While I expected a denial of the motion, the language is disturbing but I think inadvertent.
Montana cases use the language "fair probability," but I think Judge Townsend misapplied that unfortunate terminology. It relates to searches and seizures PRIOR to charges being filed, and is not a standard used for filing of criminal complaints.
Although not a Montana case, this explanation is a clear one, and you can see where the "language" used by Judge Townsend comes from, but also that it is applied to a different context:
"In regard to the “probable cause” determination for a valid search warrant, the courts of this state have noted that “‘the task of the issuing (judge) is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, (***) there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. Young, 12th Dist. No. CA2005-08074, 2006 Ohio 1784, at ¶19, quoting State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the syllabus. To satisfy this standard, it is not necessary for the affidavit to show the existence of criminal activity by a preponderance of the evidence; in this respect, not even a prima facie showing is mandated to justify the issuance of the search warrant. State v. Montgomery (Aug. 29, 1997), 11th Dist. No. 95-P-0034, 1997 Ohio App. LEXIS 3880, at *3."
Judge Townsend relied on this language in Montana: "An affidavit filed in support of a motion for leave to file an information need only recite facts sufficient to indicate a probability that the defendant committed an offense; it need not demonstrate a prima facie case. State v. Ramstead (1990), 243 Mont. 162, 166, 793 P.2d 802, 804. An information is intended to provide the defendant with notice, not to provide discovery of the State's evidence. State v. Riley (1982), 199 Mont. 413, 421, 649 P.2d 1273, 1277. Further, a court reviewing an affidavit for probable cause may use common sense and draw permissible inferences; the standards are less stringent than those governing the admissibility of evidence. State v. Miner (1976), 169 Mont. 260, 264, 546 P.2d 252, 255. This probable cause determination will not be reversed absent an abuse of discretion. State v. Buckingham (1989), 240 Mont. 252, 256, 783 P.2d 1331, 1334."
"A" probability implies something considerably less than the "fair probability" language used elsewhere and for different purposes.
In Montana "fair probability" is used as the standard by which a convicted criminal may petition for a new trial. The Barry Beach case outlines how the standard is used:
"¶ 45 Beach's procedural claims warrant the application of a different standard of proof. Schlup, 513 U.S. at 324, 115 S.Ct. at 865. **674 The standard of proof should reflect the “relative importance attached to the ultimate decision.” Schlup, 513 U.S. at 325, 115 S.Ct. at 866 (citation omitted). A substantive innocence claim, if successful, results in the petitioner's release. By contrast, a successful procedural claim results in a new trial, and justifies a different standard of proof. Schlup, 513 U.S. at 327, 115 S.Ct. at 867. The “reasonable probability” standard outlined in Clark, ¶ 34, strikes a rough equivalence with the notion that “a constitutional violation at trial has probably resulted in the conviction of one who is ‘actually innocent.’ ” Pope, ¶ 46. This “reasonable probability” standard also comports with the Schlup standard that requires the petitioner to “establish, by a ‘fair probability,’ that the ‘trier of the facts would have entertained a reasonable doubt of his guilt.’ ” Schlup, 513 U.S. at 322, 115 S.Ct. at 864 (citation omitted).
The use of the language is unfortunate, because it is not generally understood in the way that the courts have peculiarly used it even in the very limited fashion they have used it. I think Judge Townsend misused it, but even just using the proper standard "probability" doesn't add much to the public perception.
The irony is that Judge Townsend noted that the factual statements contained in the Motion to Dismiss were not submitted under oath.
Of course, one of the interesting glaring hypocrisies of the criminal justice system is that the charging affidavit is one filed the county attorney, detailing the "facts" of the crime, by a person who was not there.
In any other area of the law, it would be dismissed as being a "hearsay" affidavit and, to add a further irony, if the hearsay is later proven false -- even though taken under "oath" -- there are no consequences for what would be, under all other circumstances, a false swearing; indeed, chargeable as a criminal offense!
Finally, the Information that is filed charging a defendant with a crime, reciting the "facts" supporting the charge, is not filed under the much high standard that Judge Townsend requires for setting it aside or dismissing it, i.e., it is not filed under a formal oath.
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