Appeals court orders 2nd look at judicial bias in Weitzel case

      Saturday, September 22, 2001

      Ruling lowers the standard for proving favor

      By Angie Welling
      Deseret News staff writer

            Thanks to the Utah Court of Appeals, Davis County prosecutors have 
      another chance at preventing 2nd District Judge Thomas L. Kay from 
      presiding over the second trial of Robert Allen Weitzel.
            In a memorandum decision released Thursday, the court directed 
      Presiding 2nd District Judge W. Brent West to take a second look at 
      prosecutors' request to have Kay removed from the case.
            The April motion alleges Kay's actions and comments both during and 
      following Weitzel's six-week trial indicated a prejudice against the 
      state, the eight jurors and family members of the five alleged victims.
            In June, West determined no evidence of actual bias existed and 
      denied the motion.
            Prosecutors appealed the decision to the Court of Appeals, asking 
      the three-judge panel to either remove Kay from the case or instruct West 
      to evaluate the motion using a lower standard of proof.
            Assistant Attorney General Laura Dupaix argued West applied an 
      incorrect standard in reaching his decision. West should have looked for 
      the appearance of bias rather than seeking evidence of actual bias, she 
      said.
            The court agreed.
            "We do not question (West's) conclusion that there was no showing of 
      actual bias in the record of the first trial," the decision states. 
      "However, we direct (West) to reconsider whether, in light of the entire 
      affidavit, 'the trial judge's impartiality might reasonably be questioned' 
      as this case proceeds to a new trial."
            According to Thursday's decision, the Utah Supreme Court has 
      previously held that an "actual bias need not be found to support 
      disqualification. An appearance of bias or prejudice is sufficient for 
      disqualification."
            Prosecutors contend Kay unfairly limited the amount and type of 
      evidence at Weitzel's trial on five counts of first-degree felony murder. 
      They also claim the judge made comments indicating a lack of respect for 
      jurors and families of the deceased, such as an alleged comment that one 
      family wanted their mother exhumed to aid in the civil case against 
      Weitzel.
            Weitzel, a psychiatrist, stands accused of overmedicating five 
      elderly patients under his care at the Davis Hospital and Medical Center 
      in Layton.
            Jurors convicted Weitzel of lesser negligent homicide and 
      manslaughter charges, but Kay awarded Weitzel a new trial when he 
      determined prosecutors withheld information about a potential expert 
      witnesses who may have aided the defense.
            The decision did not specify a deadline for re-evaluating the 
      motion. However, Dupaix expects it to happen quickly, as an Oct. 11 
      pretrial conference is scheduled before Kay. A new trial date has not yet 
      been set.

© 2001 Deseret News Publishing Company

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