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SALT LAKE CITY — Former Utah Attorney General John Swallow continues to push for a preliminary hearing in the criminal case against him, while prosecutors contend he gave up that right and shouldn't get it back.
Swallow's attorney, Scott Williams, argues in a new court filing that there is "nothing magical or necessarily permanent" about waiving a preliminary hearing, which Swallow did last year. In the hearing, a judge decides if there's enough evidence to hold a trial based on the legal standard of probable cause.
Swallow's decision to forgo the hearing was based on prosecutors' assertions that they had witness statements and witnesses that would provide enough evidence to bind the case over for trial.
"Only after having received the 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 contends 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.
Had Swallow known then what he knows now, he would not have given up the right to have a preliminary hearing, Williams said.
Assistant Salt Lake County district attorney Chou Chou Collins said in a court filing last week that Swallow knowingly and voluntarily waived the hearing.
Prosecutors didn't mislead Swallow and his former attorney Steve McCaughey regarding the evidence they would present, she wrote. Collins noted that McCaughey told a 3rd District judge that he and Swallow "thoroughly" discussed the decision.
"It is difficult to believe that defendant, 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 said it's also hard to believe the McCaughey and Swallow wouldn't have talked about what evidence was available and what the defense predicted the state would present at the preliminary hearing.
"Furthermore, defendant has provided nothing to suggest that the state’s evidence would not be sufficient to meet the low bindover standard," Collins wrote.
Swallow faces 11 felonies and two misdemeanors, including racketeering, bribery, evidence tampering, misuse of public money and falsifying government records. He pleaded not guilty.
Third District Judge Elizebeth Hruby-Mills last month rejected Swallow's motion to dismiss the case. Swallow contends prosecutors and investigators read private emails between him and his former attorney. He has petitioned for the Utah Supreme Court to hear his argument. Prosecutors deny reading the emails.
Hruby-Mills, who scheduled a trial to begin next February, will decide whether Swallow should get a preliminary hearing first.