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Judge denies motion for mistrial in John Swallow case

UPDATE: The judge has denied the defense's motion for a mistrial.

The defense has motioned for a mistrial after a mix-up in jury instructions had lawyers scrambling.

Defense attorney Scott Williams says this is over the jury deliberating over a dismissed charge. The dismissed charge that was mistakenly left in the jury instruction pertains to Jeremy Johnson, who did not testify.

"It's just simply too concerning, too prejudicial in too many ways," Williams said.

The judge has called a recess and has not issued a ruling yet.

Jurors at about 11 a.m. Thursday indicated they had a question, asking which charges were dismissed. Apparently, their instructions included a charge that was dismissed.

Count 4, a bribery charge, is not dismissed, but the jury instruction indicated otherwise. Count 6, a money laundering charge, was dismissed but was left on the jury instruction.

"Uh oh," prosecutor Chou Chou Collins said.

Judge Elizabeth Hruby-Mills asked the lawyers to come up with a solution. Attorneys agreed on an explanation about which charges were dismissed, as well as an admonition to the jury not to consider evidence tied to dismissed charges.

UPDATE: After deliberating for about 3 1/2 hours on Wednesday night, the five man, three woman jury told the judge they wished to go home for the night. Judge Elizabeth Hruby-Mills ordered them to return Thursday morning for another day of deliberation.

ORIGINAL STORY:

SALT LAKE CITY -- The jury in the corruption trial of former Utah Attorney General John Swallow has begun deliberating his fate.

In closing statements Wednesday, prosecutors portrayed Swallow as the "heir apparent" to the attorney general's office. They said former Utah Attorney General Mark Shurtleff called the shots, with Swallow aggressively fundraising for Shurtleff's senate bid so he could fill the void once Shurtleff left office.

"Swallow depended on his power from Shurtleff," deputy Salt Lake County District Attorney Fred Burmester told the jury. "He was the AG in waiting."

But Swallow's defense attacked the case as a "house of cards," and a prosecution "by proxy." They noted that even many state witnesses didn't talk much about Swallow, focusing on alleged misdeeds by Shurtleff.

"Charges were not proven. John Swallow is not guilty," Williams told the jury.

At the end of his closing statements, Williams asked Swallow to stand as he told the jury: "The only humane verdict is not guilty on all counts."

Former Utah Attorney General John Swallow sits in his trial on Feb. 28, 2017. (Courtroom pool photo)

Former Utah Attorney General John Swallow sits in his trial on Feb. 28, 2017. (Courtroom pool photo)

Williams criticized the state for relying on Marc Jenson, whom he branded as a "con man" and an FBI agent he said broke the rules because he wanted a conviction in the midst of a "political frenzy."

Jenson has accused Shurtleff of a "shake down," testifying he made payments to him through an intermediary as he faced a fraud case, finding Swallow a job in a development deal he was working on (and paying him with a lot), and paying for stays for both at the lavish Pelican Hill resort in California.

The case stems from one of the largest corruption scandals in state history. Swallow and his predecessor, Mark Shurtleff, were arrested and accused of accepting gifts and donations from people facing investigation by the Utah Attorney General's Office.

The accusations led to a number of investigations by the Utah State Legislature, the Lt. Governor's Office and the FBI. Swallow resigned from office about a year into his term.

Charges were ultimately dismissed against Shurtleff after Davis County Attorney Troy Rawlings complained that he could not get access to federal evidence in the case. Shurtleff has blasted investigators, claiming they have manufactured the evidence against him.

Swallow is now facing nine charges.

Here's the charges against Swallow:

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By the end of the trial, prosecutors dismissed four counts against Swallow. Three of those charges were dropped after a key prosecution witness -- imprisoned St. George businessman Jeremy Johnson -- refused to testify. He rejected immunity deals offered by the state and was found in contempt of court.

Johnson had said Swallow used his Lake Powell houseboat, one of his homes and a plane. Another dropped charge accused Swallow of drafting an IT worker in the AG's office to wipe a computer.

Jeremy Johnson in court after refusing to testify. (Courtroom pool photo)

Jeremy Johnson in court after refusing to testify. (Courtroom pool photo)

Confident in their case, defense lawyers opted not to call some of their high profile witnesses including Shurtleff, Rawlings and House Speaker Greg Hughes.

The Speaker's name was dragged into court when Jenson claimed he was present at a "secret meeting" in California. Hughes has denied being there.

Marc Jenson testifies in the John Swallow trial. (Courtroom pool photo)

Marc Jenson testifies in the John Swallow trial. (Courtroom pool photo)

The prosecution's remaining charges basically accuse Swallow of:

  • Count 1: The overall conspiracy involving Mark Shurtleff, John Swallow and Tim Lawson.
  • Count 2: The use of Jeremy Johnson's houseboat at Lake Powell.
  • Count 3: Swallow accused of asking for $120,000 from Travis Marker for assistance in an FTC investigation into one of Johnson's companies.
  • Count 4: A $28,000 fundraiser held for Swallow's campaign by Tim and Jennifer Bell who were involved in a lawsuit against Bank of America (that the Utah Attorney General's Office intervened in).
  • Count 7: Swallow is accused of making false statements in a deposition with the Lt. Governor's Office about calendars, his financial disclosures and when he decided to run for attorney general.
  • Count 9: Related to the Bell fundraiser disclosures. The $28,000 fundraiser was reported down to $1,000.
  • Count 11: Swallow is accused of having the Utah Attorney General's Office pay for a broken computer screen at his home.
  • Count 12: Swallow is accused of lying to FBI agents about who paid for Pelican Hill trips, and being "walled off" from another investigation into Marc Jenson.
  • Count 13: Prosecutors allege Swallow did not disclose other business and income interests in his candidate declaration form.

Updates on FOX 13 and fox13now.com as information becomes available...