The Salt Lake Tribune -- Weitzel Judge Says Bias Claims Are 'Groundless'
Friday, November 2, 2001
BY JACOB SANTINI
THE SALT LAKE TRIBUNE
Second District Judge Thomas Kay has acknowledged there
may be "an appearance of bias" in his handling of the criminal
case against psychiatrist Robert Weitzel, accused of giving
fatal morphine doses to five elderly patients.
But any appearance of bias is the result of "baseless and
false statements" made by Davis County prosecutors, Kay said
in an affidavit sent last week to 2nd District Judge Brent
West.
West is deciding whether Kay will preside over Weitzel's
second trial, in the wake of accusations of prejudice made
against him by Davis County prosecutors.
West initially ruled there was no sign of "actual bias" by
Kay during Weitzel's six-week homicide trial in July 2000. But
in September, the Utah Court of Appeals ordered West to
reconsider the question, saying even the "appearance" of bias
or prejudice may be sufficient to disqualify a judge.
Kay's affidavit is the judge's response to a number of
questions West has asked him in writing.
"While there may be an appearance of bias, that appearance
was not created by my conduct, but as the result of the
incessant and repeated public commentary engendered by the
prosecution's misrepresentations, groundless statements, and
false accusations," Kay wrote.
He added that if West rules "it would be better for
another judge to preside over this case, I will accept that
decision."
Davis County Attorney Mel Wilson declined to comment on
Kay's affidavit. He said his office will file a written
response with West because "we felt we needed to respond to
some of those things said by the judge."
A jury last year rejected murder charges against Weitzel
and found him guilty of two counts of second-degree felony
manslaughter and three even lesser counts of class A
misdemeanor negligent homicide. But Kay overturned the
convictions after learning prosecutors had not disclosed an
expert witness who believes Weitzel did not illegally cause
the deaths of the five patients, who were under his care in a
geriatric/psychiatric unit of the Davis Hospital during a
16-day span beginning in December 1995.
Wilson argues Kay unfairly limited the evidence
prosecutors were able to present in Weitzel's first trial.
Wilson also claimed Kay made prejudicial and hurtful comments
to the patients' families.
In his affidavit, Kay said the comments cited by Wilson
were taken out of context.
Wilson said Kay was insensitive when he told the patients'
families, who were sitting in court, that they could help him
with his yard work if they had nothing better to do. Kay calls
that claim "absolutely false." Wilson had acknowledged the
alleged comment to the families could not be located in the
court transcript. But Kay found a similar comment in the
record.
He said, according to that reference, he made that comment
about his yard work to jurors on a day he sent the jury home
early.
During an exhumation hearing, Kay said one of the
patient's descendants was considering a civil lawsuit against
Weitzel and wanted an exhumation and autopsy. Kay acknowledged
making the statement but said he was simply reiterating a
statement made moments earlier by a prosecutor.
Kay also acknowledged he told a Layton city prosecutor
that the witness who had not been disclosed by prosecutors
"would have blown the state's case out of the water." That
statement accurately reflected his ruling in the case, he
said.
But Kay suggested that a decision to remove him from the
case could have a chilling effect on Utah's judiciary. Kay's
removal may cause judges to make rulings based on avoiding
public criticism, encourage losing parties to attempt to
disqualify judges, and force judges to favor prosecutors and
victims while disregarding a defendant's rights, he said.
A date for Weitzel's second trial has not been set.
© Copyright 2001, The Salt Lake Tribune
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