OGDEN -- A claim that the seizure of police shooting suspect Matthew David Stewart's home skirts the law is a misstatement of the law, Weber County Attorney Dee Smith said Thursday.
"This is more of what we've been experiencing in this case," Smith said. "They keep trying to throw it out there that we're not following the law."
Smith has complained in the past about one of Stewart's lawyers, Randy Richards, once his law partner, filing motions that imply the prosecutor's office is ignoring defense discovery requests, even holding a news conference on the subject at one point.
Smith's latest concern is Ogden lawyer Emily Swenson's filing this week of a motion to "quash service of process," alleging the seizure documents regarding Stewart's home at 3268 Jackson Ave. were not served in accordance with the law.
Stewart is charged with aggravated murder for a shootout with police at the home Jan. 4 that left one officer dead and five injured. Narcotics officers were serving a search warrant at the home, looking for marijuana, when the gunfire erupted.
Ogden officer Jared Francom was killed in the exchange that also left Stewart injured, shot several times. He faces the death penalty for Francom's death. Prosecutors have seized the home pursuant to a statute that allows forfeiture of property linked to drug profits.
In forfeiture documents police say they found 16 marijuana plants in the home after the shooting.
Swenson said she filed the motion to quash after consulting with Richards, one of Stewart's three defense lawyers. She declined comment on any financial arrangement for her involvement in the case.
The motion, if successful, would halt the forfeiture of the home until the alleged service problems were rectified. The motion argues the forfeiture documents should have been served by a sherriff's deputy, constable or an attorney, not the Ogden patrolman who served Stewart.
Smith disagrees. He said the Utah Forfeiture Procedures Act is "very clear, and I would refer everyone to that act." It states service may be made by any law enforcement officer, Smith said. "I think it's important the correct law be cited."
Swenson quotes a different statute, the Utah Rules of Civil Procedure, specifically Rule 4, which the motion states excludes just any law enforcement officer from serving seizure filings.
Francom was assigned to the Weber Morgan Narcotics Strike Force at the time of the raid that turned fatal. Strike force agents Shawn Grogan and Kasey Burrell, also of the Ogden Police Department; Sgt. Nate Hutchinson, of the Weber County Sheriff's Office; and Jason Vanderwarf, of the Roy Police Department, were wounded.
Ogden Officer Michael Rounkles also was wounded when he tried to help the injured strike force agents.