Defendant Robert Allen Weitzel, by and through undersigned counsel, hereby submits the following Memorandum in Support of Defendant’s Motion for New Trial.

ARGUMENT

            On July 10, 2000, defendant Robert Allen Weitzel was convicted on two counts of manslaughter and three counts of negligent homicide in relation to the deaths of Mary Crane,  Judith Larsen, Ennis Alldredge, Ellen Anderson and Lydia Smith.

            According to the Utah Rules of Criminal Procedure, “[t]he court may, upon motion of a party or upon its own initiative, grant a new trial in the interest of justice if there is any error or impropriety which had a substantial effect on the rights of a party.”  Utah R.Crim. P. 24(a).  Here, Dr. Weitzel’s rights to due process and a fair trial were adversely affected by prosecutorial and likely juror misconduct.  First, the prosecution failed to disclose evidence that was favorable to Dr. Weitzel and material to his innocence.  This evidence was the expert testimony of Dr. Perry Fine, a pain specialist at the University of Utah.  Dr. Fine’s opinion regarding Dr. Weitzel’s actions would have directly contradicted the prosecutions whole theory of this case because Dr. Fine was of the opinion that Dr. Weitzel had not committed the offense of murder as charged.  This opinion was directly contrary to the opinion expressed by one of the prosecution’s experts, Dr. Brad Hare.  See Affidavit of Dr. Perry Fine, attached hereto as Exhibit “A”, at ¶ 6.  Second, not only did the prosecution fail to disclose such evidence, but it actively attempted to conceal it.  Dr. Fine has stated under oath that two Assistant Attorney Generals involved with the prosecution of this case expressly told him not to disclose his opinion to defense counsel if requested.  See id. at ¶ 9.  Third, Dr. Fine’s  opinion would itself justify a new trial on the grounds of newly discovered evidence because his testimony could not have been discovered by the prosecution through reasonable diligence. Finally, it appears that a member of the jury, Mr. William Gillette, may have misrepresented facts during the voir dire process to the extent that he concealed information that would have provided Dr. Weitzel a valid basis to challenge him for cause.  Based on these facts and established Utah case law, Dr. Weitzel is entitled to a new trial. 

A.        The Prosecution Violated Dr. Weitzel’s Rights to Due Process and a Fair Trial by Failing to Disclose Exculpatory Evidence.

            “The overriding concern in cases involving prosecutorial nondisclosure of evidence which tends to exculpate the defendant is the defendant’s right to a fair trial.”  State v. Jarrell, 608 P.2d 218, 225 (Utah 1980).  As the Utah Supreme Court has explained:

In a criminal trial it is essential that evidence which tends to exonerate the defendant be aired as fully as that which tends to implicate him.  To that end, the State, in vigorously enforcing the laws, has a duty not only to secure appropriate convictions, but an even higher duty to see that justice is done.  

Id. at 225.  “The underlying concern is, of course, to make the judicial process a search for truth and not just an arena of competition between the prosecution and the defense.” Id. at 224. 

            The United States Supreme Court has specifically discussed the parameters of a prosecutor’s duty to disclose exculpatory evidence to the defense.  In  Brady v. Maryland, 373 U.S. 83 (1963), the Court imposed an affirmative duty on the prosecution to produce at the appropriate time requested evidence that is materially favorable to the accused.  See id. at 87.  It held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Id..  The Court’s reasoning was as follows:

Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant.  That casts the prosecutor in the role of an architect of a proceeding that does not comport to the standards of justice, even though, as in the present case, his action is not “the result of guile.” 

See Brady, 373 U.S. at 87-88.   

            In United States v. Agurs, 427 U.S. 97, 112 (1976), the U.S. Supreme Court held that certain exculpatory evidence must be disclosed even when it is not requested by the defense.  Such evidence must be disclosed if it “is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.”  See id. at 107.  The material question is whether “the omitted evidence creates a reasonable doubt that did not otherwise exist.”   Id. at 112.  Whether such evidence creates a reasonable doubt must be evaluated in light of the entire record:

If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.  On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.  

Id. at 112-13.  If the non-disclosed evidence is sufficient to have created the requisite doubt, a “constitutional error has been committed.”  Id. at 112.

            The U.S. Supreme Court further clarified the Brady rule in United States v. Bagley, 473 U.S. 667 (1985).  There, the U.S. Supreme Court considered  a prosecutor’s failure to disclose evidence that the defense might have used to impeach a government witness.  See id. at 676.  It held that both direct and impeachment evidence falls within the Brady rule.  See id..  The Court relied on the fact that impeachment evidence, when disclosed and used correctly, may make the difference between conviction and acquittal.  See id.

            The U.S. Supreme Court’s analysis in this area has been wholly adopted by Utah Courts,   see State v. Martin, 984 P.2d 975, 977-78 (Utah 1999), and is consistent with Utah Rule of Criminal Procedure 16(a)(4) (prosecutor shall disclose to the defense, upon request, “evidence known to the prosecutor that tends to negate the guilt of the accused”).  Most importantly, the failure of the prosecution to disclose such evidence entitles a defendant to a new trial.  See State v. Owen, 753 P.2d 976 (Utah 1988) (“a motion for new trial is generally permitted for . . . reviewing a conviction obtained by unfair or unlawful methods.”).    

            Here, the prosecution undoubtedly suppressed requested material evidence that, if introduced, would have directly exonerated Dr. Weitzel of murder.  On or about April 26, 2000, Dr. Fine of the University of Utah Pain Clinic met with Assistant Attorney Generals Charlene Barlow and Elizabeth Bowman to discuss Dr. Fine’s review of medial records and his findings.  See Fine Affidavit at ¶ 5.  Upon review of these records, Dr. Fine opined that Dr. Weitzel’s actions did not constitute murder.  See id. at ¶ 6.  In fact, Dr. Fine questioned whether this was an appropriate matter for a criminal prosecution of any kind.  See id..  This opinion was expressly given to Ms. Barlow and Ms. Bowman.  See id.. However, the prosecution never presented Dr. Fine’s opinion to Dr. Weitzel or his counsel.  In fact, Ms. Barlow and Ms. Bowman ignored their duties to see that justice be done by wilfully and actively concealing Dr. Fine’s opinion from Dr. Weitzel and the jury.   Such actions were entirely inconsistent with the State’s duty to pursue justice and were a direct attack on this Court’s ability to search for the truth.  Unfortunately, it appears the prosecution was more interested in winning a perceived competition than serving the interests of justice.

            The Brady rule is applicable to the prosecution’s concealment of Dr. Fine because the defense requested such information.  On October 6, 1999, the defense served the State with a Request for Discovery pursuant to Rule 16 of the Utah Rules of Criminal Procedure in which it requested “[e]vidence known to the prosecutor that tends to negate the guilt of the Defendant, mitigate the guilt of the Defendant, or mitigate the degree of the offense for reduced punishment, i.e. all Brady material.”  See Exhibit “B”.  Furthermore, the defense made a Renewed Request for Discovery on May 5, 2000, in which it again requested “all discovery, not heretofore provided, pursuant to Rule 16 of the Utah Rules of Criminal Procedure.”  See Exhibit “C”.  Dr. Fine’s opinion obviously falls within this request.  His opinion that the deceased in the case were not murdered unquestionably “tends to negate the guilt” of Dr. Weitzel.  Moreover, it cannot be argued that the prosecution simply forgot to disclose Dr. Fine’s opinion because the Defendant’s Renewed Discovery Request was made less than two weeks after Ms. Barlow and Ms. Bowman met with Dr. Fine.  

            Moreover, even if the defense had not requested Dr. Fine’s opinion, the prosecution still had a duty to disclose it pursuant to the Agurs decision because Dr. Fine’s opinion would have created a reasonable doubt that would not have otherwise existed. See 427 U.S. at 107 (Unrequested evidence must be disclosed if it “is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.”)  In support of its case, the prosecution relied heavily on the expert testimony of Dr. Bradford Hare to suggest that Dr. Weitzel murdered the deceased through the improper administration of morphine.  Dr. Fine’s testimony would have directly contradicted such evidence.  Dr. Fine is a specialist  in end-of- life care.  See Fine Affidavit at ¶ 2 & 3.  Moreover, he works at the same clinic as Dr. Hare.  See id. at ¶ 3. Therefore, both would have had the same perspective in analyzing the relevant medical records.  Moreover, Dr. Fine is a member of the local community.  This may have relieved jurors of any suspicion that he was simply an outsider hired to criticize the actions of local prosecutors or that he had an underlying agenda he was trying to promote.  In short, Dr. Fine would have been instrumental in impeaching Dr. Hare’s testimony by creating reasonable doubt that might not have otherwise existed.

            In sum, because Dr. Fine’s opinion (1) was requested by the defense; (2) constituted material evidence supportive of Dr. Weitzel’s innocence; and (3) would have created reasonable doubt that would not otherwise have existed, Dr. Weitzel’s due process rights were violated when his opinion was suppressed by the prosecution.  Such action constitutes an “impropriety which had a substantial adverse effect upon the rights of a party.”  Utah R.Crim. P. 24(a).  Therefore, Dr. Weitzel requests this Court to use its discretion in the interest of justice and grant him a new trial.

            B.            The Prosecution’s Suppression of Dr. Fine’s Opinion Constitutes Prosecutorial Misconduct Because the Prosecution Actively Attempted to Conceal the Testimony      

            The prosecution’s suppression of Dr. Fine’s opinion was not an inadvertent mistake.  Rather, the State actively attempted to conceal the evidence by instructing Dr. Fine not to provide his opinion to defense counsel.  This prosecutorial misconduct denied Dr. Weitzel his right to due process and is itself grounds for a new trial.

            After Dr. Fine presented his opinion to Ms. Barlow and Ms. Bowman on April 26, 2000, Ms. Barlow spent a good portion of time arguing why she believed Dr. Weitzel had committed murder.  See Fine Affidavit at ¶ 7.  Once Dr. Fine would not change his mind, it became clear to him that the two prosecutors had no interest in using him as an expert witness.  See id. at ¶¶ 7 & 8.  However, before the prosecutors left, Dr. Fine was told that defense counsel was aware that he had been named as an expert witness and that they may want to speak with him.  See id. at ¶ 8.  Dr. Fine was specifically told that the prosecutors did not want him to share the opinions he had just expressed to defense counsel in the event defense counsel wanted to speak with him.  See id..  In fact, it was Dr. Fine’s understanding that he was being asked to avoid all communication in the event there was an attempt to contact him.  See id..  

            The prosecution’s active concealment of Dr. Fine’s opinion constitutes prosecutorial misconduct.  According to Utah Rules of Professional Conduct, “[t]he prosecutor in a criminal case shall . . . [m]ake timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”  See Utah Rule of Professional Conduct 3.8(d); see also State v. Hay, 859 P.2d 1, 7 (Utah 1993) (Violation of Rule 3.8(d) constitutes prosecutorial misconduct).  The Comment to this Rule further explains the prosecutor’s ethical duty:

A prosecutor has the responsibility of a minster of justice and not simply that of an advocate.  This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.

Comment to Rule of Professional Conduct 3.8.^[1]

            The prosecution’s active concealment of evidence directly violated Dr. Weitzel’s constitutional rights.  The Utah Supreme Court has specifically held that “a deliberate suppression by the prosecution of evidence which is material to the guilt or innocence of a defendant in a criminal case is a denial of due process.”  Jarrell, 608 P.2d at 224 (citing State v. Stewart, 544 P.2d 477 (Utah 1975);  Butt v. Graham, 307 P.2d 892 (Utah 1957)).  As discussed earlier, Dr. Fine’s testimony is material to Dr. Weitzel’s guilt or innocence.  Moreover, he holds an opinion directly contrary to the prosecution’s entire theory that this is a murder case.  Dr. Fine is a local physician who works at the same clinic as the State’s primary expert witness, Dr. Hare.^[2]  In other words, Dr. Fine’s conclusion of innocence would have directly impeached Dr. Hare’s testimony .  Therefore, Dr. Weitzel’s constitutional rights were violated when the prosecutors breached their ethical duty to disclose exculpatory evidence.  Given the constitutional dimensions of such misconduct, Dr. Weitzel is entitled to a new trial.                                 

            C.            Dr. Fine’s Opinion Supports a New Trial On the Grounds of Newly                                          Discovered Evidence  

            In order to receive a new trial on the grounds of newly discovered evidence, the movant must demonstrate that such evidence satisfies the following factors: “(i) it could not, with reasonable diligence, have been discovered and produced at trial; (ii) it is not merely cumulative; and (iii) it must make a different result probable on retrial.”  State v. Martin, 984 P.2d 975, 977 (Utah 1999).  The previous sections demonstrated that Dr. Fine’s testimony would not have been cumulative and would have made a different result probable on retrial.  This is based on the fact that Dr. Fine is a University of Utah physician who works at the same clinic as the State’s primary expert witness.  His opinion is contrary to the prosecution evidence produced at trial.  Therefore, the purpose of this section is to demonstrate that Dr. Fine’s opinion could not, with reasonable diligence, have been discovered by defendant and produced at trial.

            On April 12, 2000, the State filed a Supplemental List of Expert Witnesses.  Dr. Perry Fine was included in this list.  Therefore, it was reasonable for defense counsel to assume that Dr. Fine’s opinion was consistent with the State’s case.   Thereafter, the State filed a Notice of Substitution of Expert Witness in which it substituted C. Steven Fehlauer for Dr. Fine as an expert witness.  No explanation was provided by the State as to why this substitution was being made.  Nevertheless, it was still reasonable for  defense counsel to assume that Dr. Fine’s opinion was still consistent with the State’s case, given the State’s duty to disclose evidence “so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.”  Agurs, 427 U.S. at 107. 

            Requiring defense counsel to further investigate Dr. Fine would have been unduly burdensome given the tremendous amount of preparation that needed to be done in the few weeks preceding trial.  In fact, if the state had not identified Dr. Fine as an expert witness a month earlier, the defense may have interviewed him during the process of compiling their own experts.   However, considering the late juncture at which Dr. Fine was substituted and the fact he was previously identified as supporting the State, defense counsel chose to devote its resources to more immediate issues.  In short, defense counsel could not have been expected to interview the State’s former expert witness under a reasonable diligence standard.        

            In sum, the jury that convicted Dr. Weitzel was not afforded the opportunity to hear all material evidence supporting his innocence because some of that evidence was suppressed and actively concealed by the State.^[3]  This not only violated Dr. Weitzel’s constitutional rights, but also attacked the most basic principles of justice.  Therefore, Dr. Weitzel should be afforded a new trial so that a jury may hear all material evidence.

            D.            Potentially False Information Provided by a Juror During the Voir Dire Process May Have Denied Dr. Weitzel His Right to an Impartial Jury.

            One of the primary purposes of the voir dire process is to allow counsel to uncover the biases of individual jurors in order to support for-cause challenges.  See Barrett v. Peterson, 868 P.2d 96, 98 (Utah App. 1993).  Utah has adopted the United States Supreme Court’s test to address situations in which original voir dire questioning does not elicit proper responses from a jury member.  See State v. Thomas, 777 P.2d 445, 451 (Utah 1989) (citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)).  The McDonough test “mandates a new trial if the moving party demonstrates that (1) ‘a juror failed to answer honestly a material question on voir dire ,’ and (2) ‘a correct response would have provided a valid basis for a challenge for cause.’ ” State v. Thomas, 830 P.2d 243, 245 (Utah 1992) (quoting McDonough, 464 U.S. at 556). 

            With regard to the test’s first prong, the Utah Supreme Court has provided guidance for determining of whether a potential juror’s voir dire answer was dishonest:

Some Courts have interpreted McDonough to require a finding of juror misconduct only if a prospective juror is aware that her answers are false.  We think the better-reasoned approach mandates that a juror’s “honesty” or “dishonesty” be determined from an objective perspective.  The intent should be on the juror’s lack of partiality rather than on her intent.   

Thomas, 830 P.2d at 246 (citations omitted).    

            With regard to the McDonough test’s second prong, the determination of whether an honest answer would have justified a for-cause challenge is governed by Utah Rule of Criminal Procedure 18(e).  This Rule provides that a juror may be challenged for cause on the grounds that he has  “formed or expressed and unqualified opinion or belief as to whether the defendant is guilty or not guilty of the offense charged” or that “a state of mind exists on the part of the juror with reference to the cause, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights.”  Utah R.Crim. P. 18(e)(13) & (14).

            Here, based on an interview conducted by investigator Judy Hicks, there is reason to believe that one juror in this case, Mr. William Gillette,^[4] may not have been entirely forthright during the voir dire process and that he may have been improperly exposed to information during the trial. While the defense admits it does not have direct evidence of any misrepresentations, the cumulative nature of the facts obtained by Ms. Hicks gives rise to an overriding inference that Mr. Gillette may have been less than candid on his questionnaire and/or his exposure to facts during trial. 

            In his jury questionnaire, Mr. Gillette responded to the following questions as such:

165.            Which newspapers, if any, do you read?

                        Answer:           Read, but do not subscribe to, the Ogden Standard Examiner

174.            Have you read, seen or heard any news reports or articles or information                                                

             related to this case?         

                        Answer :           “No”

175.            Have you read, seen or heard any news reports or articles related to the                                                

             preliminary hearing in this case?

                        Answer:           “No”

            176.            When was the last time you read, saw, or heard any new reports or articles related             to this case?

                        Answer:            “Never”

177.            Have you ever expressed an opinion as to whether you believe that the                        

                        defendant in this case, Dr. Robert Allen Weitzel, is or is not guilty of the                               charges in this case?

                        Answer:           “No opinion”

            Mr. Gillette’s interview with Ms. Hicks revealed facts that make these preceding answers less than credible.  First, he stated that he was in fact a subscriber to the Ogden Standard Examiner.  See Affidavit of Judy Hicks, attached hereto as Exhibit “D” at ¶ 8.   Second, Mr. Gillette provided Ms. Hicks with extensive information regarding Dr. Weitzel’s personal history some of which had been printed in this paper, including details about Dr. Weitzel’s past legal matters.  See id. at ¶ 6..  For example, Mr. Gillette discussed alleged improprieties by Dr. Weitzel that he believed were committed in California and in Logan, Utah.^[5]  See id. at ¶ 9.  When asked how he knew this information, Mr. Gillette stated that his wife works for the Davis County School District and that there was a nurse who worked at the school who “came up with these things,” but that he did not know from which newspapers they came.  See id. at ¶ 9.  Upon further inquiry, it was discovered that Mr. Gillette’s wife actually works with nurse Tracy Scholl, one of the States witnesses who testified against Dr. Weitzel.  See id. at ¶ 7. Finally, Mr. Gillette told Ms. Hicks that he thought the prosecution did an excellent job in presenting their case at trial.  See id. at ¶ 8.  He was the only juror that held such a view.  See id..

            Based on Mr. Gillette’s statements to Ms. Hicks, it is difficult to believe that he had not been exposed to information regarding this case or that he had not formed some sort of opinion as to Dr. Weitzel’s guilt prior to trial.^[6]   First, he admitted that he read and subscribed to the Ogden Standard Examiner, a newspaper that provided extensive coverage of this case prior to trial.  Second, his wife worked with one of the prosecutions witnesses.  This gives rise to an inference that Mr. Gillette may have been exposed to negative information about Dr. Weitzel prior to trial.   Finally, Mr. Gillette was the only juror who expressed a positive opinion as to the prosecution’s handling of its case.  This fact also suggests that he had already formed a negative opinion of Dr. Weitzel prior to trial.

            Dr. Weitzel acknowledges that this evidence alone may not sufficiently form the basis for a new trial.  However, it at least raises a solid inference to question the impartiality of juror Gillette.   Therefore, Dr. Weitzel requests that an evidentiary hearing be held on this issue and that witnesses be examined to further develop the factual record in support of this aspect of the motion.  See Thomas 830 P.2d at 244 (Evidence sufficient to warrant a post trial evidentiary hearing to investigate allegations of jury misconduct is less than that required for a new trial).  If the hearing evidence shows that Mr. Gillette did not truthfully provide information in the voir dire, or was not impartial, or was exposed during the trial to extraneous information, it is respectfully submitted that Dr. Weitzel be entitled to a new trial as a matter of law.

CONCLUSION

            For the foregoing reasons, Dr. Robert Allen Weitzel respectfully requests this Court to grant his Motion for New Trial.  In the alternative, Dr. Weitzel requests an evidentiary hearing in order to more fully explore certain grounds for a new trial contained herein.

            Dated this          day of August, 2001 .

                                                                                    STIRBA & HATHAWAY

                                                                                    By:                                                                                                                                                          PETER STIRBA

                                                                                         GARY R. GUELKER

                                                                                         Attorneys for Defendant

                                                                                         Robert Allen Weitzel                 

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