OGDEN — A 2nd District Court judge has denied initial attempts to block the seizure of police shooting suspect Matthew Stewart’s home, drawing a motion from the defense to recuse the judge from presiding over the forfeiture action.
Stewart faces the death penalty in a Jan. 4 shoot-out at his home that left Officer Jared Francom dead. Five other officers and Stewart were wounded.
Stewart is alleged to have opened fire on the Weber-Morgan Narcotics Strike Force serving a search warrant at his now-seized home at 3268 Jackson Ave. Officials say 16 marijuana plants were seized.
Prosecutors seized the home under drug forfeiture statutes, action separate from the criminal charges against Stewart in the shootings.
Attorney Emily Swenson has filed motions challenging the forfeiture, first claiming irregularities in serving of notice on Stewart, which 2nd District Judge Mark DeCaria dismissed last week. Other portions of Swenson’s challenge are still pending.
Swenson this week filed a motion to disqualify DeCaria from sitting for the forfeiture proceedings, saying he’s too emotionally involved with the case.
The motion claims DeCaria, in his 15 years as the Weber County Attorney before he was named to the bench three years ago, worked closely with the strike force and knew Francom personally.
Francom had testified Jan. 4 during a trial Swenson was involved in before DeCaria in 2nd District Court, according to the motion. “The following morning after the alleged shooting, on January 5, 2012, counsel and the prosecutor met with Judge DeCaria in chambers in order to discuss how they needed to proceed now that one of their key witnesses had been killed.
“During this meeting (Swenson) witnessed Judge DeCaria emotionally distraught over the events that had occurred the night before and the passing of Agent Jared Francom.”
Even when “no actual bias, prejudice, and or undue influence existed” the Utah Supreme Court has ruled that even its appearance could lead to the questioning of a court’s impartiality and “should be avoided if possible,” the motion reads.
In the arguments now rejected by DeCaria, Swenson had claimed the seizure notice for Stewart’s house was not served by the right person under the law and that proper paperwork was not included.
Swenson is still arguing against the forfeiture, claiming in one response to the forfeiture complaint on the home that “the values of the contraband (the allegedly marijuana seized) and the value of the property the State is seeking to forfeit is not proportional” making it unconstitutional.
No court date is pending on the forfeiture action.
A preliminary hearing is expected to be set in October on the criminal charges against Stewart as officials await completion of ballistics testing.