Is the case against Swallow and Shurtleff solid?
By Marissa Lang
The Salt Lake TribuneFirst published Jul 16 2014 09:38PM
The amount of evidence, prosecutors say, is monumental.
Thousands of pages of documents, interviews, emails and text messages, along with reels of recordings and receipts — they all implicate former Attorneys General Mark Shurtleff and John Swallow in crimes with which they were charged Tuesday.
And that’s only what’s been made public in news reports and previous probes.
"There’s a lot of information — from the [Utah] House panel investigation, the lieutenant governor’s report, investigations done by the media — that we didn’t do, that’s been out there for months," Gill said in an interview Tuesday. "But there’s a lot more information that we have."
So there’s quantity, but what about quality? Is the case against Utah’s two former top cops solid enough to survive the grueling and adversarial process of the courts?
From here on out, all evidence will be subject to scrutiny by defense attorneys, judges and, perhaps, juries.
At trial, prosecutors would have to prove each count — 10 for Shurtleff and 13 for Swallow — beyond a reasonable doubt.
"These are terribly serious charges," said former Salt Lake County prosecutor Kent Morgan. "It’s not going to be a simple task to prove them."
While it’s early to speculate on how these prosecutions may play out, experts already foresee hefty hurdles for each side.
Swallow and Shurtleff have been accused of receiving or soliciting bribes, accepting improper gifts, tampering with evidence and witnesses and participating in patterns of unlawful conduct.
Some of the people the two former attorneys general allegedly surrounded themselves with during these acts make for less-than-sympathetic characters.
"It’s going to be a difficult case, with a lot of difficult witnesses," Utah defense attorney Clayton Simms said. "Part of the difficulty the defense is going to face is if you have Swallow and Shurtleff on a houseboat or in a villa or on someone’s private jet, it’s going to be difficult to explain why your attorney general is in a Ferrari with someone being charged with multiple felonies. There is an element of guilt by association that the defense is going to have to deal with."
Several possible witnesses identified in charging documents have had legal run-ins of their own.
To name a few: Jeremy Johnson, Marc Sessions Jenson, Jonathan Eborn and Timothy Lawson.
Johnson, a St. George businessman who made millions through his I Works company before federal regulators shut it down, has been battling a federal lawsuit in Las Vegas and 86 federal criminal counts in Salt Lake City.
According to court documents, Swallow attempted to help the embattled businessman stifle a federal probe of I Works, and Shurtleff, who allegedly used Johnson’s private jet on several occasions, supported a legal filing favorable to the legality of processing of online poker payments at Johnson’s behest.
Jenson, a convicted fraudster accused of swindling millions from investors in the defunct Mount Holly Club outside of Beaver, has been serving time for failing to pay $4 million in restitution to victims of a separate case.
Charges allege Shurtleff helped orchestrate lenient treatment of Jenson after the now-jailed businessman paid thousands of dollars for access to — and the influence of — the attorney general. Shurtleff and Swallow are also accused of accepting lavish gifts and favors from Jenson.
Eborn was found to have misrepresented his assets to the Federal Trade Commission, violating an agreement with the agency and prompting a federal judge in Nevada to order him to repay more than $26 million for "consumer redress." The order is being appealed.
Prosecutors allege Eborn met privately with Shurtleff, who offered to notify the businessman if a complaint was made against him. Later, Swallow allegedly hit up Eborn for $30,000 for Shurtleff’s campaign.
Lawson, the first person charged in the sweeping Swallow-Shurtleff investigation, faces six felony counts, including intimidating witnesses, evading taxes, obstructing justice and participating in a pattern of unlawful conduct, for allegedly being Shurtleff’s "fixer."
But the witness sword can cut both ways.
Putting people of questionable character on the stand is always risky, experts said. It gives defense attorneys ample ammunition in calling their credibility into question.
"Credibility is a huge issue at trial, and whether witnesses can be believed is certainly something prosecutors will worry about," Morgan said. "But you never use anyone who has been identified as a liar unless you have corroborating evidence to corroborate what they say. I would hope, in this case, prosecutors had the foresight to build their case on more than the word of convicted fraudsters."
That, he said, is where all that hard evidence — emails, text messages, receipts, recordings — kicks in.
Gill and his investigative partner, Davis County Attorney Troy Rawlings, declined Wednesday to dive into the specifics of their ongoing investigation, but the two prosecutors have expressed confidence in their case against Shurtleff and Swallow.
But, Sims and Morgan said, even in strong cases, jury trials can pose perils prosecutors may try to avoid.
Could there be plea deals? It was unclear Wednesday whether such negotiations would emerge, given the defendants’ insistence of their absolute innocence.
Swallow and Shurtleff, both of whom were booked and released from jail Tuesday, have repeatedly proclaimed that they did nothing wrong and insist they are being prosecuted for political purposes.
Swallow, who walked directly toward a crowd of television crews and reporters upon his release from jail Tuesday, said he looks forward to "my day in court to confront my accusers and to share my side of the story for, really, the first time."
Hours later, his attorney Stephen McCaughey said he expects the case to go to trial.
"He’s maintained his innocence from day one," McCaughey said. "I don’t anticipate us doing any plea bargaining."
So Utahns may have to wait through months of legal tussles to find out if the case of "The State of Utah vs. John Edward Swallow and Mark Leonard Shurtleff" stands or crumbles.