Long road to trial begins Wednesday for Swallow, Shurtleff

By Pat Reavy, Deseret News

Published: Tue, 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.

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.

If a judge agrees that prosecutors have presented enough probable cause to show the crimes occurred and were likely committed by the defendant, the defendant is ordered to stand trial.

It's at that time, Skordas said, that a flurry of motions from both sides can be expected.

"The defense can't really raise anything until the state has put on its show" at a preliminary hearing, he said.

That's also the time that any possible plea deals are usually discussed. An estimated 90 percent to 95 percent of cases are resolved through plea bargains, Skordas said. But he couldn't predict whether the Shurtleff and Swallow cases will end up the same way.

"This is an unusual case that I think has a higher probability of going to trial than most. But they absolutely have to explore resolutions of these cases. Both sides do," he said.

Skordas said he wouldn't expect any potential trials to happen until sometime next year.

Despite the time it will take to properly prepare for a case like this one, Skordas said he would also guess that both Swallow and Shurtleff want to get to trial as quickly as they can.

"It's sort of an albatross that they're both having to carry. And I'm sure since they're both attorneys, it's hard to get employment with pending felony charges. It's hard to make long-term plans in your life," he said.

Legal costs

Because of the amount of research the defense teams will be doing, Skordas said the defenses of Swallow and Shurtleff have the potential to be "very, very expensive."

When asked whether leftover campaign funds could be used to pay for either defense, Skordas said it is his understanding that as long as the money was converted into personal income — thus subjecting it to certain taxes — then both men could do with that money as they please.

State elections director Mark Thomas has previously said that campaign contributions could conceivable be used to pay legal fees in these cases since the charges are connected to Swallow's and Shurtleff's positions as office holders.

However, Salt Lake attorney James Ord said if a campaign contributor has reason to believe that funds donated to the candidates were actually used in the commission of the crimes Shurtleff and Swallow are charged with, and the contributor was afraid of being "guilty by association," then that person could try and get their money back.

"If I were a donor to the campaign, if my money were being used to commit crimes, I would then have standing to sue the candidate," Ord said.

He said if Shurtleff and Swallow are hurting for money, they could also mortgage their homes and sell assets to pay for their defenses.

Swallow said one of the reasons he resigned from office in December is because of the financial toll on him and his family from investigations that plagued his 11 months in office. At that time, he estimated he had racked up about $300,000 in legal bills.

Contributing: Peter Samore

Email: preavy@deseretnews.com, Twitter: DNewsCrimeTeam

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1. truth in all its forms
henderson, NV,
July 29, 2014

"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." I am confused on why the defense is ordered to share information with the defense? I thought the prosecution was ordered to do that.

2. patriot
Cedar Hills, UT,
July 29, 2014

You have to feel for the families of the accused. No wife deserves to get blind sided like this and go through this nightmare. Both of these men have alot to answer for.

3. Shuzzie53
July 30, 2014

Truth, DN made a boo-boo. Your last sentence is correct.

4. Utefan60
Salt Lake City, UT,
July 30, 2014

It is very sad for the families of both of these men. This has to be a hard time for them. Hopefully the silver lining will be two fold. First, we need to get to the bottom of this and maybe understand a future fix. And Second, maybe we can realize that one party control in this State creates an environment that elicits this type of alleged behavior.

5. JWB
Kaysville, UT,
July 30, 2014

These two have had plenty of notice and should have thought about the consequences of their association with each other and others. They have been in the "fish bowl" of public office for years. The one was allowed to steer the rudder and it appears his boss allowed him freely even in association with people that just happen to be in prison. After living in Illinois for 9 years, they have plenty elected officials in the penitentiary for years.