SALT LAKE CITY — Saying police and prosecutors purposely deceived a grand jury by not presenting all of the information available, the son and daughter-in-law of a slain Brigham Young University professor filed a federal civil rights lawsuit Monday.
"This was a terrible violation of Pam and Roger Mortensen's constitutional rights," said attorney Robert Sykes. "This was a travesty of justice."
On Nov. 16, 2009, Kay Mortensen was murdered 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 murder was believed to have occurred, were incarcerated on murder charges. They were just a month away from trial when a tip lead investigators to make two new arrests and drop the charges against the Mortensens.
The two men new men arrested and charged in Mortensen's death allegedly held Pam and Roger Mortensen hostage and threatened to kill them.
Although they are no longer accused of the horrific crime, the Mortensens spoke at length on Monday on how the false arrest has affected their lives.
"Every aspect of my life has been changed," Roger Mortensen said.
Mortensen talked about how people used to cross the street if they saw him coming just to avoid contact or how he was asked once to leave a grocery store while shopping.
Pamela Mortensen lost her job and said she is having trouble finding a new one. The incident has hurt the Mortensens financially, their standings in the community and relations with their own families, which neither are sure can ever be repaired.
The lawsuit filed in U.S. District Court alleges violation of their Fourth Amendment rights against unlawful search and seizure and 14th Amendment rights to due process, as well as protections under the Utah Constitution. They are seeking unspecified compensatory and punitive damages.
The complaint asserts malicious prosecution, false arrest and false imprisonment happened as the result of the actions of Utah County Sheriff's detectives Josh Chappell and Erik Knutzen, Sgt. Matt Higley and Lt. Mike Brower. It also names Tim Taylor and John Nielsen, prosecutors with the Utah County Attorney's Office.
When the officers named in the suit were interviewed by a grand jury investigating the Kay Mortensen murder, they deliberately withheld information, coloring the panel's perception of the couple's participation in the crime, according to court documents.
Mistakenly pointing fingers at the wrong suspect is not a crime, Sykes said.
"They can suspect all they want. That's good police work," he said.
What they can't do, however, is purposely withhold exculpatory evidence when being questioned by a grand jury, Sykes said.
"The duty of officers before a grand jury is to tell the truth. They cannot misrepresent something. They cannot misrepresent by falsehoods or omissions," he said. "Many false impressions were left."
As an example, they point to the statements by investigators that the pair gave only "vague" descriptions of the two men, when in fact, they described the color of their hair, body weight, height and build — in addition to how they spoke.
Police and prosecutors also represented to the grand jury that the two were "very calm and (showed) no emotion whatsoever" within minutes of their 911 call. The statements failed to note, however, that Roger Mortensen suffered a traumatic brain injury in an accident that continues to affect his demeanor and that Pam Mortensen was so scared and upset she couldn't control her bowels that night, according to the lawsuit.
When the grand jury met on July 28-29, 2010, the Mortensens weren't even aware they were meeting with the panel and were never given the chance to be questioned by them.
Monday, both Pamela Mortensen and her mother, Donna Rissinger, addressed Pamela's calm demeanor with police, noting that based on her work with human services she had been accustomed to remaining calm under stressful situations. Rissinger said there came a point where she even felt guilty for raising a "strong, independent" daughter.
The Mortensens also denied being uncooperative with police and prosecutors. Pamela Mortensen noted that she recently had a long interview with one of the prosecutors she is now suing. But she said they will both fully cooperate with the current prosecution to make sure justice is served in the murder.
Sykes would not say how much money the Mortensens would be seeking in the suit, but hinted it would be significant.
"This is an outrageous abuse of power. I think that's worth a lot of money," he said. "This is an injustice that just cries out for some restitution."
When asked what the motivation for withholding information from the grand jury would be, the Mortensens and Sykes speculated it was because police had no other leads on the case.
"The officers and prosecutors know there would be insufficient evidence to charge the two in the regular way," he said.
Rissinger predicted that her daughter would have been acquitted if the case had gone to trial because of lack of evidence.
Both Pam and Roger Mortensen said they suffered abuse and humiliation while in the Utah County Jail, not from the inmates but from the officers. Pamela Mortensen said the other female inmates knew she was innocent and 90 female inmates all applauded on the day she walked out of jail free.
"I thought that the police were your friends. Our experience has been exactly the opposite," she said.
"The country I thought I lived in where your rights are always protected are gone for me," Rissinger added.
The Utah County Attorney's Office issued a statement Monday afternoon in response to the lawsuit.
It said prosecutors and the sheriff's office presented clear and convincing evidence to the grand jury in 2010.
"The Utah County Sheriff’s and Attorney’s Offices acknowledge that the evidence now in their possession indicates that (Martin) Bond and (Benjamin) Rettig were the perpetrators of Kay Mortensen’s murder.
"However, the sheriff’s office — both before and after Roger and Pamela’s indictment — vigorously, thoroughly and professionally investigated all clues and leads regarding Mr. Mortensen’s death, whether those leads pointed toward Roger and Pamela or toward other persons. Similarly, the county attorney’s office ethically, professionally and fairly presented to the grand jury evidence both favorable and damning to Roger and Pamela Mortensen," it said in its statement.
The county attorney's office said it looked forward to working with the Mortensens as it seeks justice in Kay Mortensen's death.