I think there is a public interest at stake here and I think striking the right balance is important. We should keep secret only what should be secret and let the light of public scrutiny shine where there isn't a need for confidentiality. – Justice Thomas Lee
SALT LAKE CITY — A hearing about a secret grand jury before the Utah Supreme Court Tuesday was mired in generalities and abstractions as justices and attorneys worked to answer new legal questions while side-stepping the facts and details of the specific case.
The arguments appear to be connected to the fatal shooting of 21-year-old Danielle Willard, who died after being shot by two West Valley police officers on Nov. 2, 2012.
Salt Lake County District Attorney Sim Gill determined in August that the shooting was not legally justified and announced that his office was launching an investigation into whether criminal charges should be filed against detectives Shaun Cowley and Kevin Salmon.
Those names were not specifically mentioned at Tuesday's hearing, which centered on a case for which Gill had requested a state grand jury but was denied, according to a Utah Supreme Court order. Gill would not comment Tuesday about the case.
"I can't say anything at all about it, because of the nature of what that is," he said.
Yet Ian Adams, spokesman for the Utah Fraternal Order of Police, criticized Gill in a statement Tuesday and said that if Gill is going to file charges against the two officers, he should do so directly instead of trying to get an indictment from a secret state grand jury.
"Once again, Sim Gill shows how desperate he is to hide his mismanagement of this case behind the secrecy of a grand jury," Adams said. "Mr. Gill should stop attempting to hide his mistakes behind closed doors. If he believes he can obtain a criminal conviction, let the facts speak in a public charging document."
As district attorney, Gill could directly file charges at any time, but attorneys say there are circumstances in which it might be preferable to seek a grand jury indictment.
"Sometimes a prosecutor may take a case to a grand jury because the prosecutor can then say, 'A grand jury chose to indict, I didn't charge the person,'" said defense attorney Greg Skordas, who is not affiliated with the Willard case. "So if you have a controversial case, or perhaps a political case, … it would make perfect sense (to ask for a grand jury)."
While not confirming any connection between Tuesday's hearing and the Willard case, Gill said a grand jury is an important option available to prosecutors across the country, and he wants to make sure it's a "usable tool" for Utah prosecutors, too.
"I completely understand the concern and the urgency (about resolving the Willard case), and nobody is more committed to having those issues resolved any faster than I am," he said.
In Utah, state grand jury requests go first to a five-judge panel, which must approve the appointment of a grand jury. In this case, the judges declined to impanel a jury at Gill's request.
Gill and deputy district attorney Blake Nakamura appealed the judges' decision, and, in a Utah Supreme Court order issued Jan. 22, Associate Chief Justice Ronald Nehring said the court would hear arguments about certain aspects of the appeal. The court would weigh only whether prosecutors are entitled to a transcript of the hearing before the five-judge panel and whether future arguments about whether a grand jury should have been called would be open to the public.
T.J. Tsakalos argued on behalf of Salt Lake County and said the transcripts of the judges' decision would "be beneficial" to have when pursuing the appeal. He also said that the confidentiality of the grand jury process was rooted in history and should extend to future arguments about convening a grand jury.
"Once an indictment has been issued, a warrant has been filed, then it's an open argument. We are not at that point yet," Tsakalos said. "I am very uneasy about getting into this court and discussing people and facts and issues that can identify what this grand jury will investigate."
Justice Jill Parrish questioned whether the case could be discussed "in the abstract." Justice Thomas Lee suggested portions of the hearing could be heard publicly, while others would stay secret.
"I think there is a public interest at stake here, and I think striking the right balance is important," Lee said. "We should keep secret only what should be secret and let the light of public scrutiny shine where there isn't a need for confidentiality."
Brent Johnson, general counsel for the Utah State Courts who represented the five-judge panel, said there is no current law to guide the high court justices.
"I've been with the courts for 20 years, and this is the first time that I'm aware that anyone has ever challenged a decision of a grand jury panel," he said. "We have no law (or) case law that says, 'Here's what we do in these circumstances.' So that's part of what's happening here, is we're figuring it out."
He said there is also no law that allows the Utah Supreme Court to call a grand jury and that, were it to overturn the panel's decision, it would have to send the case back to the panel.
"Any relief would have to be in the nature of a remand, but, again, this is uncharted territory," Johnson said. "It's the first time this has ever happened, but it would essentially be a remand if anything like that were to happen."
He said the panel of judges is willing to provide a transcript of the hearing, but felt that state statute required a court order for it to be released to Gill, Nakamura and Tsakalos.
The Utah Supreme Court took the matters it heard Tuesday under advisement.
After the panel declined Gill's request for a grand jury, he went before the Utah Commission on Criminal and Juvenile Justice to ask for some changes to the grand jury law. Paul Boyden, executive director of the Statewide Association of Prosecutors, said it wasn't the first year prosecutors have sought changes, hoping for a set standard that the judges use to accept or decline requests and a clear appeals process.
"The reason we were interested in it is when you have a complicated case, a government corruption case for instance, … if you're looking at a case where you have any kind of elected officials — whether it's police or elected officials — you can issue a subpoena for people to come in and talk … to a grand jury (and) you get a better shot at getting the truth," Boyden said. "That's kind of the point of it. … That's why they're a valuable investigative tool."
He said the proposed changes, though, became controversial enough that it appeared they were unlikely to be made "without a huge battle" in the Utah Legislature, so they decided not to pursue them. He maintains the current system involving state grand juries, though, isn't working.
"It's not consistent. There is a five-judge panel — and this is not taking anything away from the judges, they're excellent judges — but there is no statutory guidance as to what standard they're supposed to be using," Boyden said. "It isn't the fault of the judges, it's just an odd way of doing business. There's nothing prosecutors can rely on. That's really the problem."
Defense attorneys are generally opposed to the use of grand juries, feeling they unfairly favor the prosecution.
"It's a signification detriment to the defense attorney, because we're not invited, we're not there," Skordas said. "We don't get to call witnesses, object to testimony. You get the transcript before the trial, which you can read, but it can put the defense at a pretty big disadvantage."
Preliminary hearings, where the state presents the evidence it has in a case before asking a judge to order a trial, also favors the prosecution, but such open hearings allow the defense to cross-examine witnesses. But Skordas said grand jury indictments can spare a victim from having to testify in open court and are also sometimes used in hot-button cases.
Gill has also been involved in the investigation of former Utah Attorneys General John Swallow and Mark Shurtleff, with the help of Davis County Attorney Troy Rawlings.
Email: emorgan@deseretnews.com, Twitter: DNewsCrimeTeam