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A.G.'s office stepping aside from Marc Jenson case

Published July 17, 2013 11:10 am

But lawyers of Swallow accuser Jenson wonder who's in charge of prosecuting their client now.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Jailed businessman Marc Sessions Jenson got what he wanted Wednesday: The Utah attorney general's office agreed to step aside from prosecuting the criminal case against him.

Although Jenson has made scandalous allegations against Utah's top cop and accused prosecutors of harassing his attorneys, witnesses and family, prosecutors maintained there was no real reason for them to bow out. There was no conflict of interest, they say. No bad blood. No history of harassment or unlawful behavior.

But they did it anyway, officials said, because merely an appearance of impropriety could compromise the entire case.

Defense attorney Marcus Mumford, though happy with the decision, stopped short of celebrating. The attorney general's office may be off the case, he said, but who will replace it?

"Is it going to be another backroom designation without any input from the court or government authority?" Mumford said. "It doesn't do anyone any good to designate a substitute prosecutor who will just carry water for [the attorney general]."

Mumford expressed concerns about a lack of transparency in the selection process, adding the attorney general office's decisions should be supervised by the court.

That's not usually how it works.

Typically, when prosecutors are disqualified or choose to step away from a case, they are responsible for finding a replacement, according to Utah courts spokeswoman Nancy Volmer.

The attorney general's office said it will first look to county attorney offices, then to private lawyers, to find a suitable replacement. The choice ultimately will be approved by a judge.

"The defense attorneys do not, and should not, get to pick the prosecutors they go up against," attorney general's office spokesman Paul Murphy said. "There's no such thing as prosecutor shopping."

Jenson, 53, and his co-defendant, Stephen R. Jenson, face multiple felony counts of communications fraud and money-laundering in conjunction with a now-defunct business venture in Beaver County known as the Mount Holly Club.

In recent months, Jenson has alleged that Attorney General John Swallow and his predecessor, Mark Shurtleff, orchestrated a "shakedown" for cash, favors and luxury treatment at Jenson's luxurious Newport Beach, Calif., villa.

He also has filed a battery of motions and other allegations against members of the A.G.'s office, Swallow and Shurtleff.

But the attorney general's office insists Swallow and Shurtleff have been walled off from Jenson's legal matters since June 2011 — two months before charges were filed against Jenson and two years before Jenson accused the attorneys general of extortion.

On Wednesday, prosecutors said they stepped away after deciding an "appearance of impropriety" could compromise the case.

"Sometimes, perception becomes reality," Assistant Attorney General Scott Reed said in a newsrelease. "What the defendant Jenson has successfully done is create a diversion which cannot be rectified. It is time to allow this prosecution to proceed and place the focus back in its proper place, which is on the conduct of the defendants and providing justice to the victims."

A day earlier, prosecutors filed a response to Jenson's request to have them removed from the case.

In it, they accuse Jenson and his attorneys of having "created a chaotic sideshow designed to deflect attention from [Jenson's] conduct in this case." They also ask the judge to deny the defendant's request, because there is "no legal or factual basis ... to disqualify the current prosecutor."

Murphy said the new prosecutor will be announced at the next court hearing, on Aug. 5 in 3rd District Court — if the judge allows the attorney general's office to step aside.

Jenson's lawyers called the attorney general's office's decision to back off a victory for their client and public accountability.

Their mistrust of Swallow's prosecutors deepened last month, when Mumford's partner Bret Rawson said he received menacing phone calls from Chief Deputy Attorney General Kirk Torgensen in which Torgensen allegedly warned Rawson that he and Jenson's other attorneys need to "be careful."

But earlier this month,3rd District Judge ElizabethHruby-Mills declined to ban the A.G.'s office from contacting Jenson, his family, his lawyers or his witnesses despite the alleged threats.

Even so, prosecutors informally agreed to honor similar conditions by telling attorney general officials to stay away from the Jensons.

mlang@sltrib.com

Twitter: marissa_jae