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Win for Utah Families

An innocuous looking Senate bill, SB-99-Child Welfare Amendments, contained hidden language. The Department of Child and Family Services (DCFS) and Utah Attorney General’s Office added five lines to SB-99.

This language allowed the current practice of “withholding information from a petitioning parent to protect the privacy interest of the other parent or any caregiver who may also be a subject of their child’s records.”

Attorney Jane Tippets

Thanks to Jane’s eagle eyed husband Crossroads Urban Center advocate/associate director advocate, noticing the bill’s changes to the DCFS GRAMA statute. Attorney Greg Ferbrache wrote a letter testifying against the language in SB-99. After significant controversy, SB-99 was sent to the Utah House. It took three substitution and amendment, removing the problematic language.

The pro transparency/pro family bill version of SB-99 passed the House unanimously and unopposed! An impressive feat. This is a victory for the survivors of domestic abuse. Greg was proud to submit his testimony to the Stop of Fix SB-99 movement, resulting in DCFS having accountability to parents, especially low income parents so heavily impacted by these provisions.

Ferbrache Law is proud to serve it’s clients working to lobby for responsible laws and public policy. Helping Utah families, parents and individuals is a rewarding pursuit for Greg. A special thanks to the volunteers of the Conference Committee who worked very hard to get SB-99 fixed:

Sponsor Senator Harper wharper@le.utah.gov 801-566-5466

Senator Todd Weiler  tweiler@le.utah.gov 801-599-9823

Senator Luz Escamilla  lescamilla@le.utah.gov

Representative Paul Ray pray@le.utah.gov 801-550-6434

Representative Ashlee Matthews amatthews@le.utah.gov 801-725-2719

Representative Casey Snider cnider@le.utah.gov 435-890-3383

Feel free to call them and thank them for their work on this. It made a difference. If you’d like to know more about SB-99 Check out these useful documents:

SB 99 Concerns Fact Sheet Legal AnalysisDownload
SB 99 Concerns SummaryDownload
The word “Only” in SB 99Download
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Utah SB 99 Proposed Revision

SB 99 Letter to House CommitteeDownload

I submitted this testimony to help not only my clients but all families facing challenges with DCFS. Ensuring Utah’s laws serve it’s citizens. Representing my clients isn’t limited to the courtroom. It extends to the legislature and how laws are made.

“During my past three years in private practice, I have experienced the importance of transparency and access to government records and have seen the harm caused when essential records are not fully produced in a timely manner.”

Greeting to Committee Chair Representative Nelson, House Health & Human Services Committee Members, SB99 Sponsor Paul Ray, SB99 Senate Sponsor Wayne Harper, and my District Representatives and Senators:

I am requesting this House Health and Human Services Committee remove from SB 99 its proposed revisions to §62A-4a-412, the statute DCFS turns to when making disclosures in response to GRAMA requests.

I am corresponding to each of you as a prior prosecutor with the Salt Lake County District Attorney’s Office, a prior prosecutor and Division Director of the Justice Division within the Utah Attorney General’s Office and currently a private attorney. As of 2018, my practice involves advocating for victims and defending those charged within the criminal justice system. I reside in House District 28 and Senate District 4, and my firm is located in House District 25 and Senate District 3.

During my past three years in private practice, I have experienced the importance of transparency and access to government records and have seen the harm caused when essential records are not fully produced in a timely manner.  In particular to DCFS, access to DCFS records is essential to properly advocate for victims, defend against false accusations, to protect the child, to better understand the allegation and/or to ensure the decisions made by a DCFS worker is sound and based in fact, and that it adheres to policy and best practice. 

Under the current version of §412(3)(b), DCFS has almost no discretion to withhold/redact information when providing a record to a parent as it is “only” permitted to withhold/redact the specific information referred to in the statute.  On the other hand, SB 99 lines 522-23 and 527 remove the word “only” as well as the language establishing that §412(3)(b) preempts GRAMA.  These seemingly minor changes would give DCFS broad discretion to withhold information, such as its communications with the other parent and other parties, that it currently has no option but to disclose under existing law.  

In addition to further restricting access to some records, the changes would make the process for obtaining DCFS records much more arduous and expensive.  Broadening DCFS’s discretion in determining what to withhold from and what to provide to a parent would inevitably lead to more appeals and delay in disclosure of important records through the lengthy appeal process.   I do not see a fiscal note on the Bill and I am concerned that with the volume of cases there would be a substantial fiscal impact not currently recognized in the fiscal note.

Part of my concern with SB 99 is that by making the process to obtain records more arduous and expensive it would be also be restricting the right of access in the same way charging parents for their records would.  SB 99 would also disparately impact those families with limited time and money and especially disadvantage those dealing with financial and other types of abuse in the context of litigation. 

It is with great respect to the legislative process that I inform you of my concern with SB99.  I have reviewed the Senate committee testimony relating to SB99. I have conferred with informed colleagues. The consensus is that there is a disagreement with DCFS as to the application of the referred to revisions in SB99.

It is for this reason that I respectfully ask this Committee remove them.  These lines are not material to the overall policy of the Bill. If passed, and the above unintended consequence be true, the overall negative impact and unintended harm to the families will never be restored. Let’s agree to get it right before enactment rather than fix it after passage. 

Thank you for your time.  

Be well, 

Gregory Ferbrache

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$10 Million Lawsuit Against The Waterford School for Failure to Protect Female Student With Disabilities Raped by Male Classmate

Febrache Law with Sanford Heisler Sharp LLP, filed a lawsuit for Tabitha Bell against The Waterford School. Tabitha was subjected to bullying, shunning by other students, consistent mistreatment by faculty and ignoring a traumatic rape by a male classmate. The male a student, a member of the lacrosse team has a known history of sexual harassment and physical violence.

Tabitha has the rare Charcot Marie Tooth (CMT) form of Muscular Dystrophy. Her balance is affected, limiting her mobility and general physical functioning. Ms. Bell is an exceptional student, graduating from the $25,000 a year Waterford School to attend University of California Berkeley. The trauma of her five years at Waterford she’s suffered haunts her.

“Although the school promised this young girl and her family its campus would be a haven where she could safely learn while receiving appropriate support and resources, Tabitha’s five-year tenure there was consistently traumatic and damaging, Waterford’s conduct can never be reversed and the detrimental effects it has had on Tabitha will likely impact her adversely for the rest of her life,”

Deborah K. Marcuse with Sanford Heisler Sharp’s Baltimore office.

In December 2015, Tabitha was knocked to the floor by a visibly drunk student at the school’s winter dance at which security staff was promised but not provided. As a result of the school’s lack of adequate supervision, Tabitha suffered a concussion, developed complications resulting in eight days of hospitalization. After the dance Tabitha was bullied mercilessly by peers, causing damaging social isolation. In one egregious instance, two boys simulated Tabitha’s rape on stage in front of the entire school. Rather than adequately punish the boys, the school singled them out for an end-of-year award and inducted them into the Cum Laude Honor Society, the school’s highest honor. Although her family made efforts to communicate their concerns to Waterford, the school took no action to address or stop other students’ harmful ostracizing behaviors targeting Tabitha.   

According to the complaint, these examples are not isolated incidents: throughout her time as a student, Waterford was unwilling to take the precautions necessary to ensure her safety and ensure that she had full access to school events and activities. In one of the most appalling examples of the school’s indifference to her disability, Tabitha had to rely on other students to carry her up and down the stage stairs at the school’s choir performances. The choir director regularly refused to allow her to use the handicap accessible entrance or use her support dog on stage because it “ruined the look” of the choir.

In November 2017, Tabitha was subjected to even more egregious and physically and emotionally damaging behavior when a male lacrosse player at Waterford, one of her few friends raped her at her home. When she told her parents about the sexual assault, they called the police and Tabitha cooperated in a police investigation.  She and her parents subsequently learned the rapist had a history of aggressive, sexually inappropriate behavior – including previously threatening another female student at Waterford with sexual violence. The school was aware of the student’s violent past, but did nothing to warn Tabitha or her parents.

When her parents informed Waterford about Tabitha’s rape, Waterford did nothing to safeguard Tabitha from her rapist, requiring her parents to secure a protective order to prevent the rapist from contacting her on campus.  In the wake of Tabitha’s report of the rape, students and faculty at the school escalated their bullying and school administrators directed other students not to speak to her and allowed her rapist, who had already graduated, access to the school campus despite the protective order.

“Because Waterford does not accept federal funds, which would subject it to the requirements of Title IX and the Americans With Disabilities Act, it seems to believe it can shirk its responsibilities to its students. However, under Utah state law, common law and the school’s own policies, Waterford must be held accountable for protecting its students. The school completely ignored these responsibilities.”

Christine Dunn, senior litigation counsel Sanford Heisler Sharp LLP

The complaint alleges Waterford is liable for negligence and breach of its duty of care; premises liability; negligent supervision of its faculty and students; invasion of Tabitha’s privacy by making a public disclosure of the facts of Tabitha’s rape to her entire senior class and much of the faculty; negligent infliction of emotional distress; fraud; violation of the Utah Consumer Sales Practices Act and negligent misrepresentation of the school’s ability to safeguard Tabitha’s physical, emotional, and social health and wellbeing. 

“The Bells incurred some $125,000 in tuition costs alone so their daughter could receive a high-quality secondary education. Instead, Tabitha was subjected to years of constant emotional and physical stress and unimaginable trauma.”

Greg Ferbrache

The suit seeks $10 Million in compensatory, as well as punitive damages, along with legal costs and other relief the court may deem just and proper.  A jury trial is requested.

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Sentence Reduction In High Profile Oxycodone Case

After successful plea bargain negotiations Adam Patrick Hemmelgarn, 38 of Hooper was sentenced to 128 months of prison followed by three years’ probation. Prosecutors agreed to drop three other charges. Mr. Hemmelgarn will pay $15,100 in funeral expenses for the man who died after ingesting fentanyl-laced fake Oxycodone sold by Mr. Hemmelgarn.

The national media widely reported this and a related oxycodone case after the death of Jaydon Rogers on March 14, 2018. A Weber County Sheriff found Rogers unresponsive in his West Haven home on March 12, 2018, noticing a pill on the floor leading to an overdose investigation. Over the next few months Weber County Detectives and federal agents traced the fentanyl laced pills back to Mr. Hemmelgarn.

Rogers had been a wrestling coach at Freemont High School after college. He was a state wrestling champion in 2014 and won All-American honors at junior college.

Greg Ferbrache with co-council negotiated a plea deal for Mr. Hemmelgarn. Cases with intense media scrutiny, like this case can create pressure on prosecutors to seek harsh sentences. Opioid addiction and overdose is a national epidemic, garnering greater attention to individuals prosecuted for opioid offenses.
If you or someone you know is struggling with drug addiction please call: 801-583-2500. The University of Utah offers a program for drug addiction treatment. 

Greg Ferbrache is an experienced defense attorney and former prosecutor. Call him: (801) 440-7476 to ensure your right’s are protected. 

To find out more about this case: “Utah man who sold fake oxycodone that led to a death headed to prison” Desert News article published 9/19/2019

“Utah man who sold fake oxycodone that led to a death headed to prison” KSL.com published 9/19/2019

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Combat Military Veteran Vindicated of all Criminal Charges

A two time combat veteran was arrested after being forced to leave a Mia Love rally. He fought and won.


“An injustice anywhere is a threat to justice everywhere”


– Martin Luther King, Jr.

Joshua Cameron, a two time U.S. Army war campaign combat veteran, was vindicated after being charged with criminal trespassing and disorderly conduct at a political rally for Mia Love, held at Thanksgiving Point. At the Mia Love rally, he was first prohibited from carrying the American Flag and when he sought to have his voice heard while at the Rally, Thanksgiving Point security immediately escorted Mr. Cameron out of the building. Although he complied with each of their demands, Mr. Cameron believes his own congressional representative at the time, Mia Love, had him thrown out and asked that the Lehi City Police Department cite him for criminal trespassing and disorderly conduct.

Knowing the importance of the matter, he hired Ferbrache Law to ensure his best outcome and to secure his constitutional rights at all costs. Zealously advocating for his client, Greg Ferbrache obtained a dismissal on the morning of trial from Lehi City. Mr. Cameron was exonerated.

The cost of Mia Love using the government to impose her will of suppressing one man’s voice because she may have disagreed with his opinion was to expend tax money in the form of law enforcement and prosecution. The cost to Mr. Cameron, who had earned his right to speak as an American, voter, and combat veteran, and was doing so at a political rally within the district he was to vote, were legal fees and the stigma of being treated as a criminal.

Mr. Cameron would like to go on record with the following statement:

“When I was escorted out of a political rally, where my Lt Governor, State Attorney General, Auditor, U.S. Senator and Federal Representative were, they thought they had seen the last of me. They thought they could bulldoze over my rights, which I had fought for in multiple war zones. We live in a time where our government throw babies in cages. Mia Love and the other elected officials may not want to hear the truth, especially during an election, but she shouldn’t be able to hide from the truth by using the government as a tool to suppress the truth. Since I spoke out at the Mia Love Rally on the evening of August 24, 2018, multiple children have died while in immigration custody. Poor people with no money and no power are being locked up on our southern border. The system tried to threaten me with six months in jail, and a criminal record. Because I stood up and had the money to hire a lawyer who would fight for my constitutional rights, the charges were rightfully dismissed. Without financial means, I too could be detained much like those on our Southern border if I had not challenged the system. To allow these people to be detained, thrown in dog kennels and treated with indignity and injustice, allows our very citizens to be treated the same way. To stand up for these people is to stand up for ourselves.”


Joshua Cameron

Despite Mr. Cameron’s constitutional rights disregarded by his own elected delegates that evening, Mr. Cameron will again look toward having his voice heard. He encourages you to do the same.

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College student will be among first to test new law’s impact on sex assault cases

by Cristina Flores Wednesday, April 3rd 2019 KUTV NEWS Channel 2 Salt Lake City

SALT LAKE CITY (KUTV) — Tabitha Bell, 18, now a college student in California, will come back to Utah to take advantage of a new law that gives victims of sexual assault a second chance to take their alleged perpetrators to trial.

House Bill 281 — Prosecution Review Amendments — which goes into effect on May 13, will give the Utah Attorney General’s Office authority to give a second look to first-degree felony cases that were vetted by police, but got no action from local prosecutors and never made it to trial.

Bell said she relived the pain of her assault in police interviews and in interviews with prosecutors. She then lived through more pain when prosecutors declined to take her case to trial — even though police felt it had merit.

“If you are going to put yourself through all that emotional trauma, you should have something come of it,” she said.

Paul Cassell, a law professor at the University of Utah and a former judge, said sexual assault cases will be most impacted by the new law.

Utah, he said, has a low rate of prosecution for sexual assault cases. He’s not sure why.

“I think part of it is prosecutors are just demanding a very high level of evidence to move forward. Higher than in other parts of the country,” he said.

Dr. Julie Valentine, a professor at Brigham young University and a forensic nurse who has been a leader in advocating for Utah sex assault victims and for more prosecutions, said her research found that in Salt Lake County alone, only 6% of sexual assault cases make it to trial.

Of those cases, only 6% lead to convictions.

That’s likely because prosecutors only take on the cases where they feel very confident they’ll get a conviction.

Valentine said sexual assault cases are challenging because, often, there are no witnesses and, often, the defense attorneys attack the victims during trial.

“We are not trying to imply they are easy cases, we are saying we need more prosecutions of these cases,” Valentine said.


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Salt Lake leaders hope ‘Start by Believing’ campaign, new legislation will encourage assault victims to make voices heard

Fox News 13 POSTED 5:49 PM, APRIL 3, 2019, BY AMANDA GERRY, UPDATED AT 08:03PM, APRIL 3, 2019

SALT LAKE CITY – The Salt Lake City Mayor’s Office said more can be done to battle sexual assault and we can start by believing victims and their stories.

“One of the most common reasons victims of sexual assault do not report the crime is a fear of not being believed and being blamed for the attack,” said Jennifer Seelig, director of community empowerment at the SLC Mayor’s Office.

Salt Lake City became a “Start by Believing” city Wednesday, joining a campaign that encourages the community to support assault victims and hear their stories.

“I’m here today to let them know that I support them, law-enforcement supports them, the City of Salt Lake, the Mayor of Salt Lake City supports them, and that they’ll be believed, and we’ll help them get the services and resources they need,” said Representative Angela Romero.

A member of the Utah Council of Crime Victims also highlighted a new bill that would be another option if victims feel like their voices have been silenced.

“That house bill authorizes the attorney general’s office to take a second look at cases that have been presented to a county or district attorney and have been denied for prosecution,” said Reed Richards, Utah Council of Crime Victims.

This bill will help victims like Tabitha Bell, who says although her experience with the police was relieving, once the district attorney took her case, things started going south.

“On the declination letter, they did not even have the respect to spell my name correctly,” Bell said.

She says when she reported being raped back in November 2017, prosecutors mishandled her report and did not show her and her family the empathy they deserved.

“Why did you think she wanted it when he shoved her face in the couch,” Tabitha said her dad had asked representatives in the District Attorney’s Office. “And they were like, well maybe she wanted it that way.”

One-in-3 Utah woman will be sexually assaulted in their lifetime, and Chief Mike Brown of the Salt Lake City Police Department says since his agency has become more sensitive to these incidents, more people have become comfortable enough to come forward.

“In the old days, they used to be just, you know, I need the facts. Well, those days are gone. You don’t investigate like that anymore. You go out, and you’re understanding, and you’re sympathetic,” Brown said.

Officials say they hope this awareness and new legislation will bring criminals of assault to justice.

“I feel like with this is helping me to prove to my high school community and to my attacker that they can’t get away with punishing me for coming out,” Bell said, “and I really hope that all the other victims who have not had the strength will be able to come out as well.”

Utah was the first to announce the first Wednesday in April as “Start by Believing” Day, which is nationally recognized.

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Salt Lake leaders declare a ‘Start by Believing’ city

Published by Deseret News April 3, 2019 6:51 pm
By Lauren Bennett & Annie Knox

SALT LAKE CITY — Four women seeking criminal charges for sexual assaults they reported but never saw go to court are now turning to a new Utah law that allows them more options for prosecution, stepping forward on the same day Salt Lake City leaders declared their commitment to believing victims.

With the passage of HB281 by the Utah Legislature, which gives certain rape and sexual assault victims a second chance to pursue criminal charges after a prosecutor declines their case, the four women, who previously asked the Utah Supreme Court to assign a new prosecutor to their cases, withdrew their petition Wednesday.

Tabitha Bell, one of the women who petitioned Utah’s high court in October after prosecutors from the Salt Lake County District Attorney’s Office declined to file charges, gripped her service dog Nox as she spoke Wednesday about her experience as a sexual assault survivor.

“Not every victim gets a great family like I do and I just want to make sure with this bill that every victim can be believed and get the justice they deserve,” she said at a news conference Wednesday.

According to the petition, Bell, who has a form of muscular dystrophy, was raped when she was 17 by a classmate of the same age. Bell said it was one week before she told her mother about the assault, and she said she wanted people to understand victims’ responses to assault.

She said she froze during her assault, and because of that, she said she was victim blamed by some. She shared her hope Wednesday that this campaign and the new law will enhance the experience for other sexual assault victims.

“Hopefully no other victim will have to go through this process of feeling not believed,” she said later Wednesday during a panel discussion before University of Utah law students.

The Deseret News typically does not identify victims of sexual assault but Bell agreed to identify herself as Jane Doe No. 1 in the case.

Bell spoke at a news conference Wednesday focused on supporting sexual assault victims in honor of Start by Believing Day, part of the national campaign geared toward supporting victims of sexual assault and removing the stigma surrounding it.

According to court documents, the four women have asked the Utah Attorney General’s Office to conduct a fresh review of their cases under the new law.

Gov. Gary Herbert signed HB281 last week, but it does not take effect until May.

The bill gives the Utah Attorney General’s Office authority to reconsider first-degree felony cases and possibly file criminal charges after a county attorney passes on the case or waits more than six months to evaluate it. First-degree felonies, considered the most serious offenses, include rape, object rape and murder.

Critics have said the secondary reviews may be unnecessary because prosecutors carefully weigh the cases in the first place, but supporters contend it is a fallback measure in rare instances where a well-founded criminal case is declined.

Previously, Utah’s attorney general could intervene, according to the law’s sponsor, Rep. Karianne Lisonbee. But that’s been possible only when there’s been an abuse of discretion by a district or county attorney, generally meaning a clear error or unreasonable conclusion, the Clearfield Republican has said in the past.

The first Wednesday in April was designated as Start by Believing Day by the 2015 Legislature, when Rep. Angela Romero, D-Salt Lake City, sponsored HCR1, a resolution aimed at supporting survivors of sexual violence and the End Violence Against Women International’s Start by Believing campaign.

Utah was the first to declare the annual day and the nonprofit later adopted the day as part of its Start by Believing campaign.

Also Wednesday, Salt Lake leaders declared it would be a “Start by Believing” city.

Jennifer Seelig, director of community empowerment with the Salt Lake City mayor’s office, read the proclamation on behalf of Mayor Jackie Biskupski, who was sick and unable to attend.

The proclamation cited data from the 2007 Utah Commission on Criminal and Juvenile Justice Rape study, which found 1 in 3 Utah women will be sexually assaulted in their lifetime, higher than the national average for sexual assault crimes.

“We encourage the people and organizations of Salt Lake City to provide support to survivors of rape and sexual assault,” Seelig read from the proclamation.

Reed Richards, of the Utah Council of Crime Victims, also spoke in support of the declaration, as well as Heidi Nestel, director of Utah Crime Victims Legal Clinic.

“This I think provides a wonderful right to our crime victims in the state of Utah,” Richards said of the new law. “A wonderful step forward in the Utah legal system.”

Alexandra Merritt, a victim advocate with the clinic, read a statement from the woman identified as Jane Doe No. 4 in the petition, who was unable to attend the event.

“I almost did not report my sexual assault because I knew the process would be scary and difficult and I was very afraid to make it a part of my life,” Merritt read from the statement. “The truth was my perpetrator already made sexual assault a part of my life, and it was up to me stand up for myself and fight for justice.”

Paul Cassell, a University of Utah law professor and former federal judge, represents the four women along with four other attorneys.

“It’s been an honor to represent these brave young women,” Cassell told the Deseret News Wednesday. “They’re sort of the test case, if you will, and what we’re very excited about is by pushing these four cases forward we’ve gotten legislation that’s going to hopefully make a difference.”

The Utah attorney general supports the law, according to a written statement from his office.

“Attorney General Sean Reyes is a fierce advocate of providing justice and a voice for those who have endured a violent crime and for punishing those responsible,” Rich Piatt, spokesman for the attorney general’s office, said in the statement. “This new law will provide backup support to Utah’s county and district attorneys who work hard to take criminals off the streets. We will continue to work with the legislature to make sure we have the resources we need to review these additional cases. Victims and their families deserve as much.”

Salt Lake County District Attorney Sim Gill did not respond to requests for comment, but said in October in response to the original petition that his office has “always supported victim rights and advocates for victims. And one of our challenges, of course, is this issue is not just simply an issue of our prosecution. It’s a broader issue of attrition rates systemically.”

Gill said at the time that if a case is declined, there can be “further investigation.” However, prosecutors “have an obligation” to meet their burden of proof and make sure there is enough evidence.

Following the news conference, the Women’s Law Caucus held a panel about the underprosecution of sexual assault cases with Cassell, Nestel and forensic nurse and BYU assistant professor Julie Valentine. Bell and Bethany Warr, attorney with the victim’s legal clinic who represent’s some of the women from the petition, also joined the panel.

Nestel noted that sexual assault cases are difficult to take to court.

“We know these prosecutors are dedicated to this process, we just have a lot of challenges sometimes convincing juries and educating them to victim behavior,” she said.

But she added she didn’t want people to think it’s all “doom and gloom,” when it comes to prosecution of sexual assault cases.

“What I am here to report is we are seeing some very creative and inspired prosecutors across the state who are trying to take some of these tough cases,”

Valentine spoke about her 2013 study, which examined prosecution rates for sexual assault cases in Salt Lake County between 2003 and 2011 and found that charges were not filed in 91 percent of cases — a larger number than the national number of about 82 to 84 percent.

Valentine said she is in the process of repeating the study to compare numbers and said she hopes to see a huge difference, one she credits to changes in how law enforcement handles sexual assault cases.

She challenged the audience to take what they heard Wednesday to heart and work to change the stigma surrounding sexual assault.

“I feel that this research and this movement is a spark, but it needs to be a bonfire and that bonfire needs to mean all of us working together and saying, ‘Tabitha, we believe you and we are going to do what we can as a society to support survivors with the goal of decreasing sexual violence,’” she said, a nod to Bell. “You all have heard the numbers about our high rates of sexual violence and we need to and I believe we can change this.”

Those who have experienced sexual abuse or assault can get assistance from Utah’s statewide 24-hour Rape and Sexual Assault Crisis Line at 888-421-1100.

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A court’s secrecy order blocks access to the investigation into a BYU police lieutenant who shared info with the Honor Code office

-Jessica Miller Salt Lake Tribune Originally published Friday, March 8, 2019

A lieutenant with Brigham Young University’s police department took information
from private records created by other Utah County law enforcement agencies and
passed it on to university officials investigating students for breaking school rules.
His actions sparked a criminal investigation that lasted more than two years and has
been done for months.
So, how many records involving how many students did Lt. Aaron Rhoades access?
That information is not public.
Neither are the answers to questions like these: At whose direction did he look at the
nonpublic police databases? What kind of information did he share? How did the
university use that information?

Greg Ferbrache — a former prosecutor with the attorney general’s office who is now in private practice — said the secrecy orders are not intended to keep the public from knowing about what happened. He said it is most often used to protect the constitutional rights of those who are accused.
“Its purpose is not to keep an investigation under secrecy forever,” he said.
But in the investigation into BYU police, it’s not clear why the records would remain under seal.

When will Utahns get to know these answers? Possibly never.
Since authorities began investigating BYU police in 2016, the state Department of
Public Safety and the Utah attorney general’s office have remained tight-lipped, and
have blocked The Salt Lake Tribune’s records requests seeking that information.
Officials publicly acknowledged for the first time this week their reason why: A Utah
judge issued a secrecy order in the investigation nearly three years ago at the request
of prosecutors — an order that remains in place to this day.
What judge is keeping the investigation behind closed doors?
That, too, is a secret.
“This cannot stand,” said Tribune Editor Jennifer Napier-Pearce. “This investigation
was conducted by the state of Utah and should be available to the public.”
She said the newspaper is exploring its options, including possible legal action, to get
access to records it has been fighting for since 2016.
“While we’re happy to finally know why they haven’t turned over their findings to us,”
she said, “we’re very concerned to learn that a secrecy order is in place.”
The Tribune on Wednesday received a response to a records request in which the
attorney general’s office explained why it can’t release information on the completed
investigation.
“Beginning in July 2016, secrecy orders have been entered at the request of the state
of Utah,” the denial reads. “These secrecy orders entered at the request of the state of
Utah remain in place.”
The Tribune asked BYU for comment and a spokeswoman said all they could do is
A report released last week gave a hint at the scope of the investigation — that state
authorities believe Rhoades accessed private police reports from Orem police, the
Utah County Sheriff’s Office and Provo police over a two-year period. He took
information from those reports and shared them with BYU’s Dean of Students Office,
the Title IX office and the Honor Code Office.
State prosecutors could not speak about the court action, citing the secrecy order. But
Criminal Deputy Craig Barlow, with the attorney general’s office, explained the
process generally, saying a prosecutor’s request for secrecy is not all that unusual. He
estimated that investigators make dozens of these secrecy requests every year —
usually to not alert a potential suspect to the police’s efforts.
Secrecy orders are also often used in financial crimes, Barlow explained, where
investigators may want a bank to hand over records without telling a suspect. They
are also frequently used in investigating drug-trafficking operations.
There are no expiration dates on these orders.
This means some investigations could remain under seal indefinitely, though Barlow
said investigations are most often made public if prosecutors decide to file charges.
The law “is almost silent about what happens when you get to the end,” Barlow said.
“There really is no guidance about how to go about an exit strategy.”

Greg Ferbrache — a former prosecutor with the attorney general’s office who is now in private practice — said the secrecy orders are not intended to keep the public from knowing about what happened. He said it is most often used to protect the constitutional rights of those who are accused.
“Its purpose is not to keep an investigation under secrecy forever,” he said.
But in the investigation into BYU police, it’s not clear why the records would remain
under seal.

There is no pending investigation, and the attorney general’s office announced in
October that prosecutors had decided months earlier to not file criminal charges
against Rhoades. A panel of prosecutors had decided the case against him “lacks a
reasonable likelihood of conviction,” the office said.
The Tribune obtained BYU documents in 2016 that showed Rhoades accessed a
countywide database to collect information from another police department for an
Honor Code investigation of an alleged sexual assault victim.
The documents show an Honor Code investigator contacted Rhoades in 2015 asking
him for information in the rape case. The lieutenant looked at the records that same
day, and relayed intimate details back to the investigator.
The Honor Code at BYU — which is owned by The Church of Jesus Christ of Latterday Saints — is a set of administrative rules that forbids alcohol and coffee, restricts
contact between male and female students, imposes a strict dress code, and bans
expressions of romantic affection between people of the same gender.
Rhoades retired from the BYU police department last fall, according to his attorney,
and later gave up his police certification after the state’s Peace Officer Standards and
Training (POST) began its own investigation. He had been a police officer in Utah for
34 years, according to POST records.
The criminal investigation is at the heart of why BYU may lost its police force entirely,
after it was announced last week that state officials are seeking a historic
decertification.
In a letter to BYU, state officials say they want the university to lose its policing
powers because the department did not conduct an internal investigation into
allegations of misconduct by a specific BYU police officer during a two-year period
ending in April 2018. The letter doesn’t name the officer or the specific misconduct
allegations, but the timeframe covers the same period DPS was investigating
Rhoades.
DPS officials also say that BYU police failed to respond to a subpoena that was issued
as state regulators were investigating an officer for misconduct. A December letter to
BYU police instructed the agency to allow DPS access to all “records, personnel and
electronic data” so investigators could assess how its officers use a police records
database, the command structure at BYUPD and “the powers, authority and
limitations” of BYU police officers.
BYU has said it plans to appeal the state’s decision to decertify its police force, which
would take effect Sept. 1.
An issue also at play is the ongoing debate about whether BYU police should be
subject to Utah’s record laws like every other police department in the state. The
Tribune has sued to force BYU police to abide by the Utah Government Records
Access and Management Act, or GRAMA. The newspaper received a favorable ruling
from a state district judge, but BYU has appealed to the Utah Supreme Court. A
hearing has not been scheduled.
Attorneys for the campus argue in court papers that as a private institution, BYU
should not be subject to records laws meant for government agencies.
But BYU officials have supported legislation that would require its police
departments to be subject to open records laws. That bill, if passed, would not be
retroactive and wouldn’t necessarily settle the ongoing litigation.

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