By Sara Israelsen
When the Utah County Attorney''s office used a grand jury last week to charge four BYU players with first-degree felonies, it was the first time the option had been used in the county.
The four former students were charged Friday with various counts stemming from the sexual assault of a 17-year-old girl in August. The charges were handed down from the grand jury after a full day of sealed debate.
Deputy County Attorney Donna Kelly said the grand jury option was used instead of a preliminary hearing because of the sensitive nature of the case, which involved two minors and a sexual assault.
'There was a lot of media attention, including national media,' she said. 'People like ESPN were calling her on the phone, so we wanted to minimize the circus atmosphere.'
The last grand jury was impaneled for the Elizabeth Smart case in Sept. 2003, when a 15-member grand jury panel handed down indictments against Brian David Mitchell and Wanda Barzee for the kidnapping of the then 14-year-old girl.
In a grand jury, the prosecution presents its evidence before a panel of citizens, who decides if there is enough reason to charge the alleged perpetrators with the crime. No defense attorneys, public or media is allowed in the proceedings.
Because of this secret nature of the meeting, grand juries are an opportunity for the victim to testify in a non-confrontational setting without public scrutiny.
'It''s less traumatizing to the victim to testify so early in the case, before a grand jury,' Kelly said. 'The defendant is not there. It''s not public.'
The 17-year-old witness testified to a panel of jurors who were chosen from the Utah County jury pool by the usual jury-trial selection process. However, none of the jurors knew specific details of the case before they arrived.
'They showed up in American Fork, but they didn''t know what they were showing up for,' Kelly said.
And just like a normal trial, the panel was screened to avoid potential bias before proceeding.
Kelly said the Utah County Attorney''s office requested a grand jury proceeding in October for the BYU case. The jury convened Dec. 2, and handed down indictments after deliberating all day.
Having served as a prosecutor in another state for 10 years, Kelly said she favors Oregon''s system of using grand juries for almost every case.
'I prefer a grand jury,' she said. 'I can''t think of any draw backs.'
However, she said the option isn''t popular in Utah because of the extra time required for set up. To have a grand jury, the county attorney''s office went before a state panel of five judges, explained their circumstances then waited for a response.
After getting the go-ahead, the county attorney''s office got the panel together, paid the $18 fee to each juror and began the debate.
'This is an ideal case for a grand jury,' Kelly said. 'We think it went very smooth. We''re glad that we choose to proceed this way.'
BYU professor of law, Michael Goldsmith, said using a grand jury will ensure that the prosecution comes away with an indictment.
'A grand jury will indict a ham sandwich,' he said. Because the defense doesn''t have the opportunity to present its evidence, Goldsmith said charges are expected 99.9 percent of the time.
However, the grand jury also carries an added protection against a gung-ho prosecutor, in what Goldsmith called a 'safeguard against prosecutorial overreaching.'
In his previous experience with grand juries, Goldsmith, as a prosecutor, would present his case, then let the jurors point out the case''s weakness - something a judge wouldn''t do in a preliminary hearing.
He also agreed with Kelly that it was a good chance to try out the arguments and the witness in a non-adversarial setting.
'It''s a lot safer,' he said of the use of a grand jury. 'If I''m the prosecutor, I want to protect that girl.'
Jeffrey Hunt, president of the Salt Lake County Bar Association, said this is the first rape case he can recall being charged by grand jury, but understands the reasons for doing so, especially from a publicity standpoint.
'It clearly prevents the media and the public from attending a preliminary hearing,' Hunt said. 'A grand jury is a legitimate tool that prosecutors can use ... but once the case gets in court, then there is a presumptive right of access to the court records and the court proceedings, and that''s a first amendment right of access.'
Despite the intense media scrutiny and high-profile perpetrators, Hunt said he doesn''t think the use of grand juries is on the rise.
' determined a grand jury to be used in these high profile cases,' he said. 'I don''t think it represents a trend. I think most cases, including high profile cases, will proceed to charges without a grand jury.'