SALT LAKE CITY — A judge on Friday rejected former Utah Attorney General John Swallow's push for a preliminary hearing, a right he earlier relinquished in the criminal case against him.
Third District Judge Elizabeth Hruby-Mills ruled that Swallow "knowingly, voluntarily and intelligently" waived the hearing last year. In a preliminary hearing, a judge hears testimony and decides if there's enough evidence to hold a jury trial based on the legal standard of probable cause.
"The court does not find any sufficient basis to render the waiver ineffective," the judge wrote.
Swallow's lawyer, Scott Williams, argued that the Salt Lake County District Attorney's Office misled Swallow about the evidence, and had he known what he knows now, would not have made that decision.
"The judge disagrees with us," Williams said Friday. "We'll try to figure out other ways to keep some sort of fairness in regards to notice."
Swallow could ask the Utah Court of Appeals to hear the issue, but Williams said that decision hasn't been made.
Swallow — the state's former top prosecutor — faces 11 felonies and two misdemeanors, including racketeering, bribery, evidence tampering, misuse of public money and falsifying government records. He has pleaded not guilty to the charges.
But Williams contends prosecutors still have not explained exactly what they believe Swallow did in some of the counts.
"I have no idea how we're going to defend those charges," he said. "I don't understand why the government wants to hide their theory and evidence as to why someone is guilty."
Hruby-Mills also denied Swallow's motion for a bill of particulars, which is a detailed, formal, written statement of criminal charges. She wrote that she is satisfied that an amended charging document the state filed sufficiently clarifies and supports its case.
Assistant Salt Lake County district attorney Chou Chou Collins said in court documents that prosecutors did not mislead Swallow about the evidence.
"It is difficult to believe that (Swallow), after his meeting/discussion with his then-attorney, did not fully understand the issues," Collins wrote, adding that Swallow was aware that discovery of evidence was, and remains, ongoing and that the charges he faces are complex.
Collins also wrote that Swallow didn't provide anything to suggest that the state’s evidence would not be sufficient to meet the low legal standard to bind the case over for trial, which is now scheduled for next February.
Appearing before Judge Paul Parker in June 2015, Swallow was informed he would give up his opportunity to examine the evidence, cross-examine witnesses and even testify himself if he waived the hearing. He and his then-attorney Steve McCaughey told Parker they had "thoroughly" discussed the decision and believed that a waiver was the best option, according to Hruby-Mills' order.
In giving up his right to the hearing, Swallow implied that he agreed that the evidence would be enough to bind him over for trial.
Williams contended in court filings that there is "nothing magical or necessarily permanent" about waiving a preliminary hearing.
"Only after having received the (witness) statements since the waiver has Mr. Swallow been able to see that they clearly do not, for the most part, contain evidence that would support a finding of probable cause as to the charges against him," Williams wrote.
Also, Williams argued that some of the witnesses appear to be a "bluff" because they not only don't have testimony to support the charges but didn't know they were on the witness list. Others, he wrote, had information contrary to the state's claims.
Email: romboy@deseretnews.com
Twitter: dennisromboy; DNewsPolitics