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Former Utah Attorney General John Swallow is asking the state judge presiding over his public corruption case to recuse herself from a February trial, saying she has shown repeated bias against him in court.
Third District Judge Elizabeth Hruby-Mills' rulings — including her refusal to hold evidentiary hearings on defense motions and failing to examine the extent of an alleged breach of Swallow's protected emails — are among the four areas of concern cited in court papers filed late Tuesday.
"Nothing is more damaging to the public confidence in the legal system than the appearance of bias or prejudice on the part of a judge," Swallow's attorney, Scott C. Williams, wrote in the petition, quoting from a Utah Supreme Court ruling.
Records show that Hruby-Mills turned over the petition to another "reviewing judge" to consider the recusal request Wednesday, in keeping with court rules.
Typically the 3rd District's presiding judge, Randall Skanchy, would be the one to review the recusal petition. But court spokesman Geoffrey Fattah could not say Wednesday whether that was the case.
It's unclear how long it may take the reviewing judge to render a decision or whether the process may delay Swallow's 16-day trial on public-corruption-related charges, which is scheduled to begin Feb. 7.
Salt Lake County District Attorney Sim Gill, whose office is prosecuting Swallow, said his team will respond to Swallow's motion as it always does: in court.
"We continue to trust in the process and focus upon going forward with the trial," he said Wednesday.
The former GOP officeholder has pleaded not guilty to 13 felony and misdemeanors, including counts of bribery, accepting prohibited gifts, evidence tampering, obstruction of justice and engaging in a pattern of unlawful activity.
If convicted, Swallow faces up to 30 years in prison.
His lawyers argue Hruby-Mills has denied defense motions seeking evidentiary hearings in nearly every instance and instead relied on "self-serving" affidavits from prosecutors opposing such hearings. Williams contends it is an unusual way of handling pretrial issues that suggest a bias that favors the prosecution and protects witnesses from being confronted by Swallow's defense team.
The documents also say Swallow has been denied "any judicial investigation and/or fact finding" about the way investigators and prosecutors have handled a cache of evidence that contains privileged email communications between the former attorney general and the lawyer who advised him during the multiyear investigation into allegations of corruption and other misdeeds.
Some of those documents have been wrongly commingled with other case evidence — and prosecutors insist they've not seen them — but the judge has not ordered prosecutors or investigators to explain where the communications are held or explain the extent of the access the state has had to the information, court papers say.
Also cited is Hruby-Mills' emphasis on keeping a strict trial schedule rather than protecting Swallow's due-process rights.
"It is common, understandable and appropriate for a judge to manage a trial in favor of efficiency and deference to the demand and impact on a jury and the parties," court papers say, but Hruby-Mills has made repeated references to maintaining a speedy pace.
Court paper say that during in a telephone conference Tuesday, the judge said a hearing scheduled for next week would be limited to a single day. That came despite objections from Swallow's attorneys, who contend that they may need more time to adequately cross-examine witnesses.
The Jan. 9 ruling directing the arrest of a witness — Kirk Torgensen, a former chief deputy in the Utah attorney general's office — to ensure he would testify at trial, raises additional cause for concern, court papers say.
Swallow's lawyers maintain prosecutors lacked sufficient facts or legal support for seeking the warrant and say the effect of Torgensen's arrest has been to frighten other witnesses.
Separately, the court has set a hearing for Tuesday to determine whether a jury will be allowed to hear the out-of-court statements of people prosecutors have deemed Swallow's co-conspirators.
Such statements — in this case from ex-Attorney General Mark Shurtleff and others — are not typically allowed or considered reliable. But the court rules of evidence do make some exceptions, and prosecutors contend the statements lend truth to the assertion that Swallow was engaged in an ongoing criminal conspiracy.