Lawsuit filed by couple wrongly accused of murder dismissed

Published: Friday, Sept. 7 2012 7:14 p.m. MDT

SALT LAKE CITY — A federal lawsuit filed by a Provo couple against the police officers and prosecutors who arrested, investigated and charged them with murder has been dismissed.

U.S. District Court Judge Dale Kimball dismissed the lawsuit filed by Roger and Pamela Mortensen against four Utah County sheriff's deputies and two Utah County prosecutors earlier this week. The couple were once charged with killing Roger Mortensen's father, former BYU professor Kay Mortensen, and spent four months in jail before investigators arrested two other people and dropped the charges against the Mortensens.

"There's no way you can ever repay the embarrassment and humiliation, the mortification, the pain of being accused of a vile and grisly murder — of your own father," the Mortensens' attorney, Robert Sykes, said Friday. "How do you get past that?"

But a judge ruled the Mortensens had no legitimate claim.

In November 2011, the Mortensens turned to the courts and asked for damages from the officers and prosecutors who handled their case, alleging they were falsely arrested, imprisoned and maliciously prosecuted. Sykes said their reputations were damaged and there are still people who think they are guilty.

In their lawsuit, the Mortensens claim officers and prosecutors lied about them to a grand jury.

"When we filed this case, it was a very good case," Sykes said. "It involved falsehoods told by several officers to the grand jury. ... It left the grand jury with the false impression that these people where flim flam hustlers. That was the clear impression left by this evidence and most of it was false."

He said he was confident they "could have prevailed" if not for a U.S. Supreme Court ruling handed down in April that declared that all witness statements given before a grand jury were immune to civil litigation, including those given by law enforcement officers.

"What that left us with is (whether) we could find something in other than the grand jury testimony, and we couldn't find anything," Sykes said.

He was adamant that the officers "lied through their teeth," probably due to pressure to solve the case.

But attorney Peter Stirba, who represented the officers and prosecutors, said the case was "fatally flawed" because there have always been immunity for witnesses who testify before grand juries, including police and prosecutors. While Sykes said the ruling upended 40 years of precedent, Stirba said it merely "reaffirmed the broad blanket immunities that prosecutors and officers have always had for good and sound reasons."

"The law is quite clear that witnesses are always clothed with broad immunity," Stirba said. "We want people to participate in legal proceedings without fear of retribution. That was a fundamental flaw with the complaint."

Even still, he said the allegations that his clients lied or misled a grand jury are "patently false and patently untrue." He said the grand jury heard all of the evidence over the span of two days, including interviews police conducted with the Mortensens.

"This (the lawsuit) was not only fatally flawed as matter of law, but was devious in the way it was presented because it took things out of context to somehow say or suggest that it was false," Stirba said.

Sykes said the Mortensens have been "devastated" by the dismissal. The only potential recourse would be criminal perjury charges, which he said he has asked Utah Attorney General Mark Shurtleff to file.

"These guys caused untold damage to these people." Sykes said.

But Stirba said perjury allegations are unfounded.

"I know that there were some statements made about investigators lying and they should be charged with perjury and ... I just thought those were totally irresponsible and totally unnecessary and totally inconsistent with the facts, quite frankly," he said.

The Utah County Attorney's Office issued a statement Friday indicating it was pleased with the judge's decision and believes the court affirmed its position that "its detectives and attorneys acted with the highest degree of integrity and professionalism at all stages during the investigation and grand jury proceedings." While prosecutors understand that the Mortensens "endured a difficult situation," they said those responsible for Kay Mortensen's death are now being held responsible.

On Nov. 16, 2009, Kay Mortensen was killed in his home in Payson Canyon. For four months, Pam and Roger Mortensen, who happened to stop by Kay Mortensen's home shortly after the slaying, were incarcerated on murder charges. They were just a month away from trial when a tip led investigators to make two new arrests and drop the charges against the Mortensens.

Benjamin Rettig, 24, and Martin Bond, 25, were arrested and charged with killing Mortensen and holding Pam and Roger Mortensen hostage before threatening to kill them. Rettig has since pleaded guilty to aggravated murder and aggravated kidnapping, first-degree felonies, and was sentenced to 25 years to life in prison. Bond has pleaded not guilty and was just appointed a new attorney.

E-mail: emorgan@desnews.com, Twitter: DNewsCrimeTeam

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