KINGMAN - The Warren Jeffs case will not see a third or fourth grand jury. Judge Steven Conn denied Jeffs' attorneys' motion to remand the case back to a grand jury Monday afternoon.
"The court has determined that the defendant was not denied a substantial procedural right in the presentation of either of these cases to the grand jury," Conn's ruling states.
In June, Jeffs' attorney, Michael Piccarreta, filed a written motion to remand the case to the grand jury on the grounds that Jeffs was denied his right to due process and had not received a fair and unbiased grand jury.
Picarreta reiterated his arguments Friday in court before Conn.
"Absolutely nothing was done" by the county attorney to question or determine if grand jurors were biased against Jeffs because of the media coverage, he said.
"If this is sufficient in this case, with all the publicity, then there is no right to a fair and unbiased grand jury," he said.
"This is the most extreme situation (concerning media coverage) I've seen."
Smith agreed that media coverage of Jeffs and the situation in Colorado City had been extensive. Smith pointed to numerous times during the grand jury proceedings where he had asked both grand juries if they could remain unbiased and fair during the proceedings.
At least two jurors in one case excused themselves because they felt they could not be unbiased, he said, which proved that the jurors understood the situation and knew what actions they needed to take if they felt they could not treat Jeffs fairly.
"I think we went far and above any grand jury in this county (when dealing) with this case," Smith said.
He pointed out that there is no case law that states that the county should have done an extensive questionnaire or questioning of grand jurors to determine bias before seating a grand jury on the case.
Grand juries are simply convened to determine if there is enough evidence to bring a case against a defendant. A grand jury does not determine whether a defendant is guilty or not.
In his ruling, Conn said that none of the cases Picarreta cited as examples involved publicity at the grand jury level. Most of the cases cited dealt with publicity at the trial jury level.
"The court determines that the law relating to pretrial publicity at a trial level does not apply to a case being presented to a grand jury," Conn stated. And, "a defendant has the burden of proving that pretrial publicly will likely deprive him of a fair trial. ... Prior knowledge of a case, by itself, is insufficient to disqualify a juror."
Conn later states that the questioning of the grand jurors may not have been as extensive as it should have been.
Picarreta also pointed out that Arizona had a unique legal definition of accomplice, which includes the requirement of intent by the accomplice to commit the crime.
"They had no idea," he said, "The grand jury was never told the complete law (relating to the definition of accomplice)."
Smith admitted that the exact subsection of the statute detailing intent, as part of the definition of accomplice, was not read, however, the grand jury did hear a general reading of the statute concerning the definition of accomplice.
"That does not get them by the problem," Picarreta later said.
In his written ruling, Conn states that although the county attorney did not specifically read the legal definition of accomplice from the statute, there was enough information in the part of the statute he did read to the grand jury for the jury to determine probable cause to indict Jeffs.
"Although the legal definition of an accomplice has features that may require some thought, it is not a concept that is completely incapable of being grasped by a grand juror for whom the word has been undefined as would be the case where an overt act was a necessary element," Conn writes.
Picarreta also argued that false and misleading evidence was presented to the grand jury; including prejudicial statements about Jeffs' religious beliefs and the fact that the two couples were first cousins.
Smith countered that statements made during the proceedings about the two couples being first cousins was not misleading and that other statements did not cast Jeffs' religion in a "unfair or sinister light."
He also told the grand juries multiple times not to consider polygamy or Jeffs' religion in their determination of whether or not to indict except where it had bearing on the case.
"The court cannot imagine under the circumstances that the mistaken belief that the parties were full first cousins rather than first cousins of the half blood so prejudiced the grand juries that they voted to indict the defendant," Conn stated.
Conn also stated that he was unable to find that the prosecution had failed to present exculpatory evidence to the grand jury.
Conn was also unable to find how the prosecution could avoid referencing Jeffs' religion during its presentation of evidence to the grand jury.
"The grand juries were told in these cases that the basis for the proposed charges was sex with underage girls, not polygamy or an unfamiliar religion or culture," Conn wrote.
Conn also found that the prosecution had handled the grand juries' questions appropriately.
"The questions asked by the grand jurors seemed to indicate that they wanted to understand the applicable law and that they were unwilling to act as the proverbial rubber stamp for the prosecution," Conn states. "The court can find no response by the state that undermined the fairness of this presentation."
On Friday, Conn also granted a motion to quash a subpoena the CAO had issued in order to get some church records that were seized from Jeffs during his arrest in Nevada.
Jeffs attorneys and the executor of the trust, who has control of some of the records, moved to quash the subpoena in June.
Smith did not object to quashing the subpoena.
Picarreta also asked Friday that Conn order the state to produce public records he had requested. Conn said he would rule on that motion next week.
After the hearing, Picarreta also announced that the defense plans to file a motion to challenge any evidence or information seized in the Texas raid earlier this year that may be used in the case.