OGDEN -- Prosecutors argue that a judge's reaction to the shooting death of Officer Jared Francom was not emotional enough to remove him from proceedings against Francom's accused killer.
Last week, Emily Swenson, a lawyer for Matthew Stewart, called for 2nd District Judge Mark DeCaria's disqualification from the case, claiming the judge's reaction to Francom's death was evidence of bias.
DeCaria is presiding over the seizure of Stewart's home under drug forfeiture statutes, which is separate from the criminal charges Stewart faces in Francom's death and the shooting of five other officers. Stewart could receive the death penalty in the case.
The day before his death, Francom had testified during a trial Swenson was involved in before DeCaria.
"The following morning, after the alleged shooting, on Jan. 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," according to the motion.
"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."
But in his motion filed Tuesday, Weber County Attorney Dee Smith wrote that Swenson was more emotional at that meeting than DeCaria was.
Smith's motion suggests that, following Swenson's line of reasoning, she should be disqualified from the case.
Deputy Weber County Attorney Branden Miles was with DeCaria and Swenson during the meeting in chambers and filed an affidavit with the motion that said DeCaria showed no emotional distress and just offered normal condolences.
"Comparatively, defense attorney Emily Swenson appeared more emotional about the situation than Judge DeCaria, as I observed that she did appear shocked by the events, appeared to resist tears, and expressed shock and condolences to those involved," Miles wrote.
Stewart is alleged to have opened fire on members of the Weber-Morgan Narcotics Strike Force, who were serving a search warrant at his now-seized home at 3268 Jackson Ave. Officials say 16 marijuana plants were seized after the shootout.
A three-day preliminary hearing on the criminal charges is set to begin Oct. 31 before 2nd District Judge Noel Hyde.
The defense motion also claims DeCaria, in his 15 years as the Weber County attorney before he was named to the bench in 2009, worked closely with the strike force and knew Francom personally.
But Smith's rebuttal argues simple association by itself is not enough to disqualify a judge from a case. Case law requires "manifest personal bias" be demonstrated "from an extra-judicial source, not from occurrences in the proceedings before a judge," according to the motion.