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Will Jenson acquittal hurt Shurtleff, Swallow defense in criminal cases?

Marc Sessions Jenson, left, and his brother talk as they wait for proceedings to begin in Salt La e City on Wednesday, January 14, 2015. Friday a jury determined that Jenson"” one of the key figures in the criminal cases against former Attorneys General M
Marc Sessions Jenson, left, and his brother talk as they wait for proceedings to begin in Salt La e City on Wednesday, January 14, 2015. Friday a jury determined that Jenson"” one of the key figures in the criminal cases against former Attorneys General Mark Shurtleff and John Swallow of fraud and money laundering "” was not guilty of four counts of communications fraud and four counts of money laundering.
Al Hartmann

SALT LAKE CITY — A key witness in the criminal case against former Utah Attorneys General Mark Shurtleff and John Swallow could come off more credible now that a jury has acquitted him of fraud charges.

Or Marc Sessions Jenson might not hold any sway given he still sits in prison for an unrelated crime and has a federal fraud conviction on his record.

Jenson has told incriminating stories about the two former state office holders, which form the basis for some of the bribery and gift-receiving charges against them. Shurtleff has called his accuser a liar, noting Jenson's criminal history and current address.

But how would a judge and jury take Jenson's testimony if and when he takes the witness stand in the Shurtleff and Swallow cases?

"I think it enhances his credibility quite a bit," said Greg Skordas, a Salt Lake defense attorney and former prosecutor.

The reason, he said, is that the claims Jenson made against Shurtleff and Swallow relate to the Mount Holly Club project, the failed $3.5 billion ski and golf resort that landed Jenson in court. They relied on the fact that Jenson is a "known fraudster" but maybe he's not, Skordas said.

"I think both of them would have preferred that he'd been convicted," said Skordas, who with his wife, Rebecca Hyde Skordas, represented Jenson in an unrelated criminal case in 2008.

A 3rd District Court jury last week found Jenson not guilty of four counts of communications fraud and four counts of money laundering. He was accused of not disclosing his criminal past when he asked investors to buy million-dollar memberships in the exclusive resort he and his brother were building in Beaver County.

Britni Fetten, forewoman on the five-man, three-woman jury, said Jenson's personality and temperament resonated with jurors as he spoke from the stand.

"He was very friendly with his own attorney as well as prosecution," Fetten said. "We could tell there some times when the prosecution was asking him a question that he was doing everything he could to go around the question, but he was very kind, very well behaved, and I felt like he really made a connection with all of us jurors."

Marc Jenson's brother, Stephen R. Jenson, took a plea deal several days into the two-week trial.

That prompted Shurtleff to tweet: "Stephen Jenson…no contest pleas to 3 counts of comm. fraud. Brother Marc's trial continues. 1 DOWN 1 TO GO!"

Skordas said the lack of a conviction will make it more difficult for Shurtleff and Swallow's lawyers to impeach Jenson's testimony.

"They can't discredit him nearly as effectively as they could have had he been convicted," he said. "A conviction would have tanked his credibility."

But attorneys for Shurtleff and Swallow could still use Jenson's crime for which he's now serving prison time and a 1992 federal fraud case to discredit him. Skordas called those cases "remote and unrelated."

Shurtleff's attorney Richard Van Wagoner said he didn't want to comment on Jenson's credibility.

"Mr. Jenson's acquittal supports and strengthens the fact that justice was best served by getting Mr. Jenson to enter a no contest plea to securities-related felonies in an agreement with the attorney general's office and the court in 2008, crimes for which he failed to pay millions in restitution to his victims and for which he is still serving time in prison," he said in a statement.

Jenson's lawyer, Marcus Mumford, though, has raised questions about Shurtleff's involvement in that case before and during Jenson's trial last month.

Jenson spent three days testifying on his own behalf, including his interactions with Shurtleff and Swallow. Mumford said the outcome helps prove the charges were political payback from the Utah Attorney General's Office.

The attorney general's office withdrew from the Mount Holly case in 2013 and turned it over to the Utah County Attorney's Office to prosecute.

Last year, Attorney General Sean Reyes hired two former federal prosecutors to investigate how the office dealt with the 2005 criminal case against Jenson.

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 case was prosecuted. But they found Shurtleff's involvement regarding Jenson "defies explanation."

The report describes Shurtleff's "unusual" actions in Jenson's case, which started after some investors 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 $120,000, according to the criminal charges against Shurtleff.

The attorney general's office — at Shurtleff's behest — reached a plea-in-abeyance agreement with Jenson in 2008 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 started serving a 10-year prison sentence in 2011.

Shortly after the plea deal and while Jenson was on probation, Shurtleff and Swallow, who was Shurtleff's lead fundraiser at the time, made two all-expenses-paid trips, including massages, golf and clothing, to the posh Pelican Hill resort in Southern California where Jenson lived in May and June 2009, according to court documents.

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 the Mount Holly Club.

Shurtleff and Swallow have denied any wrongdoing.

In response to the report, Shurtleff said last April the reason his conduct in the Jenson case "defies explanation is only because they did not have my just explanation." He declined to be interviewed for the report.

"What truly defies explanation is why the state spent money on a one-sided, incomplete report that is based on the self-serving jailhouse lies of a convicted felon," Shurtleff said at the time. "He came up with these stories after we put him in prison, and he's trying to get out."

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