Word change in law may mean more secret grand jury cases in Utah courts

Published: Sunday, Dec. 12 2010 12:52 a.m. MST

SALT LAKE CITY — A saying in legal circles goes something like: "A good prosecutor could get a grand jury to indict a ham sandwich."

"That just illustrates that it's quite easy," said Kent R. Hart, executive director of the Utah Association of Criminal Defense Lawyers.

Hart disdains seldom-used state grand juries for a variety of reasons, including the fact that defense attorneys are barred from the proceedings and jurors hear only the prosecution's case.

"If you only hear one side of the story, you say 'Oh yeah, that was terrible,' " he said.

Richard Davis, however, is an unabashed advocate of grand juries and wants to see them used more in state courts. He asked Gov. Gary Herbert to place him on a state committee that has studied the merits of Utah's grand jury system for the past eight months.

"I'm the one that's been pushing it," he said. "It brings the truth out."

Davis' daughter went missing from Spanish Fork High School in 1995 and her body has not been found. Three former classmates are currently in prison for lying to a federal grand jury in connection with her disappearance. One of them now stands charged with murder.

"It was a wonderful tool in my case. It works. We're now in a murder trial in March and I think we're going to win," he said.

Questions about Utah's grand jury system arose this week after the Utah County Attorney's Office dismissed murder charges against Roger and Pamela Mortensen in the November 2009 stabbing death of Kay Mortensen, Roger's father. Rather than using a preliminary hearing, which is the norm in Utah criminal cases, prosecutors opted for the rare state grand jury, which indicted the couple in August.

Acting on a tip, investigators Tuesday arrested two 23-year-old Vernal men in connection with the murder.

The Mortensens spent more than four months in jail. Pamela Mortensen was released Wednesday. Roger Mortensen remains in custody on an unrelated federal weapons charges stemming from a search of his home at the time of his arrest.

Coincidentally, the working group on which Davis serves reported its findings Thursday to the Utah Commission on Criminal and Juvenile Justice. Opinions in the group ranged from scrapping the state's preliminary hearing model in favor of grand juries to maintaining the status quo.

In the end, the group recommended a slight word change in state law that could make it easier for state and county attorneys to persuade a panel of judges to summon a grand jury.

Prosecutors seeking a grand jury must justify it before a five-judge panel. Under current law, the panel calls a grand jury if it finds good cause exists. The change would allow the panel to call a grand jury unless it finds good cause does not exist.

Though a matter of semantics, it would reshape the presumption under which the judges consider prosecutors' requests.

"All we're doing is saying the panel has to find a reason not to summon a grand jury," said commission member Clark Harms, a former Salt Lake County prosecutor who now heads the Utah Board of Pardons and Parole.

Hart said the proposal is a solution in search of a problem and, though simple, would effectively restructure Utah's criminal justice system.

"The change creates a presumption that prosecutors should charge cases by indictment," he said. "Essentially, they are saying that the public can trust them to do their jobs fairly."

Commission members called it a "baby step" in what could be further reform of the system should the change be well received.

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