Appellate Court ignored the factual record

September 2, 2022

Opinion by District Attorney Dan Dow

First, let me be clear I have deep respect for the judicial process and the judges and appellate justices who are called to make difficult decisions.

With that in mind, I respectfully and firmly disagree with the trial court‘s procedure, findings, and decision and the Appellate Court’s apparent disregard of the facts that were disputed and the law that was presented in our appellate briefings. The opinion itself contains factual inaccuracies – including an erroneous date referenced as the date which my office filed criminal charges against the defendants and an erroneous assertion that only one defendant was charged on that date.

The law is clear that in order for a district attorney to be recused there must be an actual conflict of interest and the conflict must be so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings. I firmly agree with the Attorney General’s written briefs that persuasively and objectively prove that this standard was not met.

Unfortunately, the court appears to have ignored the portions of the factual record that prove we were measured, thoughtful, and unbiased in our application of the law in exercising our sacred duty as prosecutors. Every public statement about the case, through official press release and social media post support the conclusion that we were not persuaded by political speech for or against prosecution of the accused. But rather, proved that we were fair and impartial.

Perhaps the judge imposed the duty that applies to him as a judicial officer rather than the duty that applies to prosecutors. Prosecutors are inherently advocates for a particular side – representing society’s authority to enforce the law against law breakers.

While I have been personally attacked on many occasions since the arrests in these cases, I have continued to conduct my duty in a manner that is above reproach without bending to popular opinion and public pressure. I am proud of the professionalism that my staff has maintained under months of immense public pressure.

We have thoroughly, fairly, and objectively reviewed volumes of evidence, conducted additional independent investigation, and made every decision based on the facts and the applicable law. We have never wavered from our steadfast commitment to ensure that every defendant receives fair treatment while we perform our important Constitutional duty.

To recuse the district attorney and the entire district attorney’s office without clear evidence of an actual conflict that renders the prosecution unfair, undermines the rule of law, undermines the independent nature of an elected prosecutor, and sets a dangerous precedent for prosecution forum shopping.