SWALLOW AND SHURTLEFF CHRONICLED, PART 36 OF A SERIES The AG’s Illegal, Secret Investigations • The AG’s abuse of investigative subpoenas. • The Utah criminal justice system meltdown unveiled. • Proof mounts that Marc Jenson is a political prisoner.
by Lynn Packer, March 30, 2014
It may have been the most brazen practice of Utah’s embattled Attorney General’s office: The illegal use of investigative subpoenas to conduct secret investigations. Dozens of them. All carried out with surprisingly blatant and admitted disregard for Utah law.
The highest profile investigation among them involves the ongoing prosecution of Utah businessman Marc Jenson who remains incarcerated in Davis County Jail. His attorneys argue that charges against him in 2005 were politically motivated to appease a Shurtleff donor and that additional charges filed in 2011 were the result of Jenson's refusal to go along with a $2 million “shakedown” of their client by Shurtleff and Swallow.
The AG’s abuse of court-approved subpoena power adds insult to the politically-motivated-prosecution injury.
Jenson’s story reveals how the Attorney General’s Office abused prosecutorial power, trampled on the Fourth Amendment and benefited themselves, friends and campaign donors. But, much like the apostle Paul holding the coats of the men who stoned Stephen, Utah judges looked the other way. Dozens of judges utterly failed to oversee the AG investigations they authorized.
A look at the Jenson case exposes a meltdown of Utah’s constitutional protections against unreasonable searches and seizures, a meltdown whose shock waves could impact dozens if not hundreds of criminal cases besides Jenson’s.
Proof of the AG office’s noncompliance on the Jenson case is sealed inside a manila envelope kept in locked file cabinet at the Matheson Courthouse in Salt Lake City. Inside the Jenson folder numbered 10-181 is Judge Robert Faust’s order permitting the attorney general to issue subpoenas and order whoever is served to also keep them secret.
But it’s actually not what’s inside the envelope that proves the subpoena law was violated. It’s what is not there. Utah’s Subpoena Powers Act--UCA 77-22-(2-5)--requires prosecutors to keep authorizing judges
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well informed about the investigations until their conclusion. By prosecutors filing document descriptions and witness summaries during the course of court-authorized, secret investigations judges are better able to provide oversight, making sure prosecutors abide by constitutional protections, making sure subpoena power is not exercised sloppily or for bad purposes. Like retribution.
So what’s not in Jenson’s sealed file? Key parts of what the law requires:
• Detailed descriptions of all documents and other evidence produced in response to subpoenas.
• A copy of all transcripts of testimony taken pursuant to the subpoenas.
• A copy of all written communications between the court and the attorney general, county attorney, or district attorney, and staff.
None of those required records is in the Jenson file. How do we know that when the press and public are not authorized to peek
inside? Packerchronicle asked Brent Johnson, general counsel for the Administrative Office of the Courts, who is authorized, to check. He found no document or evidence descriptions. No testimony transcripts. No indication of any ongoing communications between the court and AG’s office. No sign of any oversight.
Johnson says he can’t explain why those filings are not there despite being required. “I have no explanation,” Johnson said. “The law says what it says.” “I am only reporting facts, but based on those facts you can see there is a disconnect between what the law says and what I am finding in the files.
What does it mean? Maybe someone, the legislature, the courts or prosecutors, will look at changes to see that it’s followed, he said. “It’s in the statutes for a reason,” Johnson said. “I don’t see them taking it out (of the code) unless prosecutors are powerful lobbyists.”
How important are those missing filings? Third District Court Associate Presiding Judge
Deno Himonas in a 2011 decision wrote:
“In order to allow courts to review the appropriateness and scope of a secrecy order, the Subpoena Act…requires prosecutors like the Attorney General to file various documents with the court, including…copies of subpoenas and
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descriptions of the materials produced pursuant to the subpoenas.” Judge Himonas opined further that the materials must be filed in a timely manner,
that filing at the conclusion of an investigation is too late; otherwise “a court could not perform its essential duties.”
It’s not the first time a Utah AG’s office clashed with the courts over secret investigations. In 1983, when David Wilkinson was attorney general, his office opened a criminal investigation into security operations at Utah Power and Light Company. Judge Boyd Bunnell of the 7th Judicial District in Emery County had authorized a secret probe into kickbacks and bid-rigging. But when certain UP&L officers and employees objected to the secrecy associated with the subpoenas they were served, Judge Bunnell withdrew his authorization. “He dismissed the criminal investigation, ruling that the Act is facially unconstitutional and was unconstitutionally applied because it fails to provide for adequate judicial re-view to protect against abuse of power, is too vague, and fails to protect rights of due process…” according to court records.
On appeal the Utah Supreme Court agreed that the AG’s office applied the law illegally in its UP&L probe, but the Court stopped short of declaring the law unconstitutional. Instead its 1988 opinion suggested changes to the law. The decision said “courts have inherent authority to supervise the use of this process for the purpose of assuring that it is not abused.” It opined that “to exercise this authority effectively, the courts must have access to a complete record of the investigation.”
The Supreme Court concluded “that all investigations must be fully documented and such documentation shall be maintained by the district court authorizing the investigation.”
The opinion included a not-so-subtle hint to the legislature that the subpoena law needed to be expanded to include, among other things, the filing of “detailed descriptions of all documents or other evidence produced in response to subpoenas; copies of all transcripts of testimony prepared…”
The opinion said:
The need for these items of information is apparent. For example, unless the good cause statement is preserved, as well as any other orders concerning the investigation's scope and duration, there will be no way for a court to judge whether the state's attorney is exceeding the scope of his or her authority. Moreover, absent such a record, the recipient of a subpoena would have no way to judge its propriety. In a similar vein, unless the investigators' use of the court's subpoena power is fully documented by copies of subpoenas, transcripts of testimony, and documents produced, the court would have no way to supervise that use effectively. Such transcripts and documents are the very types of records that are missing in
the Jenson case file. The legislature took the hint and in its next session in 1989 added the reporting
provisions along with other measures so the law might pass constitutional muster.
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The AG’s Office Flips Off the Courts It’s not like Shurtleff and his key criminal prosecutors like Kirk
Torgensen, Craig Barlow and Blaine Ferguson didn’t know about the requirement when they ignored the law while pursing the secret Jenson investigation. Among other secret investigations. They cannot argue they proceeded in good faith though unaware.
They just didn’t agree with it. In essence they have been telling the judicial branch to shove it. One source close
to the ongoing criminal probe into the AG’s office said it’s no surprise that office did not follow the investigative subpoena law. “It’s been the position of past administrations in the AG’s office that if they don’t like the law they don’t follow it simply because they
think they are above it.” The AG’s Criminal Division Chief Scott
Reed sees it as a separation of powers issue, that the court should not be meddling in the affairs of another branch. Another division chief, Craig Barlow, believes filing the required records is a waste of the AG’s time and that judges don’t want them. (Reed and Barlow declined interviews for this story.)
So what did Barlow and Reed know about their duty to follow the investigative subpoena law and when did they know it? Certainly by 2011, by the time they were failing
to comply during their Jenson probe. This reporter was an eyewitness to their expressions of defiance to the law. In
2010 I was working with a Utah company to combine their video streaming hardware with my patented lecture capture method to market to universities. But when we were responding to a Weber State University request for proposals (RFP) for lecture capture hardware it was clear the bid was rigged and the fix was in. As well as for a similar RFP at Dixie State University. At my request the AG’s office opened a criminal investigation and obtained court-approved secret subpoena power. Even though I initiated the investigation I was served a subpoena and ordered by the court to keep it secret. Even after covering the courts for several years while a reporter for KSL News and City Weekly I was not aware investigations could be conducted so clandestinely.
The AG’s bid-rigging case went nowhere. Smelling a rat I filed a pro se motion with the court to have the secret file unsealed. The court, perhaps for the first time, granted my motion and ordered an investigative file unsealed. The unsealed file revealed that AG’s office not only failed to follow the law but it had also misled the court by previously claiming it had been filing required records.
I filed a new motion asking the judge to sanction the AG’s office. I also lodged a complaint with the Utah State Bar against Mark Shurtleff, John Swallow and the AG’s antitrust prosecutor, Jim Palmer. (The court tossed my sanctions petition for lack of standing and the bar brushed my complaint aside as it did others against Swallow two years later.)
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The Deseret News and KSL Television covered the secrecy story. (To watch KSL’s video see the archive page, 36A for the .wmv format, 36B for Flash or go to http://www.ksl.com/?sid=15631116.)
The May 20, 2011 Deseret News story by Dennis Romboy was titled “Utah courts keeping secret investigations away from public eye.” Excepts:
Law enforcement routinely uses
what are known as investigative subpoenas to root out crime much like a grand jury would. But though judges sanction the investigation, they have little oversight after their initial blessing. And there's no way to know if the records the law requires for each file are included. Prosecutors say the secrecy serves to keep from tipping off bad guys or to protect witnesses. Some defense attorneys, though, say the practice leaves room for abuse by overzealous prosecutors.
. . . . . Secrecy orders are public records, but there is no way to know the files even exist.
The court uses a separate numbering system for those cases. They do not appear on public court dockets nor are they entered into the court's computer database. In the Matheson Courthouse in Salt Lake City, cases are logged with handwritten entries in a black spiral notebook, which the court does not allow the public to view. The files are kept in a locked cabinet. Lynn Packer, a former investigative reporter and BYU journalism instructor, stumbled across the secret files as the result of a business dispute with Weber State University. His complaint to the attorney general's office initiated an investigation in which subpoenas and secrecy orders were issued.
Reed told The Deseret News that people have to simply trust prosecutors. He
explained that showing good cause at the beginning of an investigation is sufficient oversight. “We go get judicial oversight. We just don't run willy-nilly off into the woods on some complaint over the phone anonymously. We have to show good cause,” he told Romboy. He called the filing of required records a “mundane” task, one the office may not get around to.
Though Reed said investigators should abide by the law, he couldn't say for sure it
happens in each case. Investigators as a group are very eager to go out and investigate," he said. "They are less eager to engage in the more mundane tasks of file management and paperwork." But, Reed said, all the required records should be in a file when the investigation is done.
“I don't think it's so much a question of keeping things secret permanently, but more a question of keeping something secret temporarily while the investigation is moving forward in sensitive phases,” said (Paul) Cassell, a former federal judge and prosecutor.
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Reed said he has no problem with files being opened after an investigation is complete regardless of whether charges are filed. But they should stay closed while investigators are at work.
The required records were not in the Jenson file when the investigation ended on
August 24, 2011, the day charges were filed alleging communications fraud, money laundering and a pattern of unlawful activity in courting investors for the Mount Holly Club. (By law investigative subpoena power automatically terminates once a suspect is formally charged.) And they’re not there today, according to the Brent Johnson’s review of the file, despite what Reed said in the 2011 interview. There is no sign that any judge provided any oversight throughout the investigation.
That same day, August 24, Jenson not only faced new charges but also had his plea bargain from the earlier case cancelled for failure to pay restitution. Scott Reed asked the judge to send Jenson straight to jail saying Utah law mandates that he be detained until sentencing. It is appropriate in this case, he added according to The Salt Lake Tribune account, because a string of (civil) lawsuits against Jenson across the West is evidence that the defendant is a “constant
threat” to be involved in financial fraud. (The same Paul Cassell quoted in the
2011 D-News story, is now looing into the Marc Jenson prosecution on behalf of Attorney General Sean Reyes. Last week he interviewed Jenson at the Davis County Jail. Cassell is also believed to be serving as an internal affairs investigator to assess current members of the AG’s office, presumably some show are involved with the Jenson prosecution.)
Scott Reed’s Fingerprints
Scott Walter Reed, chief of the AG’s Criminal Justice Division, was born in
Minnesota, grew up in Idaho and Montana, played football for the University of Utah while getting a psychology degree, and graduated from Puget Sound University Law
School in 1983. He worked as a Salt Lake County prosecutor, became an Assistant Utah Attorney General, worked his way up to heading the Commercial Enforcement Division, left to practice law in the Northwest, divorced, returned to Utah, attained his present post and married Patty Ishmael who also works for the AG’s Office in the Investigations Division.
Reed, according to a former assistant attorney general, had a reputation for being a good prosecutor. The source said Reed and
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Kirk Torgensen handled a high profile murder case, the grizzly murder of one Utah prison inmate by another. Prisoner Troy Kell was able to handcuff a black inmate, recruit help from other inmates to hold the victim down and then stabbed him 67 times. The murder was caught on camera.
But the former assistant AG said Reed was less able as a manager. After being promoted to head the criminal division his polices, according to the source, “took a real hit on morale.”
Reed’s fingerprints are all over the AG’s prosecution of Marc Jenson from the beginning when the first case began in the Commercial Enforcement Division to the present. And the same one involved in Jenson’s earlier, 2005, plea bargain related to a previous criminal investigation. (See this site’s archive, reports 13 and 16.) He was involved when Mark Shurtleff injected himself into the Jenson case. He’s the same Scott Reed who kicked off the Jenson secret investigation in 2011 by applying to the court for subpoena authority and a secrecy order. And the same one involved in Jenson’s earlier, 2005, plea bargain related to the 2005 prosecution.
“Scott Reed is the thread that runs throughout the entire Jenson saga,” said one of Jenson’s attorneys, Helen Redd. She hopes criminal investigators “pursue their case sufficiently to understand the scope of Reed’s involvement.” “Scott Reed has an inexplicable drive drive to take Marc Jenson down,” Redd says. “His drive seems personal.”
The Salt Lake and Davis County criminal prosecutors, at least at one point, considered whether Reed should be a target like Shurtleff and Swallow. Last August KUTV reporter Brian Mullahy reported that “a letter and brief statement from prosecutors suggests two others in the Attorney General's Office may be key witnesses, or under investigation---in connection with the on-going probe into Attorney General John Swallow and his predecessor, Mark Shurtleff. The letter, which 2News saw on Friday, listed the names of Kirk Torgensen, the Chief Deputy Attorney General, and Scott Reed, who heads the office's Criminal Justice Division.”
Torgensen has since become a target of the probe. Reed’s current status is unknown.
When Jenson’s attorneys cried foul claiming the AG’s prosecution is tainted, it was Reed who picked a friend of his, Utah County Attorney Tim Taylor as lead counsel. Rather than wait for the court to disqualify the AG’s office Reed filed a motion to withdraw. Reed claimed there was no legal or factual basis for the office to step aside but “Jenson's allegations against Swallow and Shurtleff give the appearance of a conflict that can't be overcome,” the D-News reported.
Former Chief Deputy Attorney General Kirk Torgensen, remains co-counsel. Jenson counsel also asked that the AG’s investigator, Steve Sperry, be removed from the case. Taylor said he didn’t have an investigator to spare and needed one who had already been working the case. Sperry’s status remains under dispute.
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Taylor told packerchronicle that he agrees with the judge’s decision to allow Sperry to remain the investigator. “The judge never ruled that the AG’s office is disqualified,” he said. “They withdrew.”
Torgensen, who was removed as chief deputy and is awaiting a long-term assignment, is the subject of a footnote in the recently released final report of the Utah legislator’s investigation of John Swallow:
117 The Committee subpoenaed documents from
the Office at the outset of its investigation, including documents related to the Jenson matter. In the course of its investigation, the Committee learned that, in addition to Mr. Swallow’s deleted emails, a large volume of Office emails from the time period relevant to the Jenson matter belonging to then-‐Deputy Attorney General Kirk Torgensen had also been intentionally deleted. As Deputy Attorney General, Mr. Torgensen oversaw the Office’s Criminal Division. The Committee learned that, toward the end of either 2010 or 2011, Mr. Torgensen directed his executive assistant to delete email from his Office email account. The Committee interviewed both Mr. Torgensen and his assistant about these matters. The precise scope and timing of Mr. Torgensen’s instructions to his assistant remain unclear even after those interviews. What is clear is that, in response to his instructions, the assistant came into the Office on a weekend between Christmas and the New Year of either 2010 or 2011 and eliminated a large volume of his email from the Office’s servers. Because these events appeared less central to the Committee’s mandate than other areas of investigation, the Committee determined not to invest the resources that would have been necessary to take testimony under oath in order to resolve factual conflicts regarding this incident. Still, these facts may be relevant to the work of other investigators.
Jenson’s attorneys believe emails sent and received by Scott Reed are among the
purged emails. Packerchronicle also asked Taylor about the propriety of Sperry’s investigative
work and use of investigative subpoenas. Taylor didn’t know about the law requiring judges to oversee the probes and the court filing requirement. “The documents will come directly to the agency and to the office. So the judge is not reviewing or overseeing the documents,” Taylor says. He thinks oversight consists of filing the so-called return of service regarding issued subpoenas. When pressed about his understanding of the state code he cut off the interview and declined taking any more questions.
Taylor’s office, like the Attorney General, makes use of the Subpoena Powers Act to conduct investigations. If his office is also violating the law he may end up in the same boat with Shurtleff and Swallow with regard to the Subpoena Powers Act.
Scott Reed Argues Separation of Powers
On June 7, 2011 Judge Deno Himonas conducted a hearing into this reporter’s
motion to sanction the AG’s office for failing to follow the investigative subpoena law. Even though the hearing was about standing, abut whether third party could make such a
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motion, the hearing ended up mostly about whether the court has the duty or even right to oversee an investigation.
Normally a matter like standing could have been argued by an Assistant Attorney General who was directoly involved with the case. But out of the blue a division chief, Scott Reed, showed up to make the argument. He was the first among several assistant AG’s present to take the podium. He announced he wanted to speak first even though he told the judge, “I don’t represent anyone here in particular.”
What ensued was a lengthy exchange between Reed and Judge Himonas. Because Reed had not been briefed by his colleagues prior to the hearing, or did not pay attention during a briefing, he argued as if the secret investigative file on the bid-rigging case had not yet been unsealed. So the first part of his argument was trying to stop the court from doing what it already had done.
Reed proceeded to say the files should not be unsealed and neither should similar files for other investigations because the court did not have the authority to unseal. The power to issue secret subpoenas, Reed reasoned, stemmed from the legislative branch, not from the courts, the judicial branch.
“I think this is an issue of separation of powers and a discussion of the checks and
balances that are built in there. It is declared as a matter of legislative determination, that it is necessary to grant subpoena powers in the aid of a criminal investigation to provide a method of keeping information gained from investigations secret both to protect the innocent and prevent criminal suspects from gaining access to information prior to prosecution.”
. . . . . . . . . . . . “The (court’s) rules of criminal and/or civil procedure apply to judicial proceedings;
they do not in fact extend to investigative proceedings.” . . . . . . . . . . . . “The court does not retain authority to then direct what the investigative agency
does or who can have access to the information obtained by that.”
Reed was concerned that if judges have the power to let a Lynn Packer peer inside a secret file then the court could also grant the same privilege to a target of an investigation and that could work “all kinds of mischief.”
Judge Himonas wondered out loud why Reed was talking as if the file had not yet ben unsealed. The court asked, “Well, the subpoena is now a public record isn’t it?”
Reed responded, “I don’t believe it is your honor. Of course it had been. The judge said, “It’s no longer sealed. I’m saying the
secrecy order is lifted. The matter is now a public matter.” Reed told the judge the same thing he had told The Deseret News a few days
earlier, that the court determining good cause at the beginning of an investigation was sufficient oversight. “The court has the authority under the statute number one to determine good cause. And that’s to prevent mischief from prosecutors from running amok and going out into the bushes and investigating things that ought not be investigated without some judicial oversight,” Reed said.
The D-News report said Scott Reed acknowledged that not all the required documents are filed as investigations progress, but they eventually make their way into the record. The law does not specify when they must be filed, he said.
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“Well, it does not say when. I can tell you as a matter of practice it generally happens in the wrapping up phase. The legislature has not ordained that any particular time will occur.” Reed told the D-News when investigators obtain thousands of pages of
documents, their first duty is to digest them and their second duty is to "dot the i's and cross the t's" required by the subpoena law.
Two months later Judge Himonas issued a Memorandum Decision and order. The Deseret News summarized the decision:
Third District Judge Deno G. Himonas ruled Monday that former investigative reporter Lynn Packer does not have legal standing to pursue a court order requiring state investigators to comply with Utah's investigative subpoena law. Such investigations are typically kept secret, though the law calls for prosecutors to file specific documents with the court, some of which may be open to the public. . . . . . . . . . . Packer, who acted as his own lawyer, contended the attorney general's office did not file the required documents during an investigation into Weber State University's procurement practices. Those documents include a copies of all subpoenas issued and detailed descriptions of evidence produced as a result of the subpoenas. The attorney general's office argued such a requirement would hamper a criminal investigation because those documents aren't generally filed until the after the probe is complete. Himonas disagreed. “It is apparent that requiring a prosecutor to comply with the subpoena act by filing the documents within a reasonable time would not unduly interfere with the prosecutor's investigation.” Judge Himonas’ decision said waiting to the end hinders the court's ability to
review the scope of the secrecy order, the article said. “Indeed, if a prosecutor could delay filing the required materials until the end of every investigation, a court could not perform its essential duties and, rather than being presumed open, the records would be presumed secret until the end of the investigation,” the judge wrote.
“In order to allow courts to review the appropriateness and scope of a secrecy order, the Subpoena Act further requires prosecutors like the Attorney General to file various documents with the court, including the aforementioned copies of subpoenas and descriptions of the materials produced pursuant to the subpoenas.” Judge Himonas found that the filing the materials after the investigation ended is
not soon enough but they should be filed “within a reasonable time so that a court may perform its necessary review of the scope of the secrecy order,” he wrote. “Indeed if a prosecutor could delay filing the required materials until the end of every investigation, a court could not perform its essential duties…”
“It is apparent that requiring a prosecutor to comply with the Subpoena Act by filing the required documents within a reasonable time would not unduly interfere with the prosecutor’s investigation. Imposing such a requirement has little, if any, impact on the prosecutor’s decisions to broaden or restrict the scope of the investigation, whether to bring charges, against whom charges should be filed, and what charges, if any, should be
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filed. To the contrary, requiring compliance with these provisions of the Subpoena Act simply recognizes that there are requirements that must be met if a prosecutor elects to invoke the judicial powers and process available under the Subpoena Act. Therefore I fail to see how requiring the Attorney General to comply with the Subpoena Act would unduly interfere with the investigation. Judge Himonas wrote that the Utah Supreme Court has ruled “the presumed
openness of the…Subpoena Act records affords the general public…standing to challenge secrecy orders entered by the district court.”
The judge’s decision, perhaps inadvertently, touched on another violation of the Subpoena Powers Act being committed by the court itself. The law says the application of a secrecy order, itself, cannot be secret. That statute, like the requirement to keep the judge posted, stems from a 1997 Utah Supreme Court decision. (Kearns-Tribune Corp. v. Wilkinson, 946 P.2d 372)
In 1997 The Salt Lake Tribune appealed Third District Court Judge Homer Wilkinson’s decision to bar access to the secrecy application underlying a Salt Lake District Attorney probe into Salt Lake Mayor Deedee Corradini. (Judge Wilkinson’s decision was defended by the court’s attorney, Brent Johnson, the attorney who this past week reviewed sealed records for packerchronicle.)
The Supreme Court opined, “The presumed openness of the Investigative Subpoena Powers Act records affords the general public, of which the press is a member, standing to challenge secrecy orders entered by the district court. Therefore, the investigative secrecy application is a public document to which Kearns-Tribune must be granted access.”
Utah law mirrors that opinion. Under UCA 77-22-7(a)(ii) the request for a secrecy order is a public record. The law also says, “Before granting an order keeping secret documents and other information received under this section, the court shall narrow the secrecy order as much as reasonably possible in order to preserve the openness of court records while protecting the interests listed in Subsection (7)(c).”
None of the secrecy orders reviewed by packerchronicle last week showed any sign of an authorizing judge going though a narrowing process to keep records as open as reasonable.
Despite the law dozens of secrecy orders associated with sealed files at Third District Court are, de facto, secret. Not public. Any trace of them is kept out of public and press sight. As packerchronicle discovered, evidence of secrecy orders never finds its way onto the public case information system. Go online to the court’s CORIS system: they’re not there. Call a court clerk and inquire. Same result. Go to the court clerk’s office and ask to any sort of listing of secrecy orders. You’ll be greeted by a blank stare. The court, essentially, has turned what is supposed to be a public record into secret record.
Attorney General Sean Reyes
Shurtleff’s and Swallow’s problem is becoming his problem Utah Attorney General Sean Reyes continues his gradual ownership takeover of
his predecessor’s practices and personnel. Despite his office’s pronouncement that “it has
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been an emphasis by the attorney general to make himself and the office available to the media on a consistent basis,” Reyes would neither grant an interview nor answer written questions about his office’s use of investigative subpoenas and whether illegal subpoenas underpin his case against Jenson. Among the questions he would not answer:
• Do you agree with Barlow and Reed’s policy of not
filing document descriptions and witness summaries during the course of court-‐authorized, secret investigations in order to help facilitate judicial oversight? (Including the Jenson case among many others)
• Do you plan to continue the practice despite UCA 77-‐22-‐4 (The Subpoena Powers Act?
• Do you agree with Scott Reed that filing those records with the court violates separation of powers and do you agree with Craig Barlow who considers it a waste of time?
• The AG’s ongoing case against Marc Jenson is based on a secret investigation prior to charges being brought under the Subpoena Powers Act. To avoid the appearance of a conflict Scott Reed brought in Utah County Attorney Tim Taylor to prosecute the case. Please provide the records for any screens (so-‐called Chinese Walls) the AGs office set up to assure no one in the office suspected of bias would have any contact with Taylor.
• If Scott Reed has had ongoing contact with Tim Taylor as Taylor proceeds with the prosecution do you agree that contact is okay?
Packerchronicle also asked the AG’s spokeswoman Missy Larsen to arrange
interviews with several of the key players involved with the illegal subpoena saga: Kirk Torgensen, Scott Reed, Craig Barlow, Che Arguello, Steve Sperry, and Blaine Ferguson. The interview topic was disclosed in advance: “The topic will be about their knowledge of and participation in the illegally managed investigative subpoenas served in connection behind the AG’s Mount Holly case against Marc Jenson. (Investigative subpoena case number 10-181 initiated September 14, 2010 by Scott Reed.) Most if not all of the above parties knew or should have known the AG’s office was managing those secret subpoenas in violation of UCA 77-22-4.”
No interviews were provided. But Larsen relayed a comment from the investigator. “Steve Sperry told me that he doesn't know of any illegal subpoenas issued in the Mt Holly investigation because all of the subpoenas were issued by a third district court judge and he cannot comment on the Mt Holly case yet because it has not been adjudicated,” she responded.
It appears the AG Offices’ view is if a judge authorizes it, it’s legal.
Postscript & Analysis The facts that show the AG’s office violated the Subpoena Powers Act are
numerous and uncontested:
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• The law requires the ongoing filing of witness interviews and document summaries to facilitate judicial oversight.
• Scott Reed argued that oversight violates separation of powers. • Reed argued that at best, the required documents are filed with the court
after the investigation is conducted. • Craig Barlow says it’s a waste of time to file those records and judges don’t
want them. • In fact, for the vast majority of sealed AG investigative subpoena files, no
such records are there. Not even filed after a probe concludes according the Brent Johnson’s review.
It’s a legal meltdown that could impact dozens, perhaps hundreds of criminal
prosecutions throughout the state that may have been based on illegal investigative subpoenas. Should Jenson’s attorneys, for example, successfully challenge the legitimacy of the secret investigation conducted against their client, it could send shock waves affecting court-sanctioned investigations throughout the state. Dating back to 1989 when the law was passed.
Article I, Section 14 Utah Constitution, similar to The Fourth Amendment, U.S. Constitution, guarantees “The right of the people to be secure…against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.”
It’s why some observers believe Utah’s Subpoena Powers act is unconstitutional even with the additions the Supreme Court suggested in 1988 and the legislature adopted in 1989.
The 1988 Supreme Court decision was not unanimous. One justice, he late Daniel Stewart dissented saying, “I believe the Subpoena Powers Act (the "Act") is unconstitutional on its face:”
The Subpoena Powers Act vastly extends the compulsory inquisitorial power of state and county prosecutors over both citizens and government officials. Unfortunately, our history is fraught with examples of abuses of such inquisitorial powers by government officials. The majority opinion does not really address the central flaw in the Act. It simply rewrites the Act and even then does not remedy the infirmities. In rewriting the Act, the Court embarks upon the extraordinary course of reading into the Act a host of new provisions which were not put there by the Legislature and which render the statute a different creature than that enacted by the Legislature. Justice Stewart wrote, “I recognize that every citizen has a duty to provide
testimony in criminal proceedings when called upon by a court to do so for a judicial proceeding or when called upon by a grand jury to do so. But I know of no rule requiring citizens to appear before prosecutors to testify or give documentary evidence.”
Stewart also criticized the use of administrative subpoenas for criminal cases, the type of subpoena apparently used in the AG’s first, 2005 case against Jenson. “Furthermore, the Supreme Court has specifically recognized that the government's deliberate use of administrative subpoenas to gather evidence in a criminal case
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impermissibly disregards the "safeguards and restrictions of the Constitution and laws of the United States” he wrote.
Stewart preferred prosecutors to use grand juries, a process the Subpoena Powers Act largely replaced. (In fact that law is often referred to as the Mini-Grand Jury Act.) “Even if it is conceded, as some argue, that grand juries have too often been mere instrumentalities of prosecutors and have not adequately served to prevent abuse, that does not justify imposing still fewer restraints on prosecutors by entirely removing the grand jury as a buffer against abuse. Yet, that is precisely what the Subpoena Powers Act does and the majority condones.”
Then, almost as if he were peering into the future and saw the operation of the AG’s office under Shurtleff and Swallow, he wrote, “Thus, a prosecutor elected by one political party can use the powers conferred by the Act to rummage through the affairs of political enemies to harass and embarrass them on the flimsiest of pretexts.”
What could be the remedies if Jenson’s attorneys decided to challenge the validity of investigative subpoenas used to collect some of the testimony and evidenced against their client?
The law is now well established that any and all evidence procured by either state
or federal officials as a result of an illegal or unreasonable search and seizure in violation of the constitutional rights of an accused is inadmissible in a criminal trial in a federal or state court inasmuch as the federal exclusionary rule is now an essential part of both the fourth and fourteenth amendments.” (Louis J. DeReuil, IRS chief counsel’s office, Duke Law Journal Vol. 1963:472) Jenson’s lawyers could ask the court to exclude all evidence stemming from the
subpoenas. They could also ask the court to toss the entire case by packaging the evidence of illegal subpoenas along with other facts that the case was brought in retribution for Jenson refusing to give Shurtleff and Swallow $2 million, among other alleged bad acts.
Utah taxpayers have already shelled out $4 million for a limited scope, legislative investigation into John Swallow. It’s unknown to the press how much is being spent on the criminal probe of Shurtleff, Swallow and others. But if Jenson and any one of dozens of others who have been convicted with the Attorney General’s use of illegal subpoenas, the state could be exposed to threats of civil rights lawsuits that demand monetary damages. Another potential, big Cha-Ching!
Sean Reyes missed a golden opportunity to defuse his office’s Jenson debacle. He could have moved quickly to determine if the case was politically motivated and, if so, resolve it before word got out about the illegal subpoenas and before Jenson had more reason to contemplate a civil rights lawsuit.
Reyes did hire an outside legal team to review the Jenson case and advise him. He hired (another expenditure of tax money on the Jenson case) three outside attorneys for
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the review: former federal judge Paul Cassell and two attorneys who were colleagues at Parsons Behle & Latimer: Fran Wikstrom, a former federal prosecutor, and Jeff Corey, a former federal public defender.
But, so far, it seems that input from his staff is holding sway. He retains attorneys in key leadership slots who are the architects of both the Jenson prosecution and the AG’s decision to defy the Subpoena Powers Act. Plus he added a spokeswoman and advisor, Missy Larsen, who once worked for Jenson and has not been silent about her distain for him.
Cleaning up the Shurtleff/Swallow mess may be more than Reyes can handle.
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