Deseret News

      Saturday, November 17, 2001

      Bid to ax Weitzel judge granted - reluctantly

      By Angie Welling
      Deseret News staff writer

            An Ogden judge begrudgingly disqualified 2nd District Judge Thomas 
      L. Kay from the retrial of psychiatrist Robert Allen Weitzel Friday, 
      taking state prosecutors to task the entire way.
            W. Brent West's 28-page opinion spared no words in reprimanding the 
      Davis County and Utah Attorney General's offices and accusing their 
      attorneys of participating in a "witch hunt" against the Farmington judge.
            "Their legal tactics, their over-zealousness, their repeated 
      attempts to try this case in the press, their belated and untimely 
      attempts to inappropriately raise new issues, and their public personal 
      attacks on Judge Kay have taken on the appearance of a witch hunt or a 
      crusade," West wrote.
            Prosecutors sought the ouster of Kay after he ruled they failed to 
      disclose information about a possible expert witness that may have aided 
      in Weitzel's defense. The decision overturned Weitzel's convictions of 
      negligent homicide and manslaughter for the deaths of five of his elderly 
      patients.
            West on Friday accused the attorneys of using claims of bias to get 
      back at Kay for his decision to award a new trial.
            "Because the state cannot appeal, for legal reasons, Judge Kay's 
      decision to grant a new trial, it now appears . . . that the state has 
      taken out its frustrations on Judge Kay," the opinion states.
            West once before denied prosecutors' motion to disqualify Kay. 
      However, in that review, he looked for actual examples of bias. This 
      decision comes under direction from the Court of Appeals to take a second 
      look for the "appearance of bias."
            The case, now in the middle of pretrial motions for Weitzel's 
      upcoming but unscheduled trial, was reassigned to 2nd District Judge 
      Rodney S. Page.
            Friday's motion accuses state attorneys of "judge shopping" in 
      trying to prevent Kay from presiding over Weitzel's second trial.
            Further, West said, the state's affidavit detailing its allegations 
      of bias is "full of conjecture, speculation and inappropriate declarations 
      of opinion. The affidavit contains hearsay and, in some instances, hearsay 
      on hearsay."
            Allegedly prejudiced and insensitive comments Kay made during and 
      after Weitzel's first six-week trial - including some about how long the 
      trial was lasting and whether or not victims' bodies should be exhumed - 
      do not prove bias against the state, West ruled.
            West only agreed with prosecutors on two allegations of bias - Kay's 
      demonstration of anger toward prosecutors and a statement made to the 
      Layton City prosecutor about the strength of the ignored expert witness' 
      testimonies.
            "There are several incidences where the state was ill-prepared, 
      seemed confused, failed to communicate among themselves, and engaged in 
      behavior that Judge Kay considered inappropriate, unethical and even 
      bordered on prosecutorial misconduct," West wrote. "All of these are 
      legitimate reasons why a judge might become angry."
            However, he ruled, Kay erred in expressing his feelings, no matter 
      how warranted they may have been.
            Deputy Davis County Attorney Steven Major on Friday disagreed with 
      West's characterizations of prosecutors but praised the final decision.
            A Nov. 29 hearing before Kay has been stricken in light of Friday's 
      decision.

© 2001 Deseret News Publishing Company

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