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.
"We just want to go slow to make sure people know what the heck they're doing when they get into grand juries," said Paul Boyden, executive director of the Statewide Association of Prosecutors, who served on the working group.
All but one member of the commission voted in favor of sending the proposed change to the Utah Legislature for consideration in January. Attorney Greg Skordas, who represents Pamela Mortensen, said it's a bad idea.
"We have a major problem with the grand jury system," he said, adding that one Utah county uses it more than others. "I won't mention the county, but it's the one that messed up (Wednesday)."
Skordas said prosecutors tend to take a weaker case to a grand jury because they fear a judge wouldn't order a trial during a preliminary hearing. A judge would not have bound over for trial the case that "hit the fan (Wednesday)," he said.
While grand juries are common in the federal system, they are rare at the state level in Utah. Nationwide, all but two states use grand juries, some more exclusively than others.
Utah courts primarily rely on public preliminary hearings presided over by a judge to determine if there is "probable cause" to hold a trial for someone accused of a crime. Prosecutors and defense attorneys present evidence and question witnesses.
Grand juries are held behind closed doors. They are comprised of nine to 15 jurors, three-fourths of whom must find "clear and convincing" evidence for an indictment. Jurors may question witnesses, and evidence is admitted under looser rules. Defense attorneys, the media, the public and the accused are not allowed to attend.
"It's a wonderful tool for investigation," Boyden said.
Grand juries allow prosecutors to call a lot of witnesses "to get to the truth," he said. They also provide a place for vulnerable or fragile victims such as children, to testify without having to face their alleged perpetrator.
Hart, of the trial lawyers association, has another view.
"I think the process tends to minimize the anxiety a witness experiences before a grand jury," he said. "It's a very intimidating experience."
Outgoing Salt Lake County District Attorney Lohra Miller sees another advantage to a grand jury. She said it's a good forum for "highly inflammatory" cases in which the motivation to file or not file charges against a public figure might be viewed as political punishment or a political favor.
The Legislature earlier this year passed a bill that specifically allows a grand jury to be called when the subject of an investigation is an elected official, school board member or candidate for office.
Miller's successor Sim Gill, currently the Salt Lake City prosecutor, said there are circumstances in which grand juries make sense.
"Is this a tool you want to use in every case? Probably not, but you want to have access to it," he said. "Like anything filed under the current system, the decision is only as good as the person who uses that tool responsibly."
Hart said judges in preliminary hearings are in better positions to determine whether a case should go trial because they hear both sides of a case. Judges are independent voices who can tell prosecutors whether they have overstepped their bounds, he said.
Davis, who has seen his daughter's case drag on for years, said using a grand jury could have saved the state money.
"I've seen the waste in the judicial system and it's a shame," he said.
There are fewer steps in the grand jury model than the preliminary hearing model. "It's much leaner in some respects," Gill said.7 comments on this story
Hart, though, says it wouldn't reduce costs. "I have serious doubts that it's any less expensive," he said.
Jurors, who serve for several months, need to be paid, he said. Defense attorneys can still file motions to throw out evidence or suppress statements and bring witnesses to court, all of which takes time and money.