They knew that they could not have it because of the ongoing D.A. investigation when they contracted with A.G. Reyes to do yet another report. After hearing my explanation a year ago, and comparing it to a felon's allegations, the Department of Justice ended its investigation. —Former Utah Attorney General Mark Shurtleff
SALT LAKE CITY — Former Utah Attorney General Mark Shurtleff seemed to have a message Wednesday for those investigating him for potential criminal charges: Bring it on.
"I'll say flat-out, I'll tell you right now, if I were to be charged, I'm going to win. They're going to lose. This is not something I'm going to lay down for," he told KSL NewsRadio's "The Doug Wright Show."
Shurtleff's comments came on the heels of a report released Tuesday that found his behavior while his office prosecuted a wealthy Salt Lake businessman "defies explanation."
Attorney General Sean Reyes hired two former federal prosecutors to investigate how the office dealt with two criminal cases against convicted felon Marc Sessions Jenson, who has accused Shurtleff and former Attorney General John Swallow of shaking him down for money and favors.
Shurtleff and Swallow are targets in an ongoing criminal investigation by Salt Lake County District Attorney Sim Gill and Davis County Attorney Troy Rawlings. Investigators have obtained a large amount of data in the case through a series of search warrants. They believe the records are evidence for eight possible crimes, including receiving or soliciting a bribe or bribery by a public servant and misusing public money, according to court records.
Shurtleff said his "beef" with various investigative reports coming out, including one from the Utah House Special Investigative Committee, is that they only tell one side of the story.
"I'm anxious for the day when I get to fully set the record straight," he said in a statement.
When reached for comment Wednesday, Rawlings said "wisdom dictates that I not respond."
"Mr. Shurtleff is presumed innocent at this time. Significantly, as he has pointed out to me, Mark also has thousands more Twitter followers than I do," he said.
University of Utah law professor and former federal judge Paul Cassell and one-time acting U.S. Attorney for Utah Francis Wikstrom concluded that Jenson did not suffer any prejudice from the way his cases were prosecuted. But they found Shurtleff's actions and decisions "quite hard to understand or to rationalize."
Shurtleff said the assertion in their 63-page report that his conduct in the Jenson case "defies explanation is only because they did not have my just explanation."
"What truly defies explanation is why the state spent money on a one-sided, incomplete report that is based on the self-serving jailhouse lies of a convicted felon," he said. "He came up with these stories after we put him in prison, and he's trying to get out."
Reyes said he called for the investigation to fix any prior misconduct that comes to light in the office. The governor appointed Reyes as attorney general after Swallow resigned last December amid allegations of influence peddling.
Jenson filed a court petition alleging impropriety in the attorney general's office during his prosecution and is seeking his release from prison. He asked the court to hold a hearing on the allegations, and the report recommends the attorney general's office agree to that.
Marcus Mumford, Jenson's attorney, called the report a good start. He said it corroborates what other investigations, including the House committee, have found.
The state spent $140,000 on the three-month investigation in which Cassell and Wikstrom interviewed 20 people, including Jenson, and combed through documents and electronic data. They noted that Shurtleff and Swallow declined to be interviewed for the report.
"They knew that they could not have it because of the ongoing D.A. investigation when they contracted with A.G. Reyes to do yet another report. After hearing my explanation a year ago, and comparing it to a felon's allegations, the Department of Justice ended its investigation," Shurtleff said.
Last fall, the DOJ Public Integrity Section declined to file charges against Shurtleff or Swallow.
The report describes Shurtleff's "unusual" involvement in Jenson's case, which started after some investors, including a campaign contributor, alleged to Shurtleff that Jenson defrauded them. At the same time, Jenson and his associates gained access to Shurtleff by paying his self-described "fixer," Tim Lawson, at least $114,300, according to the report.
"The situation where an attorney general was having personal interactions with a criminal defendant his office was prosecuting seems to be truly unprecedented," the report states.
The attorney general's office — at Shurtleff's behest — eventually reached a plea-in-abeyance agreement with Jenson that included a fine but no jail time for selling unregulated securities. A 3rd District judge rejected what the report calls a "sweetheart deal" as too lenient. The judge accepted a second plea agreement that also allowed Jenson to avoid jail but imposed $4.1 million in restitution.
Jenson failed to pay the money back and is now serving a 10-year prison sentence.
Shurtleff said in the statement that he's pleased that "even believing Jenson and his paid cohorts' tall tales, Cassell and Wikstrom found Jenson's plea, conviction, sentencing and ongoing prosecution valid."
Jenson and his brother Stephen R. Jenson face felony communications fraud and money laundering charges in connection with the failed multibillion-dollar Mount Holly project. The attorney general's office withdrew from the case last August and Utah County took over the prosecution.
Cassell and Wikstrom concluded in the report that any misconduct in the Jenson case did not extend to former criminal division chief Kirk Torgensen or lead prosecutor Scott Reed.
However, they say, they learned during the investigation of Torgensen's "irregular" deleting of emails. They said it wasn't clear whether it was related to the Jenson case or a personal matter.
Torgensen asked his executive assistant to delete emails from his "trash" on New Year's Eve 2011 because his wife has found some "flirtatious" messages he had sent to another woman. The assistant went to the office the next day and deleted the emails, according to the report.
Reyes demoted Torgensen when he took over the office in January and placed him on administrative leave earlier this month after investigators in the criminal probe of Shurtleff and Swallow issued a search warrant for his iPhone.
The report revealed several other items of interest:
Jenson visited Shurtleff in the hospital and brought cookies that his wife baked while he recovered from a motorcycle accident in 2007. He told Shurtleff he would not take a plea deal or pay restitution.
Shurtleff replied, "You have to give me a way to save face politically. People in the office really hate you. Have you heard of a plea in abeyance?" according to the report.
Shurtleff received a personal letter from Jenson in prison around February 2012. Shurtleff apparently threw it away, which angered prosecutors in his office.
According to the report, Shurtleff told them the only thing of concern might be that Jenson wrote, "I did you a favor when you needed help and I’m asking for one in return, please come visit me."
"Torgensen had the impression that Shurtleff did not want his prosecutors to get hold of the letter because there could have been 'zingers' in there," the report says.
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