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Reasonable Doubt

Tuesday, 4 April 2017

by Staff, Spaulding Law

Last month concluded the end of a four-year process in what many have deemed to be the biggest corruption scandal in Utah. John Swallow was acquitted of eight felonies and one misdemeanor following a fifteen-day trial and investigations that began in January of 2013. The basis for this trial were the alleged inappropriate actions and connections of Mark Shurtleff, Tim Lawson, and John Swallow with two convicted felons, Marc Sessions Jenson and Jeremy Johnson. Tim Lawson died before reaching trial and Mark Shurtleff’s case was dismissed without prejudice. However, John Swallow’s case proceeded after Sim Gill (Salt Lake County District Attorney) asserted it was different from the other two.

Ultimately the prosecution’s case rested on the testimony of three individuals, Marc Sessions Jenson, Jeremy Johnson, and Jon Isakson.

Marc Sessions Jenson testified that the three men had extorted money from him and thrown him in jail unjustly. His testimony primarily focused on Tim Lawson’s requests for money and claims that these payments would result in favors from current Attorney General Mark Shurtleff and his supposed successor John Swallow. Jenson’s credibility was brought into question by the testimony of the other witnesses. For example, he told a story about a secret meeting at Pelican Hill that involved Senate Majority Leader Harry Reid and current Utah House Speaker Greg Hughes where Jenson claimed they met with UTA officials to broker a deal that would benefit them personally. Hughes was vocal in his denial of ever having been a part of such a meeting. While he didn’t testify in the trial, he did offer evidence that he was still in Utah at the time of the supposed meeting. Jenson held firm to his testimony that Hughes was there. There were also audio clips of telephone conversations of him speaking with his wife from jail referencing a desire for revenge. On top of Jenson’s credibility issues, many of the other witnesses called by the prosecution raised questions about Swallow’s connection to Shurtleff and Lawson and even offered explanations as to why Swallow’s actions may not have been inappropriate such as his being a private attorney at the time of the Pelican Hill trips.

The prosecution’s case was materially damaged when Jeremy Johnson refused to take the stand. Johnson is currently serving a sentence in federal prison that he plans to appeal. Though the Salt Lake County District Attorney offered Johnson immunity against possible future charges, his attorneys were not convinced that the immunity would cover the federal jurisdiction and two investigations currently underway in different states. Judge Hruby-Mills ultimately agreed with the prosecution and Johnson was ordered to testify. He refused and was found to be in contempt of court and ordered to serve 30 days in the Salt Lake jail. He was brought back to the courtroom several times to see if he had reconsidered, but he remained resolute. With this lack of testimony, the prosecution was eventually forced to drop 4 of the counts against Swallow.

The last witness for the prosecution was Jon Isakson (the FBI agent that led the investigation into Shurtleff, Lawson, and Swallow). During cross-examination, he was asked why he didn’t obtain evidence Jenson claimed to have until more than a year after the claim. The defense drew a sharp contrast between the way Jenson (a convicted criminal) was treated versus the way Swallow’s former campaign worker Renae Cowley was treated. She had also been cooperating with investigators, but she had a dozen agents in riot gear search her home. The most explosive part of Isakson’s testimony were his comments regarding the FBI’s declination to prosecute. This decision by the FBI had been barred from this trial and the defense had not been provided evidence concerning this issue. It was decided that the letter declining the prosecution by the FBI would be entered into evidence and some of the testimony given outside the presence of the jury would be presented to the jury.

The defense took only one day to call witnesses before resting. For the most part, they didn’t directly refute testimony that had been given, rather they provided more context. For example, two of their witnesses broke down the communications between Shurtleff, Lawson, and Swallow which the prosecution had used as a key part of the evidence for the racketeering charge. These defensive witnesses broke down the data to show when the communication happened, the duration, and even who initiated the contact. This data made it clear that the contact was not consistent over the range of time the data was pulled from. Rather, there was a lot of communication before Swallow joined the Attorney General’s office and almost no contact thereafter.

The jury was given instruction and left to sort through the information presented. They deliberated for thirteen hours and came back with four questions. Knowing that the standard for guilty finding was evidence beyond a reasonable doubt, one juror said, "Based on the evidence that was presented, and basically all of the evidence, we weren't firmly convinced, and obviously unanimously we weren't firmly convinced of guilt." They felt that there were gaps in the evidence provided by the prosecution and were not firmly convinced of guilt.

In response to the verdict, Sim Gill acknowledged that this case was not black and white but involved various shades of gray. Mr. Gill seemed to imply that the most important thing was that the issues were heard in a public forum. Troy Rawlings, the Davis County District Attorney responsible for dismissing the charges against Shurtleff, said that the outcome of the Swallow case was “predictable to any prosecutor who bothered to assess the evidence with an objective view…” He disagreed with Mr. Gill that the need for transparency to the public was more important than vetting the evidence and understanding the constitutional issues. With such opposing views from two District Attorneys, it is clear that this can be a complicated issue. However, it is reassuring to know that, whatever the standard might be for bringing a case to trial, the standard for conviction is clear: proof beyond a reasonable doubt.

This information is made available by Spaulding Law for educational purposes only and not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Spaulding Law, unless you have entered into a separate representation agreement. This information should not be used as a substitute for competent legal advice from a licensed professional attorney.

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