IN THE SECOND JUDICIAL DISTRICT COURT

IN AND FOR THE COUNTY OF DAVIS, STATE OF UTAH

STATE OF UTAH,

Plaintiff,

vs.

ROBERT ALLEN WEITZEL,

Defendant.

AFFIDAVIT OF

JUDGE THOMAS L. KAY

Case No. 991700983

STATE OF UTAH          )

: ss.

COUNTY OF DAVIS     )

I, Judge Thomas L. Kay, being duly sworn, depose and state:

1. I have personal knowledge of the matters stated herein.

2. Prior to my appointment as a District Judge in Davis County on July 1, 1998,1 had 19

years of extensive litigation experience as a law clerk to a federal judge and as a trial lawyer with

two excellent law firms.

3. I am a member of the Supreme Court Advisory Committee on the Utah Rules of Evidence

and the Committee on Improving Jury Service.

4. The case of State of Utah v. Robert Allen Weitzel was filed on September 21, 1999 and

randomly assigned to me.

5. The preliminary hearing was held from January 26 to 28, 2000 and February 2, 2000

before Judge Memmott.

6. The defendant was arraigned on February 10, 2000.

7. The pretrial was held on February 16,2000 and the trial was held on June 1,2000 to July

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10,2000.

8. I sentenced Defendant to the Utah State Prison for 1-15 years on September 8, 2000.

9. The motion for new trial was granted on January 9, 2001.

10. The motion to recuse was filed on April 18, 2001.

11. The trial was the longest in Davis County history.

12. The case was one of the most evidentiary complicated cases tried in this state.

13. The case received more media attention than any case in recent memory.

14. I heard and decided over twenty substantive motions in limine before the trial.

15. I had to decide an equal or greater number of evidentiary issues during the trial.

16. I did my best to make certain that the jurors who had to spend so much time away from

their jobs and families were treated with care and respect.

17. I did my best to make certain that the parties were given a fair trial and that the rules of

evidence and criminal procedure were followed.

18. I had no interest in the outcome of this case and continue to have no interest in the

outcome of this case.

19. At no time during the hearings or trial of this case did I ever say anything intended to

hurt any of the alleged victims in this case.

20. 1 did my best not to be swayed by partisan interests, public clamor, or fear of criticism.

21. I appreciate the opportunity to respond to the allegations in the prosecution's affidavit.

Question 1

Do you have a response to the allegation that you made an "insensitive" statement concerning

one of the victim's families (i.e. the Smith Family) during the hearing on the State's motion to

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exhume the bodies of the deceased victims?

22. In regard to this question, Mr. Wilson states in his affidavit that during the exhumation

hearings I made the following comment:'". .. the Smiths have a pending case against Dr. Weitzel

or are thinking of having a potential civil case. Well, obviously, they want to have the body

exhumed ....'" Wilson Affidavit at 19. According to Mr. Wilson, this comment was insensitive

to the concerns of the Smith family because they "had lost their mother, knew an autopsy was not

anything they wanted because their father had been a mortician and disliked autopsies." Id.

Although they supported the exhumation of their mother, "their decision was not without angst."

Id.

23. I made the statement referred to by Mr. Wilson. However, the allegation that I was

being insensitive to the concerns of the Smith family when I made the statement is based solely on

Mr. Wilson's reading of the statement out of context. Moreover, although Mr. Wilson states in his

affidavit that the Smith family knew an autopsy was not a procedure they wanted performed, because

their father had been a mortician and disliked autopsies, these facts were not known to me.

24. At the April 24, 2000 hearing, at which Mr. Wilson was present, I inquired as to whether

the families of the decedents objected to the exhumations. Mr. Major, representing the State, made

the following response:

The families have been notified. I was hoping Mr. Morris was here. He has

talked to the family. Interestingly enough, dealing with the two separate ones, I'll

deal with Lydia Smith first, Your Honor. We have spoken with the family members

of Lydia Smith and I'll represent to the Court we have talked to their attorney who

is representing the family, Clark Newall. I have his telephone number here. I spoke

with him just prior to coming to Court. He has represented to me-and I have his

telephone number and he's even amenable to the Court calling that number. It's his

cell phone number and he would have that with him. And they have represented that

the family of Lydia Smith is in fact, requesting the autopsy to be done and the body

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to he [sic] exhumed. They 're not opposing any type of a motion. They 're looking

at some civil actions. That's why they have hired Mr. Newall or Nehall I believe his

name is and they have represented that they do in fact, want the autopsy done and

are encouraging us to go ahead with it. That is actually, they have been encouraging

us to do an autopsy for quite a while and I would represent that the Court can have

contact with that attorney if the Court so desires, but they are not opposed to the

autopsy.

Transcript of April 24, 2000 Hearing at 3-4 (emphasis added).

25. When the hearing was continued to May 1,2000, Mr. Major again made it clear that the

family of Lydia Smith was in favor of the exhumation and autopsy as shown in the following

statement:

And today we have the relatives the next of kin for Lydia Smith and it's our

understanding and my understanding and I think we are ready to speak to the Court

that they want the body dug up, they want their mother's body exhumed and they

want this autopsy to take place for a number of reasons. They want to know the

cause of death.

Transcript of May 1, 2000 Hearing at 26 (emphasis added).

26. Later in that hearing, I simply reiterated, in nearly identical terms, what Mr. Major had

said to me when I made the following statement:

. . . I  understand that what you mentioned last time that the Smiths have a pending

case against Dr. Weitzel or are thinking of having a potential civil case. Well,

obviously, they want to have the body exhumed and obviously that has something to

do otherwise.

We have one family member who basically has filed an affidavit and in their

affidavit they said, hey, Judge, unless it's really necessary, you know, we don't want

it done.

Transcript of May 1, 2000 Hearing at 32-33 (emphasis added).

27. Mr. Major clearly indicated to me during both exhumation hearings that the Smiths

wanted to have their mother's body exhumed and an autopsy performed because they were looking

into some civil actions. As the context reveals, my remarks were merely a restatement of what the

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prosecution had already indicated to me was the Smith family's position on these issues.

28. Since Mr. Wilson was present at both exhumation hearings, he knew the full context in

which my statement was made. His allegation against me is not made in good faith and, as the

record reflects, simply is not true. Moreover, Mr. Wilson's comments that the exhumation and

autopsy of Lydia Smith was not something the Smith family wanted is not what was represented to

me by the prosecution at the hearings on the motion to exhume.

29. Mr. Major's representations during the hearings are inconsistent with Mr. Wilson's

comments in his affidavit notwithstanding the fact that Mr. Wilson was present at the hearings when

Mr. Major made these statements. According to Mr. Major, not only did the Smith family want an

exhumation and autopsy, they were requesting that the body be exhumed and that an be autopsy

performed and were encouraging the prosecution in this regard.

Question 2

Do you have a response to the allegation that you made a comment, directed towards the

victim's families, during the trial, that "if they didn't have anything better to do, that they could

assist you with your yard work?"

30. In regard to this question, Mr. Wilson states in his affidavit that, "[a]lthough this could

not be found in the record," Wilson Affidavit at 19 (emphasis added), at one point early in the trial

I sent the jurors home early because there were some evidentiary matters that needed to be

considered. Because, according to Mr. Wilson, I had ordered the families to "stay put in the

courtroom until there was a recess," id., they sat patiently waiting for me to leave the bench. At this

point, Mr. Wilson alleges that I "looked at [the families], and said something to the effect that if they

didn't have anything better to do than to sit there, they could help [me] deal with [my] yard work."

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Id.

31. These allegations are absolutely false. If I had made any such statements to the families

of the decedents in court, those statements would have appeared in the record.

32. The only reference found about "my yard" in the entire record of 4,517 pages was a

comment I made to the jury during the following colloquy:

THE COURT: Okay. Is there anything further that we have before we release the

jury?

MR. WILSON: State has nothing further at this time your honor.

MR. STIRBA: I have nothing, Judge.

THE COURT: Okay. Ladies and gentlemen, what we're going to do today as I

mentioned by staying a little longer, we are going to -there's a number of items that

have to be resolved before we can hear some further testimony. And so, I'd like to

come back at 8:30 tomorrow. You'll have the afternoon off. If you don't have

anything to do, my lawn could be mowed. Otherwise, you know, you'll have your

afternoon off.

Transcript, Vol. 9 at 2059-60 (emphasis added)

33. After this statement was made, the jurors laughed. The remark I made was intended as

a joke to the jury and was received by them as such.

34. At no time did I ever make such a statement to the alleged victims.

35. Additionally, while Mr. Wilson's affidavit implies that I verbally and specifically

"ordered the families to stay put in the courtroom until there was a recess," this never occurred.

There was only one occasion in which I specifically addressed the Decorum Order and the problem

of spectators walking in and out of the courtroom during the trial sessions. This occurred on July

5th, approximately one month after trial had begun. As the court session began after we had returned

from a recess, I stated to everyone generally:

Please be seated. The record will reflect that the jury has returned. And I think

I would just like to make a statement too that previously before the trial started we

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had a Decorum Order and the Decorum Order basically states that people, to prevent

them from just walking in and out, even though the Decorum Order says we'll lock

the door after a session begins, we haven't locked the door in the past but if people

keep coming in and out, the Decorum says that once you leave you need to stay out

till the break. Obviously if you have a medical emergency or some other problem,

you can do that. But please, let's try to keep--if you come into the courtroom just

stay in the courtroom. If you go out, maybe just stay out till the next break.

Transcript. Vol. 18, p. 3787.

36. I never singled out members of the families of the victims, or anyone else, and told them

to "stay put;" nor did I make the other statement alleged by Mr. Wilson in his affidavit.

Question 3

Do you have a response to the allegations of what occurred in regards to the baseball playing

incident involving a juror?

37. In regard to this question, Mr. Wilson asserts that I expressed anger toward the

prosecution attorneys at both the hearing on the baseball incident and the hearing on Ms. Barlow's

comment to the press about the hearing on the baseball incident, but took no action after being

informed that the defendant physically assaulted one of the State's attorneys during the trial. See

Wilson Affidavit at 20-21. •

38. I never expressed anger or bias towards the prosecution attorneys over the baseball

incident nor did I express anger towards Ms. Barlow at the hearing on the motion for sanctions.

39. On the morning of June 26,2000, my law clerk informed me that the prosecution wanted

to speak with me about a matter in my chambers. He told me that the prosecutors would not tell him

what the matter was.

40. As the record reflects, Mr. Wilson indicated that I had been observed playing catch with

a juror in the presence of a bailiff and he was concerned about continuing with the case until he

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could raise the issue with another judge. See Transcript, Vol. 12 at 2607.

41. In response, I explained what happened and then immediately called the Presiding Judge,

Judge Allphin, on the phone to arrange for him to hear the matter. See Transcript, Vol. 12 at 2608-

09.

42. After Judge Allphin heard from the juror and me and the State was permitted to brief

the issue, see Transcript, Vol. 12 at 2615-17, 2619-22, he ruled as follows:

Based on the foregoing facts, let me just indicate that these jurors have been

exposed to Judge Kay for approximately five weeks now. They know him fairly

well, I would think. As a result of this contact, one or more of them know that he

likes baseball, that his son plays baseball, that he coaches little league, and that he

occasionally throws a baseball at lunch time to relieve some stress.

They don't know anything more about this defendant, Dr. Weitzel; they know

nothing more about the victims in this case; they know nothing more about the

victims' families. They know nothing more about the defense attorney nor the

prosecuting attorneys here.

The court will find that the contact was inconsequential,' that the jurors were not

influenced as to their ultimate decision as to guilt or innocence.

They may as a result of this come to know that Judge Kay is-is a human and

that he likes some of the same things they like, and something that we all know

around this courthouse, that Judge Kay is an avid baseball fan.

The defendant today has waived any right that he may have to invoke the

rebuttable presumption of prejudice as a result of this contact. The State has not

made a motion orally, or in writing claiming that their case would be prejudiced by

the contact.

And, therefore, this court will find that no harm, no foul. The case then is

referred back to Judge Kay for completion of the trial.

Transcript, Vol. 12 at 2744-45.

43. Following Judge Allphin's ruling on the baseball incident, I neither thought nor said

anything else about the matter.

44. As for the allegation that I expressed anger towards Ms. Barlow concerning her

‘ Ms. Barlow herself stated about the baseball incident that she "didn't think there was

anything nefarious, that I thought it was innocuous." Transcript, Vol. 15 at 3314.

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comments to the press about the in-chambers hearing on the baseball incident, this issue was raised

in the context of a motion for sanctions against the prosecution filed by Mr. Stirba. In his motion,

he detailed numerous instances where the prosecution had acted in a manner that could prejudice the

jury against the defendant. Mr. Stirba stated,

I didn't file this lightly. I'll tell you why I did file it. It seems like there's a

repeated pattern in this case of either asking questions directly contrary to what the

court has already ruled; asking questions whose only purpose is to potentially inject

some prejudicial and extraneous information in front of the jury; or to somehow sour,

for the press's, I guess, good, the publicity in this case against the defendant. You

know, I'm willing to put up with it for so long then I feel I have to do something.

So, that's my concern. I could go on and on. I'll tell you what I am concerned

about now. We're getting to the end. I think everybody knows the rules of the game.

The Court has been absolutely clear about what this case is about and the limitations

or the box in which we'll litigate this case. I'm very concerned that there is going to

be repeat episodes of what I consider are questions which have no other purpose than

to inflame and we're going to be in a situation where we'll be looking at a mistrial.

That concerns me greatly, given all the effort that has been put into this case by the

Court and everybody else.

Every prosecutor knows that you are to strike fair blows, but not foul ones.

When you're asking questions on cross that kind of come out of left field and that are

clearly outside the bounds of any remote chance of legitimate evidence in this case,

the first time maybe that's okay. Maybe that's an inadvertence or something that just

happened. It does happen, I understand that. But when we've had repeated examples

of it I just get to the point I have to bring it to the Court's attention and hope that we

can address it in some rational manner. That's why I filed the motion.

Transcript, Vol. 15 at 3308-11.

45. I asked Mr. Stirba if he was referring to the Decorum Order violation and he continued

as follows:

The Decorum Order violation is another problem. I'll tell you, I just heard about

it. I wasn't here. I had left. I was pretty taken aback, after what we'd gone through

in the morning, that essentially were having these kinds of conferences with the press

in the courtroom.

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I was concerned that here we have these in chambers discussions, one of which

relates to a juror. Then essentially we're having, before its even heard publicly, I

mean there wasn 't even a hearing, we're having a press conference or interchanges

with the press disclosing everything that wasn't at that point a matter of public

record.

Transcript, Vol. 15 at 3311-12 (emphasis added).

46. Following Mr. Stirba's comments, I permitted Ms. Barlow to respond because she was

the prosecutor who was alleged to have violated the Decorum Order by speaking to the press in the

courtroom about matters that were hot part of the public record. She first argued that the Decorum

Order was not directed at the attorneys, but only the press and, therefore, she was not in violation

of the Order. See Transcript, Vol. 15 at 3312-13. When she then attempted to justify speaking to

the press by arguing that the hearing on the baseball incident had taken place in chambers, I made

the statement quoted in the affidavit. See Transcript, Vol. 15 at 3313. My statement simply

informed Ms. Barlow that she could not, in good faith, make such an argument because the press

would not have asked her questions about the in-chambers discussion in the first place had the

prosecution itself not insisted on having the hearing out of the presence of the public and the press.

47. As to the alleged-physical assault by the defendant on one of the State's attorneys, this

incident was brought to my attention by a bailiff. Unlike the motion for sanctions filed by the

defendant, there was never any such motion filed by the prosecution either addressing the alleged

assault or requesting some type of relief. There was, therefore, nothing for me to rule on.

Question 4

Do you have a response to the allegation that you made a statement to the "Layton City

prosecutor" concerning an expert witness (apparently Dr. Fine), whose testimony "might blow the

State's case out of the water," or words to that effect?

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48. Mr. Wilson states in his affidavit that I made comments to a local (unnamed) city

prosecutor in a  public setting prior to ruling on the motion for a new trial that "the defendant's

witness who testified during the [evidentiary] hearing on the Motion for the New Trial would blow

the state's case out of the water." Wilson Affidavit at 22 (emphasis added).

49. This allegation is false. At no time prior to my ruling on the motion for a new trial did

I ever make a statement in a public setting that if Dr. Fine would have testified at trial he would have

blown the prosecution's case out of the water.

50. This allegation is not based on the personal knowledge of Mr. Wilson and, moreover,

no affidavit was attached to the motion to recuse from the unnamed local prosecutor.

51. To respond to your question, I assume that the "local city prosecutor" referred to by Mr.

Wilson is Kristina Neal, the Layton City Prosecutor.

52. I am the resident judge in Layton and have known Ms. Neal for the past three years.

Sometimes after the misdemeanor calendar is completed and no one else is in the courtroom (except,

perhaps, for the bailiff or court clerk), Ms. Neal and I may discuss items in the news, interesting

cases, or simply engage in small talk.

53. Sometime after I had ruled on Defendant's motion for a new trial, Ms. Neal and I had

a conversation in the courtroom after the calendar was over for the day. The bailiff had locked the

doors and no one was present in the courtroom except Ms. Neal, me, and perhaps the bailiff. At this

point Ms. Neal mentioned the newspaper articles about my ruling and asked why I had granted the

motion for a new trial.

54. I told her that the motion had been granted because the prosecution withheld a witness

that would have changed the outcome of the case. When she responded, "How could one witness

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change the outcome?" I explained to her the relationship between Dr. Hare, the State's key witness,

and Dr. Fine. When she still looked puzzled I said, "The reason I granted the motion for a new trial

is because the testimony of Dr. Fine would have blown the State's case out of the water."

55. In speaking to Ms. Neal, I simply utilized a colloquial phrase, often used in informal

conversation, to accurately express the conclusions I had already stated formally in my Memorandum

Decision. In granting Defendant's motion, I concluded that had the prosecution disclosed the expert

opinions of Dr. Fine, the likelihood of a different result was sufficiently high so as to undermine

confidence in the outcome of the trial. As I stated in my Memorandum Decision in addressing the

due process and Rule 16 standards for granting a new trial,

Among the experts called by the State, none provided testimony more significant

or more crucial than Dr. Hare. But for his opinions on the condition of the patients

and the treatment rendered by Defendant, it is questionable whether the State would

have obtained any convictions. However, notwithstanding Dr. Hare's expertise, at

some point prior to trial it became clear that issues relating to end-of-life care would

be important to the case. Dr. Hare, who lacks expertise in treating geriatric and end-

of-life patients, recommended one of his colleagues, Dr. Fine, as someone whom the

State should consider as an expert witness because of his expertise in the area of end-

of-life care.

By all accounts Dr. Fine is a leading expert in the areas of pain management and

end-of-life care. He has significant experience treating end-of-life patients with

dementia, which would have been particularly relevant to the present case.

Moreover, he has ethical expertise with respect to the treatment of patients at the end

of life and is knowledgeable concerning the Utah standard of care applicable to end-

of-life situations. His wide-ranging expertise gave him the unique ability to comment

on each of the central issues in the case: (1) the condition of the patients; (2) whether

they were in pain; and (3) Defendant's care of the patients. Without question, his

expert opinions on each of these issues would have undermined the State's case

because of the substance of his testimony, his unique qualifications, and his

credibility as a witness. Furthermore, his direct testimony on these issues would

have created some doubt as to the opinions of Dr. Hare, the State's key witness, and

he would have assisted the defense in powerfully cross-examining and impeaching

Dr. Hare. Dr. Fine's close association with Dr. Hare provided him with first-hand

knowledge of apparent inconsistencies between Dr. Hare's medical practices and his

testimony at trial. Certainly, the cross-examination of Dr. Hare by defense counsel

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would have been radically different had the defense been able to utilize the

knowledge and expertise of Dr. Fine. It is difficult to overstate the negative effect on

the State's case that his testimony would have had at trial given the authoritativeness

and credibility with which Dr. Fine could have testified concerning the issues in

dispute.

Given these factual conclusions, there is little question that had Dr. Fine

testified at trial, he would have provided the jury with powerful and credible point-

by-point criticism of Dr. Hare's testimony and would have presented authoritative

opinions contrary to the State's case. Therefore, it is reasonable to conclude that the

jury would have questioned the reliability of the State's experts, particularly the

State's key witness. Dr. Hare, and come to a different result. Confidence in the

verdict cannot survive where the undisclosed evidence would have provided the jury

with information that could well have led them to reject some, if not all, of the State 's

theory of the case. This is particularly so given the closeness of the case and the

importance of the credibility of the witnesses to the resolution of the issues.

Memorandum Decision at 17-19 (emphasis added).

56. I also considered the motion under the newly discovered evidence standard and stated

the following:

The court also finds that the evidence is not merely cumulative. While it is true

that had Dr. Fine testified at trial his testimony would have addressed the central

issues in dispute and would undoubtedly have replicated the testimony of at least

some of the defense experts, the State fails to consider the impeachment value of Dr.

Fine's testimony and his uniqueness as an expert witness. The range and depth of

Dr. Fine's qualifications are unmatched by any other expert called at trial. Dr.

Fine's close association with Dr. Hare provided him with first-hand knowledge of

apparent inconsistencies between Dr. Hare's medical practices and his testimony at

trial. The cross-examination of Dr. Hare, the State's key witness, would have been

significantly different had the defense been able to take advantage of the knowledge

and expertise of Dr. Fine. Given his unparalleled expertise and the authoritativeness

with which he would have testified concerning the issues in dispute, coupled with the

negative impact his opinions would have had on the credibility of Dr. Hare, the court

concludes that the testimony of Dr. Fine was not merely cumulative.

Id. at 20-21 (emphasis added).

57. My informal comment to Ms. Neal was made during a private conversation in an empty

courtroom and accurately reflected the conclusions that had already been made public when my

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Memorandum Decision on the motion for a new trial was issued.

Question 5

Are there any other relevant factors that you think the reviewing judge should consider in

deciding this motion? If so, what are those factors?

Since this question does not lend itself to an affidavit-type answer, I will respond without the

paragraph numbering of my previous responses. The relevant factors I think the reviewing judge

should consider in deciding this motion are:

1. The timeliness of the motion under Rule 29(c)(l)(B) of the Utah Rules of Criminal

Procedure.

2. The requirement under Rule 29(c)(l)(A) of the Utah Rules of Criminal Procedure that the

affidavit state facts. See also Rule 56(e) of the Utah Rules of Civil Procedure.

3. The requirement under Rule 29(c)(l)(A) of the Utah Rules of Criminal Procedure that the

motion be filed in good faith.

4. The written comments of the jurors attached hereto as Exhibit 1.

5. The application of In re Affidavit of Bias, 947 P.2d 1152,1154 (Utah 1997) to pages 6-18

and 22-28 of the affidavit of Mr. Wilson.

6. The application of Rule 3(B)(2) of the Code of Judicial Conduct.

7. The application of Rule 29 of the Utah Rules of Criminal Procedure to pleadings filed by

the State or the alleged victims after the filing of the motion to recuse.

8. The application of Rule 3.3(a)(l) and (4) of the Rules Of Professional Conduct.

9. The application of Utah Code Ann. § 78-8-107(9)(c).

10. The effects the decision will have generally on the decision making of trial judges and

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the conduct of criminal trials in the State of Utah. Specifically, whether the decision will:

a) cause judges to make their rulings in order to avoid public criticism rather than on

the basis of the rule of law;

b) cause judges to overcompensate to the benefit of the prosecution and victims at the

expense of the constitutional rights of a defendant;

c) encourage non-prevailing parties and non-parties to move to disqualify judges on the

basis of an unpopular decision;

d) undermine judicial independence;

e) undermine public confidence in the judiciary; and

f) undermine generally the fundamental rules upon which fair trials are conducted.

11. The reviewing judge should also consider that, like all judges, I do not expect applause

or awards for doing what my job requires of me, regardless of how demanding it may be at times.

Judges, however, do expect, and deserve, that when they do their jobs to the best of their abilities

and in accordance with their oath to support and defend the Constitution, that they should not be the

target of baseless and false statements that they do not have the ability to defend against.

12. Finally, the reviewing judge should consider that I recognize that in light of all the

negative publicity that has been generated during the past six months by the "allegations" in the

State's motion to recuse and the related supplemental pleadings and news stories, a significant

shadow has been cast over this case. While there may be an appearance of bias, that appearance 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.

If, in the opinion of the reviewing judge, it would be better for another judge to preside over this

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