INTRODUCTION

The Utah Indigent Defense Act insures that a Defendant who cannot afford an attorney and the expenses of representation will still have the opportunity to present an adequate defense. In most instances, that legal defense will be provided by attorneys who have contracted with the county or municipality to provide legal defense of indigent defendants. However, the Indigent Defense Act also provides that a court may appoint a non-contracting attorney (a) after conducting a hearing with notice to the responsible entity and (b) making a finding that there is a compelling reason to authorize and designate a non-contracting attorney for the indigent defendant. (See U.C.A. § 77-32-303).

ARGUMENT

The Defendant submits that there are at least four compelling reasons to appoint the undersigned counsel to provide indigent defense to Dr. Robert Allen Weitzel:

1. After the State withheld exculpatory evidence at the first trial, resulting in the granting of a new trial, it would be manifestly unfair to deprive the Defendant of experienced private counsel now that the Defendant is indigent;

2. Complex case;

3. Lengthy trial; and

4. Unduly burdensome for contracting attorneys.

A. Manifestly Unfair

On the facts of this case, it would be manifestly unfair to deprive the Defendant of the opportunity to be represented by experienced private counsel. In defending himself at the first trial, Dr. Weitzel retained a highly skilled private practitioner—Peter Stirba. The Defendant expended all of his personal resources as well as substantial funds borrowed from family and friends to retain Mr. Stirba.

Following the Defendant’s conviction on lesser included offenses, the defense learned that the State had failed to disclose the opinions of Dr. Perry Fine that all of the patients were terminally ill upon admission to the hospital, that the five patients were suffering from pain, and that the Defendant’s conduct was, at worst, medical malpractice. This expert testimony would have contradicted each of the core issues central to the State’s theory of the case. The State’s failure to disclose the exculpatory opinions of Dr. Fine contravened well-established, constitutional, legal, and ethical duties imposed upon prosecutors. For that reason, this Court granted the Defendant a new trial.

After expending all of his resources at the first trial, the Defendant now lacks any funds whatsoever to retain experienced trial counsel. Although this Court did not find that the prosecutor’s failure to disclose Dr. Fine’s opinions was a result of bad faith, the failure to disclose did violate due process and Rule 16 standards. The State’s discovery abuse should not now deprive the Defendant of the opportunity to be represented by experienced trial counsel. Such a result, would allow the State to benefit from it’s own breach of a prosecutor’s constitutional, legal and ethical duties.

Accordingly, the Defendant moves this Court to make a finding that the State’s failure to disclose exculpatory evidence is a compelling reason to appoint the undersigned counsel as a non-contracting attorney.

B. Complex Trial

This case will focus upon end of life care, pain management, and the ethics involved in treating patients at the end of their lives. The evidence at the next trial will focus in large measure upon expert opinions and not on the observations of fact witnesses or incriminating admissions. This is a case where the Defendant’s guilt or innocence will be decided in large part on the basis of which experts the jury believes. It will be a complex case requiring familiarity with medical terminology, medical charts, pharmacological issues, and presentation and cross-examination of medical expert witnesses.

The complex nature of this case is another compelling reason to appoint a non-contracting attorney.

C. Lengthy Trial

The first trial lasted five weeks. The next trial is not likely to be shorter. Private counsel is in a better position to control his calendar and set the time aside for a lengthy criminal trial.

D. Overly Burdensome for a Contracting Attorneys

The contracting attorneys are obligated to provide indigent defense on all felony matters within Davis County. In the year 2000, Laura Thompson provided representation to approximately two hundred (200) indigent defendants charged with felonies. She is presently handling the representation of approximately forty (40) felony matters.

Competent and zealous representation of Dr. Weitzel on this matter would jeopardize the ability of a contracting attorney to provide competent and zealous representation for the vast number of felony defendants appointed to the contracting attorneys. An enormous amount of time will be necessary to familiarize defense counsel with the medical records and the trial testimony from the first proceeding. Moreover, as previously noted, the re-trial is likely to last five weeks. The combination of the time commitment both for trial preparation and trial leads to the ineluctable conclusion that representation of Dr. Weitzel will be overly burdensome for the contracting attorneys.

CONCLUSION

Representation of Dr. Weitzel will require a huge time commitment. Counsel for Dr. Weitzel will need to familiarize himself with the testimony from the first proceeding, medical charts, and preparation of expert witnesses. The re-trail will be lengthy—perhaps five weeks. An unfettered commitment to effectively represent Dr. Weitzel will be overly burdensome for the contracting attorneys. Moreover, it would be unfair to force the Defendant to expend all of his personal resources at a first trial, effectively bankrupting him, and then require the Defendant to forego the services of an experienced trial lawyer at the second proceeding all because the State failed to disclose exculpatory evidence in contravention of well established constitutional, legal, and ethical duties imposed upon prosecutors. It would be unseemly to permit the State to benefit from its own improper conduct in these circumstances.

Accordingly, the Defendant respectfully moves this Court to find that compelling reasons exist to appoint the firm of Bugden Collins & Morton to represent the Defendant.

DATED this _____ day of August, 2001.

BUGDEN, COLLINS & MORTON, L.C.

__________________________________

WALTER F. BUGDEN, JR.

Attorneys for Defendant

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