Mortensen Lawsuit 6t4q49

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ROBERT B. SYKES (#3180) [email protected] ROBERT B. SYKES & ASSOCIATES, P.C. 311 South State Street, Suite 240 Salt Lake City, Utah 84111 Telephone (801) 533-0222 Facsimile (801) 533-8081 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

ROGER KAY MORTENSEN, and PAM MORTENSEN, Plaintiffs, vs. DET. JOSH CHAPPELL; SGT. MATT HIGLEY; DET. ERIK KNUTZEN; LT. MIKE BROWER, THE UTAH COUNTY SHERIFFS OFFICE; TIM TAYLOR and JOHN NIELSEN, Prosecutors, Utah County Attorney’s Office; and JOHN AND JANE DOES 1-20, Defendants.

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COMPLAINT and JURY DEMAND

Civil No. _______________

Judge ___________________

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Plaintiffs Roger Kay Mortensen (“Roger”) and Pam Mortensen (“Pam”), pursuant to Rule 8(a), Fed.R.Civ.P., complain and allege for causes of action against Defendants as follows: PRELIMINARY STATEMENT This is a civil rights action in which the Plaintiffs seek relief for the Defendants’ violations of their rights guaranteed by the United States Constitution, specifically the Fourth and Fourteenth Amendments, which rights are further secured by the Civil Rights Act of 1871, 42 U.S.C. § 1983 and § 1988. Plaintiffs seek damages, both compensatory and punitive; affirmative and equitable relief; an award of attorney’s fees, costs, and interest; and other and further relief as this Court deems just and equitable. This is further an action at law to redress a deprivation under color of statute, ordinance, regulation, custom, or usage of a right, privilege, and immunity secured to the Plaintiffs by the Fourth and Fourteenth Amendments of the Constitution of the United States, and arises under the law, statutes, and Constitution of the State of Utah.

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JURISDICTION AND VENUE 1.

This action arises under the United States Constitution and

federal law, particularly under the provisions of the Fourth and Fourteenth Amendments of the Constitution of the United States, and 42 U.S.C. §§ 1983 and 1988. 2.

This action seeks redress for violations of the civil rights laws

of the United States, and jurisdiction is therefore invoked pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. 3.

The claims made in this Complaint occurred and arose in the

State of Utah, in this District, and in the Central Division. Venue is therefore proper under 28 U.S.C. § 1391 and 28 U.S.C. § 1331. 4.

Plaintiffs are seeking damages under federal law pursuant to the

claims for relief specified below, in amounts to be proved at trial. 5.

This Court has authority to award costs and attorney fees

pursuant to 42 U.S.C. § 1988. 6.

This Court also has jurisdiction over any pendent State claims

Plaintiffs may wish to bring, or have brought, pursuant to 28 U.S.C. § 1367.

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PARTIES 7.

Plaintiff Roger Kay MORTENSEN, husband of Pam

Mortensen and son of Kay Mortensen, deceased, is a citizen of the United States of America and a resident of Utah County, State of Utah. 8.

Plaintiff Pam MORTENSEN, wife of Roger Mortensen and

daughter-in-law of Kay Mortensen, deceased, is a citizen of the United States of America and a resident of Utah County, State of Utah. 9.

Defendant Det. Josh CHAPPELL, at all times relevant herein,

was a Detective employed by the Utah County Sheriff’s Office (“UCSO”), a governmental entity operating under the laws and statutes of the State of Utah. He was “lead investigator” into the murder of Kay Mortensen for the UCSO. 10.

Defendant Det. Matt HIGLEY, at all times relevant herein,

was a Detective or Deputy employed by the Utah County Sheriff’s Office, a governmental entity operating under the laws and statutes of the State of Utah. 11.

Defendant Det. Erik KNUTZEN, at all times relevant herein,

was a Detective or Deputy employed by the Utah County Sheriff’s Office, a governmental entity operating under the laws and statutes of the State of Utah. KNUTZEN was also the “Case Sergeant” assigned to the murder investigation by the UCSO.

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12.

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Defendant Lt. Mike BROWER, at all times relevant herein,

was a Lieutenant employed by the UCSO, and was the “lieutenant over the investigation division.” Lt. Brower supervised the entire murder investigation and those working on it, including CHAPPELL and KNUTZEN. Brower’s division was “responsible for the investigation.” He responded to the crime scene and “kind of oversaw efforts, investigative process with regarding interviews with suspects, with witnesses. Also involved with warrants that had been executed. It was kind of overseeing the case.”

Brower Testimony, Grand Jury Day 1

(hereinafter, “GJD-1”), 85:12-19. 13.

Defendant John J. NIELSEN, at all times relevant herein, was

a prosecutor employed by the Utah County Attorney’s Office, a governmental entity operating under the laws and statutes of the State of Utah. NIELSEN served as both an investigator in the underlying murder investigation, as a witness before the Grand Jury, and as an attorney for the prosecution at the Grand Jury proceeding. 14.

Defendant Timothy L. TAYLOR, at all times relevant herein,

was a prosecutor employed by the Utah County Attorney’s Office, a governmental entity operating under the laws and statutes of the State of Utah. TAYLOR served as both an investigator in the underlying murder investigation, as a witness

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before the Grand Jury, and as an attorney for the prosecution at the Grand Jury proceeding. 15.

This action is brought against Defendants Chappell, Higley,

Knutzen, Brower, Nielsen, Taylor, and John and Jane Does 1-20 in both their individual and official capacities. Their authority to act was derived from Utah State law and/or the commands and directives of their superiors. All of the acts of the individuals and entities listed herein were performed under color of the laws, statutes, ordinances, regulations, policies, customs, and usages of the State of Utah, and each said individual is a person liable under 42 U.S.C. § 1983. Defendants were, at all relevant times, employees of the Utah County Sheriffs Office, Utah County Attorney’s Office, or Payson City Utah Police Department, and were operating under the corporate powers of said agencies. 16.

Plaintiffs will serve notice of their pendent state claims against

the Defendants pursuant to Utah law.

These claims are present or will be

amended into this Complaint at a later time. However, Plaintiffs deny that notice of such state claims is required of any of the current claims in this Complaint since all current claims deal with constitutional violations under 42 U.S.C. § 1983, and state law notice of such claims is not required.

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FACTUAL ALLEGATIONS 17.

On November 16, 2009, on or about 6:00 p.m., Roger and Pam

Mortensen drove to Kay Mortensen’s home in Payson Canyon for a visit. 18.

As they arrived, they noticed an unfamiliar car parked near the

residence. Roger and/or Pam later described this car as a small, compact, “hatchback type” car, dark in color, or dark blue. 19.

Roger and Pam were greeted at the door by two unknown males

who took them hostage at gunpoint. 20.

Roger and Pam were directed to the sunken living room where

their hands and feet were tied with “zip ties.” 21.

A brief time after the suspects left, Pam and Roger were able to

free themselves from the zip ties. 22.

Immediately upon freeing themselves, at about 7:45 p.m. on the

same day, Pam called 911. At the same time, Roger went upstairs and discovered that his father, Kay, had been murdered. The later autopsy showed that his throat had been cut several times, and that he had a stab wound in his back. 23.

Several police officers from different agencies, including

deputies and detectives from the Utah Sheriff’s Office, responded to the area to assist and investigate.

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24.

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The interior of the residence did not appear to have been

disturbed, but Kay had an underground bunker on his property, and dozens of expensive guns had been stolen from the bunker. DESCRIPTIONS OF THE SUSPECTS 25.

False & Misleading Statements. Defendants made multiple

false and misleading statements to the Grand Jury that misrepresented or concealed important exculpatory facts regarding Roger’s and Pam’s description of the suspects. For example, Roger and Pam Mortensen were characterized as unable to give any description of the suspects who killed Kay Mortensen. The following constitute some examples: a.

CHAPPELL [“vague . . . there was nothing”]:

Q. How did Pam describe to you . . . the suspects that allegedly were there? A. Her description was very vague. . . . unable to give an age . . . . But you know, when it came to suspect description, . . . there was nothing. [W]e had a whole team of investigators and police officers that were waiting for some, some detailed description as to the suspects and to the vehicle, and we were wanting to get that information out to them so it would give us some direction, somewhere to go. GJD-2, 24:4-25:10 [emphasis and double emphasis added; irrelevant information omitted].

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b.

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BROWER [“couldn’t give us any descriptions”]: Lt. Mike

Brower testified: She couldn’t what they looked like, other than they were young, clean cut, no hats. Couldn’t give us any descriptions. Said she couldn’t do it. . . . Vague, vague descriptions. Roger was the same way. GJD-1, 107:10-18 (emphasis and double emphasis added). 26.

The Truth. The UCSO Incident Report contains several places

where a very good description of the suspects was given by Roger and/or Pam. These include: a.

RIDING Report. Deputy Riding of the UCSO reported the

following description by the Mortensens (both of them): I then asked the two VICTIMS/WITNESSES, later to be identified as Roger and Pamela Mortensen, to give me a description of the suspects. They described them as two white males, 20-25 years old, 5'8", 160 lbs, with short dark hair. The hair appeared to be dark like it was colored or sprayed on. They had a mustache, possibly a gotee, and wearing levi’s [sic]. They stated that they both looked the same .... UCSO, p.46 (emphasis and double emphasis added). b.

CHAPPELL

&

KNUTZEN

Interview.

Det. Chappell

summarized Roger’s description of the suspects: Roger describes the suspects as looking like each other, with short black hair. It appeared that the suspects hair was either painted on or dye [sic]. These were white guys and “Their language was perfect.” -9-

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Both suspects were 20-25 years old. The suspects were wearing Levi’s [sic] and Roger was unable to give any type of shirt description. The suspects were wearing “Blue fuzzy gloves.” . . . Later Roger describes the suspects as being his same build, which is 5' 09" tall and approximately 160-165 lbs. UCSO, p.183, Interview of Roger Mortensen by Dets. Knutzen and Chappell at 1:05 a.m. on 11/17/09 (emphasis and double emphasis added). c.

SCOTT interview of William Lemieux. Deputy Jody Scott

interviewed a friend of Roger’s, one William Lemieux, on 11/18/09. He records: Mr. Lemieux said Roger told him that . . . the suspects were . . . Roger’s size, 150 to 165 lbs., and that they were probably a little bit bigger than Mr . Lemieux, within an inch or so and a little bit better built than Mr. Lemieux, their hair was shorter than Roger’s, that it wasn’t natural black hair, that it was painted on or recently dyed, and that they were really clean cut. UCSO, p.143 (emphasis added). d.

SCOTT Interview of Mr. Quist. Deputy Scott interviewed

a Mr. Quist and recorded the following: Mr. Quist said Roger further described the suspects as being 2 white males in their early to mid-20s, about 5' 9", skinny, with sprayed on hair . . . . UCSO, p.51 (emphasis added). e.

SCOTT Interview of “Citizen Informants.” Det. Scott’s

report, under the title “Suspect at Mountain View Hospital Identified,” states that on 2/16/10 he met with two “citizen informants,” both of whom were present at -10-

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Mountain View Hospital on 11/16/09 at 21:49 hours when the “suspicious male” began talking to them “about the homicide regarding this case.” UCSO, p.53. They gave the following description: The male described the suspect mentioned as being a white male, about 5'10", 150-175 lbs., with a goatee that was reddish brown in color, and blue eyes, wearing a black jacket, light blue jeans, and a black beanie. . . . The male informant recalled the suspicious male asking them if someone had come into the hospital with their throat sliced, saying someone had killed a guy in Payson Canyon by cutting a guy’s throat, and the suspect laughed about the incident, and spoke to them about it with a happy look on his face . UCSO, p.153 (emphasis added). This description, of who later turned out to be Trent Oryall, fits Roger’s description of the two perpetrators almost exactly (height, weight, skin color, facial hair or goatee, possibly hair color, and levis). This “sighting” occurred just hours after the murder and apparently before the murder was made public, so these were highly exculpatory facts. TRENT ORYALL – THE MAN AT THE HOSPITAL 27.

False & Misleading Statements. Defendants made several

false and misleading statements to the Grand Jury that misrepresented or concealed important exculpatory facts regarding “other suspects” in the investigation, particularly Trent Oryall. For example, Defendants misled the Grand Jury and falsified exculpatory evidence regarding the exact identity and description of the man, Trent Oryall, who entered the Mountain View Hospital

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in Payson just hours after the murder of Kay Mortensen, and asked witnesses if “a person had been brought in who had their throat cut.” UCSO, p.157. See also Fact 26(e), above. The following constitute some examples of such false and misleading testimony that omits, falsifies, and/or conceals Oryall’s identity and other exculpatory facts: a.

CHAPPELL [unable to “identify the person”]. As “lead

investigator,” Chappell clearly knew that the “male individual” had in fact been identified as Trent Oryall, but falsely claimed otherwise: Q. And finally, could you talk -- could you tell the jury about what happened with a man at the local hospital that night, the night of the murder? A. Yeah, the night of the murder, there’s a male individual that comes into Mountain View Hospital down in Payson. . . . . Anyway, he comes into that, that small corridor area and has a conversation with two individuals that are at the vending machines, appeared to be at the vending machines. **** Q. What did these individuals describe that conversation as? A. You know, I wasn't involved with that conversation, so I don't know the exact details of it. I think they were also shown the video and maybe even shown to see if they knew who this person was. But based on what I , they don't -- they were never able to identify the person that was in the video. Q. Do you recall what he asked them? A. I don’t. Det. Chappell testimony, GJD-2, 42:24-43:23, (emphasis and double emphasis added).

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b.

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HIGLEY [never “found out who that was”]. Higley also

falsely claimed that Oryall’s identity had never been discovered: Q. . . . there is some information provided to the jury that there was a man who went to the hospital in Payson – A. Correct. I did see that. Q. -- the night of the homicide. Could you explain to the jury what that situation was and how your investigation proceeded on that point? A. Sure. We were able to obtain some video surveillance from Mountain View Hospital, and you can see an individual walking in. There's like a double door there. And in that double door, there’s two, a male and a female standing in there. And the individual that walks in, makes a cutting motion, a slashing motion across his neck. And then shortly thereafter walks further into the hospital. **** Q. And what was the conversation that took place? A. I believe the individual asked if anybody had come in with a slit throat? Q. And do you know about what time this took place? **** A. I don’t . I don’t that time. Q. And what did you do to try to follow up on that? A. I believe it was Detective Adams, Zach Adams was able to make with those two individuals that were inside the hospital and talked with them, and they attempted to find out who that individual was that walked in and did the cutting motion. But I don’t believe they found who that was. Q. And is the video very clear? Can you see? A. Oh, yes, it's very clear. **** Q. All right. So difficult to identify this person? A. Yes. Q. And you weren’t able to track him down -A. No, I don’t believe so. GJD-2, 77:8-79:3 (emphasis and double emphasis added).

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28.

The Truth.

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The UCSO Incident Reports contain many

s of highly exculpatory interviews with at least seven different people, all of whom positively identified the man at the hospital as Trent ORYALL, and who provided other exculpatory facts, such as those in ¶ 26(e) above, that were misrepresented or concealed from the Grand Jury. Examples of such reports, in addition to ¶ 26(e), are as follows: a.

SCOTT Interviews. Det. Jody Scott of UCSO, Investigations

Division, was assigned on the day of the murder, 11/16/09, “to assist with the investigation of the homicide of Kay Mortensen.” He interviewed around two dozen people, in the presence of other officers.

His detailed report of the

interviews spans nearly 40 pages of the 205-page investigation report. See UCSO, pps.131-168.

There are multiple references in this report to exculpatory

interviews that point to Trent Oryall as a prime suspect, and as the man at the hospital referred to above. The following constitute some of those interviews: b.

SCOTT Interview of Thomas Nixon. Det. Scott interviewed

Thomas Nixon several times and recorded the following: I had spoken with Thomas Nixon several times throughout this investigation, and showed him the video of the suspect at Mountain View Hospital, as mentioned later in this report, at which time he told me he was 75% sure it was Trent Oryall in the video. Mr. Nixon told me he has associated with Mr. Oryall for several months and is familiar with Mr. Oryall’s looks and mannerisms, which is why

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he is confident it is Mr. Oryall. Mr. Nixon went on to tell me that one time while he was at the bar with Mr. Oryall, that Mr. Oryall started talking to him about a white supremacist gang he was connected to. Mr. Nixon said Mr. Oryall also talked about robbing and burglarizing equipment from homes and cars. UCSO, p.135 (emphasis and double emphasis added). c.

SCOTT Interview of Becky Olsen, Nurse at MVH. Det.

Scott interviewed Nurse Becky Olsen at Mountain View Hospital on 11/18/09 and recounted the following about that interview: Becky Olsen told us that she is a nurse for Mountain View Hospital in Payson, UT., and that she had the opportunity to view a hospital surveillance tape of an unidentified suspicious male person who came into the hospital on 11-16-09, at approximately 2149 hours inquiring of the staff if a person had been brought in who had their throat cut. Becky told us that she is very familiar with Trent Oryall, as Trent’s mother Deann Oryall also works at the hospital, with whom she has seen Trent often visit, as well as the fact that Trent used to be married to her niece Jennifer Edwards. Becky said she believed due to the mannerisms and gestures of the person on the tape, that the person was most likely Trent Oryall. Becky indicated that several other people at the hospital familiar with Trent, also felt this way including Tobias Peterson, and that Thomas Thornton who also works at the hospital actually spoke with the unidentified suspicious male on the date in question. UCSO, p.156-7 (emphasis and double emphasis added). d.

SCOTT Interview of “Citizen Informants.” Det. Scott’s

report, under the title “Suspect at Mountain View Hospital Identified,” states that on 2/16/10 he met with two “citizen informants,” both of whom were present at

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Mountain View Hospital on 11/16/09 at 21:49 hours when the “suspicious male” began talking to them “about the homicide regarding this case.” UCSO, p.53. Scott recorded the following : The female confidential citizen informant . . . described the male.... wearing . . . a black beanie cap that had a symbol on it. . . . I showed the female informant a photo of a black beanie confiscated during this investigation which is known to belong to Trent Oryall. The beanie has a West Coast Choppers insignia on it showing a “red cross,” outlined in white, and the word “Choppers” spelled out over the cross in black lettering. When the female informant saw the beanie she instantly told me she was 100 percent sure the suspect in the video mentioned was wearing the same exact looking beanie. I also showed the female informant 6 individual photos, one of which was of Trent Oryall. The informant then said looking and pointing to Mr. Oryall’s photo and the beanie, if you put that beanie on that person, I am 90 percent sure he is the person that spoke to my boyfriend and I, referring to the day, person and place in question. UCSO, p.153 (emphasis and double emphasis added). e.

KNAPP Interview of Tobias Peterson. Det. Knapp of UCSO

interviewed another witness at Mountain View Hospital about Trent Oryall: On November 18, 2009, I met with Tobias Peterson . . . Toby said that he works at the Mountain View Hospital with Trent Oryall’s mother. Toby works in building maintenance. Toby said that when he got to work, he heard of the video surveillance I had taken the night of November 16th. Toby watched the video on November 18 th and felt that the unidentified person in the surveillance video was Trent Oryall. UCSO, p.77 (emphasis and double emphasis added).

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f.

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STOUT Interview of Becky Olsen. Det. Stout of UCSO met

with and interviewed Becky Olsen, Jayeleen Edwards, and one “Kidrick,” apparently on 11/19/09, three days after the murder.

Stout recounted the

following in his report: Becky had ed us, as there was a video of a male who had walked into the Mountain View Hospital on November 16, 2009, prior to the media release of the homicide, and had inquired about someone being brought in with a slit throat. Becky had seen the video and had identified the male was Trent Oryall. . . . . In addition, a guy who worked with Becky, named Toby, had also identified the male as Trent Oryall. Trent’s mother also works at the hospital. Trent had been in the hospital earlier that day to visit his mother, and Trent stopped by and talked with Toby. Trent had told Toby that he had some guns for sale . . . Becky had called to report that she was certain the guy in the video was Trent Oryall. UCSO, p.47 (emphasis and double emphasis added). Guns were stolen from the Mortensen home by the perpetrators on 11/16/09. UCSO, p.113. Thus, Trent Oryall, who matches the description given by Pam and Roger, is offering “guns” for sale within hours of the “slit throat” in Payson Canyon, even before news of the “murder” was released to the media. These exculpatory facts were concealed and misrepresented to the Grand Jury by the UCSO. g.

Anonymous Tips Regarding Oryall’s Involvement. There

were two separate anonymous tips that Trent Oryall was involved in the murder

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of Kay Mortensen, which exculpatory facts were not disclosed to the Grand Jury. UCSO, p.14. h.

CHAPPELL Grand Jury Testimony. Chappell was asked

about Trent Oryall, Allen Russell, Calvin Sharp, and Cami Bills. He stated that one Jennifer Edwards had ed the Sheriff’s Office, and that Edwards said that these people might possibly be involved in the homicide of Kay Mortensen. GJD-2, 38:23-39:11. Chappell told the Grand Jury that these people had been “ruled

. . . out as suspects.”

GJD-2, 39:11.

The following testimony then

occurred: Q. A. Q. A.

Did these individuals’ names come up again – No. – when you interviewed other people? No.

GJD-2, 39:21-24 (emphasis added). This was a falsehood. TRENT ORYALL’S name, as well as others, came up many times during the interviews of other potential witnesses, and ORYALL was positively identified as the person who had come into the hospital on the night of the murder. See 28(a)-28(f). DESCRIPTION OF THE VEHICLES 29.

False and Misleading Statements. Various deputies testified

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a.

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CHAPPELL Grand Jury Testimony: “But you know, when

it came to suspect description, vehicle description . . . there was nothing.” GJD-2, 24:25-25:1 (emphasis added). He also testified, “There was no – she didn’t give a color, there was no body style. Nothing. Nothing like that.” GJD-2, 24:8-9 (emphasis added). 30.

The Truth. Detailed descriptions of the vehicle were given:

a.

CHAPPELL & KNUTZEN Interview of Roger Mortensen:

1:13:30. Roger describes the suspect vehicle as being a bright blue and compares the color to the new bright blue color Dodge is using for the new diesel trucks. According to Roger, the vehicle was a hatchback style vehicle, possibly a Honda Civic or a Mazda 3. UCSO, p.184, Interview of Roger Mortensen by Knutzen and Chappell (emphasis and double emphasis added). b.

RIDING Report.

Deputy Riding’s narrative from 11/17/09

provides: The vehicle was described as a DARK BLUE smaller car, like a hatchback. This was given to dispatch for an update. Riding Supplemental Narrative, UCSO p.46 (emphasis added). c.

SCOTT Report. The male “citizen informant” at Mountain

View Hospital informed Det. Scott that the man later identified as Trent Oryall got into a vehicle described as follows:

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The informant said he saw the suspect leave the hospital in a newer possibly 2007, baby blue colored, 4 door, hatchback, with another male which the informant was unable to describe. The informant said the car was most likely a Toyota Prius, or could possibly be a Mazda 3... UCSO, p.154 (emphasis and double emphasis added). WRITTEN STATEMENTS 31.

False and Misleading Statements.

Various deputies or

investigators testified falsely or in a misleading manner, that the Mortensens refused to provide written statements: a.

Ofc. Mike DOYL Testimony. Payson officer Doyl testified

as follows: Q. Okay. Now I hear at some point you ask both Pam and Roger to make written statements. Did they ever provide you with written statements as to what happened? A. No, they did not. . . . Q. But both of them refused? A. Yes, they did refuse. GJD-1, 72:16-25 (emphasis added). 32.

The Truth. Shortly after the police and other officers began

to arrive in response to Pam’s 911 call, Roger and Pam were asked to provide written statements while the details of the ordeal were fresh in their minds. Roger did not really “refuse” to provide such a statement, but said that he would rather “talk to someone” about it. UCSO, p.97. Pam did not “refuse” to give a written -20-

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statement either, but instead expressed skepticism that she would be able to explain much about the perpetrators. UCSO, p.97. She said, “We were told not to look at them, and we didn’t.” UCSO, p.97. ROGER AND PAM’S FINANCIAL STATE 33.

False and Misleading Statements. Defendants made false

and misleading statements to the Grand Jury that Pam and Roger were in financial trouble, leading the Grand Jury to believe they had financial motive to murder Kay Mortensen. The following constitute some examples: a.

Sgt. HIGLEY testified falsely as follows:

Q. Approximately how many collection type letters did you find would you estimate? A. There were several stacks, several stacks. Q. When you say stacks – A. Stacks like this. Q. – you are making eight or 9-inch motion with your hand there? A large stack. A. Large stack. **** Q. So based upon your observations of those apparently unpaid debts, what did you, what conclusions did you make about their financial state? A. I don’t think it was very good. That they were hurting for money. GJD-2, 80:19-81:22 (emphasis added). b.

Sgt. HIGLEY testified further regarding Plaintiffs’ mortgage:

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Q. Just describe for the jury just briefly how these documents related to paying the mortgage, just what they are. A. I found - - I don’t know how your mortgage payments are, if you have one, but some of them, some mortgage companies send out like a little check book that you -- tells you how much you owe when you owe it and you send that in with your house payment. Found those the last house payment, July’s was still in there. So it didn't appear they had made a house payment. Their last house payment would have been June. It was July, the last that was in there. GJD-2, 81:8-81:17 (emphasis and double emphasis added). 34.

The Truth.

Roger and Pam had three or four collection

notices at their house, altogether totaling between $3,000-$8,000, including minimal medical and dental bills.

They were not behind in their mortgage

payments. 35.

Pam and Roger’s bank records had been subpoenaed. The

investigators and prosecutors knew, or should have known, that Roger and Pam were not behind on their mortgage, nor was their financial situation particularly dire or calamitous, as the grand jury was led to believe. ROGER AND PAM “REACTED INAPPROPRIATELY” 36.

A major, pervasive theme of Prosecutor Nielsen’s presentation

to the grand jury was opinion evidence from the various investigators and other witnesses stating that after Kay’s murder, Roger and Pam were very unemotional

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under the circumstances, very cold in their demeanor, very calm, showing no emotion whatsoever, etc. 37.

False and Misleading Statements. The prosecution and

witnesses led the Grand Jury to falsely believe that Roger and Pam did not act the way they would expect a son and daughter-in-law to act when they discovered their father had been killed. The Grand Jury was led to believe that their reactions were evidence of their guilt. For example: a.

Sgt. BUFTON testified:

Q. A. Q. A.

Did you speak with Roger and Pam? I did. What was their demeanor as you spoke with them? Very calm. Again I was there within minutes of the 911 call, very calm, no emotion whatsoever.

GJD-2, 65:16-20 (emphasis added). b.

Ofr. DOYL testified:

Q.

Why don't you go ahead and describe the demeanor that you observed first with -- well, with regards to both Pam and Roger. The demeanor -- their demeanor was very confusing to me. It was definitely not that of someone that I would – how someone would act normally in the circumstances that they had just described, that they had just gone through. I didn't see any emotion in them at all. There were no tears from either one of them. No, you know, become hysterical, upset that the father had ed way....Just did not seem emotional whatsoever over what had happened.

A.

GJD-1, 73:1-13 (emphasis added, irrelevant portions removed).

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38.

Filed 10/17/11 Page 24 of 46

The Truth. Sgt. Higley interviewed Darla Mortensen, Kay’s

wife, on the evening of the murder.

Darla informed Higley that Roger had

suffered trauma to his brain and that he forgets things when he is under stress. UCSO, p.59. The prosecution never informed the Grand Jury that brain-injured people often act without emotion or filter. a.

Sgt. KNUTZEN conducted an extensive interview of Roger on

the evening of the murder. At one point, Roger informed Knutzen, “I have serious brain trauma, I have 'impulsiveness,' and I have frontal lobe injury.” UCSO, p.88. b.

Det. SCOTT interviewed William Lemieux a number of times.

Mr. Lemieux is a friend of Roger’s. During an interview on February 11, 2010, Mr. Lemieux told Det. Scott that “Roger has short term memory loss from a brain injury he suffered, that he doesn’t rationalize things. . . .” UCSO, p.146. c.

Roger’s serious brain injury, which clearly affected his

demeanor, memory, and other responses to this incident, was withheld from the grand jury.

Roger’s ATV accident was mentioned in ing twice, but the

permanent brain injury that resulted from this accident was never referenced. For example, in answer to a juror’s question, Darla Mortensen, Kay’s wife, stated, “...he had physical and mental problems. He’d been in a real bad ATV accident and had about died.” GJD-1, 215:13-15.

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d.

Filed 10/17/11 Page 25 of 46

In addition to Roger’s brain injury, the prosecution failed to

present the fact that Pam had literally defecated in her pants because she was so scared. UCSO, p.112 (“Pam describes using the bathroom”). FACTS RELATING TO THE PROSECUTORS 39.

Both prosecutors functioned at various times during the Grand

Jury proceeding as witnesses making statements of fact to be used as evidence by the Grand Jury. They also provided legal advice to the officers, and functioned as co-investigators of the facts with the officers. They may have also provided false information to the press. 40.

Prosecutor Nielsen examined Joshua Chappell on Grand Jury

Day 2. He posed questions about “the man” who came to the hospital and asked whether a patient had come in with his throat slit. GJD-2, 43. Chappell falsely claimed not to know the name of the person, claiming that he was never identified, and Nielsen knew that statement to be false. Id. See also ¶ 27(a). In that context, after the end of Chappell’s false testimony, Prosecutor Nielsen made this factual statement on the record to the Grand Jury: Mr. Nielsen: I was trying to get it in with Detective Chappell, but just for the jury’s information, again offered in the spirit of disclosure, there was – the police had information that an individual came to the hospital that night close to the time that the call came in and asked the people in the hospital if the man had been brought in whose throat was cut. That’s all, Your Honor. -25-

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GJD-2, 50:18-25 (emphasis added). At that point, the Court took a recess. So, from Chappell’s testimony, the jury was left with the false impression that no one ever identified the man at the hospital as Trent Oryall, or connected him to the murder. Mr. Nielsen then arose and confirmed this false impression with his “testimony,” knowing it to be false, while claiming to offer the false statement in the spirit of full “disclosure.” Prosecutor Nielsen was functioning as a witness when he made the above statement of fact, which he intended to be considered by the Grand Jury as evidence (“disclosure”), and which he intended to confirm Chappell’s false testimony (“I was trying to get it in with Detective Chappell”). 41.

In making the aforementioned statement, Prosecutor Nielsen

omitted the key fact in this “spirit of disclosure” that the person who came to the hospital that night was, in fact, Trent Oryall. He omitted that other witnesses had independently identified Oryall as having something to do with the murder of Kay Mortensen, as well as having had guns to sell the very night of the murder, when guns had been stolen during the murder. Nielsen further omitted from his disclosure that on the night of Kay’s murder, Oryall had been seen driving a car similar to what Pam and Roger had described. Prosecutor Nielsen thus factually reconfirmed for the Grand Jury Chappell’s earlier false impression, i.e., that the

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man at the hospital was never identified, which was at the very least a falsehood by omission. 42.

At the end of Grand Jury Day 2, one of the Grand Jurors asked

Prosecutor Taylor, “So, can we see Pam and Roger?” GJD-2, 185:25. Prosecutor Taylor also took the role of witness when he responded by leaving a false impression that Roger and Pam probably would not want to be there and would not say anything anyway. He left another factually false impression that “I don’t know what they will say,” when he had considerable evidence that they would controvert much of the false evidence presented. He stated: They . . . one of the onitions according to the statute is if a person is a subject to the criminal – to the Grand Jury, they have a right not to answer any questions. And so they – you have heard that they have, have an attorney at this point. I don’t know what they would say. We can go ahead and stop this at this point, issue a subpoena to them, come back tomorrow or whenever we get the subpoena served, and have them put on the stand and see what they will say. I don’t know what they will say. GJD-2, 186:1-10 (emphasis added). FAILURE TO FULLY INVESTIGATE 43.

Before the Defendants even had a chance to investigate the

bomb shelter in the back yard, or follow up on any other leads, officers on the scene had already indicated to one another that Plaintiffs were likely the murderers and their story was not being taken seriously. Transcript of Interview -27-

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between the Mortensens and the officers/deputies, 11/16/09 (“Transcript”), lines 1071-1124. 44.

Defendants discussed among themselves their skepticism of

Plaintiffs’ reports and explanations: Unidentified Officer: “Is it weird that [ ] the bomb shelter’s been breached, it’s probably heavily armed.” Transcript, l.1115. Deputy Dan Thomas: “The thing is though, it’s like, why, why do you take the effort, if you know you’re gonna kill him anyways, [ ] why do you make it so that it’s not a big mess and it’s in the bathtub, cause they don’t want to make it a mess;” Transcript, l.1116-1118. Deputy Craig Martinez: “They’re full of shit, that’s my bet.” Transcript, l.1121. Deputy Craig Martinez: “I just think it’s bullshit.” Transcript, l. 1123. Deputy Dan Thomas: “We’ll see, about life insurance.” Transcript, l. 1124. Emphasis added. ROGER AND PAM INDICTED 45.

After the prosecutor’s closing argument advocating for an

indictment against Roger and Pam, they were indeed indicted, arrested, and jailed for over four months awaiting trial. 46.

After Roger and Pam had spent over four months in jail, an

anonymous tip led investigators to two individuals, Mssrs. Rettig and Bond. Initially, in exchange for a plea deal, Rettig itted to being one of the two perpetrators involved in murdering Kay Mortensen. He later withdrew his plea. -28-

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Nevertheless, the indictment against Roger and Pam was struck, and Pam was subsequently released from jail. Roger was kept in jail on an unrelated charge, but eventually released. 47.

As demonstrated above, the Defendants testified in a false

and/or misleading manner on a number of issues, including direct falsehoods, misrepresentations, half-truths, and omissions of material, exculpatory facts. The result was that the Grand Jury was not provided numerous exculpatory facts and evidence and was left with a false impression of the true facts of this incident due to these misrepresentations, omissions, and false statements of the Defendants. FIRST CAUSE OF ACTION Malicious Prosecution – Misleading the Grand Jury Against the Officers and Deputies in their Individual and Official Capacities, In Violation of the Fourth Amendment, Cognizable Under 42 U.S.C. § 1983 48.

Plaintiffs incorporate by reference all above allegations.

49.

Law enforcement officers may be liable for the constitutional

tort of malicious prosecution if they knowingly supply false information before a Grand Jury. This is because the Mortensens have a Fourth Amendment right to be free from unreasonable seizures.

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50.

Filed 10/17/11 Page 30 of 46

A Section 1983 malicious prosecution claim includes the

following elements: a.

The Defendant causes the Plaintiffs’ prosecution;

b.

The original action terminated in favor of the Plaintiffs;

c.

No probable cause ed the original arrest, continued

confinement, or prosecution; d.

Defendant acted with malice; and

e.

The Plaintiffs sustained damages.

Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008). 51.

The Defendant deputies and officers in this case knowingly

and/or recklessly supplied false and misleading information to the Grand Jury as follows: a.

Claiming, among other things, that Roger and Pam Mortensen

did not describe the suspects, when in fact they did; b.

Failing to disclose exculpatory facts about Trent Oryall and other

possible suspects, and misrepresenting Trent Oryall as a non-suspect, when in fact he was a suspect; c.

Claiming that the Mortensens could not describe the suspects’

vehicle, when in fact they did;

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d.

Filed 10/17/11 Page 31 of 46

Falsely claiming that the Mortensens refused to provide written

statements, when in fact they did, or were willing to; e.

Falsely claiming, through a number of misleading statements

and omissions, that the Mortensens did not cooperate with the investigation of this murder; f.

Misrepresenting the Mortensens’ financial state; and

g.

Failing to disclose Roger’s serious brain injury, while, at the same

time, telling the Grand Jury that Roger showed no emotion and did not respond normally to his father’s death. 52.

At the time of this wrongful conduct, it was clearly established

that law enforcement officers were required to disclose exculpatory evidence in their possession and control to both the Grand Jury and to the prosecution, as well as to turn such evidence over to a prosecutor. Objectively reasonable officers would have known that they had a duty to disclose and turn over all such exculpatory evidence relating to the Mortensen murder investigation.

These

Defendants did not do so. 53.

These Defendants caused the Mortensens to be confined in jail

for nearly four months even though they were innocent of the charges.

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54.

Filed 10/17/11 Page 32 of 46

The prosecution of the Mortensens terminated in their favor

when the indictment was dismissed. 55.

No probable cause ed the original arrest, confinement,

and/or prosecution, since the officers lied and/or severely misrepresented and omitted facts that caused the Grand Jury indictment. 56.

The Defendants acted with malice, in that they intended to

cause the indictment, even though they knew or should have known there was insufficient evidence to move forward on it. 57.

The Plaintiffs were damaged in that they were imprisoned for

nearly four months, Pam lost her job, and they both sustained considerable humiliation, mortification, loss of status with the Mortensen family, and severe opprobrium from the community, which they still encounter, due to the false impression that they committed this gruesome murder. SECOND CAUSE OF ACTION False Arrest and False Imprisonment Against the Defendant Officers and Deputies In Their Individual and Official Capacities, In Violation of the Fourth and Fourteenth Amendments, Cognizable Under 42 U.S.C. § 1983 58.

Plaintiffs incorporate by reference all above allegations.

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59.

Filed 10/17/11 Page 33 of 46

An officer or deputy may not withhold or falsify facts to a

prosecutor, judge, or Grand Jury, so that said officials or persons cannot exercise an informed, independent judgment. Falsehoods, misleading statements, and/or omissions to Grand Juries are prohibited. 60.

The law enforcement personnel set forth above made numerous

false and misleading statements, and omitted a large number of exculpatory facts to the Grand Jury. 61.

As a result of the wrongful and bad faith conduct of these

officers and deputies, Roger and Pam Mortensen were indicted for the murder of Roger’s father, Kay Mortensen, which they did not commit. 62.

At the time of these Defendants’ wrongful conduct, it was

clearly established that law enforcement officers were required to disclose exculpatory evidence in their possession and control, and turn such evidence over to a prosecutor. Objectively reasonable officers would have known that they had a duty to disclose all such evidence relating to the Mortensen murder investigation. These Defendants did not do so. 63.

The actions of these Defendants caused or were instrumental

in causing the wrongful indictment of Roger and Pam Mortensen for a murder that they did not commit.

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64.

Filed 10/17/11 Page 34 of 46

The wrongful conduct of these officer/deputy Defendants

resulted in the false arrest and false imprisonment of Roger and Pam Mortensen. They served approximately four months in the Utah County Jail, awaiting trial for a murder that they did not commit. 65.

No probable cause ed the original arrest, confinement,

and/or prosecution, since the officers lied and/or severely misrepresented and/or omitted exculpatory facts that caused the Grand Jury indictment. 66.

The Plaintiffs were damaged in that they were imprisoned for

nearly four months, Pam lost her job, and they both sustained considerable humiliation, mortification, loss of status with the Mortensen family, and severe opprobrium from the community, which they still encounter, due to the false impression that they committed this gruesome murder. THIRD CAUSE OF ACTION Supervisory Liability of Chappell, Knutzen, and Brower In Their Individual and Official Capacities, Cognizable Under 42 U.S.C. § 1983 67.

Plaintiffs incorporate by reference all above allegations.

68.

Chappell acted as “lead investigator,” Knutzen acted as “lead

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69.

Filed 10/17/11 Page 35 of 46

These supervisors participated personally in this investigation,

and exercised control or direction of the investigation. Chappell and Knutzen were familiar with all of the facts, including all the exculpatory facts. 70.

Each of these Defendants caused the malicious prosecution,

false arrest, and imprisonment of Roger and Pam Mortensen by failing to exercise control, direction, and supervision to ensure that the exculpatory evidence that they had uncovered was fairly, accurately, and completely presented to the Grand Jury. 71.

Each of these Defendants knowingly and wrongfully supplied

false, incomplete, and misleading facts to the Grand Jury, which caused a wrongful indictment, as set forth in the First Cause of Action herein. 72.

Each of these Defendants is also responsible and exercised

direct authority to implement the policies of the UCSO, which required that the evidence be fairly and accurately presented, and it required that these Defendants tell the full truth when testifying before a judge or Grand Jury. 73.

Because of the actions of these Defendants, there was a failure

to disclose exculpatory evidence to the Grand Jury, which led to a wrongful and erroneous indictment.

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74.

Filed 10/17/11 Page 36 of 46

At the time of these Defendants’ wrongful conduct, it was

clearly established that supervisory law enforcement officers were required to disclose exculpatory evidence in their possession and control when testifying before a Grand Jury, and turn such evidence over to a prosecutor. Objectively reasonable supervisors would have known that they had a duty to disclose all such evidence relating to the Mortensen murder investigation. These Defendants did not do so. 75.

These Defendants caused the Mortensens to be confined for

nearly four months even though they were innocent of the charges. 76.

The prosecution of the Mortensens terminated in their favor

when the indictment was dismissed. 77.

No probable cause ed the original arrest, confinement,

and/or prosecution, since the officers lied and/or severely misrepresented and omitted facts that caused the Grand Jury indictment. 78.

The Defendants acted with malice, in that they intended to

cause the indictment, even though they knew or should have known there was insufficient evidence to move forward on it. 79.

The Plaintiffs were damaged in that they were imprisoned for

nearly four months, Pam lost her job, and they both sustained considerable

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humiliation, mortification, loss of status with the Mortensen family, and severe opprobrium from the community, which they still encounter, due to the false impression that they committed this gruesome murder. FOURTH CAUSE OF ACTION Utah State Constitutional Violations 80.

Plaintiffs incorporate by reference all above allegations.

81.

The Utah Constitution provides, among other things, the

following: Due Process of Law. No person shall be deprived of life, liberty, or property without due process of law. Article I, § 7. Prosecution by Information or Indictment – Grand Jury. Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the State, or by indictment, with or without such examination and commitment. The formation of the grand jury and the powers and duties thereof shall be as prescribed by the Legislature. Article I, § 13 (emphasis added). Unreasonable Searches Forbidden. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause ed by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.

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Article I, § 14 (emphasis added). 82.

The notice provision of the Utah Governmental Immunity Act,

as delineated in Utah Code Ann. § 63G-7-401(2), does not apply to Plaintiffs’ state constitutional claims because such claims are self-executing. 83.

A Utah State constitutional provision is self-executing:

. . . if it articulates a rule sufficient to give effect to the underlying rights and duties intended by the framers. In other words, courts may give effect to a provision without implementing legislation if the framers intended the provision to have immediate effect and if “no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed....” Spackman v. Box Elder School Dist., 16 P.3d 533, 535 (Utah 2000). No notice of claim is required for a self-executing Utah constitutional claim: . . . when a plaintiff brings suit under a “self executing” Utah constitutional clause, no notice of claim is required. See, e.g., Heughs Land, L.L.C. v. Holladay City, 113 P.3d 1024, 1027 (Utah Ct.App.2005). Tiscareno v. Frasier, 2009 WL 4730785 (D.Utah 2009) (reversed on other grounds in Tiscareno v. Anderson, 639 F.3d 1016 (10 th Cir. 2011) and affirmed in Tiscareno v. Anderson, 421 Fed.Appx. 842, __ F.3d __ (10th Cir. 2011)). 84.

In order to have a State Constitutional claim, a Plaintiff must

prove that the constitutional violation was “flagrant,” that existing remedies do not redress the injuries, and that equitable relief is wholly inadequate to protect

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the Plaintiff’s rights. The Defendant law enforcement officers flagrantly violated Pam and Roger Mortensen’s rights by presenting false and misleading testimony to the Grand Jury, omitting to state important exculpatory facts to the Grand Jury, and leaving a false impression with the Grand Jury about numerous items of potentially exculpatory evidence in order to secure an indictment. 85.

The Plaintiffs have no existing remedies to redress their

grievances, since they were falsely indicted and jailed for four months because of the wrongful conduct of the Defendants. They were only released when new evidence came to light, through an anonymous tip, that pointed to the guilt of other parties. 86.

There is no equitable relief that is in any way adequate, and is

in fact wholly inadequate, to redress the grievances of Pam and Roger Mortensen. They have already suffered the severe public opprobrium, unlawful imprisonment, and other damages, such that only a legal remedy is available to them. 87.

At the time of these Defendants’ wrongful conduct, it was

clearly established that law enforcement officers were required to disclose exculpatory evidence in their possession and control, and turn such evidence over to a prosecutor. Objectively reasonable officers would have known that they had a duty to disclose all such evidence relating to the Mortensen murder

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investigation. These Defendants did not do so, which flagrantly violated the Mortensens’ rights. 88.

These Defendants caused the Mortensens to be confined for

nearly four months even though they were innocent of the charges. 89.

The prosecution of the Mortensens terminated in their favor

when the indictment was dismissed. 90.

No probable cause ed the original arrest, confinement,

and/or prosecution, since the officers lied and/or severely misrepresented and omitted exculpatory facts that caused the Grand Jury indictment. 91.

The Defendants acted with malice, in that they intended to

cause the indictment, even though they knew or should have known there was insufficient evidence to move forward on it. 92.

As a direct and proximate result of Defendants’ wrongful acts

and/or failures to act, Plaintiffs were denied their constitutional rights to liberty, to substantive and procedural due process of law, to a proper and legal process of Grand Jury indictment, and to be free from unreasonable seizures and detentions, all of which caused them to suffer severe emotional and psychological stress. 93.

Plaintiffs were caused to endure emotional and psychological

stress and damage during the time of their incarceration, and they continue to

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endure such injuries as a result of the public estrangement, alienation, humiliation, and opprobrium from the community, caused by the malicious prosecution; the wrongful and illegal indictment; the wrongful arrest, detention, and denial of liberty; and other wrongful acts of the Defendants, as detailed herein. Accordingly, Plaintiffs seek damages in an amount to be determined at trial, as appropriate compensation for the injuries, past and ongoing, suffered by Roger and Pam Mortensen due to the false impression that they committed this gruesome murder. FIFTH CAUSE OF ACTION Constitutional Violations By the Prosecutors 94.

Plaintiffs incorporate by reference all above allegations.

95.

Prosecutors are generally absolutely immune from Section 1983

liability, as long as they are acting in the judicial or advocatory function of a prosecutor, i.e., the gathering, evaluation, and presenting of evidence. 96.

Prosecutors are not absolutely immune, but only qualifiedly

immune, when they function as a witness, provide legal advice to law enforcement, violate state statutes, or function as an investigator along with law enforcement. For example, prosecutors have no absolute immunity for pre-indictment fabrication of evidence, giving legal advice to law enforcement, making false

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statements at a press conference, making false statements at a probable cause hearing, violating state law, or presenting evidence functionally as a witness would present it. “When the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same.” Burns v. Reed, 500 U.S. 478, 495 (1991). 97.

Based on information and belief, the Defendant prosecutors in

this case functioned as investigators during the pre-Grand Jury investigation of the Mortensen murder. They did this by interviewing witnesses and advising law enforcement as to what evidence to obtain, how to obtain it, and how to testify and present it falsely or misleadingly before the Grand Jury. 98.

The Defendant prosecutors also functioned as witnesses in

presenting statements to the Grand Jury that were false and misleading, and which omitted material facts regarding the evidence. These prosecutorial statements were intended to suggest to the Grand Jury how they should evaluate other evidence. 99.

The

Defendant

prosecutors

flagrantly

violated

the

aforementioned state constitutional rights of Pam and Roger Mortensen. 100. These Defendants caused the Mortensens to be confined for nearly four months even though they were innocent of the charges.

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101. The prosecution of the Mortensens terminated in their favor when the indictment was dismissed. 102. No probable cause ed the original arrest, confinement, and/or prosecution, since, among other things, these Defendant prosecutors functioned as witnesses and severely misrepresented facts and/or omitted exculpatory facts, resulting in the Grand Jury indictment. 103. These Defendants acted with malice, in that they intended to cause the indictment, even though they knew or should have known there was insufficient evidence to move forward on it. 104. As a direct and proximate result of Defendants’ wrongful acts and/or failures to act, Plaintiffs were denied their constitutional rights, as set forth above, including their liberty interest, causing them to suffer severe emotional and psychological stress. 105. Plaintiffs were caused to endure emotional and psychological stress and damage during the time of their incarceration, and they continue to endure such injuries as a result of the public estrangement, alienation, humiliation, and opprobrium from the community, caused to them by the malicious prosecution and other wrongful acts of the Defendants.

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106. Accordingly, Plaintiffs were damaged in that they were imprisoned for nearly four months, Pam lost her job, and they both sustained considerable humiliation, mortification, loss of status with the Mortensen family, and severe opprobrium from the community, which they still encounter, due to the false impression that they committed this gruesome murder. SIXTH CAUSE OF ACTION State Constitutional Violations Under Grand Jury Statute Against Defendant Prosecutors for Violation of § 77-10a-13 107. Plaintiffs incorporate by reference all above allegations. 108. Utah Code Ann. § 77-10a-13(5)(c) provides as follows: When the attorney for the state or the special prosecutor is personally aware of substantial and competent evidence negating the guilt of a subject or target that might reasonably be expected to lead the grand jury not to indict, he shall present or otherwise disclose the evidence to the grand jury before the grand jury is asked to indict that person. Emphasis and double emphasis added. 109. The Defendant prosecutors in this case were personally aware of substantial and competent evidence tending to negate the guilt of Pam and Roger Mortensen. This evidence might reasonably be expected to lead to nonindictment, had it been presented.

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110. These Defendant prosecutors had a duty to disclose such evidence to the Grand Jury before asking them to indict Pam and Roger Mortensen. They did not do so, and therefore failed in their statutory duty. 111. The failure to disclose such exculpatory evidence, as required by Utah law, was a flagrant act in violation of clearly established constitutional and statutory rights of which reasonable prosecutors would know.

This

constituted a flagrant constitutional violation. 112. There are no existing remedies to redress this injury, and equitable relief is wholly inadequate. As a result, the only avenue of redress for the Mortensens is a suit alleging a flagrant constitutional violation of Utah Code Ann. § 77-10a-13. 113. The Plaintiffs were damaged in that they were imprisoned for nearly four months, Pam lost her job, and they both sustained considerable humiliation, mortification, loss of status with the Mortensen family, and severe opprobrium from the community, which they still encounter, due to the false impression that they committed this gruesome murder. JURY DEMAND Plaintiffs request a jury trial on all issues in this case.

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REQUEST FOR RELIEF WHEREFORE, Plaintiffs demand judgment against Defendants as follows: 1.

For general compensatory damages for each of them in an

amount to be determined at trial; 2.

For special damages as are shown at trial;

3.

For punitive damages against named individuals for willful,

malicious conduct, as may be allowed by law; 4.

For pre-judgment interest on the damages assessed by the

verdict of the jury, as allowed by law; 5.

For Plaintiffs’ costs and reasonable attorney fees incurred

herein, pursuant to 42 U.S.C. 1988; and 6.

For such other and further relief as the Court deems just and

proper. DATED this 17th day of October, 2011. ROBERT B. SYKES & ASSOCIATES, P.C.

/s/ Robert B. Sykes ROBERT B. SYKES ALYSON E. CARTER Attorneys for Plaintiffs Q :\C L I E N T \2 1 0 1 M o r t e n s e n \2 . P \2 .1

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C A S E \C o m p la i n t .1 0 1 7 1 1 .w p d