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A judge ordered former Chief Deputy Utah Attorney General Kirk Torgensen released from jail Tuesday, hours after he had been arrested in a move to ensure he will testify in the February public corruption trial of his former boss, John Swallow.
Salt Lake County District Attorney Sim Gill said prosecutors sought the warrant for Torgensen's arrest because they believed he would not show up.
Torgensen, who moved to Florida in October, was arrested at a friend's West Jordan home Monday night, after he had attended a burial service for his mother, who died in December, his attorney Brett Tolman said.
"I've never seen something like this," Tolman, a former U.S. attorney for Utah told a 3rd District judge during a hastily called bail hearing Tuesday afternoon.
Tolman said prosecutors previously had not expressed any fears that Torgensen, who had met with them repeatedly, would skip out on the trial.
They also knew about Torgensen's planned February trip to Guatemala that conflicts with the trial and had expressed a willingness to discuss a videotaped interview as an alternative to appearing at trial, Tolman said.
"They had the same assurances that can be given today," the lawyer said. "Instead, a cooperating witness, who has moved out of the state and voluntarily discloses he's coming back … is taken into custody by seven FBI agents."
Judge Elizabeth Hruby-Mills agreed to Torgensen's release without the posting of $100,000 bail, but also ordered him to be present to testify in her courtroom Feb. 8 through 10.
Jury selection in Swallow's trial is set to begin Feb. 7.
Torgensen must surrender his passport so there is no problem with him leaving for Guatemala with his son. The judge also asked for additional information about the scheduling of Torgensen's trip, saying she wanted assurances that he had planned it before she set the well-publicized trial date.
Shackled and wearing red jail togs, Torgensen explained that he had set up the trip at least three months ago.
Swallow, who stepped down after less than a year as attorney general, is charged with 13 felony and misdemeanor counts stemming from a multiyear investigation of the Utah attorney general's office. If convicted, he faces up to 30 years in prison.
Torgensen was the chief criminal division boss for Swallow and his immediate predecessor, three-term Attorney General Mark Shurtleff. His testimony is expected to focus on an alleged pattern of illegal activity inside the office involving the relationships both bosses had with campaign donors and various business owners.
Prosecutors contend Torgensen is critical to their case. But Swallow's lawyer said Tuesday it's more likely that his testimony could help exonerate the former Republican officeholder.
Scott C. Williams said Torgensen, whom he also intends to call as a witnesses, has information that contradicts the prosecutor's theory of Swallow's guilt.
Williams contends that Torgensen's arrest offers Swallow new grounds for a motion to dismiss the case.
"It's outrageous governmental conduct," he said. "It's conduct designed to chill potential witnesses and to send a message about what happens to you when you don't step to the beat of the drum of the government."
Records show Torgensen was booked into the Salt Lake County jail early Tuesday on a "material witness" warrant. Such warrants are used when key witnesses either refuse to accept a subpoena or fail to appear in court.
"He has done neither," Tolman told The Salt Lake Tribune before Tuesday's hearing.
Torgensen was served with and accepted a subpoena Sunday, his lawyer said, with the trial still almost 30 days away.
Torgensen did tell the subpoena server that he had a long-planned, nonrefundable trip with his son scheduled in February, Tolman said, but added that he was trying to work out the issue with prosecutors.
The rationale used to secure the warrant for Torgensen's arrest was filed under seal with the court Monday, but Gill said statements made by Torgensen during the serving of the subpoena were cause for concern.
"We served a lawful document and what was communicated to us, and what gave us concern, was that the judicial order was not going to be followed," Gill explained Tuesday. "We availed ourselves of the process that is available."
In court papers filed just before Tuesday's hearing, Tolman argued prosecutors exceeded their authority and "completely ignored" the process for ensuring the attendance of a material witness by seeking his client's arrest.
Tolman wrote that such a warrant can be issued only after a witness fails or refuses to post bond with the court, something Torgensen was not given a chance to do.
Torgensen also had offered to give sworn testimony before the trial or fly back from Guatemala to testify, provided the state would compensate him for his added expenses, the motion stated.
Tolman filed a declaration by Assistant Utah Attorney General Scott Reed, with whom Torgensen was staying at the time of his arrest.
Reed, who was present Sunday when Torgensen was served with the subpoena, stated that Torgensen never told the server that he did not intend to appear to testify.
Reed, who also had watched Torgensen being taken away in handcuffs Monday, said his friend had carried out a long phone discussion with Swallow prosecutor Chou Chou Collins in which he talked at length about his willingness to testify "if his travel arrangement could be accounted for."
Torgensen had worked in state government positions since 1990. He became chief deputy in the attorney general's office in January 2001.
He is expected to testify about Swallow's activities with Shurtleff and Timothy Lawson, Shurtleff's friend who allegedly used his relationship with the former three-term attorney general to try to solicit funds or strike deals with people facing criminal or civil actions by the state.
In 2012, Torgensen and Reed asked the Utah Department of Public Safety to investigate Lawson, sometimes dubbed Shurtleff's "fixer," to determine if he was peddling his access to the office. Torgensen helped investigators by making a recorded phone call to Lawson, which provided the basis for one of the criminal counts filed against Lawson.
"Lawson," Torgensen wrote in an email to Swallow, "is the guy that is going to bring the house of cards down."
Lawson died last year before his case was tried.
As far back as 2010, emails show that Torgensen also had warned Swallow about now-convicted St. George businessman Jeremy Johnson, who made allegations that ultimately led to Swallow's resignation.
Torgensen was demoted and then fired in December 2014 by new Attorney General Sean Reyes.
Reporter Tom Harvey contributed to this story.