Jailed businessman Marc Sessions Jenson is on the hunt for evidence he believes will clear his name in the fraud case against him.
The truth, his lawyers insist, is out there.
And he wants a chance to unearth it — even if it means dragging former Utah Attorneys General Mark Shurtleff and John Swallow, among others, into court.
But acting Utah County Attorney Tim Taylor, who is prosecuting the case against Jenson, wrote in a motion filed with 3rd District Court last week that no such exonerating information exists — and even if it did, he explains, it’s unlikely Jenson could get his hands on it.
“Any individual who has exculpatory information, they are going to lawyer up,” Taylor said at a hearing last month.
In his filing last week, Taylor wrote: “[Jenson] assumes that if an evidentiary hearing was conducted, these individuals would provide testimony. The court is aware that some of these individuals are under investigation and there is no reason to assume that these individuals would even testify at an evidentiary hearing. In fact, there is a strong reason to believe that the individuals under investigation would invoke their Fifth Amendment privilege against self-incrimination.”
Jenson, a key figure in the scandal engulfing Swallow, Shurtleff and others, is accused of felony fraud and money laundering over his now-defunct plans to develop a high-end Beaver County resort known as the Mount Holly Club.
He is charged in 3rd District Court with eight second-degree felonies: four counts of communications fraud, three counts of money laundering and one count of committing a pattern of illegal activity.
The case, which has been ongoing since 2011 and concerns alleged crimes committed as far back as 2007, has not yet been set for trial.
It’s long overdue, Taylor wrote.
“There are several individuals who gave the Jensons a substantial amount of money and these individuals are still without recourse,” Taylor’s motion says. “The State of Utah respectfully invokes the victims’ right to a speedy trial [and] requests that the court set a trial date during the summer months of 2014.”
On Monday, the parties will reconvene to argue whether Jenson will get his chance to call “key” witnesses to testify as to the existence and nature of the evidence his defense team believes will clear his name.
Among those Jenson may wish to call, defense attorney Marcus Mumford wrote, are the two former Utah attorneys general, embattled Shurtleff-confidant Tim Lawson, criminal division chief Scott Reed and former chief deputy Kirk Torgensen, whose involvement and proximity to the goings on inside the A.G.’s office have drawn recent scrutiny.
Throughout his request, Mumford cites and references a Utah House Committee report on Swallow that was released earlier this month and alleges that the former attorney general “hung a veritable ‘for sale’ sign on the office door.”
“They were running what the House Report describes as their ‘pay to play’ scheme against Mr. Jenson for several years,” Mumford wrote in his request for an evidentiary hearing. “The House Report concluded that the actions of the office of Attorney General appear to have been ‘highly improper’ in this case, ‘and, at minimum raise troubling questions about whether decisions in the Jenson case were made for legitimate or illegitimate reasons.’ ”
Last month, Taylor told Judge Elizabeth Hruby-Mills that his office had sent two resolution offers to Jenson and his co-defendant brother, Stephen R. Jenson.
Taylor said if the men accepted the deal, the case would resolve in a diversion agreement, meaning the charges would be dismissed against the Jenson brothers if they follow a set of agreements, such as staying on the right side of the law and testifying willingly, if called, in other cases.
But Mumford declined entering into any agreement unless and until his client is given the opportunity to clear his name in an evidentiary hearing, during which he would allegedly call several witnesses to the stand.
“Courts have found that prosecutors are required to disclose exculpatory evidence, even if only at the plea negotiation phase of a case,” Mumford wrote. “Respectfully, the court must allow Mr. Jenson to investigate this issue further to determine what else has not been disclosed.”
The judge will issue her ruling after both sides have made their case in court Monday.
The attorney general’s office bowed out of Jenson’s case in July and handed it over to the Utah County attorney’s office after the defense alleged conflicts of interest due to Jenson’s allegations that Swallow and Shurtleff orchestrated a “shakedown” for cash, favors and luxury treatment at Jenson’s Southern California villa.
Marc Jenson, who is doing time on an unrelated fraud conviction, didn’t level accusations of extortion against the former attorneys general until 2013 — two years after charges were filed against him in the Mount Holly case.
Lawson, the only person charged in connection to the scandal thus far, faces counts of intimidating witnesses, evading taxes, obstructing justice and participating in a pattern of unlawful activity.