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PROVO — A couple who spent months in jail after being wrongly accused of killing a former BYU professor will not be able to move forward with a civil lawsuit against Utah County.
U.S. District Judge Dale Kimball this week dismissed the lawsuit filed by Roger and Pam Mortensen, the son and daughter-in-law of Kay Mortensen.
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 confession to the murder led investigators to make two new arrests and drop the charges against the Mortensens.
The Mortensens filed a lawsuit last October, saying they suffered financially and their relationships were hurt in the ordeal. They accused police and prosecutors of purposely deceiving a grand jury by not presenting all of the information available.
"There's no way you can ever repay the embarrassment and humiliation, the mortification, the pain of being accused of a vile and grisly murder — of your own father," the Mortensens' attorney, Robert Sykes, said Friday. "How do you get past that?"
In their lawsuit, the Mortensens claim officers and prosecutors lied about them to a grand jury.
There's no way you can ever repay the embarrassment and humiliation, the mortification, the pain of being accused of a vile and grisly murder — of your own father.
–- Robert Sykes, attorney
"When we filed this case, it was a very good case," Sykes said. "It involved falsehoods told by several officers to the grand jury. ... It left the grand jury with the false impression that these people where flim flam hustlers. That was the clear impression left by this evidence and most of it was false."
He said he was confident they "could have prevailed" if not for a U.S. Supreme Court ruling handed down in April that declared that all witness statements given before a grand jury were immune to civil litigation, including those given by law enforcement officers.
"What that left us with is (whether) we could find something in other than the grand jury testimony, and we couldn't find anything," Sykes said.
He was adamant that the officers "lied through their teeth," probably due to pressure to solve the case.
But attorney Peter Stirba, who represented the officers and prosecutors, said the case was "fatally flawed" because there have always been immunity for witnesses who testify before grand juries, including police and prosecutors. While Sykes said the ruling upended 40 years of precedent, Stirba said it merely "reaffirmed the broad blanket immunities that prosecutors and officers have always had for good and sound reasons."
"The law is quite clear that witnesses are always clothed with broad immunity," Stirba said. "We want people to participate in legal proceedings without fear of retribution. That was a fundamental flaw with the complaint."
Even still, he said the allegations that his clients lied or misled a grand jury are "patently false and patently untrue." He said the grand jury heard all of the evidence over the span of two days, including interviews police conducted with the Mortensens.
"This (the lawsuit) was not only fatally flawed as matter of law, but was devious in the way it was presented because it took things out of context to somehow say or suggest that it was false," Stirba said.
The law is quite clear that witnesses are always clothed with broad immunity.
–- Peter Stirba, attorney
Sykes said the Mortensens have been "devastated" by the dismissal. The only potential recourse would be criminal perjury charges, which he said he has asked Utah Attorney General Mark Shurtleff to file.
"These guys caused untold damage to these people." Sykes said.
But Stirba said perjury allegations are unfounded.
"I know that there were some statements made about investigators lying and they should be charged with perjury and ... I just thought those were totally irresponsible and totally unnecessary and totally inconsistent with the facts, quite frankly," he said.
The Utah County Attorney's Office issued a statement Friday indicating it was pleased with the judge's decision and believes the court affirmed its position that "its detectives and attorneys acted with the highest degree of integrity and professionalism at all stages during the investigation and grand jury proceedings." While prosecutors understand that the Mortensens "endured a difficult situation," they said those responsible for Kay Mortensen's death are now being held responsible.
Benjamin Rettig, 24, and Martin Bond, 25, were arrested and charged with killing Mortensen and holding Pam and Roger Mortensen hostage before threatening to kill them. Rettig has since pleaded guilty to aggravated murder and aggravated kidnapping, first-degree felonies, and was sentenced to 25 years to life in prison. Bond has pleaded not guilty and was just appointed a new attorney.
The county attorney Timothy Taylor repeatedly said the evidence presented to the grand jury was done so fairly.
"We understand that Mr. and Mrs. Mortenson endured a difficult situation," Taylor said in a statement. "Through the diligent efforts of the Utah County Sheriff's Office to continue following up on all leads, the individuals responsible for the death of Kay Mortenson are being held accountable."
Like Taylor, Stirba insists the officers didn't lie. He says they came to the wrong conclusion, but he believes the case was presented fairly and the officers shouldn't be prosecuted.
"Law enforcement acts accordingly and so the case proceeds in an entirely different direction — not because anyone was lying, misdirecting or acting unethically, but it's not like anybody is perfect," Stirba said. "It's not like any grand jury is perfect ... and sometimes evidence points in one direction and at some point later on may point in a different direction."
Contributing: Randall Jeppesen and Jennifer Stagg