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The Utah attorney general's office's decision to criminally charge jailed businessman Marc Sessions Jenson with fraud was politically driven, personally motivated and legally improper, his attorney argued Monday.
And if given the chance to put former attorneys general John Swallow and Mark Shurtleff on the stand, defense attorney Marcus Mumford said, he'll prove it.
"Mr. Jenson has rights, and those rights include the right to due process. He is certainly entitled to know what evidence has been withheld or destroyed, and the circumstances around [Swallow and Shurtleff] shaking him down and then trying to put him away," Mumford said after Monday's hearing. "If they're going to invoke their right against self-incrimination by pleading the Fifth, that would be a serious development. It shows they cannot discuss the prosecution or investigation of Mr. Jenson without revealing their own criminal guilt."
Mumford asked 3rd District Judge Elizabeth Hruby-Mills to grant an evidentiary hearing in which he would subpoena the former attorneys general, along with several others, in an attempt to prove that the investigation into Jenson's business practices began after Jenson could no longer engage in the AG's alleged "pay to play" way of doing business.
"The attorney general's office ran its operation in two parts: First you have people pay to avoid state action, then you put people in jail when they refuse to pay," Mumford said. "This case is an extension of the state's attempts to put him away."
But acting Utah County Attorney Tim Taylor, who is prosecuting the case, said the circumstances surrounding why Jenson was originally charged are irrelevant a judge found that there was enough evidence to show probable cause that Jenson defrauded several people in a scheme of his own.
Jenson, 54, a key figure in the scandal engulfing Swallow, Shurtleff and others, is accused of felony fraud and money laundering over his now-defunct plans to develop a high-end Beaver County resort known as the Mount Holly Club.
He is charged in 3rd District Court with eight second-degree felonies: four counts of communications fraud, three counts of money laundering and one count of committing a pattern of illegal activity.
The case, which has been ongoing since 2011 and concerns alleged crimes committed as far back as 2007, has not yet been set for trial.
Taylor remained optimistic Monday that the case could be set for a summer trial, should the judge deny Jenson's motion for an evidentiary hearing, which he characterized as pointless and futile.
"Nothing is going to come out of an evidentiary hearing," Taylor said. "The individuals they want to call to the stand are going to resist any type of subpoena."
Among the individuals Mumford said he would call are Swallow, Shurtleff, embattled Shurtleff confidant Tim Lawson, former chief deputy Kirk Torgensen and Scott Reed, who heads of the office's criminal division.
Hruby-Mills will issue her ruling on April 15.