SALT LAKE CITY — John Swallow's office will no longer prosecute a onetime millionaire who has accused the attorney general of misconduct stemming from their interactions before the first-term Republican took office.
That job now falls to acting Utah County Attorney Tim Taylor, pending approval of the Utah Supreme Court in a move that all parties involved say is unusual.
Furthermore, the defense attorney for Marc Sessions Jenson now wants the state investigator assigned to the case removed as well because he works for the attorney general's office.
"We believe his continued involvement in the case is tainted," said Jenson's attorney, Marcus Mumford.
Taylor and assistant attorney general Scott Reed, who was the lead prosecutor, disagree.
"He's a witness. He investigated the case. That's the factual history of the case, and I don't see that as a problem," Reed said.
Third District Judge Elizabeth Hruby-Mills accepted a motion by the attorney general's office to withdraw from the case Monday. But she asked both sides to submit arguments by Sept. 20 about whether the investigator should be retained.
The judge also scheduled a seven-day trial starting Feb. 4 for Jenson and his brother, Stephen R. Jenson. Both face felony communications fraud and money-laundering charges in connection with a failed billion-dollar venture in Beaver County known as the Mount Holly Club.
The case has gained heightened publicity because of the allegations Marc Jenson leveled against Swallow and his predecessor, Mark Shurtleff, in interviews from prison. Jenson is serving a 10-year sentence for failing to pay a $4.1 million restitution in an earlier criminal case in which he pleaded no contest to selling unregistered securities.
In June, Mumford asked the judge to disqualify the attorney general's office from prosecuting Jenson because of his previous relationship with Swallow and Shurtleff.
Jenson claims Swallow and Shurtleff shook him down during all-expenses-paid visits to his Southern California villa. He also accused Swallow of securing a "quid pro quo" agreement from him for a $1 million lot in the proposed Mount Holly members-only resort community.
Swallow, a private attorney during his meetings with Jenson, and Shurtleff have denied the allegations.
Mumford contends the attorney general's office is more interested in defending itself against the disclosures and investigations of misconduct than it is in seeking justice.
Reed said while there was no legal or factual basis for the office to step aside, Jenson's allegations against Swallow and Shurtleff give the appearance of a conflict that can't be overcome.
"We knew our primary job as prosecutors was to prosecute the case without any taint from executive or political influences. That's what we set out to do. However, their saga has taken on a life of its own," he said.
At least three county prosecutors who could have taken on the case also have conflicts.
Salt Lake County District Attorney Sim Gill and Davis County Attorney Troy Rawlings are conducting a joint investigation into Shurtleff and Swallow based in part on Jenson's accusations. Weber County Attorney Dee Smith ran against Swallow last fall. Other county offices were too small or too far away, Reed said.
Taylor said he has never met Swallow or Shurtleff and didn't know anything about the case until Reed contacted him. Taylor's appointment is subject to Utah Supreme Court approval under an obscure provision in the state constitution.
"I'm just going to focus on the facts. I'm not going to focus on any collateral issues," he said.
Taylor said financial cases are tough, but he believes the charges against Jenson are appropriate. He said he needs the attorney general's investigator because his office doesn't have one to spare. Also, he said the investigator already has several years on the case.
Mumford contends Shurtleff initiated the investigation into Jenson as a political favor and no one associated with it should be involved.
"The attorney general's office must be recused. That means everybody," he said.
Mumford didn't object to Taylor becoming the prosecutor but said he needs to approach it from a position of independence.
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