TARA
L. ISAACSON, #7555
BUGDEN,
COLLINS & MORTON
Attorneys
for Defendant
623
East 2100 South
Salt
Lake City, Utah 84106
Telephone:
(801) 467-1700
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT
IN AND FOR THE COUNTY OF DAVIS, STATE OF UTAH
THE STATE OF UTAH,
Plaintiff, DR. WEITZEL’S RESPONSE
TO MOTION FOR RECUSAL
v.
OF JUDGE THOMAS L. KAY
ROBERT
ALLEN WEITZEL,
Case No. 991700983
Defendant.
The Defendant, Robert Allen Weitzel, by and through his counsel, Walter F. Bugden, Jr., hereby responds to the State’s Motion to Recuse Judge Thomas L. Kay.
INTRODUCTION
Rule 29 of Utah Rules of Criminal Procedure only permits Judge Kay to respond to the Motion to Recuse by supplementing the record with additional pages from the trial transcript. This he has done. The State has presented a one sided argument in support of it Motion to Recuse the trial court judge. In the interest of fairness, and to provide a more accurate context in which rulings were made during the trial in the above-entitled matter, the Defendant hereby submits the following memorandum to assist the reviewing judge in his assessment of the allegation of bias.
From an objective perspective, viewing the State’s forty (40) examples in context, there is not even a hint of bias. This was a long trial (over one month). There were many rulings—some for the State and some for the Defendant. All of Judge Kay’s rulings were grounded on the Utah Rules of Evidence. When a party attempts to introduce evidence prohibited by the Rules of Evidence, it is predictable that the trial judge will exclude the offered evidence. The fact that Judge Kay sustained objections and excluded evidence offered by the State does not prove or even suggest that the Trial Court was biased against the State. It is a slippery slide if a party can remove a judge simply because that judge ruled against it.
The State’s affidavit of bias is insufficient as a matter of law. Judge Kay’s rulings were impartial correct rulings.
POINT I
The State’s Affidavit is a Thinly
Disguised Memorandum and Argument.
The State has incorporated in its submission what purports to be a twenty page affidavit signed by Melvin C. Wilson. However, the State’s affidavit appears instead to be a memorandum of law. Accordingly, the Defendant objects to the form of the affidavit/memorandum of law.
POINT II
The
Affidavit Fails to Set Forth Sufficient
Facts
to Show Bias or Prejudice Against the State.
In the
State’s affidavit, forty different citations to the record are presented to
demonstrate Judge Kay’s partiality against the State.
Taken singularly or cumulatively, none of the forty examples would lead
anyone to believe that Judge Kay demonstrated any bias or partiality against
the State. Most of the State’s
quotations are taken out context and most importantly,
ignore Judge Kay’s reliance upon the Rules of Evidence in making his
rulings.
In order to assist the reviewing court, the Defendant will address each of the forty examples. The Defendant will utilize the same number assigned to each transcript reference contained in the Attachment to Order Certifying Motion relied upon by the State, seriatim. In doing so the Defendant will attempt to place Judge Kay’s statements and rulings in accurate context.
1.
Dr. Welby Jensen.
Whether
Dr. Jensen would be permitted to testify that he had admonished the Defendant
about medication of patients on the geropsychiatry unit prior to the deaths of
any of the patients was viewed by both parties as a substantial issue.
Judge Kay listened to extensive oral argument on the subject (14 pages
in the Attachment to Order Certifying Motion).
After weighing the application of Rule 404(b) and Rule 403, Judge Kay
painstakingly explained the basis of his ruling to the parties:
“I
am very concerned that in this case that if the jury receives evidence of what
happened with other patients that is causally related to this, the five
patients in this case, that what is going to happen is no matter what sort of
instruction I give to the members of the jury, you can only receive this for
knowledge, that he had knowledge, that that is going to be misleading and it
will be used by them. It will confuse them , it will mislead them, and on the basis
of that, I am going to sustain the objection.”
The
Judge went on to explain the touchstone for his ruling on related evidentiary
matters:
“Were
gonna define the strike zone right now, and the strike zone is going to be
what is relevant to the five patients in this case, what were talking about in
terms of what happened with those five patients, and not necessarily what
happened in all the periphery.”
Vol.
2, p. 331.
2.
Dr.
Stubb’s Reaction to News of the Death of Her Patient.
The
reaction of this physician to news of the death of Mary Crane was irrelevant
under Rule 402 and highly prejudicial under Rule 403 of the Utah Rules of
Evidence.
The
Court: Okay. And what is the
relevance of her being shocked by the death ?
Mr.
Major: The fact that Mary Crane went into this nursing home in a—a
condition that did not indicate a terminal illness or any type of chronic or
acute problems.
The
Court: Okay. And she has already testified about that.
She has testified—
Mr.
Major: Okay. That is why I wanted
to raise the issue because I knew the Court would be ruling—
The
Court: Okay. I am gonna sustain
the objection. Okay.
Let’s bring the jury in.
Vol.
2, p. 433.
The
Judge made a careful decision based upon the Rules of Evidence. The trial court’s decision to exclude irrelevant evidence
does not demonstrate judicial bias.
3.
Cumulative Testimony of
Multiple Nurses.
Although
the State suggests that the Court’s inquiry about the number of nurses that
the State would call to testify concerned the Defendant’s disinterest in his
patients, the colloquy between the Court and Ms. Barlow actually touched upon
titrating or increasing the dosage of medicine to the five patients that died.
When Ms. Barlow answered the Court’s question and conceded that the
nurses would not be able to comment about titration, Ms. Barlow then explained
that the State needed to call a nursing expert to testify that “this isn’t
the way doctors do. This way
doesn’t help the nurses.” Vol., 6, p. 1373.
The trial court inquired, “Well, how is that relevant to whether the
Defendant committed murder?” Id.
at 1373. Judge Kay then invited Ms. Barlow to explain the relevance of
the proffer to the Defendant committing murder.
Ms. Barlow was unable to explain the relevance of this testimony.
Applying Rule 702 of the Utah Rules of Evidence, the Court further explained
his concern to Ms. Barlow:
And
so what I am trying to say, is how is this going to assist the Jury or help to
determine a fact that’s an issue where she’s [a nursing expert]
commenting. And I guess the
problem that I have is, you know, do you have a doctor or one of these
psychiatrist or somebody else that is going to comment about the issue?
Id. at 1375
The trial court was more than patient with the State.
Judge Kay gave Ms. Barlow numerous opportunities to explain how the
proffered testimony would be helpful to the Jury.
The Judge even asked Ms. Barlow, “why is that helpful to the Jury to
have an expert tell them that if it was intimidating when you’ve got six
witnesses that have all testified and then let the Jury form their conclusions
from what the evidence was by the actual witnesses that have knowledge?” Id. at 1377. After
listening to all of the State’s arguments, the Court explained his decision
to the exclude the evidence:
I
don’t think that under Rule 702 its going to assist the trier of fact to
have some outsider say, I reviewed the documents and I say they were
intimidated…Id. at 1380.
However, the Court went on to point out that the State could introduce
evidence that different nurses were personally intimidated by Dr. Weitzel:
That
can all come in. And you can all
say that. But I mean, after five
or six nurses testify about that, I don’t need, and this Jury doesn’t need
to have someone saying they were intimidated.
Id. at 1380.
When Judge Kay disallowed an expert nurse’s opinion about whether
other nurses were intimidated by Dr. Weitzel, Judge Kay was simply exercising
the trial court’s broad discretion to monitor the receipt of cumulative
evidence.
4.
One Hundred and Five Witnesses.
As
noted in the last section, Judge Kay was exceedingly patient with Ms. Barlow.
It was Ms. Barlow who became frustrated when she was unable to explain
to the Judge the relevancy of introducing the same evidence through numerous
witnesses. The specific proffer
dealt with Dr. Weitzel spending less time with patients then other doctors.
(See Vol.1, page 160). Once
again Judge Kay asked the State’s attorney, Ms. Barlow, to explain how the
Defendant’s bedside manner established one of the culpable mental states—depraved
indifference. When Ms. Barlow was
unable to respond to the Judge’s inquiry, it was Ms. Barlow who lost her
cool:
Ms.
Barlow: And I am a little upset that he even ascribes that to me
because I have never said that.
Apparently sensing Ms. Barlow’s frustration, Judge Kay immediately
reassured Ms. Barlow that calm would prevail in his court:
Well,
my view is that nobody—I plan that nobody is going to get upset in this
case. I don’t plan on getting
upset. And if somebody brings up
a point, let’s just argue the point. Lets
not argue that somebody attributes bad motives to anybody.
Let’s just argue the point. Id.
at 162-3.
Finally,
in ruling against the State, the Judge explained his reasoning:
And
then the Jury, what are they going to do with this?
Bad doctor before, bad doctor now?…
How
can she tell his state of mind by the amount of time he spends with the
patient? Id at 167.
5.
Nurse Refusing a Medical Order.
Here
the State fails to acknowledge that the foundation for this line of
questioning could not be established with the witness.
Indeed, as soon as Ms. Barlow realized that she could not lay the
proper foundation, she withdrew the question.
Ms.
Barlow: Tracy, did you ever get to the point where you felt like you
needed to go up the chain [of command to disregard a doctor’s medical
order]?
Answer:
I did not go up the chain.
Question: Did you feel like you needed to?
Answer:
Well, actually I did not give a lot morphine after this patient, so I
didn’t feel the need to—
Ms.
Barlow: Your Honor, I will save it for other witnesses then who—
Why the
State would include this as an example of bias strains credulity.
At the risk of being redundant, the State abandoned this line of
inquiry since the witness lacked the requisite knowledge.
This example is without any merit.
6.
Nurse/Specimen.
This
testimony involved a crude remark attributed to Dr. Weitzel. Whether Dr. Weitzel had offended a nurse with off color humor
was completely irrelevant under Rule 402 and certainly prejudicial under a
Rule 403 analysis. The State had
no possibility of introducing this evidence, yet the State made a proffer in
front of the media. The proffer
was inflammatory and prejudicial to Dr. Weitzel.
However, quite apart from the prejudicial nature of this evidence,
Judge Kay sustained the objection because it was unrelated to any of the five
patients that corresponded to the five counts of murder.
Consistent with his ruling throughout the trial, Judge Kay ruled that
the State had not laid an adequate foundation by merely suggesting that the
statement was made during the same time period but was unrelated to any of the
patients that died. This ruling
does not demonstrate a bias against the State.
7.
Doctors Absence.
As
previously noted, Judge Kay ruled that the doctor’s absence from the
hospital was unrelated and irrelevant to any of the four criminal intents for
murder--intentional, knowing, reckless, or depraved indifference.
The Judge’s ruling was appropriate:
As
to the other issues as to when he came in, the issue is whether he killed
these people. You know I have said that if we are talking about what
medications he is doing, these other items, you know, we can talk about that.
If its just he comes in, whenever he comes in, that is not helpful to
the Jury, it is going to be confusing and goes on a negligence issue as
opposed to the four issues that you have.
And so that you have made your proffer and I am not going to allow the
evidence.
Vol.
6, p. 1359.
8.
Defense Counsel Reading
Medical Records to Witness.
The State is correct that Mr. Stirba, defense counsel, was permitted to
ask a witness on cross—examination whether he had read the medical records
correctly. However, what the State fails to point out in its Affidavit
is that the State never objected. If
the state believed that the Rules of Evidence did not permit reading the
medical chart to the witness, the State had the obligation to make an objection; but this the State did not do.
9. & 10.
State’s Counsel Reading Chart.
Defense
counsel objected and the objections were sustained.
It is difficult to compare the State’s failure to object with the
defense objection.
11.
Cross Examination of Victim’s Daughter.
This is
one of the State’s more curious examples of bias.
During cross-examination of Karen Bringhurst (the daughter of Mary
Crane, one of deceased) about a billing code, defense counsel posed leading
questions. The State objected and
the Court overruled the objection. The
Court noted that defense counsel was conducting a cross-examination.
A properly conducted cross-examination consists of leading questions.
The whole point of skillful cross-examination is that the examiner in
effect testifies and tells the story for the witness who can only answer yes
or no to the leading question. This
is precisely what Mr. Stirba did on cross-examination of the witness.
12.
Indications
of Pain.
The Court did not explain this ruling.
However, the witness had read from the chart and pain had not been
charted. The trial court likely
felt the point had already been made that the chart did not reflect any
indication of pain.
13.
Motion
to Exclude the Transcripts.
The
record reflects many, many pages of argument and discussion by the lawyers on
this point. Judge Kay was very
temperate and very reasonable in his remarks.
Responding to Ms. Barlow, Judge Kay agreed:
What
you are saying, I agree with you. If
it is not accurate it should not go to the Jury.
If it’s accurate and the Jury read—this is just a help to the Jury
and if it doesn’t—its not anything else and helps the Jury.
All we are trying to do is make it clear. … So that is what I am
going to do, basically say you can work on these things together. Id. at
Vol.
3, p. 507.
14.
Medical Records of Dr. Stubbs.
During
the cross-examination of Dr. Rachel Stubbs, by the defense, the State objected
to the introduction of her records because Dr. Stubbs indicated that the
records would only be complete when coupled with the medical files that she
had received from the State. In
lodging an objection, the State noted that no one had gone through the records
page by page to compare them with the originals (Vol. 2, p. 438).
After entreating the parties to try and work things out to expedite the
trial process, the Court permitted defense counsel to use the documents as an
exhibit and he reserved his ruling on whether the entire exhibit would be
received. The Judge’s ruling
was a practical and reasonable response to the State’s objection.
As the Court noted, there was no reason to doubt that the records were
what they purported to be. Id. at
438. The Judge’s plea for
efficiency and cooperation was directed at both parties and fails to show any
bias against the State.
15.
& 16.
Reference to Foundation for Stubbs’ Medical Records.
As
noted in the previous point, the Court was concerned with trial efficiencies.
This is always an appropriate consideration for a trial court.
Judge Kay merely wanted the parties to work together to speed the
trial. In any lengthy trial, a
trial court is always interested in expediting the process of laying the
foundation for the receipt of medical records.
Always conscious of the jury and their patience, Judge Kay noted:
You
know where we spend as much time outside the presence of the jury…and I am
just saying how can we change that. Can
we change that in a way that you can do something from this point forward
understanding we are all in the middle of a trial.
But how do we do that.”
Vol.
3, p. 496.
This
statement hardly smacks of partiality.
17.
Horizon Investigation/State Opening the Door.
Horizons,
the company which operated the geropsychiatry unit at Davis Hospital where the
deaths took place, had conducted an investigation.
In a pre-trial ruling, the trial court sustained the State’s
objection to the receipt into evidence of the Horizon investigation.
However, on direct examination the State miscalculated, and elicited
testimony from Ms. Hardy, a nurse, that opened the door:
Ms.
Barlow:
In regards to Mr. Alldredge, after Mr. Alldredge died, did you—just
yes or no—did you go to anyone at Horizon?
Answer:
Yes.
Question: About the death of this patient?
Answer:
Yes.
Question: To whom did you go?
Answer:
Todd Chambers.
. . . .
Question: What did you tell Mr. Chambers?
Answer:
That I was concerned about the patient’s decline in condition and
hesitant about giving morphine due to his decline in condition.
Question: What response did you get?
Answer:
He said he would look into the matter.
The Court concluded that the State opened the door and the defense was
permitted to ask whether Dr. Weitzel was disciplined or continued to work on
the unit. However, the witness answered that she had no idea.
Lots of rulings are made in a one month trial.
Judge Kay happened to rule against the State on this issue, but the
ruling had no impact on the trial since the witness had no knowledge about
what conclusions Horizons reached from its investigation.
18.
State’s
Attorney Sounding Like a Doctor.
This
conversation between Ms. Barlow and the Judge took place during an exchange
discussed under subsection 3, supra.
The issue under discussion was whether a nurse would be permitted to
testify about titrating. Ms. Barlow was unable to explain how the proffered evidence
would be relevant to whether the Defendant had committed a murder.
Ms. Barlow’s responses were imprecise and confusing.
Nonetheless the Judge was not the least impolite to Ms. Barlow.
Indeed, he attempted to help Ms. Barlow to understand the Court’s
concern:
By
saying that he has a culpable mental state and having a nurse give an opinion
as to what the doctor did or didn’t do, when she is not a doctor, how is
that helpful to a jury?
Ms.
Barlow was unable to answer the question.
Judge Kay applied Rule 702 of the U.R.E. and found the evidence would
not be helpful to the jury.
19.
Expert Testimony.
The
Judge correctly sustained an objection to this evidence. The Judge’s remarks demonstrated his keen sensitivity to
the danger that evidence of simple negligence or malpractice would unfairly
prejudice the Jury against the Defendant:
And
the problem with that is that there is a possibility that they could say that
because of other negligence behavior he is guilty of murder.
And, you know, I know everybody has heard of Rule 403, but Rule 403 of
the Rules of Evidence is the Rule that says that even if there is evidence
that is relevant and has probative value, the amount of probative value that
evidence as such things as not taken x-rays or other things is to show intent
or the other issues for murder is very low compared with how it could be
substantially outweighed by how these issues are either going to mislead or
confuse the Jury. And in my mind,
it will allow the Jury to make a determination of murder based upon negligent
conduct. Id. vol. 5, p.
1213-1214.
The
Judge’s ruling was sound. The ruling was not based upon bias, it was based
upon the Rules of Evidence.
20.
Nurse Hardy.
Here
the Judge essentially overruled the Defendant’s objection and allowed her
answer to stand.
22.
& 23. Lynn Long Testimony about Morphine Injection.
The
State objected to defense counsel asking one nurse whether Lynn Long had told
her that a morphine injection was appropriate.
The Court overruled the objection noting that it was cross-examination.
Not only was it cross-examination, but Rule 703 of the Utah Rules of
evidence permits one expert to rely upon information, statements, and opinions
of others “if of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences on the subject, the facts or data need
not be admissible in evidence.” See
Rule 703.
24.
Nurse Taking Fifth Amendment.
The
line of questioning pursued by the defense counsel was very relevant: i.e.,
whether the nurse had a belief that an injection of morphine would have caused
or contributed to Ms. Crane’s death. The
witness was not clamoring for Fifth Amendment Protection.
However, Ms. Barlow suggested that the witness might need Fifth
Amendment protection while concomitantly opining that the witness did not have
any criminal liability:
Ms.
Barlow: My objection is—my objection is that although I don’t
think this witness has any criminal liability for giving those injections, I
think that she may be opening herself up to some allegations and I think that
she needs counsel, I think she needs a criminal defense lawyer to advise her
whether she should answer that under the Fifth Amendment or not. Like I said, we have no intention—“ Id. at 1573.
The
State’s objection, which was eventually withdrawn, may have seemed spurious
and unnecessarily time consuming to the Judge.
Nonetheless, the Court invited the State and the witness to take a five
minute recess to determine if the witness wished to assert the Fifth Amendment
privilege. Id. at 1574.
Curiously, the State suggests that the entire exchange intimidated the
witness. Although there is no
foundation in this record for such a statement, it should be noted that it was
the State that sounded the alarm by suggesting that the witness should
consider taking the Fifth Amendment and refusing to answer the defense
questions. If indeed the witness and the families of the deceased were
bothered by this exchange, it was the State’s counsel, and not the trial
court, that should have been the object of their disclosure (displeasure?). The State’s
needless discussion of the Fifth Amendment privilege to remain silent in this
context does not reflect upon the trial court’s impartiality.
25.
Nurse Scholl/Scope of Direct
Examination/Order of Witnesses.
During
cross-examination of nurse Scholl, defense counsel pursued a line of
questioning beyond the scope of direct examination. The State objected, but the trial court overruled the
objection and permitted the questioning.
Whether an area of questioning exceeds the scope of direct examination,
should be permitted as cross-examination, or permitted at that moment in the
trial rather than recalling the witness at a later time are all trial
decisions left to the sound discretion of the trial court.
The State’s objection is without merit.
26. & 27. Defendant
Permitted to Repeat Hearsay.
Rule
803(4) of the Utah Rules of Evidence permits statements which are made for the
purposes of medical diagnosis or treatment.
This well recognized exception to the hearsay rule permitted the
Defendant to testify about what family members told him about the condition of
his patients.
28.
Nurse Asking Patient About
Pain.
The
State suggests that an objection by the defense shut down this line of
questioning. It did not.
The State asked the following questions after the objection was
sustained:
Question: (Ms. Barlow) As a nurse do you look for signs and symptoms of
pain?
Answer:
Yes I do.
Question: Do you ask patients if they are in pain?
Answer:
If they are cognitively able to answer yes or no.
Question: If a patient’s cognitive function is decreased, to rely on
–
Mr.
Stirba: I’ll object, your Honor it is irrelevant.
It is not with respect to these five patients.
The
Court: I haven’t heard the question.
Mr.
Stirba: I am sorry, you Honor.
Question:
(Ms. Barlow) Let’s talk about
these five patients. Were these
five patients cognitively diminished.
Mr.
Stirba: Objection. Calls
for an opinion she is not competent to make.
The
Court: Lay a foundation. I
think the question is whether she asked them about pain. Wasn’t that what you were asking?
Ms.
Barlow: That was the initial question, yes.
Question:
(Ms. Barlow) Did you ask any of
these patients about pain?
Answer:
No I did not.
The examination continued and Ms. Barlow was permitted to ask all the
questions she wished. However,
the nurse answered that she did not ask the patients about pain because the
patients were not able to answer her appropriately.
To say that this is much-a-do about nothing is an understatement.
29.
State’s Charts.
Judge
Kay refused to allow the State to use certain behavior scales on a chart in
its case-in-chief. The chart was
excluded because it was not a Rule1006 summary.
Moreover, the charts were argumentative, one-sided and misleading.
The trial court was well within its discretion to exclude a chart which
did not meet the foundational requirements of Rule 1006.
30.
Autopsy Reports.
Judge
Kay would not permit the State to introduce the autopsy reports prepared by
the medical examiner and the assistant medical examiner.
Both the medical examiner and the assistant medical examiner had
testified fully as to the contents of their written reports.
However, the Court ruled that no exception to the hearsay rule covered
the autopsy reports. Moreover, the Court was rightly concerned that a written
summary of a witness’s testimony that goes into the jury room could carry
undo weight.
A
jury can place more emphasis on that then on anything else because what they
are given is something in writing form one witness that they don’t have from
the others.
Vol.
10, p. 2173.
31. Dr. Sumko’s Medical Records.
The
State contrasts the Court’s hearsay ruling on the autopsy report with the
Defendant’s introduction of Dr. Sumko’s medical records of Ellen Anderson,
one of the deceased. The State
objected, but not on hearsay grounds. Rather,
the State suggested that the introduction of the medical record would be
confusing and overwhelming to the jury because of the volume of documents that
had already been introduced. See
Vol. 3, p. 737.
In
advancing this tit-for-tat argument, the State seems to overlook that
evidentiary rulings are based upon the Rules of Evidence.
That an autopsy report is hearsay, but a medical record is not is
governed by the Rules of Evidence. The
State’s argument misses the mark.
32.
Rebuttal Proffer.
After a
lengthy trial, the trial court was understandably concerned that only proper
rebuttal evidence be presented to the jury.
To that end, the trial court asked for a proffer.
The Defendant is satisfied that the quotation set forth in the State’s
Affidavit (Affidavit to Recuse, p. 17) adequately explains the Court’s
concern. This was a simple matter
of trial efficiency. Trial courts
are vested with broad discretion to handle the order of proof.
The comments quoted in the State’s Affidavit demonstrates exactly how
conscientious and diligent Judge Kay was as the case neared its conclusion.
33.
&
34. Dr. Rothfeder and Dr.
Clinger.
The
State was not allowed to recall Dr. Clinger because the trial court concluded
that he and a few other expert witnesses had previously testified about
certain issues and that repeating their testimony was not proper rebuttal.
See Vol. 19, p. 4083. This
ruling was within the sound discretion vested in the trial court to make
evidentiary rulings.
35 & 36. Comments
Made Concerning Exhumation.
The
State’s suggestion that the trial court was insensitive during the
exhumation argument is not supported by the record.
The issue was discussed during oral arguments on April 24th
and May 1st, 2001. During
the April 24th hearing, the State’s attorney advised the Court
that a least one of the families had hired a civil attorney to pursue a civil
action. The Court’s only
comment at the time was to ask the State why it filed its motion so late in
the day. The Court noted a
preliminary hearing had been held, the Defendant had been arraigned, and the
parties had agreed to a
scheduling order which included a trial date.
The untimeliness of the State’s motion was an appropriate inquiry for
the trial court.
At the
May 1st hearing, the trial court was tried to ascertain which
family members supported the exhumation and which opposed it.
In that context, the trial court noted that one family was considering
civil litigation, and that naturally under those circumstances, they supported
the exhumation to develop evidence for their civil case. However, the Court also noted that another family member had
filed an affidavit with the Court indicating his opposition unless the
procedure was absolutely necessary. The
State’s suggestion that the trial court was insensitive by noting that one
family had a motive to support exhumation does not show a bias against the
State.
37.
Juror’s Note.
Out of
hundreds and hundreds of pages of transcript, the State has cited a single
sentence where Judge Kay noted for the lawyers and the record that a juror had
sent out a note, and contrary to the Court’s instructions, had included the
juror’s name on the note. There
is nothing demeaning about the trial court’s statement.
Rather, the Court pointed out that one juror had disregarded the Court’s
specific instruction intended to preserve the anonymity of the jurors.
After making this observation, the trial court then discussed the juror’s
inquiry with the parties and arrived at an agreed response.
At the risk of being redundant, the State has cited a single sentence
out of hundreds of pages of transcript and suggests, from this single
sentence, that the Judge did not adequately respect the jury.
The record does not even come close to suggesting any insensitivity by
the trial court. Moreover, even
if it was assumed that this comment was insensitive, a comment about the jury
does not demonstrate any bias against the State.
38.
and 39. The Baseball Incident.
The
State seems to suggest that trial judges should never become upset or
irritated with the conduct of trial counsel.
Nothing could be further from the hurley-burley of a court room.
In this
regard, the State cites the Court’s frustration with how the State handled
the baseball incident. The trial
court’s point was valid. The
trial court had scrupulously conducted all
proceedings during this highly publicized trial in open court.
Judge Kay told counsel: The
sole exception was the in chambers session held at the State’s insistence
concerning the judge playing catch with a juror.
Consistent with the trial court’s commitment to conducting the
proceedings in open court, “everything will be in this courtroom from now
on.” Vol. 15, p. 1314.
An
additional component to this incident was Ms. Barlow’s mini-press conference
in the courtroom following the in-chambers session.
This interview clearly violated the pre-trial Decorum Order which
prohibited interviews anywhere in the court building. In defending her conduct, Ms. Barlow suggested to the Court
that she did not consider answering media questions and making the comment
that “there is nothing nefarious”, which appeared in the paper the next
day, to be an interview. Ms.
Barlow also told the trial court that the Decorum Order only applied to the
media and the public, but not to the attorneys.
Judge Kay was understandable chagrined with Ms. Barlow’s comments.
Nonetheless,
the trial court did not sanction Ms. Barlow.
The trail court did however explicitly state that the Decorum Order
applied to attorneys:
Fair
notice to everyone from now on. It
applies to attorneys as well. Any
violation of the Decorum Order by attorneys will be contempt.
Vol.
15, p. 3320.
The
State then juxtaposes the foregoing on-the-record conversation with the
attorneys with the Defendant’s alleged bump of one of the State’s
attorneys in the hall outside the courtroom.
The State never brought this matter to the attention of the Court and
the allegation appears no where
on the record. The comparison
between Ms. Barlow’s conduct, which was the subject of a Motion for
Sanctions, is not comparable to an incident involving the Defendant that never
came before the Judge.
40.
Grant of New Trial.
It is
well within the province of the trial court to weigh the credibility of
witnesses in the consideration of a New Trial Motion.
In the instant matter, it was perfectly appropriate and necessary for
the trial court to weigh the testimony of two attorneys who testified for the
State and Dr. Perry Fine who testified for the defense.
In granting the Defendant a new trial, the Court properly focused on
the standard articulated in the case law:
whether there was a reasonable probability of a different result had
Dr. Perry Fine’s testimony been presented to the jury:
Given
these factual conclusions, there is little question that had Dr. Perry Fine
testified at trial, he would have provided the jury with powerful and credible
point-by-point criticism of Dr. Hare’s testimony that would have presented
authoritative opinions contrary to the State’s case.
Therefore, it is reasonable to conclude that the jury would have
questioned the reliability of the State’s experts, particularly the State’s
key witness, Dr. Hare, and come to a different result.
Confidence in the verdict cannot survive where the undisclosed evidence
would have provided the jury with information that could will have led them to
reject some, if not all, of the State’s theory of the case.
…Under both the due process and Rule 16 standards, it is the court’s
conclusion that had the prosecutors disclosed Dr. Fine’s opinions to the
defense, there is a reasonable probability or likelihood that the outcome of
Defendant’s trail would have
been different. Memorandum
and Decision p. 19.
There is some irony in this situation. Here, the State accuses the trial court of bias in granting the Defendant a new trial. However, the State overlooks that the grant of a new trial resulted from the State’s failure to disclose the exculpatory opinions of Dr. Perry Fine. Rather than pointing an accusatory finger at the trial court, perhaps the State should look in the mirror and accept blame for its misconduct.
POINT III
Judge
Kay Ruled Against the Defendant as Well
as
the State Throughout the Pre-Trial Proceedings and the Trial.
The Defendant’s Motion in Limine Re Excluding Testimony of Joseph L. Morrison, Excluding Amended Death Certificates from Evidence, Limiting Testimony of Medical Examiners, Limiting the Scope of Plaintiff’s Expert Dr. Bradford D. Hare, and Excluding Plaintiff’s Untimely Designation of Expert Witnesses were all denied. The Defendant lost all First Amendment Issues related to pre-trial publicity and media coverage. Finally, the Defendant’s objection to the State’s request for lesser included offenses was overruled. This was not a an insubstantial issue.
Judge Kay was impartial throughout the trial; he made rulings against both parties.
CONCLUSION
The State’s affidavit alleging bias against the trial court is
insufficient. The State’s
references to the trial transcript do not present the full picture.
In most instances, an examination of the complete transcript reveals
the trial court is careful, conscientious, and temperate rulings based on the
Utah Rules of Evidence. The State
has confused that trial court’s unwillingness to allow the State to
introduce inadmissible evidence with a bias against the State.
A trial court does not demonstrate bias or partiality against a party
by prohibiting that party from introducing evidence excluded by the Rules of
Evidence.
DATED this _____ day of May, 2001.
BUGDEN, COLLINS & MORTON, L.C.
__________________________________
WALTER F. BUGDEN, JR.
TARA L. ISAACSON
Attorneys for Defendant
CERTIFICATE
OF SERVICE
I
hereby certify that on the ____ day of May, 2001, I caused to be served a true
and correct copy of the foregoing by the method indicated below, and addressed
to the following:
Melvin
Wilson
____
HAND DELIVERED Davis
Charlene
Barlow
____ U.S. MAIL
Steven
Major
____
OVERNIGHT MAIL
Davis
County Attorney’s Office
____ TELECOPY (FAX)
P.
O. Box 816
(
)
Farmington,
Utah 84025
______________________________