SALT LAKE CITY — In court documents, former Utah Attorney General John Swallow asks for a new preliminary hearing, claiming his earlier decision to waive it was “not truly knowing and voluntary for a number of reasons.”
He also suggests the former top lawyer for the state had a “poor understanding of the nature of the preliminary hearing process.”
Swallow’s defense attorney Scott Williams writes in the motion that not having a preliminary hearing “has left Mr. Swallow in a position of lack of knowledge and notice about the particular’s of the state’s theory as to the charges against him, and the nature of the specific evidence in relation to those charges, that makes it impossible for him to adequately prepare to defend against the charges.”
A preliminary hearing is where a judge hears evidence and decides if there is enough to make a defendant stand trial. Swallow previously waived that hearing, but said he has since discovered there are witness statements and evidence that prosecutors could have presented that could have been exculpatory. Williams also wrote that more evidence has recently been made available that would have changed his mind about waiving the hearing.
Many courts do treat waivers of a preliminary hearing as conditional, allowing for the potential for a plea deal. Williams pointed out that Swallow’s co-defendant, former Utah Attorney General Mark Shurtleff, had entered a conditional waiver in his case.
Williams indicated Swallow initially waived his right to the hearing “based upon a misleading presentation of the posture of the case, a poor understanding of the nature of the preliminary hearing process and a state of investigation and discovery that was incomplete.”
In November, Swallow changed defense attorneys and retained Williams to represent him — months after he had waived his right to a preliminary hearing.
Swallow and Shurtleff are facing corruption-related charges, accused of accepting donations and gifts from people facing investigation by the Utah Attorney General’s Office. Swallow resigned in 2013 about a year into his term as attorney general. Both men have pleaded not guilty to the felony charges.
Read the court filing here: