Utah lawyers disciplined a high-profile elected prosecutor. Here’s how he’s fighting back.

With the grieving relatives of two slain teens looking on, Utah County Attorney David Leavitt announced at a news conference in 2019 that he would seek the death penalty for accused killer Jerrod William Baum.

“I am going to give power back to people, in the form of juries, to decide,” Leavitt said. “It is the jury’s role to determine the guilt or innocence of this alleged killer. If they find him guilty, then it is the jury’s role to decide whether he should receive the death penalty or not.”

But as Leavitt had answered a reporter’s questions about the brutal killings of 18-year-old Riley Powell and 17-year-old Brelynne “Breezy” Otteson, he made comments that the Utah State Bar considered unethical — with the potential to prejudice future jurors against Baum. The bar gave Leavitt a public reprimand, which he appealed, and attorneys representing the bar’s Office of Professional Conduct defended that discipline Friday before the Utah Supreme Court.

Leavitt’s attorneys have asked the Supreme Court to reverse the reprimand or lower it to an admonition, which would typically be private, appearing in the bar journal but without the attorney’s name. Leavitt declined The Salt Lake Tribune’s request for comment Friday on why he appealed the disciplinary order, but told Fox-13 inside the courtroom that the case “raises important issues. It’s good to have some of these issues clarified.”

It’s possible the Supreme Court’s decision could set a precedent for what evidence is required to prove professional misconduct in similar cases: Is such discipline allowed after an attorney simply says something problematic? Or must there also be evidence that the attorney said it knowingly, aware it was problematic?

A reversal or admonition would also benefit Leavitt if he was ever sanctioned again, since past discipline can be an aggravating factor in such cases.

Christine T. Greenwood, with the Office of Professional Conduct, told the justices that the public reprimand wasn’t meant to target Leavitt alone, but to warn other attorneys that “they should take caution” when speaking to reporters.

But Freyja Johnson, who represented Leavitt, argued that his comments didn’t meet the threshold for a public reprimand because Leavitt did not realize his statements were problematic until after he said them. The standard for such a reprimand requires proof that an attorney “knew or reasonably should have known” the statements could prejudice a case.

Leavitt, Johnson said, made the statements at issue during his first news conference as the county’s elected attorney, while answering a reporter’s “off the cuff” questions about the credibility of the lone witness to the crime. He was trying to say that the witness affirmed his decision to take the case to trial, Johnson said, when he made the comments and referred to inadmissible evidence.

But, Justice Jill M. Pohlman asked, didn’t Leavitt say as soon as the news conference ended that “he knew he’d messed up”?

“Him realizing after the fact,” Johnson said, “even soon after the fact,” doesn’t prove his mindset when he made the comments.

She added that Leavitt attempted to clarify his remarks later, by saying it was up to a jury to decide Baum’s innocence or guilt. She added that this misstep had only a minor impact on Baum’s prosecution — a “drop in the bucket” compared to other issues raised throughout the years-long process.

Toward the end of questioning, Associate Chief Justice John A. Pearce asked Greenwood for her office’s position on the difference between a reprimand and admonition. While admonitions are designed to be publicized without naming the disciplined attorney, that identity becomes public if the person — like Leavitt — appeals to a higher court, Pearce noted.

She conceded that it was perhaps an issue that needed to be clarified.

After Johnson noted that Leavitt had referred to inadmissible evidence but did not specify what it was, Pearce asked her: “Doesn’t that make it worse, though? If you don’t disclose the secret evidence?” In essence, he added, Leavitt was telling future jurors to just “trust me” about information they would never hear.

A jury ultimately found Baum guilty on all counts nearly five years after he killed the teens. He was sentenced to four consecutive life sentences in July 2022.

While Leavitt had promised to seek the death penalty at the 2019 news conference, he reversed course two years later, announcing in another news conference that he’d never seek the death penalty again. He said the cost of carrying out such a sentence “far outweigh its benefits to the community as a whole.”

“All of what we’ve spent, and more, would be worth it if it would prevent another senseless murder from occurring. But it doesn’t and it won’t,” he said. “Pretending that the death penalty will somehow curb crime is simply a lie. The answer to preventing these types of horrible crimes is in education and prevention before they occur.”

Less than a year after that announcement, Leavitt lost his reelection bid to Republican challenger Jeff Gray. Gray was widely perceived as a more conservative candidate, while Leavitt had advocated for criminal justice reforms and was seen as having a more progressive view.

Throughout Friday’s arguments, Leavitt sat in the courtroom directly behind his attorneys. The former prosecutor now splits his time between Utah, where his brother Mike served as governor and his father served terms in the state Legislature, and Scotland, where he and his wife, Chelom, are restoring a 19th century castle.