Estimated read time: 5-6 minutes
This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.
PROVO — A judge has sanctioned Utah County Attorney David Leavitt and disqualified him from participating in the case against Jerrod Baum, who is charged with two counts of aggravated murder in the brutal 2017 deaths of Riley Powell, 18, and Brelynne "Breezy" Otteson, 17.
But ultimately, the ruling doesn't change what is already happening the case, which is scheduled to go to trial this year — after nearly four years of legal battles and delays.
The ruling comes on the heels of new criminal charges filed Tuesday against Baum, after investigators, who have been sorting through evidence for several years, reported finding child pornography on his phone.
On Monday, 4th District Judge Derek Pullan issued his ruling regarding allegations of professional misconduct by Leavitt and his office, agreeing that statements made to the media were not appropriate. However, Pullan declined to have Baum's case dismissed or moved to another county.
Leavitt had already removed himself from the case prior to the ruling, according to court documents. But the ruling eliminates any possibility of Leavitt returning to the case in the future.
Baum, 45, is accused of slitting the throats of Powell and Otteson and then throwing their gagged and bound bodies down an abandoned mine shaft near Eureka. The two were missing for three months before their bodies were found. The state's key witness in the case is Baum's girlfriend, Morgan Henderson, who was present when the alleged murders took place. She has agreed to testify against Baum as part of a resolution to her own criminal charges.
In February, attorneys for Baum filed a motion for sanctions to be filed against Leavitt and the Utah County Attorney's Office alleging prosecutorial misconduct. Defense attorneys alleged eight incidents of misconduct and had requested sanctions that ranged from dismissing the double murder case altogether, disqualifying Leavitt and his office from the case, a change of venue and expanding the jury pool.
Of the eight allegations raised, the judge agreed there were inappropriate statements made to the the media by Leavitt.
In 2019, Leavitt held a press conference to announce he would be seeking the death penalty against Baum if convicted. The press conference was live-streamed on the Utah County attorney's Facebook page and remained on the page after the press conference had ended.
During the press conference, Leavitt said Baum had treated his victims like "trash," said the death penalty would never actually be carried out, and "referred to corroborating inculpatory evidence that the jury would never hear," according to Monday's ruling.
"These statements are textbook examples of extrajudicial statements carrying a substantial likelihood of prejudicing the adjudication of this case. This is especially true because of who made the statements and when he did so," the judge ruled.
Pullan found that Leavitt had violated the American Bar Association's rules of professional conduct.
Shortly after the press conference, Leavitt — under advice from his chief deputy — disqualified himself from further participation in the case. Leavitt has mostly stayed out of the spotlight regarding the Baum case with the exception of his announcement that he would no longer seek the death penalty for Baum or any other future defendant.
"The decision of the county attorney to effectively 'disqualify himself' mitigated the prejudice arising from his press conference statements. The decision permitted the (county attorney's office) to proceed forward in this case, independent of the county attorney's supervision and influence," according to the Monday's ruling.
The judge said dismissing the case altogether would not be an appropriate sanction. Rather, Pullan said expanding the jury pool is the correct action.
Leavitt's office released a prepared statement Tuesday, responding to Pullan's ruling.
"Motions are an integral part of the judicial process. The defense made motions with respect to eight claims of prosecutorial misconduct. Two motions related to individual incidents that occurred more than three years ago. The judge imposed limited sanctions and we have taken steps to prevent the same incidents from recurring. The court denied the defense's request for a sanction to dismiss the case. Six motions by the defense were fully denied by the court."
The same sanction that was granted based on the allegation the Utah County Attorney's Office failed to take reasonable measures to ensure law enforcement didn't make prejudicial statements to the media. Pullan agreed with the defense claim that Leavitt's office did not properly train the sheriff's office on how to not make inflammatory comments to the public about the Baum case that could potentially taint a jury pool.
"The Utah County Attorney's Office does not determine the messages given by law enforcement agencies. Each agency has its own leadership structure. Each agency has its own public information officer and has the responsibility to train those officers. However going forward our office will be more diligent in communicating the rules that govern dissemination of information in criminal cases to all participants, including prosecutors and law enforcement," Leavitt's office stated Tuesday.
Like he did with Leavitt, Pullan ruled that the appropriate sanction for the misconduct was to expand the jury pool, something that had already taken place prior to the ruling.
There has not been any case in Utah where a conviction was overturned because of pretrial publicity. Judges have numerous options to safeguard a defendant's right to receive a fair trial, including expanding a jury pool.
Other allegations raised by the defense that the judge rejected include: Leavitt remained on the Baum case even after his press conference; a prosecutor discouraged Henderson from meeting with investigators from the defense team; a prosecutor instructed law enforcement to interview a witness without first consulting the witness' attorney; a prosecutor omitted facts known to him while filing for a search warrant; the county attorney's office failed to seek exculpatory evidence, namely the names of Henderson's mental health providers; and the county attorney's office obligated itself to go with Henderson's version of what happened despite evidence that contradicted her story.
Meanwhile, new charges were surprisingly filed against Baum on Tuesday.
He was charged in 4th District Court with six counts of sexual exploitation of a minor, a second-degree felony. According to his new charges, police searching Baum's cellphone that was collected during the homicide investigation recently came across suspected child pornography.
"Officers searched the phone and located 15 images of child pornography on the phone," the charges state. "The search history on the phone also included searches related to child pornography."
