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SALT LAKE CITY — Former Utah Attorney General John Swallow now wants a preliminary hearing that he passed on earlier, apparently due in part to a "poor understanding" of the process.
Last June, the state's onetime top cop gave up his right to the hearing judges use to decide if there's enough evidence to hold a trial. But his lawyer, Scott Williams, said in a court filing Tuesday that Swallow's decision was not "truly knowing or voluntary."
Williams, who took over Swallow's case last November, wrote that the lack of a preliminary hearing has left the former attorney general not knowing the state's theory of the charges or evidence against him, making it impossible to adequately prepare for a trial.
"Whatever the circumstances that led to Mr. Swallow entering the waiver he did … the decision was based upon a misleading presentation of the posture of the case, a poor understanding of the nature of the preliminary hearing process, and state investigation and discovery that was incomplete," Williams wrote.
Swallow is charged with 11 felonies and two misdemeanors including racketeering, bribery, evidence tampering, misuse of public money and falsifying government records. He pleaded not guilty.
Salt Lake County District Attorney Sim Gill called Swallow's decision a "straightfoward" waiver. Prosecutors will consider if there's a basis to rescind it, but he said he would "much rather keep moving forward to trial."
Gill said the issue would probably come at a hearing scheduled for next Tuesday.
Williams has argued in court filings that the Salt Lake County District Attorney's Office has repeatedly rebuffed his requests for a detailed explanation of the charges against Swallow. Gill said his office is responding to those motions.
Prosecutors last May told the court they had 33 witnesses for the preliminary hearing.
But Williams wrote that he has since learned some of them didn't know they were on the witness list. Some did not have information to support the state's case but would, in fact, undermine a judge finding probable cause for a trial on some counts, he wrote.
Williams also contends the state planned to introduce hearsay at the hearing, limiting the ability of the defense to cross-examine some witnesses. He said the defense recently received those statements and "virtually" none of them would prove that Swallow committed the alleged crimes.
In addition, Swallow did not have federal evidence that Davis County Attorney Troy Rawlings worked to obtain for the companion case against former Utah Attorney General Mark Shurtleff. The Department of Justice declined to prosecute Shurtleff or Swallow.
Had Swallow known those things and what his legal options were, he would not have given up the preliminary hearing, Williams said. He further argues that Utah courts commonly consider those waivers conditional, noting that Shurtleff entered a conditional waiver in his case.
Williams also says the hearing would help the court in "ferreting out and narrowing" the charges, and developing legal and evidentiary issues that would lead to a fair trial.
A trial date has not been set. Email: romboy@deseretnews.com Twitter: dennisromboy
