Mortensen lawsuit

8/3/2019 Mortensen lawsuit

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ROBERT B. SYKES (#3180)[email protected]

ALYSON E. CARTER (#9886)[email protected]

ROBERT B. SYKES & ASSOCIATES, P.C.

311 South State Street, Suite 240Salt Lake City, Utah 84111Telephone (801) 533-0222Facsimile (801) 533-8081

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

ROGER KAY MORTENSEN, andPAM MORTENSEN,

Plaintiffs,

vs.

DET. JOSH CHAPPELL; SGT.MATT HIGLEY; DET. ERIKKNUTZEN; LT. MIKE BROWER,THE UTAH COUNTY SHERIFFSOFFICE; TIM TAYLOR and JOHNNIELSEN, Prosecutors, UtahCounty Attorneys Office; and

JOHN AND JANE DOES 1-20,

Defendants.

)))))))))))))))

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COMPLAINT

and

JURY DEMAND

Civil No. _______________

Judge ___________________

Case 2:11-cv-00964-DAK Document 2 Filed 10/17/11 Page 1 of 46
mailto:[email protected]:[email protected]


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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. PlaintiffPam 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 Sheriffs 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 Sheriffs Office, a


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

was a Detective or Deputy employed by the Utah County Sheriffs Office, a


KNUTZEN was also the Case Sergeant assigned to the murder investigation by

the UCSO.

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12. 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. Browers 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 Attorneys 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 Attorneys 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 Attorneys 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 Mortensens 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, hatch-

back 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 Sheriffs Office, responded to the area to

assist and investigate.

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24. 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 Rogers and Pams 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 werethere?A. Her description was veryvague. . . . unable to give an age . . . .But you know, when it came to suspect description, . . . there wasnothing. [W]e had a whole team of investigators and police officersthat were waiting for some, some detailed description as to thesuspects and to the vehicle, and we were wanting to get thatinformation 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. BROWER [couldnt give us any descriptions]: Lt. Mike

Brower testified:

She couldnt remember what they looked like, other than they wereyoung, clean cut, no hats. Couldnt give us any descriptions. Said shecouldnt do it. . . . Vague, vague descriptions. Roger was thesame 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 thesuspects. They described them as two white males, 20-25 years old,

5'8", 160 lbs, with short dark hair. The hair appeared to bedark likeit was colored or sprayed on. They had a mustache, possibly agotee,and wearing levis [sic]. They stated that they both looked the same. . . .

UCSO, p.46 (emphasis and double emphasis added).

b. CHAPPELL & KNUTZEN Interview. Det. Chappell

summarized Rogers description of the suspects:

Roger describes the suspects as looking like each other, with shortblack hair. It appeared that the suspectshair was either painted onor dye [sic]. These were white guys and Their language was perfect.

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Both suspects were20-25 years old. The suspects were wearing Levis[sic] and Roger was unable to give any type of shirt description. Thesuspects were wearing Blue fuzzy gloves. . . . Later Roger describesthe suspects as being his same build, which is 5' 09" tall andapproximately160-165 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 Rogers, one William Lemieux, on 11/18/09. He records:

Mr. Lemieux said Roger told him that . . . the suspects were . . .Rogers size, 150 to 165 lbs., and that they were probably a little bitbigger than Mr . Lemieux, within an inch or so and a little bit betterbuilt than Mr. Lemieux, their hair was shorter than Rogers, that itwasnt naturalblack hair, that it waspainted on or recently dyed, andthat 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 being2 whitemales in theirearly to mid-20s, about5' 9", skinny, withsprayed on

hair. . . .

UCSO, p.51 (emphasis added).

e. SCOTT Interview of Citizen Informants. Det. Scotts

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.

They gave the following description:

The male described the suspect mentioned as being a white male,about5'10", 150-175 lbs., with agoatee that was reddish brown incolor, and blue eyes, wearing a black jacket, light bluejeans, and ablack beanie. . . . The male informant recalled the suspicious maleasking them if someone had come into the hospital with their throatsliced, saying someone had killed a guy in Payson Canyon by cuttinga guys 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 Rogers 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, particularlyTrent 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 Oryalls 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 whathappened with a man at the local hospital that night, the night of themurder? A. Yeah, the night of the murder, theres a male individual thatcomes 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'tknow the exact details of it. I think they were also shown the videoand maybe even shown to see if they knew who this person was. Butbased on what I remember, they don't -- they were never able toidentify the person that was in the video.

Q. Do you recall what he asked them?A. I dont.

Det. Chappell testimony, GJD-2, 42:24-43:23, (emphasis and double emphasis

added).

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

falsely claimed that Oryalls identity had never been discovered:

Q. . . . there is some information provided to the jury that there wasa 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 whatthat situation was and how your investigation proceeded on thatpoint? A. Sure. We were able to obtain some video surveillance fromMountain View Hospital, and you can see an individual walking in.There's like a double door there. And in that double door, theres two,

a male and a female standing in there. And the individual that walksin, makes a cutting motion, a slashing motion across his neck. Andthen 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 slitthroat?

Q. And do you know about what time this took place?* * * *

A. I dont remember. I dont remember 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 makecontact with those two individuals that were inside the hospital andtalked with them, and they attempted to find out who that individualwas that walked in and did the cutting motion. ButI dont believethey found who that was.

Q. And is the video very clear? Can you see?A. Oh, yes, it's very clear.

* * * *Q. All right. Sodifficult to identify this person?A. Yes.Q. And you werent able to track him down --A. No, I dont believe so.

GJD-2, 77:8-79:3 (emphasis and double emphasis added).

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28. The Truth. The UCSO Incident Reports contain many

accounts 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 thisinvestigation, and showed him the video of the suspect at MountainView Hospital, as mentioned later in this report, at which time hetold me he was 75% sure it was Trent Oryall in the video. Mr.Nixon told me he has associated with Mr. Oryall for several monthsand is familiar with Mr. Oryalls looks and mannerisms, which is why

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he is confident it is Mr. Oryall. Mr. Nixon went on to tell me thatone time while he was at the bar with Mr. Oryall, that Mr. Oryallstarted talking to him about a white supremacist gang he wasconnected to. Mr. Nixon said Mr. Oryall also talked about robbing

and burglarizing equipment from homes and cars.


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

Scott interviewed Nurse Becky Olsenat 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 Hospitalin Payson, UT., and that she had the opportunity to view a hospitalsurveillance tape of an unidentified suspicious male person who cameinto the hospital on 11-16-09, at approximately 2149 hoursinquiring of the staff if a person had been brought in who had theirthroat cut. Becky told us that she is very familiar with Trent Oryall,as Trents mother Deann Oryall also works at the hospital, withwhom she has seen Trent often visit, as well as the fact that Trent

used to be married to her niece Jennifer Edwards. Becky said shebelieved due to the mannerisms and gestures of the person on thetape, that the person was most likely Trent Oryall. Becky indicatedthatseveral other people at the hospital familiar with Trent,also feltthis way including Tobias Peterson, and that Thomas Thornton whoalso works at the hospital actually spoke with the unidentifiedsuspicious male on the date in question.

UCSO, p.156-7 (emphasis and double emphasis added).

d. SCOTT Interview of Citizen Informants. Det. Scotts

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 account:

The female confidential citizen informant . . . described the male....wearing . . . a black beanie cap that had a symbol on it. . . .I showedthe female informant a photo of a black beanie confiscated during thisinvestigation which isknown to belong to Trent Oryall. The beaniehas a West Coast Choppers insignia on it showing a red cross,outlined in white, and the word Choppers spelled out over the crossin black lettering. When the female informant saw the beanie she

instantly told meshe was 100 percent sure the suspect in the videomentioned was wearing the same exact looking beanie. I also showedthe female informant 6 individual photos, one of which was ofTrentOryall. The informant then said looking and pointing to Mr. Oryallsphoto 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.


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 saidthat he works at the Mountain View Hospital with Trent Oryallsmother. Toby works in building maintenance. Toby said that whenhe got to work, he heard of the video surveillance I had taken the

night of November 16th. Toby watched the video on November 18th

and felt that the unidentified person in the surveillance video was

Trent Oryall.


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f. 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 contacted us, as there was a video of a male who hadwalked into the Mountain View Hospital on November 16, 2009,prior to the media release of the homicide, and had inquired aboutsomeone 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 alsoidentified the male as Trent Oryall. Trents mother also works at thehospital. Trent had been in the hospital earlier that day to visit hismother, and Trent stopped by and talked with Toby. Trent had toldToby 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 Oryalls 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 contacted the Sheriffs 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. Did these individuals names come up again A. No.Q. when you interviewed other people?A. No.

GJD-2, 39:21-24 (emphasis added). This was a falsehood. TRENT ORYALLS

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

falsely or in a misleading manner, claiming that the Mortensens failed to give a

vehicle description:

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a. 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 shedidnt 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 blueand compares the color to the new bright blue color Dodge is using forthe new diesel trucks. According to Roger, the vehicle was a

hatchback style vehicle, possibly aHonda 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 Ridings narrative from 11/17/09

provides:

The vehicle was described as a DARK BLUE smaller car, like ahatchback. 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 asTrent Oryall

got into a vehicle described as follows:

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The informant said he saw the suspect leave the hospital in a newerpossibly 2007, baby blue colored, 4 door, hatchback, with anothermale which the informant was unable to describe. The informant saidthe car was most likely a Toyota Prius, or could possibly be a Mazda

3 . . .


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 Rogerto make written statements. Did they ever provide you with written

statements as to what happened? A. No, they did not. . . .Q. But both of themrefused? 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 Pams 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

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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 didnt. UCSO, p.97.

ROGER AND PAMS 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 findwould you estimate?A. There were several stacks, several stacks.Q. When you say stacks

A. Stacks like this.Q. you are makingeight or 9-inch motion with your hand there?A large stack.A. Large stack.

* * * *Q. So based upon your observations of those apparently unpaiddebts, what did you, what conclusions did you make about theirfinancial state? A. I dont 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 documentsrelated to paying the mortgage, just what they are. A. I found - - I dont know how your mortgage paymentsare, ifyou have one, but some of them, some mortgage companiessend outlike a little check register book that you -- tellsyou how much youowe when you owe it and you send that in withyour house payment.Found those the last house payment, Julyswas still in there. So it

didn't appear they had made a house payment. Their last housepayment would have been June. It was July, the last register that wasin 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 Rogers 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 Nielsens presentation

to the grand jury was opinion evidence from the various investigators and other

witnesses stating that after Kays 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. Did you speak with Roger and Pam?A. I did.Q. What was their demeanor as you spoke with them?A. Very calm. Again I was there within minutes of the 911 call,

very calm, no emotion whatsoever.


b. Ofr. DOYL testified:

Q. Why don't you go ahead and describe the demeanor that youobserved first with -- well, with regards to both Pam and Roger.

A. The demeanor -- their demeanor was very confusing to me. Itwasdefinitely not that of someone that I would how someonewould act normally in the circumstances that they had just

described, that they had just gone through. I didn't see anyemotion in them at all . There were no tears from either one ofthem. No, you know, become hysterical, upset that thefatherhad passed way....Just did not seem emotional whatsoever overwhat had happened.

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

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38. The Truth. Sgt. Higley interviewed Darla Mortensen, Kays

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 Rogers. 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 doesnt rationalize things. . . . UCSO, p.146.

c. Rogers serious brain injury, which clearly affected his

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

grand jury. Rogers ATV accident was mentioned in passing twice, but the

permanent brain injury that resulted from this accident was never referenced. For

example, in answer to a jurors question, Darla Mortensen, Kays wife, stated,

...he had physical and mental problems. Hed been in a real bad ATV accident

and had about died. GJD-1, 215:13-15.

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d. In addition to Rogers 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 alsoprovided legal advice to the officers, and functioned as

co-investigators of the facts with the officers. They may have also providedfalse

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 ofChappells 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 jurys information, again offered in the spirit ofdisclosure, 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. Thats all, Your Honor.

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GJD-2, 50:18-25 (emphasis added). At that point, the Court took a recess. So,

from Chappells 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

Chappells 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 Kays 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 Chappells 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 dont

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 admonitions according to the statute is if aperson is a subject to the criminal to the Grand Jury, they have aright not to answer any questions. And so they you have heard thatthey have, have an attorney at this point. I dont know what they

would say. We can go ahead and stop this at this point, issue asubpoena to them, come back tomorrow or whenever we get thesubpoena served, and have them put on the stand and see what theywill say. I dont know what they will say.


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

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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 shelters beenbreached, its probably heavily armed. Transcript, l.1115.Deputy Dan Thomas: The thing is though, its like, why, why doyou take the effort, if you know youre gonna kill him anyways, [ ]why do you make it so that its not a big mess and its in the bathtub,

cause they dont want to make it a mess; Transcript, l.1116-1118.Deputy Craig Martinez: Theyre full of shit, thats my bet.Transcript, l.1121.Deputy Craig Martinez: I just think itsbullshit. Transcript, l.1123.Deputy Dan Thomas: Well see,about life insurance. Transcript,l. 1124.

Emphasis added.

ROGER AND PAM INDICTED

45. After the prosecutors 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 admitted to being one of the two

perpetrators involved in murdering Kay Mortensen. He later withdrew his plea.

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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 OfficialCapacities,

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. A Section 1983 malicious prosecution claim includes the

following elements:

a. The Defendant causes the Plaintiffsprosecution;

b. The original action terminated in favorof the Plaintiffs;

c. No probable cause supported the original arrest, continued

confinement, or prosecution;

d. Defendant acted with malice; and

e. The Plaintiffs sustaineddamages.

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

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 todisclose 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. 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 Mortensensdid not cooperate with the investigation of this

murder;

f. Misrepresenting the Mortensensfinancial state; and

g. Failing to disclose Rogersserious brain injury , while, at the same

time, telling the Grand Jury that Roger showed no emotion and did not respond

normally to his fathers 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. The prosecution of the Mortensens terminated in their favor

when the indictment was dismissed.

55. No probable cause supported 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,



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59. An officer or deputymay 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

Rogers 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. 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.


and/or prosecution, since the officers lied and/or severely misrepresented and/or

omitted exculpatory facts that caused the Grand Jury indictment.






THIRD CAUSE OF ACTION

Supervisory Liability of Chappell, Knutzen, and Brower

In Their Individual and Official Capacities,



68. Chappell acted as lead investigator, Knutzen acted as lead

sergeant, and Brower acted as supervising lieutenant over the Mortensen

murder investigation.

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69. 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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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.





omitted facts that caused the Grand Jury indictment.






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FOURTH CAUSE OF ACTION

Utah State Constitutional Violations


81. The Utah Constitution provides, among other things, the

following:

Due Process of Law. No person shall be deprived of life, liberty, orproperty without due process of law.

Article I, 7.

Prosecution by Information or Indictment Grand Jury.

Offenses heretofore required to be prosecuted by indictment, shall beprosecuted by information after examination and commitment by amagistrate, unless the examination be waived by the accused with theconsent of the State, or by indictment, with or without suchexamination and commitment. The formation of the grand jury andthe 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 besecure in their persons, houses, papers and effects againstunreasonable searches and seizures shall not be violated; and nowarrant shall issue but upon probable cause supported by oath oraffirmation, particularly describing the place to be searched, and theperson 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 underlyingrights and duties intended by the framers. In other words, courts maygive effect to a provision without implementing legislation if the

framers intended the provision to have immediate effect and if noancillary legislation is necessary to the enjoyment of a right given, orthe 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 (UtahCt.App.2005).

Tiscareno v. Frasier, 2009 WL 4730785 (D.Utah 2009) (reversed on other grounds

in Tiscareno v. Anderson, 639 F.3d 1016 (10 Cir. 2011) and affirmed in Tiscarenoth

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 Plaintiffs rights. The Defendant law enforcement officers flagrantly violated

Pam and Roger Mortensens 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.


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.







omitted exculpatory facts that caused the Grand Jury indictment.




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


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.



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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



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


108. Utah Code Ann. 77-10a-13(5)(c) provides as follows:

When the attorney for the state or the special prosecutor ispersonallyaware of substantial and competent evidence negating the guilt of a

subject or target that might reasonably be expected to lead the grandjury not to indict, he shall present or otherwise disclose the evidenceto 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 non-

indictment, 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.






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 17 day of October, 2011.th

ROBERT B. SYKES & ASSOCIATES, P.C.

/s/ Robert B. SykesROBERT B. SYKESALYSON E. CARTER


Documents

Mortensen lawsuit