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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