Long road to trial begins Wednesday for Swallow, Shurtleff

Published: Tuesday, July 29 2014 5:30 p.m. MDT

Former Utah Attorney General John Swallow leaves the Salt Lake County Jail after being booked and posting bond Tuesday, July 15, 2014, in South Salt Lake.

Tom Smart, Deseret News

SALT LAKE CITY — Former Utah Attorneys General Mark Shurtleff and John Swallow have spent many hours in a courtroom.

But Wednesday morning, a different kind of chapter will begin in their legal careers.

Shurtleff and Swallow will make their first appearances in 3rd District Court as criminal defendants, facing a total of 21 second- and third-degree felony charges that include engaging in a pattern of unlawful activity, receiving or soliciting a bribe, evidence tampering and making false statements.

The former top law enforcers in the state could potentially each be sentenced to prison if convicted. The second-degree felonies carry maximum penalties of 15 years behind bars; the third-degree felonies a maximum of five years.

Initial hearing

Wednesday's hearings, however, will likely be very brief. At an initial hearing, a defendant is officially notified of the charges against him. The judge will also ask if he can afford his own attorney or if the court needs to appoint one for him. Another hearing is then scheduled with a different judge. Such initial hearings can sometimes be completed in as little as one or two minutes.

"Once we get the judge that is assigned, (it's) time to go to work," Swallow's attorney, Stephen McCaughey, said Tuesday.

On Tuesday, 3rd District Judge Barry Lawrence recused himself from hearing any part of the case, according to court records. Lawrence is a former assistant Utah attorney general who worked under Shurtleff.

Both Shurtleff and Swallow already have attorneys. Shurtleff is being represented by Max Wheeler.

Trials not likely soon

After the initial appearance, the defense will be ordered to start sharing its evidence — often referred to as discovery — with the defense, such as investigative reports from law enforcers. At some point, a scheduling conference will be held to determine when to set a preliminary hearing date. It's not uncommon for a judge to hold several scheduling hearings until both sides feel they are ready to proceed with a preliminary hearing.

Based on the fact that prosecutors from Salt Lake and Davis counties filed charges against Shurtleff and Swallow following a two-year investigation, Salt Lake attorney Greg Skordas, who has no affiliation with either party, said it's likely a preliminary hearing won't happen until near the end of the year.

"I think it will be at least three or four months for the defense to go through the discovery materials," he said.

One of the questions leading up to the preliminary hearing is whether the two former associates will be tried together or if one of them will request to be tried separately, something that is common in cases involving two high-profile defendants.

McCaughey said he expects both his client and Shurtleff will be asking that they be tried separately.

"I don't think it will be tried together," he said, adding that a motion asking to separate the cases will likely be filed soon.

If they were prosecuted together, then evidence that may relate to one person but not necessarily the other could be used against both, Skordas said.

Preliminary hearing

During a preliminary hearing, prosecutors present enough evidence from their case to convince a judge that there is "probable cause" to show that each of the charges is warranted. The burden of proof in this hearing is much lower than during a trial. Defense attorneys cross-examine witnesses in these hearings, but seldom present their own evidence or witnesses.

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