Payson murder charges came from seldom-used state grand jury

PROVO — The indictment of a Payson couple in the slaying of a BYU professor took a legal path seldom used in Utah — relying on a secretive state grand jury rather than an open hearing to determine if the case should go to trial.

"It has traditionally been pretty rare (to use a grand jury)," said assistant Utah court administrator Rick Schwermer, who estimated the process has only been used "three or four times" in the last five years.

A state grand jury on Thursday indicted Roger Kay and Pamela Mortensen each on felony counts of murder and obstruction of justice stemming from the November death of his father, Kay Mortensen.

State grand juries have previously been used in the indictment of six BYU football players on allegations of gang rape and in the indictment of Brian David Mitchell and Wanda Barzee in connection with the kidnapping of Elizabeth Smart.

Utah County Attorney Jeff Buhman said the process can be useful in some cases, but defense attorneys decried the practice as secretive and inferior to traditional preliminary hearings.

"(A grand jury) has the ability to also conduct investigations," said Buhman. "It's also ideal for cases where there's a very vulnerable victim or witnesses who are reluctant to testify."

In most cases in Utah, a judge in a preliminary hearing hears evidence to determine if there is enough "probable cause" to show that a defendant committed a crime. Prosecutors and defense attorneys present evidence and question witnesses. If there is enough evidence, a judge will send the case to trial.

When a grand jury is convened, the decision is left to 12 jurors, of which nine are needed for an indictment.

Jurors are allowed to question witnesses, and evidence is admitted under slightly looser rules. The proof of burden, however, is slightly higher, requiring "clear and convincing" evidence to indict.

But unlike preliminary hearings and trials, defense attorneys, the media and the general public are not allowed to attend grand jury hearings, although attorneys representing witnesses may attend. And defendants are not even allowed to attend, unless they are called as a witness.

In the Mortensen case, the couple and their attorney did not know a grand jury had indicted them until police approached them with arrest warrants.

Buhman said grand juries are especially helpful in potential conflict of interest cases.