PROVO — Defense attorneys in Provo say Utah County’s top prosecutor violated a gag order in a double-murder case. They want him found in contempt.
But instead of jail time or a fine for Utah County Attorney David Leavitt, the public defenders are seeking a different sort of sanction. They want the death penalty off the table for Jerrod William Baum, their client who denies charges that he slit the throats of a teen couple, Riley Powell and Brelynne “Breezy” Otteson, and dumped their bodies into an abandoned mineshaft.
A judge did not immediately rule at the conclusion of a hearing that spanned more than four hours Wednesday afternoon, wherein Leavitt strongly denied that a video of an old news conference on his official Facebook page went against the gag order.
Fourth District Judge Derek Pullan did issue another decision, however. At the outset of the hearing, he reversed course from an earlier ruling and sided with the Deseret News, finding the public and press had a right to attend.
Pullan in June ordered the hearing closed at the request of defense attorneys, who said publicity would threaten Baum’s right to a fair trial. He later allowed the newspaper to intervene and argue for reopening.
Attorney Jeremy Brodis argued Wednesday for the Deseret News that defense attorneys failed to give specifics on how news coverage would cause any substantial likelihood of tainting the jury pool in the populous county. He also noted the evidence up for debate was already public and widely disseminated in the news.
Defense Attorney Mike Brown countered that the press and public had nothing to gain by tuning into the hearing since Leavitt’s statements are already public. But he said further dissemination of Leavitt’s comments would impact his client’s right to a fair trial.
But if the hearing were secret, Brodis argued, people wouldn’t know the evidence supporting a judge’s eventual ruling in a contempt case against a sitting public official.
“It still would be missing a crucial piece,” he said.
In reopening the hearing, Pullan noted courts can take other steps to seat an impartial jury, like questioning potential jurors ahead of time about any conclusions they may have reached about a defendant’s innocence or guilt.
In July 2019, Leavitt announced he would allow a jury to decide whether Baum, if convicted, should face the death penalty. In responding to a reporter’s question, he said his office believed a star witness in the case “based on a lot of evidence that the jury will never hear.”
In response to the comment, Pullan ordered attorneys in the case to adhere to a professional standard prohibiting them from giving out new information that could prejudice a jury, while still allowing them to make some statements.
Baum’s defense attorneys say Leavitt violated the order by failing to take down Facebook video of the July news conference until months later.
Attorney Neil Kaplan, who represented Leavitt, said the gag order doesn’t apply to prior public statements and his client had no intention of going against Pullan’s directive.
But the judge said the embedded Facebook video effectively allowed Leavitt to make repeated statements each time a person clicked play.
Leavitt said his comment was an “unscripted spontaneous statement that admittedly I should not have uttered.” After the gag order, he said he “walled” himself off from the case and allowed Loren Weiss, chief deputy Utah County attorney, to oversee it instead.
Leavitt, Weiss and Leavitt’s assistant Matthew Hubbard testified they believed another employee who handled the office’s social media had taken the video down in August and didn’t realize it was still online until January, when defense attorneys called attention to it. At that point, it was removed immediately, Leavitt said.
Brown countered that although Leavitt delegated the handling of social media, Leavitt is the one who runs the office.
“The issue is his ability to comply with a court order he knew about,” Brown said. “His delegation of that ability does not absolve him and he is ultimately responsible.”
Brown said taking the death penalty off the table is the most appropriate remedy. But another possible solution is to have a different county attorney’s office prosecute in Baum’s six-month trial that is set for 2021, he said.
Deputy Utah County Attorney Ryan McBride countered that such a sanction would not punish just Leavitt but also the families of the slain teens and the wider community.