Stuart Johnson, KSL

Deseret News fights to keep hearing in double-murder case open to public

By Annie Knox, KSL | Posted - Jul. 13, 2020 at 8:37 a.m.

SALT LAKE CITY — The Deseret News is seeking a judge’s order allowing the public to attend an upcoming court hearing in the murder case for a man charged with killing a teenage couple and dumping their bodies in an abandoned mine shaft.

Attorneys for the newspaper intervened in the high-profile potential death penalty case for Jerrod William Baum after a judge last month ordered the closure of the July 15 hearing, where Utah County’s top prosecutor and former attorney general candidate is expected to defend himself against an allegation of contempt.

In closing the hearing, 4th District Judge Derek Pullan cited concerns from defense lawyers that publicity would conflict with the right to a fair trial. He later allowed the Deseret News to intervene and argue its case for reopening the proceeding.

While attorneys have long argued that news coverage will taint jury pools, no case in Utah has ever been reversed on appeal for that reason, lawyers for the newspaper note.

“No one disputes that ensuring a fair trial for a criminal defendant is a compelling government interest,” David Reymann, an attorney for the Deseret News, wrote in a motion to open the hearing. “But this is not the first high-profile criminal trial in Utah, nor will it be the last.”

Reymann said closing the hearing isn’t necessary because attorneys have tools like jury questionnaires, which allow them to weed out potential jurors who have already decided a defendant’s guilt or innocence based on news coverage or online chatter.

"No one disputes that ensuring a fair trial for a criminal defendant is a compelling government interest."

–David Reymann, the Deseret News attorney

The legal standard to close the hearing requires specifics pointing to a significant likelihood of prejudice, he argued in court documents, not just broad assertions. For the same reason, several sealed court filings in the case also should be made public, Reymann wrote in the motion.

Baum has pleaded not guilty to two counts of aggravated murder in the deaths of Riley Powell and Brelynne “Breezy” Otteson. A six-month trial is set to begin in March 2021.

The hearing next week will focus on an arguments from defense attorneys that Utah County Attorney David Leavitt violated a gag order in the case and should be held in contempt.

Baum’s lawyers allege Leavitt flouted the order by maintaining a video on his public Facebook page of his announcement to seek the death penalty for Baum. In the video, Leavitt said that a star witness in the case is credible “based on a lot of evidence that the jury will never hear.”

The public has a significant interest in knowing what happens in a contempt proceeding against a sitting public official, even outside of a high-profile case, Reymann said.

“The fact that it’s happening inside a capital case makes it even more significant,” he said.

“We believe it’s important to shine a light on what happens in court cases, particularly cases like this one that involve elected officials, two people who were brutally killed and a man who faces a potential death penalty,” said Deseret News Editor Doug Wilks.

A defense attorney for Baum did not respond to a request for comment.

Prosecutors in Utah County and private attorneys for Leavitt did not oppose the closure of the hearing.

In closing the hearing, Pullan said the debate expected to take place “involves the disclosure of certain statements to the public which by their nature may taint the jury pool and this significantly implicates Mr. Baum’s right to a fair trial,” in addition to the state’s right to a fair jury trial.

He said he sought to preserve those rights and avoid disseminating statements further to the jury pool. The newspaper pointed out in its motion that the statements in question have already been made public.

Pullan’s earlier 2019 gag order in the case followed Leavitt’s comments about his decision to seek the death penalty during a news conference. The order directed attorneys in the case 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.

Leavitt has said he should not have made the comment about the witness because it touched on facts in the case against Baum. But Leavitt said he doesn’t believe it would have any effect and noted he had the video taken down when a prosecutor on his staff brought the defense’s claims to his attention.

The county attorney’s office has argued that Leavitt corrected the oversight and his statement at the news conference predated the gag order. It said continued proceedings on the issue “will result in renewed interest in and dissemination of the press conference video.”

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