Brief
on Double Jeopardy
TARA
L. ISAACSON, #7555
BUGDEN,
COLLINS & MORTON
Attorneys
for Defendant
623
East 2100 South
Salt
Lake City, Utah 84106
Telephone: (801) 467-1700
IN THE SECOND JUDICIAL DISTRICT COURT
DAVIS COUNTY, STATE OF UTAH
STATE
OF UTAH,
: REPLY
MEMORANDUM IN SUPPORT
OF DEFENDANT’S MOTION TO
Plaintiff,
SUSTAIN PLEA OF DOUBLE
JEOPARDY
v.
:
ROBERT
ALLEN WEITZEL,
:
Case No. 991700983
Defendant.
Judge Thomas L. Kay
INTRODUCTION
A Davis County jury’s refusal to convict Robert Allen Weitzel of five
counts of First-Degree murder, instead finding him guilty of the lesser
included offenses of manslaughter and negligent homicide, effectively
precludes the Davis County Attorney’s Office from
pursuing first-degree murder charges upon retrial.
The Double Jeopardy Clause of the Fifth Amendment, the Utah
Constitution, and the Utah Criminal Code prohibit retrying Dr. Weitzel for
first-degree murder.
The Double Jeopardy Clause of the Fifth Amendment guarantees that no
person shall be “subject for the same offense to be twice put in jeopardy of
life or limb.” U.S. Const.
amend. V. Similarly Article I, Section 12 of the Utah Constitution states that
no “person [shall] be twice put in jeopardy for the same offense.” The theory of double jeopardy provides constitutional
protection in three different scenarios: (1) to protect against a second
prosecution for the same offense after acquittal; (2) to protect against a
second prosecution for the same offense after conviction; (3) to protect
against multiple punishments for the same offense.
State v. Trafny, 799 P.2d 704, 709 (Utah 1990).
Double jeopardy attaches here because Dr. Weitzel has a
constitutionally protected guarantee that he cannot be tried again for
first-degree murder after the ultimate trier of fact has acquitted him of the
greater charge.
INTRODUCTION
A Davis County jury’s refusal to convict Robert Allen Weitzel of five
counts of First-Degree murder, instead finding him guilty of the lesser
included offenses of manslaughter and negligent homicide, effectively
precludes the Davis County Attorney’s Office from
pursuing first-degree murder charges upon retrial.
The Double Jeopardy Clause of the Fifth Amendment, the Utah
Constitution, and the Utah Criminal Code prohibit retrying Dr. Weitzel for
first-degree murder.
The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Similarly Article I, Section 12 of the Utah Constitution states that no “person [shall] be twice put in jeopardy for the same offense.” The theory of double jeopardy provides constitutional protection in three different scenarios: (1) to protect against a second prosecution for the same offense after acquittal; (2) to protect against a second prosecution for the same offense after conviction; (3) to protect against multiple punishments for the same offense. State v. Trafny, 799 P.2d 704, 709 (Utah 1990). Double jeopardy attaches here because Dr. Weitzel has a constitutionally protected guarantee that he cannot be tried again for first-degree murder after the ultimate trier of fact has acquitted him of the greater charge.
ARGUMENT
POINT ONE
Under the Green-Price Rule, Jeopardy for
Murder,
the Greater Offense, Ended After
the
Jury Convicted Dr. Weitzel of the Lesser-Included
Offenses
of Manslaughter and Negligent Homicide
A.
The
Green-Price rule.
As
argued in Dr. Weitzel’s opening memorandum, two United States Supreme Court
cases explain why Dr. Weitzel cannot be retried on charges of first-degree
murder. Green v. United States, 355 U.S. 184, 78 S.Ct. 221
(1957); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757 (1970).
In Green the defendant was found guilty of arson and
second-degree murder, but the jury did not find him guilty of the first-degree
murder charge. After appealing
the second-degree conviction, the defendant was granted a new trial.
On remand the defendant was tried again for first-degree murder.
Prior to trial, the trial court rejected the defendant’s jeopardy
argument. A new jury found the
defendant guilty of first-degree murder.
The Supreme Court reversed the conviction based on double jeopardy.
The Court regarded the jury’s verdict in the first trial finding the
defendant guilty of a lesser-included offense as an “implicit acquittal”
because the jury “was given a full opportunity to return a verdict and no
extraordinary circumstances appeared which prevented it from doing so.”
355 U.S. at 190-91. The
Court concluded: “Therefore it seems clear under established principles of
former jeopardy, the [the defendant’s] jeopardy for first degree murder came
to an end when the jury was discharged so that he could not be retried for
that offense.” 355 U.S. at 191. Similarly,
in Price, the Court relying again on the theory of double jeopardy held
that a petitioner, whose conviction for the lesser-included offense of
voluntary manslaughter had been reversed on appeal, could only be retried on
the charge of voluntary manslaughter. 398
U.S. at 327. The Court reasoned:
“Such a result flows inescapably from the Constitution’s emphasis on a
risk of conviction and the Constitution’s explication in prior decisions of
this court.” Id. Both
of these Supreme Court cases recognize the fundamental unfairness of retrying
defendant after he has been acquitted of a greater offense.
Here, five times a jury flatly rejected the opportunity to convict Dr.
Weitzel of first degree murder. The
jury’s action represents an “implicit acquittal” and its finding is
final and unalterable.
B.
Kessler and McNair Do Not Overrule The Doctrine of Implicit
Acquittal.
To
avoid the mandate of the Green-Price rule which prohibits retrial on a
greater offense after conviction on a lesser-included offense, the State
relies upon State v. Kessler, 49 P. 293 (1897).
In this century old Utah Supreme Court decision, the Court relied upon
Rule 24(D) of the Rules of Criminal Procedure.
This rule provides that the grant of a new trial places the parties in
the same position as if no trial had been held.
The Court also advanced the theory that the Defendant waived his right
to double jeopardy protection by moving for a new trial.
The Supreme Court eschewed the identical waiver argument in Green v.
United States, 355 U.S. 184 (1957):
Nevertheless the Government contends that Green “waived”
his constitutional defense of former jeopardy to a second prosecution
on the first-degree murder charge by making a successful appeal of his
improper conviction of second-degree murder.
We cannot accept this paradoxical contention.
“Waiver” is a vague term used for a great variety of purposes, good
and bad, in the law. In any
normal sense, however, it connotes some kind of voluntary knowing
relinquishment of a right. See
Cf. Johnson v. Zerbst, 304 U.S. 458.
When a man has been convicted of second degree murder and given a long
term of imprisonment it is wholly fictional to say that he “chooses to
forego his constitutional defense of former jeopardy on a charge of murder in
the first-degree in order to secure a reversal of an erroneous conviction of
the lesser offense. In short,
he has no meaningful choice.” (Emphasis added) Id. at 191-192.
Although it is true that the Kessler decision has not been
overturned by any of Utah’s Appellate Courts, it is incorrect to suggest
that Kessler has not been overruled by the Supreme Court’s
pronouncement of the Green-Price rule.
As pointed out in the Defendant’s opening memorandum, neither an act
of congress nor a statute enacted by a State Legislature, nor a Rule of
Procedure has supremacy over the United States Constitution.
See Dickerson v. United States, 530 U.S. 428 (2000).
The preclusive effect of the jury’s verdicts convicting Dr. Weitzel
of the lesser included offenses of manslaughter and negligent homicide and the
application of the implied acquittal doctrine are questions governed by the
Fifth Amendment of the United States Constitution.
Kessler has, therefore been overruled by the Green-Price
rule.
The State has also incorrectly suggested that McNair v. Hayward,
666 P2. 321 (Ut 1983) affirmed the Kessler holding on waiver of double
jeopardy and rejection of implied acquittal (State’s Response, p. 4).
[1]
McNair did not
address a retrial on the original charge after a conviction for a lesser
charge was set aside; there were no lesser-included offense issues in McNair.
Rather, McNair dealt with a seventeen-day disparity between the
charging document and the testimony presented at trial.
Due to a prosecutorial error, all of the State’s witnesses testified
that the Defendant committed a theft on March 22.
However, it was undisputed that the Defendant was in jail awaiting
trial on March 22. Nonetheless,
the jury convicted the Defendant. Before
sentencing, the Defendant’s counsel moved for a judgment of acquittal
notwithstanding the verdict, or in the alternative, for an arrest of judgment
or a new trial. The trial court
denied the Motion for Judgment of Acquittal and Arrested Judgment, but granted
a new trial. On appeal, the
Supreme Court agreed that it would clearly violate double jeopardy to bring
the Defendant to trial a second time on the same charges.
In reaching this conclusion, the Supreme Court did not rely upon
implied acquittal. Rather, the
Court simply dealt with the traditional double jeopardy concept, which
prohibits the State from forcing a criminal defendant to run the criminal
gauntlet a second time:
It is hard to imagine a clearer violation of the
policy served by the constitutional and statutory prohibitions against double
jeopardy then the facts of this case…a new trial in this circumstance would
amount to “affording the prosecution another opportunity to supply evidence
which it failed to muster in the first proceeding.”
Quoting Burks v. United States, 437 U.S. 1.
Id. at 325-326.
Thus, McNair is not precedent for the proposition that double
jeopardy does not bar retrial on the original charge after a conviction on the
lesser included has been set aside. Moreover,
Kessler has been overruled by the pronouncements of the United States
Supreme Court in Green v. United States, 355 U.S. 184 (1957) and Price
v. Georgia, 398 U.S. 323 (1970).
C. There
Were No Trial Errors that Render a Lesser-Included Verdict Ambiguous in Dr.
Weitzel’s Trial .
The State’s reliance upon Schiro v. Farley, 510 U.S. 222
(1994), is also misplaced. Schiro involved an ambiguous jury verdict in
the penalty phase of a death penalty case.
In this case, Schiro was charged with three counts of murder (count
one-knowingly killing the victim; count two-killing the victim while
committing rape; count three-killing the victim while committing a criminal
deviate conduct), lesser included offenses of voluntarily and involuntary
manslaughter, guilty but mentally ill, not guilty by reason of insanity, and
not guilty. The jury returned a
guilty verdict on one count of murder/rape and left all of the remaining
verdict sheets black. In
sentencing Schiro to the death penalty, the trial court found the State had
proven the aggravating factor that the Defendant committed the murder by
intentionally killing the victim while committing a rape.
On appeal, Schiro challenged the Trail Court’s finding of intent in
the penalty phase. In particular, Schiro argued that the jury’s silence on the
first murder count meant that he had been acquitted of intentional murder and
that double jeopardy precluded a finding of intent in the penalty phase.
On direct appeal, the Indiana Supreme Court rejected the implied
acquittal argument and held that “[felony murder] is not an included offense
of [murder] and where the jury, as in the instant case, finds the defendant
guilty of one of two types of murder and remained silent on the other, it does
not operate as an acquittal of the elements of the type of murder the jury
chose not to consider.” Id.
at 1208. After several appeals
and habeas petitions, the United States Supreme Court accepted certiorari.
In
rejecting the Defendant’s double jeopardy claim, the Supreme Court refused
to treat the sentencing phase of this single prosecution as a second
prosecution barred by the Double Jeopardy Clause.
The Court also rejected the Defendant’s collateral and estoppel
argument because on the facts presented, the jury did not necessarily acquit
the Defendant of intentionally killing his victim. The jury’s verdict was
ambiguous on this issue because the Judge’s instructions were confusing.
The Judge erroneously instructed the jury that the State had to prove
intent for both felony and intentional murder: “[t]o sustain the charge of murder the State must prove. . .[t]hat the Defendant engaged in the
conduct which caused the death of Laura Luebbehusen [and] [t]hat when the
Defendant did so, he knew the conduct would or intended the conduct to cause
the death of Laura Luebbehusen.” Id.
at 22-23 (emphasis added in the original).
This instruction was improper because it failed to differentiate
between the two ways of proving intentional murder and felony murder under
Indiana law. Thus, the jury might
have believed, due to the erroneous instruction, that it was required to find
a knowing or intentional killing in order to convict Schiro on any of
the three murder counts:
In sum, in light of the jury instructions, we find
that as a matter of law the jury verdict did not necessarily depend on a
finding that Schiro lacked an intent to kill. Id. at 235.
Thus, Schiro is distinguishable from the facts in the instant
matter. Here, the jury did not
receive erroneous jury instructions. Unlike
Schiro, the trial court clearly and correctly differentiated between
the mens reas necessary for conviction under murder, manslaughter, and
negligent homicide. As to all
five counts of murder, the jury was instructed to find the Defendant guilty
only if the State had proven beyond a reasonable doubt that the Defendant
acted intentionally or knowingly, or alternatively, that the Defendant while
acting under circumstances evidencing the depraved indifference to human life,
engaged in conduct which created a grave risk of death to another and there by
caused the death. See instruction number 20, attached hereto as Appendix “A”.
To find Manslaughter, the jury was instructed that the State had to
prove the Defendant acted recklessly. See
instruction number 21, attached hereto as Appendix “B”.
Finally, to find the Defendant guilty of negligent homicide, the jury
was instructed that the State had to prove beyond a reasonable doubt that the
Defendant acted with criminal negligence.
See instruction number 22, attached hereto as Appendix “C”.
Each of these mental elements were correctly defined in instruction
number 24, attached hereto as Appendix “D”.
Because there was no ambiguity created by the jury instructions in the
instant matter, Schiro is inapplicable.
The State also cites Potts v. State, 369 S.E. 2d. 746 (1988) Cert.
Denied, 489 U.S. 1068 (1989). In
Potts v. State, supra, the
Georgia Supreme Court declined to apply the Green-Price rule because
the lesser-included verdict was ambiguous.
The trial court in Potts failed to instruct the jury on the
difference between simple kidnapping and kidnapping “with bodily injury”
under the Georgia Statutes. The
Court instructed the jury on the offense of kidnapping but failed to instruct
on the greater offense of kidnapping with bodily injury.
Additionally, the Trial Court told the jury that the Defendant was
accused of kidnapping (not kidnapping with bodily injury); failed to even
mention bodily injury; and the last word of the verdict characterized the
applicable count of the indictment as kidnapping.
Because of the absence of any instructions distinguishing the elements
of kidnapping from kidnapping with bodily injury, and the other circumstances,
the Georgia Supreme Court concluded that the Green-Price rule did not
apply because an unambiguous conviction of the lesser-included offense was not
present. Additionally, the Potts
Court observed that the second condition for imposition of the Green-Price
rule–a full opportunity for the jury to consider the greater offense—was
absent:
A jury does not have a full opportunity to consider a greater offense if the court does not fully instruct the jury on the distinction between the greater and the lesser offenses. During Potts’ guilt-innocence trial, the Court did not define kidnapping with bodily injury, mention the offense of kidnapping with bodily injury by name, or otherwise alert the jury to the existence of the two separate offenses. … Potts’ jury did not have the option of choosing between kidnapping with bodily injury and kidnapping. The Court compelled the jury to use an ambiguous verdict form that did not distinguish the two offenses and did not provide an opportunity to choose between them. Id. at 748.
Thus, based upon the Trial Court’s numerous errors, the Potts
Court understandably concluded that the jury had not impliedly acquitted him
of the offense of kidnapping with bodily injury.
In contrast, as previously noted, the Trial Court carefully defined the
distinction between murder, manslaughter and negligent homicide.
Furthermore, the jury had a full opportunity to choose between the
greater and the lesser offenses. A
copy of the verdict, which clearly delineates between the different levels of
homicide, is attached here to as Appendix “E”.
D.
Hung Jury Analysis Inapplicable.
Finally
neither, United States v. Bordeaux, 121 F.3d 1187 (8th Cir.
1997) nor United States v.
Allen, 755 A2d. 402 (DC Cir. 2000) provide any support for the
inapplicability of the implicit acquittal doctrine in Dr. Weitzel’s case.
In both cases, the jury expressly stated that it was unable to reach
agreement on the greater offense, but convicted on a lesser-included offense.
In Bordeaux, the jury deadlocked as to the charge of attempted
aggravated sexual abuse by force but returned a guilty verdict on a
lesser-included offense of abusive sexual contact by force.
On the greater offense, the jury returned the verdict form with a note
stating, “after all reasonable efforts we, the jury, are unable to reach a
verdict on the charge ‘attempted aggravated sexual abuse’.” In rejecting
the Defendant’s invocation of the Green-Price double jeopardy bar,
the Eighth Circuit noted the obvious:
We hold that where the jury expressly indicates that it is unable to reach an agreement on the greater charge, a conviction on a lesser-included offense does not constitute an implied acquittal of the greater offense and presents no bar to retrial on the greater offense. Id. at 1192.
In United States v. Allen, Supra,
the jury expressly stated it was deadlocked on the greater offense.
The Trial Court declared a mistrial as to the greater offense after the
Defendant was found guilty of the lesser offense and after the Defendant moved
for a mistrial. Under those
circumstances, the Court concluded that the case was more properly analyzed
under hung jury principals rather than those governing an implied acquittal.
The Court noted that in the implied acquittal cases, the record was
silent as to the jury’s inability to agree on the greater charge.
However, in the hung jury cases, the jury’s inability to agree on a
verdict is expressly stated on the record.
Thus, the Allen jury was not silent; it reported its inability
to reach a verdict on the greater charge two different occasions.
Moreover, the Defendant moved for a mistrial. By doing so, under
traditional waiver and double jeopardy principals, the Defendant consented to
the jury’s dismissal.
Thus, both Bordeaux and Allen deal with deadlocked juries, where the jury expressly indicated its inability to reach an agreement on the greater charge. Under those circumstances, a conviction on a lesser-included offense did not constitute an implied acquittal of the greater offense and did not present a bar to retrial on the greater offense under the Green-Price rule. The instant matter is not controlled by hung jury principals; rather, we have an implicit acquittal case since the jury never explicitly indicated it was hung or unable to reach a verdict on the greater offense.
E.
Rule
606(b) of U.R.E. Prohibits All Inquiry into the Jury’s Deliberative Process.
Finally,
the State could not resist the temptation to interview jurors in an effort to
bolster its argument that the jury did not acquit Dr. Weitzel of murder.
In presenting these alleged facts, the State does not even cite Rule
606(b) of the Utah Rules of Evidence. This
Rule flatly prohibits any inquiry into the jury’s deliberative process
unless there has been some outside influence improperly brought to bear upon
jury deliberations. Rule 606(b),
provides in pertinent part:
Upon an inquiry into the validity of a verdict or an indictment a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning the matter about which the juror would be precluded from testifying be received for these purposes.
In Utah, the case law uniformly insures both the inviolability and the impenetrability of the jury’s deliberations. See State v. Gee, 498 P.2d 662 (1972) (evidence by affidavit or testimony of a juror will not be received to impeach or question the jury verdict or to show the grounds upon which it was rendered or their opinions, surmises, and processes or reasoning and arriving at a verdict); Groen v. Tri-O-Inc., 667 P.2d 598 (Ut. 1983) (the only evidence admissible to impeach a jury verdict is that which demonstrates that the verdict was determined by chance or resulted from bribery; all other proof as to what was said or done in the jury room, including evidence that the jury was confused or that it misunderstood or disregarded that facts or the applicable law, is inadmissible as volitive of the long standing policy against attempts to undermine the integrity of verdicts); State v. Lucero, 866 P.2d 1(Ut. App. 1993) (all inquiries into the thought processes of the jurors are improper because they undermine the integrity of the verdict; trial court properly refused to consider affidavit of juror where affidavit contained information concerning the jury’s deliberations).
Although it is generous of the State to concede that two jurors have
indicated that the Defendant was acquitted on some of the murder charges, this
information is not properly before this Court.
Quite frankly, this information is irrelevant because the implied
acquittal doctrine operates as a matter of law.
The doctrine does not depend upon verification that the jury actually
voted for acquittal; rather, the doctrine applies whenever the jury convicts
on a lesser-included offense so
long as the jury “was given full opportunity to return a verdict and no
extraordinary circumstances appeared which prevented it from doing so.”
Green v. United States, 355 U.S. 184, 190-191.
There were no extraordinary circumstances in the instant matter and the
State is simply not permitted to inquire into the jury’s deliberative
process.
In Livingston v. Murdaugh, 183 F.3d 300 (4th Cir.
1999) (attached hereto as Appendix “F”), the Fourth Circuit Court held
that jeopardy attached with respect to a reckless homicide charge when the
jury convicted the defendant of felony D.U.I. after the trial court gave an
erroneous instruction that the jury could convict the defendant of either
reckless driving or felony D.U.I., but not both.
As in the instant case, the State had argued that jeopardy did not
attach to the reckless homicide charge because the jury did not return a
verdict on that charge. From this
circumstance, the State reasoned that the verdict merely showed that the jury
chose to convict the defendant on felony D.U.I., not that it acquitted the
defendant of reckless homicide. Notwithstanding
that the jury remained silent on the reckless homicide charge, the Court
rejected the State’s argument that an explicit acquittal is necessary to
trigger double jeopardy protection:
While there was no explicit acquittal, there was no
conviction either. Under these
odd circumstances, the jury’s silence must be considered an implicit
acquittal. . . . under the Green decision, jeopardy attached because
the jury implicitly acquitted Livingston of reckless homicide. Id. at
301-302.
Thus, under the Green decision, silence in the first trial on a
greater offense constitutes an implicit acquittal, and that is all that is
required for jeopardy to attach and bar a retrial on the greater offense.
The Livingston court explained the double jeopardy policy, which
protects Dr. Weitzel in the instant matter:
The State has had its fair opportunity to try Livingston for reckless homicide. A contrary judgment would run afoul of double jeopardy principals. Allowing a second trial for reckless homicide in this case would mean a prosecutor could strategically seek an instruction requiring a jury to choose between one of several charges and then, once the trial has ended, go after the defendant on undecided charges. Such a ruling would allow prosecutors to try defendants piecemeal, each time using a new jury to garner further convictions. Id. at 302.
This same reasoning applies with the same compelling force in the instant matter. The State may not take advantage of its failure to disclose the exculpatory testimony of Dr. Perry Fine and now get a second chance to convict the Defendant of murder.
POINT
2
Utah
State Law Prohibits Retrial of
Dr.
Weitzel on Charges of First Degree Murder
Utah statutory law explicitly bars retrying Dr. Weitzel for any of the
greater charges for which he was not convicted.
Section 76-1-403(2) (2000) of the Utah Criminal Code states: “There
is an acquittal if the prosecution resulted in a finding of not guilty by the
trier of facts or in determination that there was insufficient evidence to
warrant conviction. A finding
of guilty of a lesser included offense is an acquittal of the greater offense
even though the conviction for the lesser included offense is subsequently
revered, set aside, or vacated.” §
76-1-403(2) (2000) (Emphasis added); see
also State v. Jackson, 857 P.2d 267, 269 (Utah 1993) (citing §
76-1-403(2)). The facts of the
instant matter conform precisely to what is contemplated by § 76-1-403(2),
and this unequivocal statutory language eviscerates any argument for retrying
Dr. Weitzel on the greater charges.
CONCLUSION
In
its effort to avoid the double jeopardy bar to a second prosecution of Dr.
Weitzel for murder, the State has cobbled together a mixture of cases that are
all distinguishable. The
State relies upon a century old Utah case, but ignores the supremacy clause of
the U.S. Constitution. The State
urges this Court to adopt the reasoning urged by the dissent in United
States v. Green, supra.
The State also argues that ambiguous verdicts resulting from trial
court errors (Schiro, supra,
and Potts, supra) and hung
jury cases (Bordeaux, supra,
and Allen, supra) undermine
the mandate of an implicit acquittal in this case.
Finally, the State also implies that juror interviews can be utilized
to impeach the jury’s verdicts in spite of the long-standing policy against
attempts to impugn and undermine the integrity of jury verdicts.
In doing so, the State does not even mention Utah Rule of Evidence
606(b) which flatly prohibits examining the mental processes by which a jury
arrives at a verdict. For the reasons stated, each of the State’s arguments fail.
The
State had one opportunity to convict Dr. Weitzel of murder but failed to do
so. The State may not now exploit
its own misdeed of failing to disclose Dr. Perry Fine’s exculpatory evidence
to garner a second chance to prosecute Dr. Weitzel for murder.
The constitutional prohibition against double jeopardy stands squarely
in the State’s path.
Thus, not only is the State constitutionally barred from retrying Dr. Weitzel for first degree murder, it is also statutorily prohibited from doing so. To retry Dr. Weitzel on the charge of first degree murder would do violence to Dr. Weitzel’s rights under the U.S. Constitution, the Utah Constitution, and Utah statutory law.
DATED this _____ day of May, 2001.
BUGDEN, COLLINS & MORTON, L.C.
__________________________________
WALTER F. BUGDEN, JR.
TARA L. ISAACSON
Attorneys for Defendant