Jeremy Johnson: Judges made numerous errors before and during trial

Federal judges before and during the trial of Jeremy Johnson made numerous errors, including possibly telling an attorney not to disclose a conflict of interest, commenting on evidence and suggesting a guilty verdict could be the outcome of the case, according to a new filing in the case of the online entrepreneur.

In a memorandum filed in U.S. District Court for Utah, Johnson's attorneys try to bolster their arguments for acquittal or a new trial. They claim that:

• Johnson's constitutional rights were violated by the court's appointment of attorney Rebecca Skordas to represent him even though she previously had been counsel to a man who was a possible witness against Johnson.

• Johnson's rights also were violated when courts refused to turn over funds they had seized so he could hire his own attorneys.

• Judge David Nuffer made a number of statements in front of the jury suggesting the trial could end in a guilty verdict or in which he made known his own view of the evidence.

• Nuffer also allowed the government to bring issues into the trial that previous orders had prohibited but then didn't allow the defendants to cross-examine witnesses on those areas and refused to allow the defense's expert witness to testify.

• The judge displayed anger toward the Johnson, two co-defendants and defense attorney Marcus Mumford during the trial.

• A federal prosecutor allegedly committed misconduct during his closing arguments in making statements that were contrary to evidence and prohibited by a pretrial order.

After eight weeks of testimony and evidence, a jury on March 25 convicted Johnson of eight counts of making false statements to a bank but acquitted him of 78 charges mostly related to allegations of bank fraud. Co-defendant Ryan Riddle, a former manager at Johnson's I Works company, who like Johnson represented himself during the trial, also was found guilty on those eight charges but a third man, accountant Scott Leavitt, was found not guilty on all 86 charges.

Prosecutors previously argued that Johnson's rights were not violated because of the denial of funds from his seized assets to hire attorneys.

They also say that Skordas' possible conflict with Lund was discussed with Johnson at a Dec. 3 hearing in Warner's chambers and that Warner had again ruled there was no conflict.

Prosecutors made no improper statements during closing arguments, "there were no "erroneous trial rulings sufficient to warrant a new trial," and Nuffer had properly excluded evidence and the defense's expert witness, they said in opposing the motion by Johnson's attorneys.

Mumford, who represented Leavitt, on Friday called Nuffer careful and conscientious but said that "Nuffer himself noted during the trial how mistakes are made on all sides in the pitch of battle. In moving for a new trial, Mr. Johnson is giving the court the opportunity to make things right before he is forced to take these issues up on appeal."

Attorneys Karra Porter and Mary Corporon, who now represent Johnson, filed a 95-page document late Thursday that alleges a litany of mistakes prior to and during the trial.

After Johnson's previous court-appointed attorneys withdrew from the case in July of last year, U.S. Magistrate Judge Paul Warner picked attorneys Rebecca and Greg Skordas to replace them.

In November, just a little over two months before trial was to start, Johnson said he came across evidence showing that Rebecca Skordas had previously represented Justin Lund, the owner of an online business who was a possible witness in the case but who Johnson also blamed for causing much of the high rate of credit card chargebacks at Johnson's I Works company that were at the heart of the government's case against him.

When Johnson asked Skordas about her representation of Lund, she "indicated to him that the court (Magistrate Judge Warner) had directed her not to disclose the Lund conflict issue to Johnson," according to the new memo.

In asking for a hearing to ferret out evidence of what occurred, the attorneys say, "If the court directed Ms. Skordas not to tell Johnson of her representation of Mr. Lund or discouraged her from doing so, the court violated its own duty to protect defendants against conflicts of interest."

They also allege Assistant U.S. Attorney Robert Lunnen committed prosecutorial misconduct when he told the jury during closing statements that Wells Fargo Bank had paid big fines as a result of its dealings with Johnson and also had to reissue up to 75,000 credit cards.

Those statements were "patently false," contrary to evidence presented at the trial, contrary to the government's previous statements that Wells Fargo Bank suffered no losses because of its I Works accounts, and violated a court order, the memo claims.

It also asserts that Nuffer made numerous improper statements in front of the jury, citing Nuffer saying Mumford had offered "the most absurd question today" and "that question is totally objectionable." Nuffer also raised and ruled on his own objections to defense questions and appeared at times angry at Mumford, Johnson and Riddle.

The judge also suggested that the defendants could appeal his rulings, "thereby stating the court's opinion both that the jury was going to convict, since only a convicted defendant would appeal, and that any error in the jury's decision could simply be corrected on appeal," the memo says.

tharvey@sltrib.com