Both sides lost a round Thursday in the continuing legal saga of Salt Lake County Mayor Nancy Workman, putting each side in the same position as they started and further reducing the possibility of trying the case before the general election.
Third District Judge Robert Hilder, who described himself as "a little frustrated," declined Workman's motion to dismiss the case or disqualify the special prosecutor. The judge also denied special prosecutor Mike Martinez's motions to impose a gag order (meaning both sides can keep on sniping at each other in the media) or move the trial.
A preliminary hearing set for Monday will go forward, even though Hilder clearly indicated a willingness to waive it. Workman attorney Greg Skordas said if Martinez appeals the waiver it could take even longer.
Martinez had indicated a willingness to agree to the waiver, but only if Workman conceded that the state had probable cause to bring the case.
"For the prosecutor to say, 'I will not waive without some admission,' is to trample on the defendant's right against self-incrimination, and I won't allow that to happen," Hilder said.
Whether a trial can be held before the Nov. 2 election — which Workman fervently wants — is questionable.
"I hope so," was all Skordas would say.
Skordas had moved to dismiss the case based on claims that Salt Lake County District Attorney David Yocom, a Democrat, filed the charges — and that Martinez is stalling the case — solely for partisan reasons. He said Hilder should wash his hands of such a "tainted" process.
The timing of Yocom's investigation was suspicious, Skordas said, noting that the district attorney filed charges only 56 days before the election. He then appointed special prosecutor Martinez, who Skordas contends is using more delaying tactics to guarantee any legal proceedings will extend beyond Nov. 2.
"It is to make sure that the election is lost, it is to make sure her career is lost, (and only) then you get on with the justice part of it," Skordas said.
While conceding that the circumstances of the case are "unusual, in fact extraordinary," Hilder said such things were beyond the scope of the courts.
"Most of what you're talking about is intensely political, and best addressed in the political realm," the judge said.
If Hilder had dismissed the case, it could have been picked up by the Utah Attorney General's Office or by prosecutors from Utah, Tooele, Summit, Davis or Weber counties, which Skordas said is typically the way special prosecutors are employed.
Skordas argued it is almost unheard of to pull a defense attorney from private practice to be a special prosecutor, as was done here, and that Martinez lacks the necessary expertise because he hasn't prosecuted a case in Utah in 20 years.
Martinez was clearly stung by the characterization, sarcastically referring to it several times.
"I'm so rusty and out of date, they should be happy I am here," he said.
Workman wants a fast trial, of course, and in Thursday's hearing (as well as previous hearings), Hilder was clearly amenable to accommodating it.
It all may come down to Martinez, who Thursday outside the courtroom repeatedly declined to say whether he would go along with setting a trial before the election even if the defense and the courts were ready to go ahead.
"It depends on the schedule," he said. "I have other clients, other cases that need attention, too."
During the hearing, Martinez asked the judge to continue his motion for a gag order for all parties involved in the case until after an arraignment, but Hilder demurred.
"I think when the prosecutor is the one seeking a delay, there is a serious potential for abuse," Hilder said.
In denying the gag order motion, Hilder noted that a campaign is on and that much is in the public domain already.
"The public has a significant right to know in this case," he said. "I'm certainly not going to tell a candidate what she can or cannot say."
Hilder denied Martinez' motion to move the legal proceedings to another venue.
Also Thursday, Martinez denied that he had additional "incriminating evidence" that would be presented in the case, as reported in the Deseret Morning News Thursday.
"I think what I said was that in all cases, where everyone is running on rumor and innuendo . . . there's always evidence that no one anticipated," he said.
His original statement was, "there are a few things that haven't come out yet."
Workman is charged with two counts of misuse of public money, one a second-degree felony and the other a third-degree felony. Charging documents allege she funneled county health department funds to a charity where her daughter works.