Defendant Robert Allen Weitzel, by and through counsel Peter Stirba and John Warren May, hereby submits this Memorandum in Support of Defendant’s Motion for Order Commanding Plaintiff to Cease Contact with Defendant’s Witnesses.

ARGUMENT

            Defendant is aware that the State has contacted at least two of the Defendant’s expert witnesses in an attempt to intimidate or otherwise induce said witnesses from testifying at the trial on this matter.  Defendant understands that this conduct is both unprofessional and illegal.  See Utah R. Prof. Conduct, Rule 3.4 (addressing fairness to opposing party and counsel and unlawful obstruction of access to evidence), Rule 8.4(b) (addressing commission of a criminal act reflecting adversely on lawyer’s honesty, trustworthiness or fitness), Rule 8.4(c) (addressing conduction involving dishonesty, deceit, or misrepresentation), and Rule 8.4(d) (addressing engagement in conduct prejudicial to the administration of justice); see also Utah Code Ann. § 76-8-508 (making it a third degree felony to attempt to induce or otherwise cause a person to withhold any testimony, information, document, or item).

            On Tuesday, May 2, 2000, a person who identified herself as a Betsy Bowman, who is an attorney employed by the Utah Attorney General’s Office, contacted one of Defendant’s expert witnesses, leaving said witness a telephone voice mail message questioning the intent of the witness to testify in this case and falsely indicating that several of the Defendant’s witnesses have dropped out of the case.^[1]  See Affidavit of Dr. Laurel Hermanson Herbst (attached as Exhibit A).  This is the second such contact between this DOPL attorney and a defense expert witness.^[2]  Clearly, there is no justification for such tactics which threaten the Defendant’s constitutional rights to due process and to a fair trial.  See United States Const. Amends. V & VI; Utah Const. Art. I, §§ 7 & 12.  The sole purpose of this contact was to interfere with and a pathetic attempt to intimidate a defense expert.

CONCLUSION

            For the reasons stated herein, Defendant respectfully requests that the Court enter an Order commanding that Plaintiff no longer contact witnesses for the defense, including expert witnesses, and, further, that Plaintiff not attempt to intimidate or induce any defense witnesses from testifying at the trial of this matter.

            RESPECTFULLY SUBMITTED this          day of May, 2000.

                                                                                    STIRBA & HATHAWAY

                                                                                    By:______________________________

           PETER STIRBA           

                                                                                           JOHN WARREN MAY

                                                                                           Attorneys for Robert A. Weitzel, M.D.                                                           

CERTIFICATE OF SERVICE

            I HEREBY CERTIFY that on this _____ day of May, 2000 I caused to be served a true copy of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR ORDER COMMANDING PLAINTIFF TO CEASE CONTACT WITH DEFENDANT’S WITNESSES, by the method indicated below, to the following:

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