Utah prosecutors are taking aim at the state’s grand jury law, which they say is written so vaguely it allows for inconsistent interpretation and scant use of an important legal resource.
They recently picked up a key endorsement from the state Commission on Criminal and Juvenile Justice (CCJJ), a major player in shaping legislative policy, after all but two members of the commission voted in support of a proposed bill that would clarify the types of cases in which a grand jury can be convened.
Currently, it’s up to a five-judge panel to determine whether to call a grand jury proceeding, where witnesses testify in secret before a panel of Utah citizens, who decide whether a suspect should be criminally indicted. A grand jury hearing replaces a public preliminary hearing and the proceedings typically remain secret unless an indictment is handed up.
Paul Boyden, a member of the Statewide Association of Prosecutors, said that Utah law currently gives no clear standards for judges to apply when trying to determine if a grand jury is the appropriate course of action. In addition, there’s no outlet for prosecutors to appeal to if the judges deny a request for a grand jury hearing.
Prosecutors most often request grand juries in cases involving government corruption, gangs or where a victim might be considered vulnerable.
“I can certainly tell you requests have been made and requests have been denied and the rationale [by the panel of judges] is all over the place,” according to Salt Lake County District Attorney Sim Gill, who said he was speaking on behalf of the bill, based on conversations he’s had with prosecutors across the state.
For example, a state grand jury proceeding was used to indict Brian David Mitchell and Wanda Eileen Barzee in the Elizabeth Smart kidnapping, a case which ultimately was prosecuted in federal court.
But a request to convene a state grand jury into the disappearance of then 15-year-old Kiplyn Davis, who vanished May 2, 1995, after leaving Spanish Fork for lunch, was denied. Federal prosecutors later agreed to convene a federal grand jury, which resulted in five men being charged and convicted of perjury for lying to investigators.
Gill said changes are long overdue, noting he would typically request a grand jury to hear information involving complex cases. (Gill’s staff is currently probing two such cases — whether there was any criminal wrongdoing by former Utah Attorney General John Swallow and whether a crime was committed in the fatal officer-involved shooting of 21-year-old Danielle Willard in November 2012 during an alleged drug bust in West Valley City.)
Boyden said the proposed bill would clarify that a grand jury would be convened in cases in which it was important to do the following:
• Maintain public confidence in the impartiality of the criminal justice process
• Obtain truthful testimony from reticent witnesses
• Protect endangered or vulnerable witnesses
And if the judges’ panel denies a hearing, the bill would allow prosecutors to seek an independent review from Utah Court of Appeals.
CCJJ member 4th District Judge Thomas Low said that perhaps the law could stand to be even more specific about when a grand jury should be called.
“This is a step in the right direction for standards,” he added.
But not everyone was in favor of the proposed bill.
“I view this to be a radical change to the status quo,” said Mark Moffat, Utah State Bar representative to the CCJJ, who voted against supporting the bill.
Moffat said the use of grand juries has always been severely restricted by the Legislature, and said he couldn’t imagine there ever needing to be an appeal option.
He said he also fears prosecutors would more often choose private grand jury proceedings over public preliminary hearings.
“We do not need to expand the use of grand juries,” Moffat said.
Dan Becker, state court administrator, also voted against the proposed bill. He said the courts had no position on the issue, but added that he had several questions, including what form an appeal record would take and whether formal records of grand jury proceedings would need to be created.
Gill said updating Utah’s law will not send the state “into chaos” and won’t violate any laws. Grand jury gatherings would still be rare, Gill said, but would offer the best solution to dealing with complex cases.