Deseret News
Utah State Bar backs judge in Weitzel case
Friday, October 05, 2001
By Angie Welling
Deseret News staff writer
With the lengthy prosecution of psychiatrist Robert Allen Weitzel
headed into its third year, it seemed most sides of the criminal justice
system had already weighed in on the complex legal issues surrounding the
case.
Now, another agency has thrown its hat in the ring: the Utah State
Bar.
A letter from Bar President Scott Daniels was faxed to Utah media
outlets Thursday in defense of 2nd District Judge Thomas L. Kay, who has
been accused of bias by the Davis County Attorney's Office.
The Rules of Judicial Conduct prohibit Kay from responding to the
allegations of prejudice against the state, the eight jurors and family
members of Weitzel's five alleged victims, leaving Kay's voice largely
unheard, the letter states.
"If any of us were accused of unethical conduct, we could go to the
media to tell our side of the story," Daniels wrote. "Judges are the only
Americans who do not have this right. When a person puts on the black robe
he or she agrees to this limitation on freedom of speech. This puts a
judge in a very bad spot when unfair or untrue criticisms are made."
The purpose of the letter, Utah State Bar Executive Director John
Baldwin said, is to provide education about provisions that limit judges
from speaking publicly.
"We feel like we're in a position to help the public understand that
simply because the judge isn't saying anything doesn't mean they don't
have their side of the story," Baldwin said.
Weitzel's first trial on five first-degree murder charges resulted
in convictions on lesser felony and misdemeanor offenses. Kay, however,
ordered a new trial when he ruled prosecutors failed to notify defense
attorneys of an expert who may have aided their case.
The ruling set the wheels in motion for Weitzel's release from
prison, the refiling of lesser charges, preparation for a second trial,
and a demand that Kay recuse himself from the case.
Kay refused, and the matter was sent to Presiding 2nd District Judge
W. Brent West, who also denied the motion. Prosecutors appealed the
decision to the Utah Court of Appeals, who last month ordered West to take
a second look at the issue. This time, the court ruled, West should look
for the appearance of bias rather than examples of actual bias.
"Keep in mind that Judge Kay has already been found not to have
exhibited actual bias," the letter states. "The only question remaining
before the court is whether there is such an appearance of bias that it
would be better for public confidence to let another judge hear the case."
Davis County Attorney Mel Wilson declined to comment on the letter,
since his motion is still pending before West.
But even if West decides, under the lower standard of appearance of
bias, to remove Kay from the upcoming second trial, Daniels wants it known
that still doesn't mean Kay acted inappropriately.
"Whether Judge West grants the prosecution's motion to have the
Weitzel case re-tried by another judge or not, I hope the public will
understand that no finding has been made that Judge Kay acted improperly
in any way, and the fact that Judge Kay cannot respond to defend his own
reputation doesn't change that fact."
Family members of the alleged victims have filed a complaint against
Kay with the Judicial Conduct Commission.
Weitzel is accused of overmedicating five elderly patients under his
care at the Davis Hospital and Medical Center in Layton in December 1995
and January 1996.
© 2001 Deseret News Publishing Company