SALT LAKE CITY — Investigators spent nearly two years building a criminal case against former Utah Attorneys General Mark Shurtleff and John Swallow, and now they have to prove it.
Davis County Attorney Troy Rawlings, who along with Salt Lake County District Attorney Sim Gill headed the investigation, said their evidence has yet to be challenged in court, defense lawyers haven't cross-examined witnesses, and a jury hasn't deliberated.
"They're presumed innocent unless our evidence survives persuasively the crucible of the constitutional criminal justice system," he said Wednesday.
Swallow is scheduled to make his first appearance in 3rd District Court on July 22. No court date had been set for Shurtleff as of Wednesday.
Prosecutors charged Swallow with 11 felonies and two misdemeanors and Shurtleff with 10 felonies, including pattern of unlawful activity, soliciting a bribe and evidence tampering. If convicted, they each face as many as 30 years in jail.
The 23 total counts filed Tuesday were the culmination of an unprecedented public corruption investigation by the Utah Department of Public Safety and the FBI.
After being booked and released from jail, neither of the two former Republican attorneys general sounded like they planned to lie down. Both maintained their innocence and said the charges are politically motivated.
"They're going to want to fight," said Brett Tolman, a former U.S attorney for Utah who now works as a defense lawyer. Prosecutors, he said, clearly filed charges with the aim of putting the pair behind bars.
Shurtleff and Swallow are listed as co-defendants in charging documents, but they might not fight together. One or both will likely try to convince a judge to sever the case.
"I would expect Mark Shurtleff to get as far away from John Swallow as he can. But I wouldn't expect the opposite," said Greg Skordas, a Salt Lake defense attorney and former prosecutor.
Skordas said he doesn't think the allegations would be difficult to prove, especially in Swallow's case. Gill and Rawlings, he said, put together a good probable cause statement with the charges.
"I think Swallow's conduct is more egregious. Shurtleff's is more subtle," he said.
Swallow and Shurtleff are accused of obstructing justice, money laundering and accepting illegal gifts as public employees. Though some of the charges overlap, the specific activity alleged in the criminal information is unique to one or the other.
Some of the charges are connected to their relationship with indicted businessman and Shurtleff campaign donor Jeremy Johnson, and imprisoned businessman Marc Sessions Jenson. Shurtleff and Swallow accepted gifts from the two men, including use of Johnson's private jet and trips to a posh Southern California resort that Jenson paid for, according to court documents.
Both were charged under Utah's organized crime law, which is typically used against gangs and drug rings. State lawmakers beefed up the law earlier this year as a result of the House investigation into Swallow. They added witness tampering, altering government records and bribery in a legislative investigation to the list of crimes that fall under the statute.
"The pattern of unlawful activity is really the equivalent of racketeering charges in the federal system. That is a significant charge. It’s a tough one to prove," Tolman said.
White collar crimes also tend to take a long time to work through the court system. He said he wouldn't be surprised if the case takes two years.
But Skordas said he doesn't see why it couldn't be done in six months to a year.
Shurtleff and Swallow say the charges against them are politically motivated. In a news conference Tuesday, Shurtleff went after Gill, saying the Democratic district attorney filed charges he knows he can't prove and it will cost taxpayers millions of dollars.
Both men question Gill's reasons for charging them in light of the U.S. Department of Justice Public Integrity Section declining to do so last fall after its own investigation. Gill said he was frustrated with the DOJ's decision and said the case shouldn't have been left for local prosecutors.
Max Wheeler, Shurtleff's attorney, said his client was disappointed that Gill "thought he knew better" than DOJ investigators.
"But that’s part of the process," Wheeler said. "There are two jurisdictions here, the state and the federal, and Mr. Gill can pursue what he thinks he can prove. Making an allegation and proving are two different things."
Swallow's attorney, Steve McCaughey, said his client wants a chance to vindicate himself "free from partisan prejudices" before a jury of his peers.
"Sadly, only then will he have fair-minded, unbiased and bipartisan men and women determining his fate," he said.
University of Utah law professor Shima Baradaran said that while prosecutors have a "pretty solid case," Shurtleff and Swallow could argue that the charges are politically motivated.
"I think that might be a good argument for them locally. We'll see if it holds water. It's all going to depend on how good the state evidence is that they've collected," she said.
Kirk Jowers, head of the U.'s Hinckley Institute of Politics, said the case could lead to another look at how the federal investigation into Shurtleff and Swallow was handled.
"If they ultimately are found guilty, there will need to be some type of investigation or inquiry about the Department of Justice and how it was able to terminate the investigation so quickly," Jowers said.
But he said if the federal decision not to prosecute "turns out correct, everyone from the House committee to county attorneys to the media to others will have to answer for this extended hunt."
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