Ruling is a relief for Weitzel Judge Kay's Decision>>
Wednesday, January 10, 2001
Judge grants retrial due to prosecutor error
By Jenifer K. Nii
Deseret News staff writer
The relief in psychiatrist Robert Allen Weitzel's voice broke
through the din of prison noise.
After his August conviction in connection with the deaths of five
elderly patients under his care, 2nd District Judge Thomas L. Kay ruled
Tuesday an error by prosecutors warranted Weitzel a new trial.
"I'm very glad to hear that," Weitzel said after the Deseret News
informed him of Kay's decision. "Basically, we've said all along that my
care of these patients was given in good faith. It was a good-faith
attempt to prevent pain and suffering. There was no criminality."
Still reeling from the decision, Davis County Attorney Mel Wilson
said he hadn't decided whether he would push for a new jury trial. He said
Tuesday he was still trying to interpret the ruling and examine his
options.
Weitzel's first trial lasted six weeks and reportedly cost the
county more than $160,000.
Weitzel remained in the Utah State Prison on Wednesday morning,
despite defense attorney Peter Stirba's vow to request a bail hearing to
allow for his client's release. Department of Corrections spokesman Jack
Ford also confirmed Wednesday morning no arrangements had yet been made to
transfer Weitzel to the Davis County Jail.
Kay stated prosecutors' failure to disclose information provided by
one of their potential expert witnesses — University of Utah professor and
end-of-life care specialist Perry Fine — "contravened manifest
constitutional, legal, and ethical duties imposed on prosecutors," and
warranted a new trial.
"Given the qualifications of Dr. Fine and his credibility as an
expert witness, as well as testimony he would have provided had his
opinion been disclosed to the defense and the impact this testimony would
have had on the state's key witness in the case, it is clear that the
likelihood of a different result is sufficiently high so as to undermine
confidence in the outcome of the trial," Kay wrote.
Fine testified at a hearing last month he believed Weitzel's conduct
was typical of end-of-life care provided in Utah and across the country and
did not rise to the level of first-degree felony murder.
Fine was referred to prosecutors by his colleague, Bradford Hare,
who emerged during trial as the state's star witness.
Weitzel, 44, was tried last year on five counts of murder, a
first-degree felony, in connection with the deaths of Ennis Alldredge, 83;
Ellen Anderson, 91; Mary R. Crane, 72; Judith Larsen, 93; and Lydia M.
Smith, 90. All died within a 16-day period in December 1995 and January
1996. At the time of their deaths, Weitzel was serving as the head of the
Davis Hospital and Medical Center's geriatric-psychiatric unit, to which
the patients had been transferred after they reportedly exhibited
disruptive behavior at other long-term-care facilities.
The jury convicted Weitzel of lesser included offenses: two counts
of second-degree felony manslaughter, and three counts of class A
misdemeanor negligent homicide. Kay sentenced him to up to 15 years in
prison.
Kay's ruling Tuesday nullified the jury's verdict and sends the
process back as if the trial had never been held.
Stirba applauded Kay's decision, saying it showed the court showed
the judge was "thoughtful and reflective" in the ruling.
Wilson said he would meet with the family members of the alleged
victims this week, to "sort through with them all of their feelings in
this matter" and determine a course of action.
Carolyn Buhman, daughter of Lydia Smith, said Tuesday evening she
was saddened and confused by Kay's ruling.
"I can't imagine what this judge thinks he's doing," she said. "What
we're talking about is the difference between one man (Fine's) opinion,
and evidence. New trials are based on new evidence. There is no new
evidence."
Though Buhman said she was unsure whether she could withstand
another lengthy trial, she maintained her belief that her mother died at
the hands of Weitzel.
"We're dead tired," she said. "We're fatigued, all of us. But how do
you protect other people from Weitzel? Just because we're supposed to act
like the trial never happened doesn't mean he's not guilty."
Wilson said he wasn't immediately prepared to make a decision on
whether to pursue another trial.
"There are too many issues yet that we're going to have to look at.
There are some alternatives we're considering," he said. He would not say
what those alternatives are, but they may include appealing Kay's decision
to a higher court.
Though his future remains unclear, Weitzel said he hopes to shed
light on a controversial issue.
"My hope now would be to clarify the huge difference between
physician-assisted suicide, which is not what happened with these
patients, and end-of-life care. It's my hope that physicians will not be
prevented from providing adequate pain control at the end of life."
© 2001 Deseret News Publishing Company
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