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PROVO — In December, a defense attorney for the Utah man charged with murdering a teen couple and dumping their bodies in an abandoned mine shaft began digging around online.
A week after Utah County’s top prosecutor announced that he would seek the death penalty for Jerrod Baum, a judge, acting on his own and not in response to a motion, issued a gag order in the case and later explained why in sealed court documents.
After reading the judge’s explanation, the defense attorney, Mike Brown, wanted to know what Utah County Attorney David Leavitt had previously said about the case on his official Facebook page.
Now, Brown and the rest of Jerrod Baum’s defense team say Leavitt should be forced to defend himself against a charge of contempt of court. They allege he violated the gag order by not going back and taking down a Facebook post embedded with the week-old video of the news conference. The recording, the defense attorneys note in recent court filings, showed Leavitt telling reporters that a star witness is credible “based on a lot of evidence that the jury will never hear.”
Baum has pleaded not guilty to two counts of aggravated murder in the deaths of Riley Powell and Brelynne “Breezy” Otteson. A trial has not yet been scheduled.
In a motion filed last week, his lawyers asked the judge to summon Leavitt to court in order to respond.
Brown wrote that “while it is understandable Mr. Leavitt may not be able to control the media outlets, he certainly has control over his personal postings which are made public.”
Fourth District Judge Derek Pullan did not immediately rule on his request.
Pullan’s earlier gag order didn’t bar attorneys from speaking publicly altogether. Instead, he ordered them to abide by an existing professional conduct code that prohibits public statements that would harm a person’s right to a fair trial but allows some information to be shared.
While it is understandable Mr. Leavitt may not be able to control the media outlets, he certainly has control over his personal postings which are made public.
–Mike Brown, defense attorney
While Pullan later explained his reasons for the gag order in a court filing at Brown’s request, the document is sealed an unavailable to the public.
Brown said Leavitt has “complete disregard” for the ethics rule and his behavior “has serious consequences for the parties involved,” although he did not elaborate in his recent motion.
Leavitt told KSL his July comment on evidence at the news conference “should not have been made as it touched on the facts of the case. But from my perspective, it’s an incomplete pass, not an interception,” he said, adding he doesn’t believe it will have an effect the case.
From my perspective, it's an incomplete pass, not an interception.
–David Leavitt, Utah County Attorney
He said an employee runs his Facebook page and he had the video taken down when a prosecutor on his staff brought the defense’s claims to his attention.
While district court judges can hold an attorney in contempt — a finding that can carry a fine or even jail time — they can’t discipline lawyers or take away their license to practice. That responsibility lies with the Utah Supreme Court.
Yet an order like Pullan’s — similar to another issued in the murder case against Shaun French, the man accused of killing a high schooler, Baleigh Bagshaw — isn’t unheard of, said Jeff Hunt, an attorney who specializes in free-speech issues.
“I think what he’s doing is probably reminding lawyers what their responsibilities are,” Hunt said.
And while many defense attorneys have raised concerns about potential effects of publicity ahead of trial, Hunt noted no case in Utah has ever been reversed on appeal due to legal prejudice.
Judges have several tools to weed out potential jurors who have seen news coverage or social media and have already decided for themselves whether they believe a person is guilty or innocent, he said, like jury questionnaires and a screening process where jury candidates can be questioned by attorneys and a judge.