I) just stated the obvious of what happened happened, nothing else, nothing fancy about it," Gill told KSL, adding that looking into the defense's questions was not the only reason he gave for the investigation's timeline.
"Doing our due diligence and listening to everybody's input it not prejudice, it's just doing your due diligence. ... I'm being faulted for actually paying attention," Gill said.
The defense's motion also argues that Porter may have had inappropriate access to materials related to the investigation conducted by Gill's office, prior to the publication of its final report.
"This is evidenced by the fact that (on the same day charges were filed) Ms. Porter presented slides to the media displaying her characterization of evidence using photos and material gathered by the protocol team. ... That Ms. Porter already had access to this information before it was made public raises fundamental and serious questions about how and why such information was shared outside of the criminal investigative protocol team."
Asked about the motion's claims Friday, including its contention that she was trying to promote public bias against O'Gwin, Porter said "this motion seems to be a bunch of hooey."
She said she had access to information surrounding the shooting due to other cases she has been working on for Gomez, including an infraction case brought against him for getting out of his car prior to being shot.
"I had been working on these civil claims for months" by the time the report was released, she told KSL. "Also the city of Murray had brought an infraction charge against my client and had to produce criminal discovery."
Besides seeking a gag order, the newly filed motion also asks the court to "evaluate whether the D.A. inappropriately shared evidence of investigation information" and to "if warranted, make a finding of prosecutorial misconduct."
