Swallow saga: Jenson case gets new prosecutor; will investigator be replaced?
It wasn't enough for jailed businessman Marc Sessions Jenson to get Utah attorney general prosecutors off his case Monday in exchange for the acting Utah County attorney, who claims he has never spoken to, nor had any dealings with, embattled Attorney General John Swallow or his predecessor.
Jenson's lawyers also want the attorney general's investigator dropped, a move that would further delay the 2-year-old case from going to trial and force newly appointed prosecutor Tim Taylor to start from scratch.
"We want to make sure the process is fair from this point forward," defense attorney Marcus Mumford said after Monday's hearing in 3rd District Court. "It's good to have a fresh set of eyes. ... But he needs to start over from a position of independence."
Last month, the attorney general's office agreed to bow out of the felony fraud and money-laundering cases against Jenson and his co-defendant, Stephen R. Jenson, over their now-defunct plans to develop a Beaver County resort known as the Mount Holly Club.
Defense attorneys alleged conflicts of interest due to Marc Jenson's claims that Swallow and his predecessor, Mark Shurtleff, orchestrated a "shakedown" for cash, favors and luxury treatment at Jenson's Southern California villa.
Jenson, who has filed a battery of motions and other allegations against members of the A.G.'s office, also accused prosecutors of harassing and intimidating his lawyers, family and witnesses.
State prosecutors have denied any wrongdoing by their office and noted that Shurtleff and Swallow have been walled off from the case since June 2011 two months before charges were filed against Jenson and two years before Jenson leveled his extortion accusations.
They removed themselves from the case voluntarily, Assistant Attorney General Scott Reed said, to avoid the appearance of impropriety.
"There was no legal or factual reason to disqualify the attorney general's office from prosecuting this case," Reed said after the hearing. "But this saga has taken on a life of its own, and even the appearance is enough to cause problems. We wanted to restore the focus in this case to its proper place: the allegations against Mr. Jenson."
Reed appointed Taylor to take his place.
During Monday's hearing, defense attorneys raised questions about how the new prosecutor was selected, but Reed said it was simple: Taylor was the only county attorney without a conflict who said yes.
Prosecutors from Salt Lake and Davis counties were disqualified due to ongoing investigations of Swallow led by Salt Lake County's Sim Gill and Davis County's Troy Rawlings, who are examining whether Swallow and Shurtleff broke any state laws. Gill and Rawlings have received information from Jenson in their probe.
Attorneys from Summit, Weber and Tooele counties declined the offer, Reed said, and many of the offices in counties off the Wasatch Front simply didn't have the resources to pick up a case of this magnitude.
That left Taylor, who has taken over the Utah County Attorney's Office for Jeffrey R. Buhman while Buhman is out of the country.
"They were in a bind and needed help, so I volunteered," Taylor said. "It's a tough situation, no doubt about it."
Taylor expressed confidence in his ability to take on the Jenson case despite its complexities, but was concerned about losing access to the attorney general's office investigator.
"I don't have anybody at my office who can take this case over right now," Taylor told the judge. "And if I did, they just don't know anything about this case."
Mumford's opposition to the investigator's involvement hinges on his belief that the probe of Jenson was "top down," meaning the direction to do so came from the attorney general himself. At the time, that would have been Shurtleff.
If the investigator is allowed to remain on the case after the rest of the attorney general's office has backed off, Mumford said, the "taint" of conflict would remain.
"I don't want a situation where the new prosecutor is simply a mouthpiece for the attorney general's office," he said. "Removal means removal, meaning the entire attorney general's office. If [the investigator] works there, he should no longer be a part of this case."
Mumford and Taylor must file papers with the courtsupporting their positions by Sept. 20. Judge Elizabeth Hruby-Mills then will determine whether the issue merits a hearing, at which the investigator may be put on the stand and questioned about his relationship with Shurtleff and Swallow.
Defense attorneys said they would agree to have the investigator continue if it could be proven that he did not receive his direction or information about Jenson's alleged wrongdoings from Shurtleff.
If the judge orders Taylor to get his own investigator and relaunch the probe, Mumford said he believes the case would be dropped. Prosecutors disagreed.
The judge ordered the case be tried before a jury Feb. 4. It is expected to last seven days.
House committee to meet
A special House committee investigating Attorney General John Swallow will hold its first meeting Tuesday as the nine members gather to discuss the path the probe will take and how much it may cost.
Legislative attorneys are expected to review the mission and legal authority for the committee and update members five Republicans and four Democrats on the process for choosing outside legal counsel.
A field of 61 firms vying for the contract to provide legal counsel for the investigative committee was narrowed to 10 last week. This week, a five-member group, which includes three committee members, is interviewing 10 finalists with plans to announce the winner Friday.
The cost of the investigation will also be discussed. Legislative budget analysts have tentatively projected it will run between $500,000 and $3 million, depending on the scope and staffing of the inquiry.
Tuesday's meeting is scheduled to begin at 1 p.m. in Room 445 of the Utah Capitol.