Ogden Standard Examiner News
Weitzel gets same judge
Prosecutors complained about Judge Thomas Kay
Sat, June 16, 2001 00:00:00
By TIM GURRISTER
Standard-Examiner staff
OGDEN -- The judge handling the Robert Weitzel murder trial will be
returned to the case, despite complaints from prosecutors.
Ogden Judge W. Brent West, the presiding judge of the 2nd District
Court, has ruled Davis County attorneys have failed to show any bias
on the part of Farmington 2nd District Judge Thomas Kay in the
handling of the trial.
In his decision released Friday, West several times called legally
insufficient the prosecutors' motion seeking to remove Kay from
hearing Weitzel's second trial on charges of murder in the deaths of
five geriatric patients under his care. West ordered the case
returned to Kay.
Davis County Attorney Mel Wilson and his trial deputy, Steve Major,
complained in their motion filed in April that Kay went too far in
limiting some evidence at Weitzel's trial last July. They also claim
the judge made comments offensive to families of the alleged victims
as well as prejudicial remarks during the trial.
It's a disappointment, Major said. We thought there were really good
grounds for granting the motion.
A decision on an appeal will come after reading the full decision,
he said, which he hadn't seen yet.
The plaintiff alleges that a series of specific rulings, made during
the trial of this case, demonstrate bias and prejudice on behalf of
Judge Kay, West wrote in his 8-page decision. However, after having
read the transcripts of each particular ruling in its complete
context, this court finds that the record simply shows that Judge
Kay ruled on the admissibility of the evidence as he understood the
law and rules of evidence.
West noted that if a judge can be disqualified for bias following a
comment or ruling during court proceedings there is no limit to
disqualification motions and there would be a return to "judge
shopping.'
Charged with five counts of murder, Weitzel, 45, was found guilty by
jurors of two lesser counts of manslaughter and three counts of
negligent homicide. The charges came in connection with the morphine
deaths of five elderly patients who died under Weitzel's care within
a 16-day span beginning in late December 1995.
Weitzel was awarded a new trial Jan. 9 by Kay and released from
prison after the judge agreed with a defense motion that the guilty
verdict was undermined after it was learned prosecutors didn't
disclose an opinion to the defense from an end-of-life care expert
witness that was contrary to their theory.
Major said he and others in the county attorney's office have talked
to a lot of prosecutors, even the old-timers and no one could recall
a prosecutor asking for a judge's recusal from a case. Defense
attorneys do it all the time, he said.
This is unheard of, he said, so the office will have to consider its
next step carefully.
One final comment needs to be made in regards to the plaintiff's
position that Judge Kay gave no credence to the plaintiff's
witnesses during the defendant's motion for a new trial, West wrote
in a concluding remark that seemed to scold the prosecutors.
Since deciding a witness' credibility goes right to the heart of
what trial court judges do, to argue that Kay was somehow obligated
to lean toward the plaintiff's witnesses is unsound legal reasoning,
unfounded in the law, and inappropriate.
Copyright ©2001, Ogden Publishing Corporation
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