SALT LAKE CITY — How former Utah Attorney General Mark Shurtleff handled the prosecution of a wealthy Salt Lake businessman had attorneys in his office wondering if he was a "spy" in the case, according to a report released Tuesday.
Utah Attorney General Sean Reyes hired outside counsel to investigate how the office dealt with two criminal cases against Marc Sessions Jenson, who has accused Shurtleff and former Attorney General John Swallow of shaking him down.
Jenson filed a court petition alleging impropriety in the attorney general's office during his prosecution and is seeking his release from prison.
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 that some of Shurtleff's conduct "defies explanation."
"Shurtleff’s activities descended to such a low point that senior attorneys within the (office) began to wonder about whether he was a 'spy' passing along adverse information to Jenson and whether he was contemporaneously exchanging text messages with Jenson while prosecutors were prosecuting him in court," they wrote in the 63-page report.
Reyes said he called for the investigation to remedy 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.
Cassell and Wikstrom recommended the attorney general's office agree to a court hearing on Jenson's petition as a way to increase public confidence about his treatment in the case.
"Given the information we have just received and provided to the public in the report, it is now in the hands of the courts and Mr. Jenson’s counsel to determine whether any further action is merited," Reyes said in a statement.
Jenson's attorney, Marcus Mumford, said he intends to seek an evidentiary hearing.
"That's really what we've been asking for the whole time," he said. "We simply seek a hearing where we can examine witnesses, review the office's internal documents and get to the bottom of the questions that have been raised about the (former) attorney general's misconduct as it relates to Mr. Jenson."
Cassell and Wikstrom noted that Shurtleff and Swallow declined to be interviewed for the report.
"Sadly, their refusal continues to contribute to a lack of transparency and public confidence about what happened," they wrote.
Shurtleff said in a text message that he wanted to read the report before commenting.
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.
Lawson currently faces criminal charges as part of an ongoing criminal investigation of Swallow and Shurtleff by Salt Lake and Davis counties.
"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 report doesn't fault Jenson for using his access to Shurtleff, but it does fault Shurtleff for allowing a separate, back channel to develop and for his failure to include line prosecutors in those meetings and communications.
"This was a clear deviation from standard policy," the report states.
Lead prosecutor Scott Reed — 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.
Cassell and Wikstrom say in the report that they don't understand why Jenson thought it was better to pay for three expensive villas at the posh Pelican Hill resort in Southern California than to repay his victims. They also noted millions of dollars flowing through his bank accounts.
Shortly after the plea deal, Shurtleff and Swallow, who was Shurtleff's lead fundraiser at the time, made two all-expenses paid trips to the Pelican Hill resort where Jenson lived in May and June 2009.
Jenson claims Shurtleff and Swallow pressured him for money and other favors during the visits. He accused Swallow of securing a "quid pro quo" agreement from him for a $1 million lot in a members-only resort development on Mount Holly in Beaver County. The multibillion-dollar project failed, and Jenson faces fraud charges in connection with its failure.
The California trips raised eyebrows among attorneys in Shurtleff's office.
“It is shocking that you would go to pelican hills and stay in a 1000 a night suite and golf and go to church with someone your own office had prosecuted. You and no one else gave Jenson the ability to allege nasty things about you and John and now your entire crim div. no one did that but you. Sorry but that is the truth," then criminal division chief Kirk Torgensen wrote to Shurtleff in a text message.
Shurtleff replied: "Of course I do Kirk. I haven’t once blamed you or anyone else. I will defend myself as to the true facts, but at the end of the day Jenson got nothing but jailed and prosecuted with my strong support. "
The attorney general's office had an investigator monitor Jenson's telephone calls while he was held in the Beaver County Jail in September 2011, according to the report.
Reyes recently placed Torgensen on administrative leave after investigators in the criminal probe of Shurtleff and Swallow issued a search warrant for his iPhone.
In a call to his personal assistant Peter Torres, Jenson said the attorney general's office "better let me go or I’m going to bring that whole office down."
The investigator heard Jenson tell Torres that he should find the receipts from the Shurtleff and Swallow visits to Pelican Hill and take them to the media. Regarding Swallow running for attorney general, Jenson said, "I’ll show him. I’ll ruin them all."
In the calls, he made statements to the effect that "Shurtleff owes me. I did him a favor. I got him out of trouble from the investigation by (U.S. Attorney) Brett Tolman."
The report doesn't explain the nature of an investigation Tolman, who resigned as U.S. Attorney in December 2009, might have conducted.
The report states: "Recognizing the significant role that Jenson and his advocates played to induce Shurtleff’s remarkably lenient plea offer, the question remains whether Jenson was disadvantaged by Shurtleff’s actions. Our conclusion is no."
Cassell and Wikstrom concluded in the report that any misconduct in the Jenson case did not extend to Torgensen or Reed.
"To the contrary, we found that Shurtleff was repeatedly warned by these employees and others about problems posed by his private meetings and involvement with Jenson," they wrote.
The report also found a "cloud" over the current criminal case against Jenson because of Shurtleff's involvement.
Jenson and his brother Stephen R. Jenson face felony communications fraud and money laundering charges in connection with the Mount Holly project. The attorney general's office withdrew from the case last August and Utah County took over the prosecution.
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