SALT LAKE CITY — On what would have been her niece’s 21st birthday, Amanda Hunt learned there’s no telling when a trial for the man accused of killing Brelynne “Breezy” Otteson and her boyfriend will take place.
A judge in Provo last week declined to set a new date for the monthslong capital murder trial that had been scheduled for March, citing the coronavirus pandemic and elevated transmission rates in Utah County.
“It’s a life of, ‘We just don’t know.’ We’re tied to this pandemic and it’s the unknown,” Hunt said. “I think that’s the hardest part.”
The constitutional right to a trial by jury has stalled in Utah and across the country, frustrating not just defendants but also victims awaiting justice in a court system that was overwhelmed even before the pandemic.
A small number of trials in lower-level cases are taking place as part of a pilot program in Utah courts, but concerns about the risks they present have cropped up. The program rolled out against certain recommendations from Salt Lake County’s top health officials.
The experimental trials are the court system’s first steps to address a backlog of hundreds of cases since the Utah Supreme Court suspended the proceedings on March 13, 2020. They’ve already begun in Salt Lake City, with more set to take place in eastern Utah this month.
Drawn-out cases taking toll on victims
Hunt says she understands why the case has paused for Jerrod Baum, the 44-year-old man who will face the possibility of the death penalty if convicted of brutally killing Breezy, 17, and her boyfriend, Riley Powell, 18, and dumping their bodies in a mine shaft in 2017. A trial held in person anytime soon could threaten the safety of everyone involved, while one held online would likely prove vulnerable to appeals.
The pandemic delays are preparing her for the prolonged appeals that often follow convictions in death penalty cases, she said, but the trial is a step toward a resolution.
“It’s exhausting,” Hunt said. “It comes to a point where it’ll be three years next month that we’ve been dealing with the court system and dealing with seeking justice for these kids.”
Hunt isn’t alone. Many others waiting to testify against alleged aggressors are in despair, said Heidi Nestel, executive director of the Utah Crime Victims Legal Clinic.
“I always kind of think of it as an open festering wound for victims to just have a criminal case ongoing,” Nestel said.
Delays are common in court cases, she added, but the indefinite pause brought about by the virus is causing a good deal of extra anxiety for clients of the clinic.
While the courts adapted quickly to holding online hearings, some low-income victims who don’t have access to tablets or laptops that allow them to testify via videoconference have fallen through the cracks, Nestel said. Her office has worked with several so they can take part in the proceedings from the clinic’s offices.
Utah guarantees victims the same speedy trial right afforded to defendants, and it’s a right many have asserted, even ahead of the pandemic, Nestel said.
Delays in the case typically work in favor of defendants because evidence can get lost and witnesses’ memories fade over time, and Nestel said she worries her clients will become disengaged after nearly a year of delay.
“I do think the courts are trying to do the best they can to get things on track,” Nestel said. Still, she continued, “I do worry about, you know, victims getting fatigued from just the worry and having to stay so engaged for so long. Now is that going to make them withdraw from the case, or maybe motivate them to accept a plea deal that normally they wouldn’t have just because they want the case over with?”
Program’s start went against certain guidance
The courts had planned to start the jury pilot program in November but postponed it due to rising caseloads. They went forward with the plan in January as rates leveled off, with plans requiring masks, rapid testing and several feet of distance between jurors and others.
In announcing the pilot program Jan. 15, 3rd District Presiding Judge Mark Kouris said health officials were in agreement with the precautions. But later that day, Salt Lake County’s top public health official provided additional guidance.
Salt Lake County Health Department Executive Director Gary Edwards endorsed the courtroom precautions in a letter to Kouris, calling them “critical.” But he recommended the proceedings take place only when rates of transmission, positive test rates and full beds in intensive care units dipped to certain levels — and only with daily rapid testing.
Salt Lake County met just one of the five guidelines at the time the program rolled out in Salt Lake City on Jan. 25. Edwards advised that the rates should be stable or declining, and they were in fact trending downward.
While the court’s trial plan includes rapid tests on the first day of a two-day trial — and every other day for potentially longer trials — everyday testing isn’t part of the plan.
The county has since met two of the thresholds he identified (two week rates of positivity under 17% and cases below 736/100,000) but not ICU volume (72%, with no more than 28% of beds being used for COVID-19 patients), according to the health department.
Kouris said he sent Edward’s letter to members of the Utah Judicial Council’s management committee, which ultimately decided to move forward.
“They obviously have to weigh out the constitutional rights of people sitting inside of cement blocks waiting for trials, along with the health and safety of folks,” Kouris said.
While the court considers county health department guidance, it also takes into account additional benchmarks from the state health department, University of Utah Hospital and other sources, Kouris said, “and I think based on that criteria, they believe that we were within where we needed to be.”
Kouris described the unprecedented halt on trials as “absolutely gut-wrenching.”
“We could give you a bench trial, obviously,” Kouris said, referring to the proceeding wherein a judge, not a jury, issues a finding of guilt or innocence. “But that’s not what the Constitution guarantees you. The Constitution guarantees you a jury of, in front of your peers.”
Kouris has made it clear that defendants identified for the program aren’t getting a chance to opt out, and neither are their attorneys, unless they hand the case off to a colleague.
Ron Lund, the county’s environmental health director, told the Deseret News that he reviewed the plan and took a tour of the courtroom.
“If I was summoned, I would go,” Lund said.
“We gave those numbers as trying to give some guidance of where we thought it makes sense to really open up and be operating the courts, recognizing that, you know, the public health guidance doesn’t close the courts,” Lund said. “That was where we saw the best opportunity for continued success in their plan. However, they have very solid plans in the courts, everything from physically distancing jurors appropriately to distancing when they’re actually deliberating.”
Pandemic trials present new hurdles
Defendants have faced their own challenges in the last year, including those who are awaiting trial in jail. The virus has spread rapidly in the state’s prison system and jails.
While some awaiting trial are frustrated that they haven’t yet had their day in court, many would rather make sure they get a fair shake when that day comes, said Rich Mauro, executive director of the Salt Lake Legal Defender Association.
“If we’re going to do a trial, we want to make sure the trial will be fair. In other words, we have a representative cross section of the jury in the community, folks that feel comfortable coming to court to assess and evaluate evidence,” Mauro said.
He noted the pause on trials isn’t the only cause for delay.
The pandemic has also complicated attempts to track down witnesses, and the pileup of cases has made it difficult to squeeze in hearings to resolve arguments over evidence or other issues, Mauro said.
In a one-day trial in Salt Lake City, jurors moved to acquit a South Salt Lake man of four stalking charges last week, but were hung on a fifth. Of the 35 people involved in that trial who were tested, none returned positive, Kouris said.
One of the biggest adjustments for Mauro’s staff of public defenders was selecting jurors via videoconference, where attorneys and a judge can’t be sure what kind of distractions may be surrounding them, he said. It’s the sole virtual part of the trial.
“As we move along. I think we need to be more experienced to decide when can we really begin doing more complex cases that may take multiple days in the courtroom,” Mauro said. “Frankly, I think everyone will feel more comfortable when the vast majority of people that are appearing in the courtroom, including our clients, have received a vaccination.”