Crucial manslaughter hearing set
Judge Bruce Lubeck on Monday scheduled a Nov. 17 preliminary hearing for manslaughter defendant Erik Low, giving his new attorney almost two months to prepare for what could be a third trial in the 2003 shooting death of Michael Hirschey.
Low, shackled and wearing an orange prison jumpsuit with the words ‘Summit County Jail’ on the back, made a brief appearance in front of Lubeck to listen to the judge set the date for the preliminary hearing. He was led in through a side door and led out the same door about eight minutes later.
During a preliminary hearing, some evidence is presented and prosecutors and defense attorneys are able to call witnesses. The judge then decides if the defendant will be bound over for trial. The prosecutors in a preliminary hearing have a lower threshold to meet to prove someone should stand trial than they do to convict someone at trial.
Lubeck told Summit County Attorney David Brickey, who is prosecuting the case, and Low’s public defender, Paul Quinlan, to prepare for oral arguments on Nov. 3.
The Nov. 17 date affords Quinlan the up to six weeks he told Lubeck he needs to prepare for the preliminary hearing. Quinlan on Sept. 15 was appointed to Low after an unsuccessful bid by the private practice attorney who previously represented Low, Ken Brown, to continue on the case as a public defender.
Brickey indicated in an interview afterward he intends to introduce the transcript of the preliminary hearing held before the first trial. Robert Adkins, then the Summit County attorney, conducted the first preliminary hearing. Adkins is now a judge.
In the first trial, a jury was unable to render a verdict, forcing a second trial. In that one, the jury convicted Low of manslaughter, not the murder count prosecutors wanted. He appealed the verdict, claiming that the jury was given faulty instructions. The Utah Supreme Court sided with Low and ordered a third trial.
Low shot Hirschey twice in a Kearns Boulevard apartment after a night of partying and horseplay. Low’s side has said the shooting was in self-defense, but the prosecution describes the killing as intentional.
Quinlan said in an interview the preliminary hearing is crucial to Low’s side since he was assigned to the defense several years after the second trial.
"It will be very important to me, coming into this case without my involvement in the previous two trials," he said.
Quinlan said preliminary hearings, because of the lower threshold, favor prosecutors. He expects Lubeck will bind Low over for trial. Low, 40, is incarcerated. Bail is set at $250,000, with the judge requiring a cash payment for Low to make bail.
Witnesses during the two trials included police officers who responded to the shooting, a person in the apartment when Hirschey was killed and forensics experts.
"I have the utmost confidence in the Park City Police Department and the court in this instance," Brickey said, describing his anticipation of the preliminary hearing.
The manslaughter charge, a second-degree felony, carries a sentence of between 1 and 15 years in state prison.
Brickey said he expects Low to stand trial in mid-2009 if Lubeck binds him over after the preliminary hearing.
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