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SALT LAKE CITY — Prosecutors could rest their case against former Utah Attorney General John Swallow on Wednesday without a witness pivotal to proving a big chunk of the public corruption charges he faces.
Imprisoned businessman Jeremy Johnson again Tuesday invoked his Fifth Amendment right against self-incrimination. He told 3rd District Judge Elizabeth Hruby-Mills that he intends to follow his lawyer's advice and not answer any questions.
His attorney Karra Porter told the judge she still finds terms of an immunity agreement with the federal government unacceptable. She said Johnson fears federal agencies would use his testimony against him in other possible prosecutions.
Hruby-Mills ordered Johnson back to jail to finish a 30-day sentence for contempt. She said he could return to court if he has a change of heart.
But deputy Salt Lake County district attorney Chou Chou Collins filed an order to transport Johnson to court.
"Maybe during the night he will change his mind. I’m optimistic," she told the judge. Hruby-Mill said she's not going to revisit that issue because she's not aware of any change.
The Salt Lake County District Attorney's Office has granted Johnson immunity, but his attorney says it's not sufficient enough to protect from other jurisdictions coming after him. Johnson is serving an 11-year sentence in federal prison in California. He also is the subject of Federal Trade Commission and Federal Election Commission lawsuits.
Johnson's testimony is crucial for the state's case. Many of the felony charges leveled at Swallow are built on his allegations.
Though Johnson's name has routinely come up during the trial, the jury may well have more questions than answers about his role.
Prosecutors seemed to try to fill Johnson's silence with bits and pieces from other witnesses without Johnson, and had to wrangle with defense attorneys over evidence they wanted to bring up connected to him.
The scheduled 16-day trial passed the halfway point Tuesday. The state has a couple of witnesses left to call, including lead investigator Jon Isakson, before it rests. The judge said she anticipates the defense starting its case Thursday.
At times it has seemed Swallow's predecessor, former Attorney General Mark Shurtleff, and the late Tim Lawson, Shurtleff's self-described "fixer," were on trial.
Prosecutors allege Shurtleff, Swallow and Lawson were part of a conspiracy to extort Marc Sessions Jenson, a once wealthy businessman who spent four years in prison for selling unregistered securities. Many of the state's witnesses have testified about the relationship between the men the prosecutors say led to racketeering and other crimes.
Once a co-defendant in the case, Shurtleff no longer faces criminal charges. Lawson, who also was charged with several felonies, died last year.
Swallow is charged with 12 felonies and one misdemeanor, including bribery, accepting gifts, making false statements and evidence tampering.
Hruby-Mills banned Swallow's lawyers from bringing up the Shurtleff case during the trial. Prosecutors argue the Swallow charges are separate, and talking about Shurtleff's case would prejudice the jury.
Defense attorneys have been successful in distancing Swallow from some of the alleged criminal activity on cross-examination of the state's witnesses.
Swallow’s attorneys are trying to keep out evidence about Johnson's internet marketing company, iWorks, now that Johnson isn’t testifying. Defense lawyer Cara Tangaro argued it’s irrelevant without Johnson and would confuse the jury.
Deputy Salt Lake County district attorney Fred Burmester countered that the information should be allowed and other witnesses could address it. He said if the state fails to bring sufficient evidence, some of the charges could be dismissed but that doesn’t make the information irrelevant.
FBI forensic accountant Heidi Ransdell spent Tuesday morning explaining to the jury a series of bank transactions involving entities Swallow had created.
The late Richard M. Rawle set up RMR Consulting after Swallow introduced him to Johnson as someone who could help lobby the Federal Trade Commission on Johnson's behalf in 2010. Rawle, the founder of the payday lending chain Check City, had a connection to then-Senate Majority Leader Harry Reid, D-Nev.
Johnson claims Swallow, who worked as a Check City lawyer and lobbyist, helped arrange a deal to pay off Reid to thwart an FTC investigation into iWorks at the time. Johnson paid Rawle $50,000 and a Johnson associate paid him $250,000.
Prosecutors say Rawle paid $23,500 to a Swallow entity called P Solutions out of that money.
In a statement Rawle signed on his deathbed in December 2012, Rawle said he paid lobbyists, including a law firm with close ties to Reid, with a portion of the money and took $50,000 for his fee. He said the money he paid Swallow was not a fee for the Johnson deal, but rather for consulting work on a possible future cement plant in Nevada.
Burmester said in court Tuesday that Rawle made a payment to Swallow on the same day he set up RMR Consulting.
P Solutions later returned the $23,500 from the RMR account for Rawle to pay out of a different account.
Swallow has maintained that P Solutions was formed as a subsidiary of a blind family trust and limited liability company, SSV Management, his estate planning attorney had created.
Ransdell testified that the manager listed on both entities was changed from Swallow to his wife, Suzanne Swallow, in March 2015.
Cort Walker, a former Check City operations director, said lobbying was important nationally and locally to the payday lending industry. He testified that Rawle knew lobbyists all around the country and created RMR Consulting to get into the lobbying business himself.
But he conceded Rawle didn't set up the company until after meeting with Johnson.
Attorneys Tuesday argued over Rawle's deathbed statement, which also says his discussion with Swallow was only about connecting Johnson to lobbyists who could help him deal with the FTC investigation. Swallow has maintained that he only introduced Johnson to Rawle.
Burmester said Swallow wrote the document as a self-serving statement that he gave to a dying man to sign. He doesn't want to introduce it as evidence but wants Cort Walker, a former Check City employee who edited the declaration, to testify about it. Burmester said the document goes to the false statement charge against Swallow.
Defense attorney Scott Williams objected, arguing it shouldn't be talked about in front of the jury because there would be no context for it.
The judge ruled against testimony about Rawle's declaration.
