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The judge presiding over former Utah Attorney General John Swallow's public corruption case won't be disqualified from the onetime GOP officeholder's February trial.
That's because Swallow's lawyers failed to prove their assertion that 3rd District Judge Elizabeth Hruby-Mills has shown repeated biases against their client, a court order issued Friday says.
The legal standards for proving bias are "a high hurdle to surmount," the district's associate presiding judge, Ryan Harris, wrote. "[Swallow] simply has not surmounted it."
Attorneys for Swallow sought to disqualify Hruby-Mills in a motion filed Wednesday — less than three weeks before trial — saying her actions suggest "her impartiality might reasonably be questioned."
The petition cited four grounds for disqualification, including: ruling against every defense motion seeking evidentiary hearings; a failure to examine an alleged breach of Swallow's protected emails; statements that appear to favor the expediency of the proceedings ahead of protecting the defendant's due-process rights; and the issuance of an arrest warrant for Kirk Torgensen, a key case witness who was the criminal division chief in the attorney general's office.
None of Swallow's arguments was sufficient to warrant taking Hruby-Mills off the case, Harris said in the six-page ruling.
Swallow's defense attorney Scott C. Williams declined to comment on the decision.
Swallow has pleaded not guilty to 13 felony and misdemeanor charges, including counts of racketeering, bribery, accepting prohibited gifts, evidence tampering, obstruction of justice and engaging in a pattern of unlawful activity.
The trial is set to begin Feb. 7. If convicted, Swallow faces up to 30 years in prison.
In his ruling, Harris said Swallow's motion wasn't timely under the court rules, lacked specificity — leaving out dates and failing to identify specific rulings — and generally failed to allege the sort of circumstances that might rise to the level of either favoritism or antagonism against Swallow.
"Certainly, [Swallow] has been on the losing end of a number of pretrial rulings made by Judge Hruby-Mills, and that can be frustrating and upsetting," Harris conceded. "But [he] is not entitled to a new judge simply because of unhappiness with certain substantive rulings."
Harris said Swallow should have brought the motion to disqualify Hruby-Mills sooner. Court rules require such efforts to be executed within 21 days of the alleged biased actions. Swallow failed to do that, just has he did not identify by name witnesses who have "articulated fears" that they would be tossed in jail like Torgensen if prosecutors have similar worries that they won't show up to testify at trial.
Finally, Harris said, any comments by Hruby-Mills about the speedy seating of a jury or other trial-management issues are "unremarkable" and not evidence of bias, because the courts should work to move cases forward with efficiency.
@jenniferdobner