Ogden Standard Examiner News
Judge says bias charges false
Kay responds to allegations from prosecutors in Weitzel case
Thursday, Nov 1, 2001
By NESREEN KHASHAN
Standard-Examiner Davis Bureau
LAYTON -- After months of being barred from responding to
allegations of judicial misconduct made against him, 2nd District
Judge Thomas Kay this week filed a scathing statement saying the
charges are false and groundless.
Prosecutors for months have sought to remove Kay from the case of
Dr. Robert Weitzel by accusing the judge of exhibiting biased
behavior toward the defense in the first Weitzel case, which he also
served on. Weitzel is charged with negligent homicide and
manslaughter in the death of five patients. The doctor was convicted
of the charges last year. Then in January, Kay overturned the
conviction, ruling that prosecutors had withheld information on an
expert witness.
In a 26-page affidavit filed this week, Kay said the appearance of
bias "was not created by my conduct, but as a result of the
incessant and repeated public commentary engendered by the
prosecution's misrepresentations, groundless statements, and false
accusations."
The document was filed to a fellow 2nd District judge charged with
determining whether Kay should remain on the second Weitzel case.
Kay warned that pulling him from the Weitzel case would "undermine
judicial independence," and "undermine generally the fundamental
rules upon which fair trials are conducted."
In the questionnaire, Kay replied to allegations of comments he made
during the first trial that the families of the five patients found
insensitive. The families and prosecutors together have accused Kay
of telling a prosecutor not related to the case that the defense had
a witness that would "blow the state's case out of the water." They,
along with prosecutors, have also accused Kay of telling family
members during a trial recess that "if they didn't have anything
better to do than to sit there, they could help (me) with (my)
yardwork."
Kay said both accusations were false, and that in the latter case,
he had actually, while informing jurors that they had an afternoon
off, told them "If you don't have anything to do, my lawn could be
mowed."
Kay said that comment "made jurors laugh."
The judge continued: "The remark I made was intended as a joke to
the jury and was received by them as such."
Kay based his response on perusing the entire 4,517-page record of
the first Weitzel trial.
The family's accusations in January culminated in a complaint they
filed to the Judicial Conduct Commission, the state body that
polices judges. Because of the pending complaint, Kay has up until
now been barred from responding to any of the accusations.
Kay acknowledged making the statement of "blowing the state's case
out of the water" to a Layton City prosecutor, but said unlike Davis
County attorneys contend, it was not made before his ruling that
overturned the first Weitzel verdict.
He said instead, the comment was made while in private, casual
conversation to the prosecutor about his ruling, which had already
been reported by the press.
The affidavit responds to other allegations, including that Kay
showed favoritism toward Weitzel by sanctioning a prosecutor for
violating a decorum order, but not taking disciplinary action when a
bailiff reported that Weitzel had struck a prosecutor. In that
action, Kay said the defense filed a motion for sanctions in the
first case but that in the second prosecutors did not.
Davis County Attorney Mel Wilson declined Wednesday to comment,
except to say he has received a copy of the affidavit and plans to
file a brief in response to it on Monday.
Copyright ©2001, Ogden Publishing Corporation
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