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Some say Mortensen case highlights flaws in legal system

By John Daley | Posted - Dec. 8, 2010 at 6:04 p.m.



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UTAH COUNTY -- The case of Kay Mortensen's murder has the legal community debating the need for changes aimed at protecting people from being wrongfully accused.

It's impossible for the law enforcement to be right all of the time, but some legal experts say this case highlights two issues: prosecutors relying on a grand jury to bring charges; and few options for those wrongfully accused to sue.

Related: Court document reveals details about Mortensen investigation

Roger and Pamela Mortensen were charged after prosecutors took the case to a grand jury. Some legal experts believe that route can be flawed, because, unlike most cases, the accused have no attorney to represent them and the process is secret.

Daniel Medwed, a professor of law at the University of Utah, said, "We really don't know the extend to which the prosecution had strong evidence against the Mortensens."

Other high-profile cases of those wrongfully in the spotlight include the security guard suspected of Atlanta's Olympic Park bombing, three Duke University lacrosse players charged with rape, and Richard Ricci, an early person of interest in the Elizabeth Smart kidnapping who died of a brain hemorrhage in jail. His widow later sued.

Related: Pamela Mortensen released from jail

Katie Monroe's mother was wrongfully accused of murdering her boyfriend. After spending years in jail, she was found innocent.

Monroe now heads the Rocky Mountain Innocence Project, which investigates and litigates claims of innocence. She says proving innocence after someone is convicted is difficult.

"It can take us 10, 20 or 30 years to uncover the evidence that proves that innocence," she said.

The Mortensens have limited legal options now. As long as the charges were brought in good faith, police and prosecutors can't be sued civilly, unlike in some states.

Civil rights attorney Brian Barnard said, "There is no remedy that they're going to have against the police or against the prosecutor."

In the case of Richard Ricci, the one-time "top potential suspect" in the Elizabeth Smart case, his widow sued members of the Salt Lake City Police for emotional distress. She lost that case but did win a $150,000 settlement from the state Department of Corrections after claiming her husband didn't receive his high-blood pressure medicine before he died.

The Mortensens could file a civil lawsuit against Utah County for their incarceration.

"I hope that at some point the county attorney's office and the county sheriff's office will acknowledge that she should have never been charged. Whatever she's lost hopefully can and should be restored. I applaud both of those offices for continuing their investigation and ultimately solving the case," Pamela's attorney Greg Skordas said.

He said he does not generally recommend civil lawsuit against police or prosecutors, but said it's Roger and Pamela's decision.

E-mail: jdaley@ksl.com

John Daley

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