High court issues narrow ruling regarding secret state grand juries

High court issues narrow ruling regarding secret state grand juries

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SALT LAKE CITY — The Utah Supreme Court issued a ruling Thursday as it continues to navigate through new legal ground on how to handle arguments and appeals involving secret state grand juries.

Salt Lake County District Attorney Sim Gill went before a five-judge panel on Jan. 9 and requested a grand jury. The judges declined to impanel a jury, finding “that good cause for summoning a grand jury in this particular investigation did not exist,” according to the high court's order released Thursday.

Gill and his office asked the Utah Supreme Court to review the panel’s decision, but there were immediately complications in arguing the issue as grand jury proceedings are traditionally confidential. Brent Johnson, general counsel for the Utah State Courts, has said there is no current law to guide the high court justices and that this instance was the first he could recall in his 20 years with the courts that anyone had challenged the decision of the panel.

On April 1, the court heard narrow arguments addressing only whether the district attorney’s office was entitled to a transcript of the hearing before the five-judge panel and whether arguments about the case itself should be held in public or secret.

The arguments were mired in abstractions as those connected to the case side-stepped any facts or statements that would reveal the case at hand. It is believed that the arguments were connected to the controversial death of 21-year-old Danielle Willard, who was shot by two West Valley police officers on Nov. 2, 2012.

In the decision, the high court said that the state is entitled to the transcript of the hearing before the panel. While the courts are the default custodian of the grand jury panel’s records, they should be handed over because of “fundamental notions of due process, which require litigants to have full access to the tools necessary to effectively prepare their case.”

“Without the transcript, the state is unable to effectively present its petition because it cannot specifically reference the panel’s findings that it has petitioned this court to review,” the order states.

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As for handling arguments, the court asked that attorneys on both sides of the case file “bifurcated” briefs — one that will be available to the public and one that will be filed under seal. The public arguments will address three questions, including whether the Utah Supreme Court has the proper jurisdiction to review the panel’s decision as to “good cause”; if it has jurisdiction, then what standard the high court should use for reviewing the decision; and finally, explaining what the scope and definition of “good cause” includes.

The second, sealed arguments are to address those same questions, but should apply those abstract questions to the “underlying facts and issues” raised by the specific case for which Gill sought the grand jury.

The first set of briefs, to come from the district attorney’s office, are due May 19. Johnson, who is representing the five judges who make up the panel, will then have 30 days to respond.

Gill determined in August that the shooting that led to Willard's death was not legally justified and announced that his office was launching an investigation into whether criminal charges should be filed against detectives Shaun Cowley and Kevin Salmon. Some attorneys have suggested that seeking a grand jury is one option for prosecutors who are handling controversial or political cases.

Gill has also been involved in the investigation of former Utah Attorneys General John Swallow and Mark Shurtleff, with the help of Davis County Attorney Troy Rawlings.

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