SALT LAKE CITY — Now that authorities have dropped murder charges against Roger and Pamela Mortensen, the couple has little legal recourse to get back the more than four months they spent behind bars.
And a local defense attorneys group says the closed-to-the-public method Utah County prosecutors used to charge them has inherent problems due to lack of scrutiny.
"If you have a secretive proceeding where only one side is presented, this is the risk," said Kent R. Hart, executive director of the Utah Association of Criminal Defense Lawyers. "If there's no oversight, abuses are inevitable."
Whether the legal system was abused is a matter of opinion, and legal scholars say the Mortensens would have a hard time proving any wrongdoing.
Police and prosecutors are basically immune from lawsuits provided they act in good faith while doing their jobs, and there's no indication they weren't in this case.
"As long as the prosecutor subjectively believes, which means personally believes, there is probably cause of guilt, essentially the charge is justified under the law and the code of ethics," said Daniel Medwed, a University of Utah law professor.
"Even if they got it wrong, they're immune from suit. They can't be sued."
The Utah County Attorney's Office said Tuesday it no longer believes the Mortensens killed retired BYU professor Kay Mortensen, Roger's father, in November 2009. The Payson couple was confined to the Utah County Jail on July 29. Pamela Mortensen was released Wednesday. Roger Mortensen remains incarcerated because he faces unrelated federal weapons charges stemming from a search of his home at the time of his arrest.
Medwed said the only exceptions to the immunity rule would be a claim of arbitrary or vindictive prosecution. "But short of that, it's very difficult to seek legal recourse."
The rationale behind immunity, he said, is to maintain good public servants.
"If you sued police and prosecutors for good faith mistakes, they might be overly cautious," Medwed said. "We want them to be cautious, but we don't want them to be overly cautious to the point of being timid."
Charges against the Mortensens 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. Though common in the federal judicial system, grand juries are rare in the state system, having been used only a handful of times in the past few years.
Prosecutors might pursue that avenue when they have shaky witnesses or weak evidence, Medwed said. They might also believe a jury would give them a better shake than a judge.
In most cases in Utah, a judge in a preliminary hearing hears evidence to determine if there is "probable cause" to show that a defendant committed a crime. Prosecutors and defense attorneys present evidence and question witnesses.
When a grand jury is convened, the decision is left to nine to 15 jurors, three-fourths of whom must vote for an indictment. Jurors are allowed to question witnesses, and evidence is admitted under looser rules. The burden of proof, however, is slightly higher, requiring "clear and convincing" evidence to indict.
But unlike preliminary hearings, defense attorneys, the media and the public are not allowed to attend grand jury proceedings. Defendants also are not permitted to attend unless they are called as a witness.
Neither the Mortensens nor their attorney knew a grand jury had indicted the couple until police approached them with arrest warrants.
Hart said their case is good example of why grand juries are not an effective crime-fighting tool. He doesn't buy police statements that they were continuing to investigate the homicide after the couple was charged. Utah County investigators said a tip led them to arrest two 23-year-old Vernal men, Benjamin David Rettig and Martin Cameron Bond, who is the son of a close friend of Kay Mortensen.
"In the typical case, once a person is indicted, the investigation stops. The police are not actively looking for other possible defendants unless there is some indication that more people are involved. Here, that doesn't appear to be the case," Hart said.
Katie Monroe, director of the Rocky Mountain Innocence Project, said her organization focuses on people who are convicted of crimes, so would have no reason to have worked on behalf of the Mortensens. But, she said, police and prosecutors in their case should be applauded because "they didn't dig in their heels and turn a blind eye" to new information that led to the arrest of other suspects.
It's better that the mistake was discovered before the Mortensens were put on trial, she said, adding they would have even fewer legal options if they were wrongfully convicted.
A former ACLU attorney who now teaches at the University of Utah agrees authorities should be commended. But Jensie Anderson said the case should be used as an opportunity to look at what happened much like the probe into an airplane crash.
"When a mistake like this is made," she said, "we have to go back and figure out what went wrong in the first place."
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