IN THE SECOND JUDICIAL DISTRICT COURT,

IN AND FOR THE COUNTY OF WEBER, STATE OF UTAH  

STATE OF UTAH,

Plaintiff,

vs.

ROBERT ALLEN WEITZEL

Defendant.  

MEMORANDUM DECISION

Case No 991700983

Honorable W. Brent West

This case is before this reviewing judge on a remand from the Utah Court of

Appeals. This reviewing judge has carefully followed the directives of the Court of

Appeals in considering the issue remanded for review and now being fully advised,

makes the following ruling.

Procedural History

On January 9, 2001, the Honorable Thomas L. Kay granted Defendant's

Motion for New Trial in the above entitled case. On April 18, 2001, pursuant to Rule

29(c)(l)(A) of the Utah Rules of Criminal Procedure, the State of Utah filed a Motion

and Supporting Affidavit to Recuse Judge Kay based upon the claim that Judge Kay

had demonstrated partiality against the State. On April 30, 2001, Judge Kay denied

the allegations of bias and certified the motion and affidavit to the Honorable Darwin

C. Hansen for review. Because of a conflict. Judge Hansen certified the motion and

affidavit to this reviewing judge. On May 11, 2001, the Defendant filed a Response

to the State's Motion. On May 18. 2001, the State filed a Motion to Strike the

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Defendant's Response. On June 15,2001, this reviewing judge issued a memorandum

decision denying the State's motion to disqualify Judge Kay based upon a finding that

there was no actual bias. On September 4, 2001 the State filed a Petition for

Extraordinary Relief Pursuant to Rule 65B(d), Utah Rules of Civil Procedure, and

Rule 19, Utah Rules of Appellate Procedure before the Utah Court of Appeals. This

petition requested the Appellate Court to order this reviewing judge to enter an order

prospectively disqualifying Judge Kay from presiding over a new trial in the above

entitled case. On September 7, 2001, members of the families of the victims, through

counsel, filed an Amicus Memorandum Supporting Disqualification. Oral arguments

on the petition were presented to the Court of Appeals on September 17, 2001. On

September 20, 2001, the Court of Appeals issued its memorandum decision granting

the State's petition to the limited extent of directing this reviewing judge to reconsider

the State's affidavit of bias under the "appearance of bias" standard expressed in

Canon 3(E)(1) of the Utah Code of Judicial Conduct. On September 27, 2001,

members of the families of the victims, through counsel, filed a Motion for Disqualifi-

cation of Trial Judge and a Motion for Designation of Victim Representative. On

October 2. 2001, the State filed a Supplemental Memorandum and Affidavit

Supporting State's Motion and Affidavit to Recuse. On that same day, the Defendant

filed a Motion to Strike Both of the Victims' Motions. Seven days later, on October

9, 2001, the State filed a Motion to Supplement State's Motion and Affidavit with

Victims' Motion and Affidavit to Recuse Judge Kay. On that same day. pursuant to

Rule 29(c)(3)(B), this reviewing judge sent a Questionnaire to Judge Kay requesting

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his responses to several questions related to the allegations of bias leveled against him.

Judge Kay filed an affidavit responding to these questions on October 26, 2001. On

October 17, 2001, the Defendant filed a Motion to Strike the State's Motion. On

November 6, 2001, the State filed a Response to Judge Kay's Affidavit. On

November 13, 2001, the Defendant filed a Motion to Strike the State's Response.

Scope of Review

This case was remanded to this reviewing judge by the Utah Court of Appeals

for the "limited" purpose of reconsidering the affidavit of disqualification filed by the

State of Utah. The Court of Appeals directed this reviewing judge to reconsider "the

entire affidavit of bias under the standard expressed in Canon 3(E)(1) of the Utah

Code of Judicial Conduct, rather than under a parallel analysis to those appellate cases

that have considered the propriety of judicial disqualification after trial based on

whether actual bias is demonstrated." State v. West, 2001 UT App 275, ^2.

Unfortunately, the State of Utah and the attorneys for the victims have

inappropriately attempted to broaden the directive of the Court of Appeals. The

attorneys for the victims have filed a new motion to disqualify Judge Kay and the

State of Utah has file at least two supplemental briefs and a response to Judge Kay's

questionnaire. A plain and simple reading of the Court of Appeals' decision clearly

indicates that additional filings were not contemplated. The State of Utah and the

victims' attorneys' misreading of the Court of Appeals' decision compels this

reviewing judge to at least address the "new" issues raised in these supplemental

pleadings and provide an explanation as to why those new issues will not be

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considered by this reviewing judge.

First, there appears to be some misunderstanding by the State and the

attorneys for the victims about the Court of Appeals' ruling.  Among other

arguments, the State of Utah and the attorneys for the victims argued to the Appellate

Court that this reviewing judge abused his discretion by not disqualifying Judge Kay.

In addition, the State and the attorneys for the victims also argued that this reviewing

judge used the wrong standard in determining whether or not Judge Kay should be

disqualified. Neither of these arguments were accepted by the Court of Appeals.

What the Court of Appeals did say is that there are two separate standards

that apply when a reviewing judge is called upon to determine whether a trial judge

should be disqualified. One of those standards requires a demonstration of actual bias

or prejudice on behalf of a judge. This standard is more commonly applied in cases

where a judge has already tried a case. The second standard, on the other hand,

commonly applies in cases where a judge has not yet tried a case and, therefore, there

can be no showing of actual bias. This standard only requires a showing that a

judge's impartiality might reasonably be questioned.

Since Judge Kay had already presided over the case, on the first motion to

disqualify, this reviewing judge applied the actual bias and prejudice standard to the

State's affidavit. The Court of Appeals did not find that this reviewing judge had

abused its discretion in applying this standard. In fact, quite the contrary was found.

The Court of Appeals did not question this reviewing judge's determination that no

actual bias or prejudice was displayed by Judge Kay in the first trial. What the Court

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of Appeals did say, however, was that in light of the fact that Judge Kay was

scheduled to retry the case, this reviewing judge should reconsider the State's entire

affidavit under the second standard as well.

It should be noted that since the State's affidavit did not establish any actual

bias or prejudice on behalf of Judge Kay, it was not necessary to submit questions to

Judge Kay concerning his perceptions of the State's allegations. However, on

remand, with instructions to apply the second standard of bias or prejudice, Judge

Kay's perceptions of the State's allegations take on new meaning and importance.

As a result, pursuant to the rule governing judicial disqualification, this reviewing

judge submitted questions to Judge Kay for a response. Rule 29 of the Utah Rules

of Criminal Procedure specifically provides for the reviewing judge to submit

questions to the challenged judge. This is an important distinction because the State

and the attorneys for the victims have repeatedly asked this reviewing judge to

consider new evidence, new motions, and new arguments. Their requests are simply

not provided for by Rule 29. In submitting questions to the challenged judge, this

reviewing judge has not expanded the scope of the directive received from the Court

of Appeals. Judge Kay was only asked questions concerning the original affidavit as

submitted by the State.

Second, it is important to note that the Court of Appeals did not remand this

case back with instructions for this reviewing judge to convene a hearing, receive new

evidence, review supplemental affidavits, address constitutional issues, or consider

new allegations of bias from the State or from the attorneys for the victims. It did not

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instruct this reviewing judge to address new issues that were not raised for the first

time on appeal. It did not remand this case back in an effort to give the State or the

attorneys for the victims a second bite at the apple or to correct errors or omissions

that they now perceive may by lacking in the State's original affidavit. The Court of

Appeals used very precise and limiting language on its remand. This reviewing judge

will attempt to do as it was directed to do by the Court of Appeals,

Victims' Motions

With all due respect to the victims, their motion to disqualify the Honorable

Thomas L. Kay is denied. The motion is denied for several reasons.

First, under Rule 29(c)(1)(A) of the Utah Rules of Criminal Procedure, victims

have no standing to disqualify a judge. The pertinent part of the rule reads as follows:

"... a party to any action or the party 's attorney may file a motion to disqualify a

judge" (Emphasis added). Nowhere in the rule does it provide for victims or their

attorneys to file motions to disqualify a judge. This does not mean that victims are

without rights or that their concerns cannot be addressed or expressed. It simply

means that they cannot do so directly, by way of a motion. There is nothing in the

rule that would have prevented the victims, in this case, from attaching individual

affidavits as addenda to the State's general affidavit requesting disqualification. In

fact, good sound legal practice would have suggested that procedure as a way to

express the victims' points of view. Those affidavits could have set out the first-hand,

personal observations of the victims concerning the conduct of Judge Kay that they

felt might reasonably bring into question the judge's impartiality. For whatever

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reasons, their legal counsel and the State's legal counsel initially chose not to do so.

It should, however, be noted that the State of Utah does appropriately argue on behalf

of victims and their rights in the memorandum it submitted in support of its original

affidavit of disqualification. It should be further noted that the State did belatedly

attempt to incorporate the victims' position into one of the State's untimely

supplemental motions.

The second reason the victims' motion is denied is because it is outside the

scope of what the Court of Appeals directed this reviewing judge to do. In its

memorandum decision, the Court of Appeals specifically stated that the case was

being remanded for the limited purpose of reconsidering the State's entire affidavit

of bias under the standard expressed in Canon 3(E)(1) of the Utah Code of Judicial

Conduct. The Court of Appeals did not direct this reviewing judge to receive

additional evidence from victims or other third persons. Moreover, such a procedure

is not provided for in the rule.

Finally, the victims' motion is untimely. The allegations contained in the

victims' motion are being raised for the first time, before this reviewing judge, on

remand. Where were these allegations during the first consideration of the motion to

disqualify Judge Kay? These allegations, while new to this reviewing judge, were not

unknown to the victims. The victims and their counsel were aware of these

allegations as early as January 2001 and the State's affidavit of bias and prejudice

wasn't filed until April 18, 2001. It would have been easy for these allegations to

have been included in the first consideration of the State's affidavit of bias and

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prejudice. Instead, the victims' counsel waits until this reviewing judge rules that the

State's original affidavit of bias and prejudice is legally insufficient and then raises

these issues for the first time on appeal. To raise them now, and in this manner, is

fundamentally unfair to the trial judge and to this reviewing judge. Quite frankly, their

good faith is called into question.

This reviewing judge also needs to address the victim's motion to designate

victim representatives. That motion is also denied. The only subject matter

jurisdiction this reviewing judge has the authority to determine is whether or not

Judge Kay should be disqualified. This reviewing judge has no authority to designate

the victims in this criminal case or make any other ruling, for that matter. Once again,

at the risk of being repetitive, under Rule 29(c)(l)(A) of the Utah Rules of Criminal

Procedure, victims do not have the right to request the disqualification of a trial judge.

If victims do not have the right to request the disqualification of a trial judge, then it

is not necessary for the reviewing judge to designate victims for the purpose of filing

a motion that they cannot file in the first place.

The attorneys for the victims clearly want this reviewing judge to undertake

a constitutional analysis of the victims' right to disqualify a trial judge. This reviewing

judge declines to do so for several reasons. First, there is nothing unconstitutional

about a rule that gives only parties the right to disqualify a judge in a criminal

proceeding. There is a rational basis for limiting the ability to make disqualification

motions to parties. Parties, victims, witnesses, jurors, the public, law enforcement and

others all have constitutional rights and all of them have varying degrees of interest

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in a particular criminal case. However, it does not necessarily follow that because

these various groups may have an interest in the outcome of a particular criminal case

that all those various groups should have the right to disqualify the judge. It is

reasonable to prioritize those interests and it is also reasonable to limit the specific

right to file a motion to disqualify a judge to parties.

Secondly, and with all respect to the victims, their attorneys' argument that

somehow there should be read into the constitutional rights of victims a provision that

gives victims the right to disqualify a trial judge, in a particular criminal proceeding,

simply tortures the language of those constitutional provisions. Victims should be

given the respect and dignity they deserve. Victims have rights—substantial rights—

that should be enforced and addressed, but those rights do not include the right to

disqualify a judge.

State's Supplemental Briefs and Responses

Finally, this reviewing judge will not consider the State's additional

supplemental briefs and any other responses that were submitted because they, too,

are filed untimely.

Preliminary Matters

Before proceeding with the analysis, it is also appropriate to mention that the

Court of Appeals did not "question [this Court's] conclusion that there was no

showing of actual bias [on behalf of Judge Kay] in the record of the first trial." West,

2001 UT App 275, ^3. Much of the State's original affidavit is directed at trying to

show that Judge Kay was, and is, actually biased and prejudiced against the State—a

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position that was rejected by this Court and upheld by the Court of Appeals. Those

portions of the State's original affidavit that are only limited to the issue of actual bias

on behalf of Judge Kay will not be addressed again.

In addition, the State's complaints about Judge Kay allegedly violating canons

2(A), 3(B), 4, 5. 7 and 8 of the Utah Code of Judicial Conduct will not be addressed.

They, too, are outside the scope of review indicated by the Court of Appeals.

As such, the Court will still try to sift through the State's entire affidavit and

see if it meets the standard for disqualifying a judge set out under Canon 3(E)(1) of

the Utah Code of Judicial Conduct.

Canon 3(E)(1) of the Code of Judicial Conduct reads, in pertinent part, as

follows:

A judge shall enter a disqualification in a proceeding in which the

judge 's impartiality might reasonably be questioned, including but

not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a

party's lawyer, a strong personal bias involving an issue in a case, or

personal knowledge of disputed evidentiary facts concerning the

proceeding; ....

Even in a perception of bias case, there must be some legitimate, reasonable,

and logical basis for the bias. Also, the reasonable inference of bias must come from

the actions and statements of the judge. The inference of bias should not be based on

any parties' subjective or speculative interpretation of the judge's actions or

statements.

The State's Good Faith

It is also important to reiterate that this reviewing judge did find before, and

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continues to believe, that the State's "original affidavit" was filed in good faith.

However, such is not the case with the State's subsequent filings or actions. Since

the filing of the State's initial original affidavit, this reviewing judge has developed

serious questions concerning the good faith of both the State and the victims'

attorneys. Their legal tactics, their over zealousness, their repeated attempts to try

this case in the press, their belated and untimely attempts to inappropriately raise new

issues, and their public personal attacks on Judge Kay have taken on the appearance

of a witch hunt or a crusade. They seem to have lost sight of the appropriate

procedures for exercising their legitimate legal remedies to properly disqualify a

judge. Because the State cannot appeal, for legal reasons. Judge Kay's decision to

grant a new trial, it now appears, to this reviewing judge, that the State has taken out

its frustrations on Judge Kay. This is particularly so in light of the fact that Judge Kay

granted a new trial on the basis that the State engaged in possible prosecutorial

misconduct in regards to the State's failure to adequately disclose, to the defense, the

expert witness testimony of Dr. Fine. In fact, the tactics of the State and victims'

attorneys and their public criticism of Judge Kay reached such a level that the

President of the Utah State Bar, Scott Daniels, felt compelled to write a letter to the

public explaining the ethical limitations placed on Judge Kay, and judges in general,

in responding to such attacks.

One final comment needs to be made in regards to the State's good faith, the

good faith of the victims' attorneys, and public policy. Motions to disqualify a judge

should be based on the actions and statements of the judge. It is a judge's actions and

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statements that call into question his or her impartiality. Parties should not be

permitted, nor should they attempt, to unilaterally create an atmosphere of bias and

prejudice and then try to attribute the atmosphere, that they create, to the judge. That

is exactly what the State and the attorneys for the victims have attempted to do here.

Through their tactics, their press conferences and their personal public attacks on

Judge Kay, they have tried to create an atmosphere of bias and prejudice and then

blame Judge Kay for the poisoned atmosphere. Judge Kay, keeping with his judicial

ethics, has not said one word publicly, except to appropriately respond to questions

addressed to him by this reviewing judge. All the publicity and fanfare has been

created by the State and the attorneys for the victims.

An even more explicit example of this is the untimely issue raised by the

attorneys for the victims in their affidavit to disqualify Judge Kay. That same issue

was subsequently adopted by the State in one of its later untimely motions. One of

the families of the victims, extremely unhappy with Judge Kay's handling of this trial,

unilaterally filed a complaint with the Judicial Conduct Commission against Judge

Kay. The attorneys for the victims now take the absolute position that simply because

their client's complaint was filed and Judge Kay is aware of the complaint because the

victims have made it public, he should recuse himself from any further proceedings.

They take this position without any regard to the possible merits or good faith of the

complaint that has been filed. Their position allows parties or other persons to file

meritless complaints against judges solely to disqualify a judge who may have ruled

against them or whom they dislike. This may even give rise to blatant attempts to

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judge simply found the affidavit to be legally insufficient without detailed analysis. On

remand, this reviewing judge has now been directed to draw inferences from

allegations raised by the State that are based on hearsay, are of unknown context, or

for which inadequate information has been provided. The State's failure in this regard

makes the analysis much more difficult.

This is a poorly written affidavit. Affidavits should be factual in nature, unless

they call for an expert opinion. In addition, affidavits should also be based on first-

hand knowledge and observation. The Utah Rules of Civil Procedure require that

affidavits be made on personal knowledge and that the underlying facts be admissible

as evidence. See Utah R. Civ. P. 56. This Court does not understand why the Rules

of Criminal Procedure would require anything less. See also Utah R. Civ. P. 81(e)

(the Utah Rules of Civil Procedure "shall govern in any aspect of criminal proceedings

where there is no other applicable statue or rule . . . ."),

This affidavit is full of conjecture, speculation, and inappropriate declarations

of opinion. The affidavit contains hearsay and in some instances hearsay on hearsay.

In addition, there are instances where little or no context is given to a statement.

Finally, it is obvious that Davis County Attorney Mel Wilson talks about many

incidents in the affidavit for which he, himself, has no first-hand knowledge.

There are numerous examples throughout the affidavit where Mr. Wilson talks

repeatedly about the fact that the State was angered or felt frustrated, etc. These

statements are speculative, conjectural, and self-serving. They add nothing to the

affidavit. In addition, it is interesting to note that most of the major statements relied

14

upon by the State were statements that were not made on the record, or at least the

State was unable to find them in the record. Those statements were recreated, by the

State, for this reviewing judge.

Regardless of the many and severe technical weaknesses in the State's

affidavit, this reviewing judge will not elevate form over substance. There are, among

the many issues raised by the State, several that merit consideration.

Disparity in Rulings

First, the State alleges that there has been a great disparity in the rulings made

by Judge Kay. The State alleges that this disparity greatly favored the defense. Thus,

the State alleges that an inference arises that Judge Kay is partial or biased either

against the State or in favor of the defendant. This is simply conjecture by the State.

Without reviewing the entire record of this long trial and counting the rulings and who

they were for and the reasons why the rulings were made, it is impossible to draw any

conclusions from this portion of the State's affidavit. The State could have provided

empirical assistance on this issue, but failed to do so.

It is also important to note that it is the quality of the rulings that may be

important, and not their quantity. During this reviewing judge's first analysis of the

State's affidavit, a great deal of time was spent reviewing a large number of Judge

Kay's rulings in full context. As previously mentioned, it is not this reviewing judge's

responsibility to review or address the merits of those rulings, that is for an appellate

court to decide. However, in reviewing those rulings of Judge Kay, this reviewing

judge observed two interesting situations that bear on this portion of the State's

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affidavit.

First, Judge Kay, at the beginning of the trial, made several rulings that limited

what he believed would be admissible evidence at the trial. The State neither liked

nor agreed with those rulings. Subsequently, however, throughout the trial, the State

made repeated attempts to get certain evidence before the jury that flew in the face

of Judge Kay's initial evidentiary rulings. Without addressing either the merits of

Judge Kay's rulings or questioning why numerous attempts were made by the State

to introduce ostensibly inadmissible evidence, a situation was clearly created where

one could reasonably expect a distorted number of rulings.

Second, this reviewing judge observed that the State utilized a team approach

to the prosecution of this case. There is nothing wrong with such an approach. But,

what is important is that this approach often times resulted in what readily appeared

to this reviewing judge as a lack of communication, or miscommunication, among the

prosecutors. In several instances, one set of prosecutors would seek a ruling, during

one portion of the trial, that would be addressed by Judge Kay and ruled upon. Then,

later on in the trial, a second set of prosecutors would seek a similar, if not identical,

ruling and Judge Kay would have to address the issue a second time. This is clearly

what happened in the situation where Judge Kay made the comment about how long

it seemed that this trial was lasting. Again, these type of situations obviously affected

the number of rulings made by Judge Kay.

Statements by Judge Kay

As previously mentioned, the State did properly present, on behalf of the

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victims, two comments made by Judge Kay that the State alleges would require this

reviewing judge to find a reasonable inference of bias on behalf of Judge Kay. This

reviewing judge will address those statements separately.

First is the statement made by Judge Kay during the hearing on whether or not

the bodies of the deceased victims should be exhumed. This is a difficult statement

to analyze without looking at the full context of the hearing. The State proposed

several reasons why it wanted the deceased victims' bodies exhumed. During the

hearing on this matter, one of the particular reasons put forward by the State was the

fact that one of the deceased victims' families was either contemplating or had filed

a civil suit against the defendant. It was the State who gave this information to Judge

Kay.                        .                                               -

Clearly, any evidence obtained by the State in its exhumation of the bodies and

its criminal investigation might very well have been helpful to the victims' families in

their civil lawsuit. Judge Kay, when he was balancing the various interests that might

influence his decision to exhume the bodies, commented about the "obvious" reasons

the victims' families might want the bodies exhumed.

Even within the full context of the exhumation hearing, it is difficult to

determine whether or not this statement was insensitive or could give rise to a

reasonable inference of bias. On its face, this statement does not give rise to a

reasonable inference of bias against the State on behalf of Judge Kay. Admittedly,

Judge Kay's body language, his voice inflection, his intonation, or his facial

expressions might have conveyed a particular message to the State and others. None

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of these facts are before this reviewing judge for consideration. But even if they were,

the art of interpreting body language and the like, is highly speculative in nature. It

is not the type of scientific analysis and interpretation that this reviewing judge can

commonly recognize.

It is even difficult to make a finding from the cold sterile written transcript that

Judge Kay's statement was even "insensitive." This reviewing judge does not

question either the State's or the victims' impression of Judge Kay's statement. But,

clearly, their interpretation of the statement is highly speculative and subjective in

nature. On the one hand. Judge Kay's statement could have been interpreted by the

victims and the State as highly insensitive to the victims. On the other hand, Judge

Kay may have simply been reiterating the particular reason as to why the bodies

should be exhumed. Given the highly speculative and subjective interpretation of this

statement and the events that surround it, this reviewing judge finds that this

statement does not give rise to a reasonable inference of bias on behalf of Judge Kay

against the State.

Before addressing the State's second statement on behalf of the victims, two

other comments need to be made. First, without splitting hairs, there is some

difficulty with the State's apparent argument that insensitivity and bias are synony-

mous. There are circumstances where they could be, but they usually are not. One

can be brutally honest and still be unbiased. Unfortunately, in hotly contested

lawsuits, such as this one, the judge has to make rulings that may, at times, be brutally

honest and even appear insensitive to one side or the other. Thus, the State's

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argument that a particular comment is insensitive, when applied to a standard of

reasonableness, can be viewed as both subjective and speculative.

Another difficulty in analyzing these comments is that the State's interest and

the victims' interest are also not always synonymous. In this instance, at least on

these two issues, their interests appear to be the same. But, it is perfectly possible for

a judge to favor or disfavor the interests of the victims, and any such action by the

judge would not necessarily give rise to a reasonable inference of bias toward the

State. In this case, the State takes the unusual position that any insensitivity

demonstrated by Judge Kay to the victims necessarily gives rise to an inference of bias

against the State by Judge Kay. This is simply not the case.

The second comment allegedly made by Judge Kay has to do with

"yardwork." The context of this statement is clearly in conflict. The State, in its

affidavit, primarily relies, once again, upon the "insensitivity" that it claims this

statement showed toward the victims in this case. Judge Kay clearly indicates in his

response to this reviewing judge's questions, that this comment was directed toward

the jurors in the case and had nothing to do with the victims. Judge Kay asserts that,

when the jury was excused early for the day, he "jokingly" indicated that if they had

nothing better to do, they could assist him with his yardwork. Again, any analysis of

this particular statement is fraught with the difficulties this reviewing judge faced with

Judge Kay's comment during the exhumation hearing. Interpretation of this comment

is highly speculative and subjective. Admittedly, courthouses are not entertainment

centers and judges are not comedians. Humor can be misinterpreted. But, whether

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one considers this statement good or poor humor or even an insensitive comment, it

does not give rise to a reasonable inference of bias or prejudice on behalf of Judge

Kay against the State.

This reviewing judge also questions the State's credibility on the context of

this statement. The State seems to rely upon imperfect perceptions and memories and

indicates, in its affidavit, that this statement could not be found in the record. This

assertion, by the State, is especially disturbing when Judge Kay, in his response to this

reviewing judge's questions, was able to find the colloquy in the transcript and report

it verbatim. To be candid, on this issue, the record supports Judge Kay's version of

the incident.

Defendant's Alleged Statements Concerning Judge Kay's Alleged Bias

Another factor raised by the State for this reviewing judge's consideration, is

its reliance on the perceptions of Judge Kay's alleged bias made by the defendant.

The statements and observations that the State attributes to the defendant are clearly

hearsay. In addition, there is little context given to these statements. Finally, there

is no first-hand personal knowledge about when and where and to whom those

statements were made. They are simply referred to as comments, over heard by

someone, between the defendant and some unknown third party. Again, the State's

use of the comments, attributed to the defendant, are self-serving, speculative, highly

conjectural, and unreliable.

In addition, the State's reliance upon the out-of-context statements of the

defendant simply reinforces the need to allow both parties to be heard in a motion to

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disqualify a judge. Previously, the State argued that a motion to disqualify a judge is

limited to the party making the motion and the judge. The State further argued that

the defendant should not be allowed to participate in the motion. It is interesting to

note that the State wants to attribute comments to the defendant, provide its own

interpretation for those comments, but not allow the defendant to rebut, explain, or

put in context those statements. Clearly the State's interest and the interest of the

defendant are not the same on this issue. Such an approach on this issue calls into

question the State's fairness. The defendant's observations and opinions, while

interesting, do not give rise to a reasonable inference of bias and prejudice on behalf

of Judge Kay against the State.

Judge Kay's Anger

Still another issue that this reviewing judge has to address is the allegation, by

the State, that Judge Kay demonstrated anger toward the prosecutors. As with all the

issues in this case, this too is difficult to analyze. First, Judge Kay, in his response to

this reviewing judge's questionnaire, vehemently denies exhibiting any anger towards

the State as a result of the circumstances surrounding the baseball playing incident

with a juror. Secondly, in contrast, there does appear to be a few other instances

where Judge Kay did become angry or at least expressed frustration at situations

involving the State. The real difficulty comes, however, from the fact that there

appears to be some justification for Judge Kay's anger. From those portions of the

record that this reviewing judge has been requested to review, there are several

incidences where the State was ill-prepared, seemed confused, failed to communicate

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among themselves, and engaged in behavior that Judge Kay considered inappropriate,

unethical, and even bordered on prosecutorial misconduct. All of these are legitimate

reasons why a judge might become angry.

A clear example of the State's latter behavior is the fact that Judge Kay

granted the defendant's motion for a new trial because he found that the State had

engaged in inappropriate prosecutorial behavior by failing to disclose the existence of

an expert witness whose testimony may have contained exculpatory evidence in favor

of the defendant. In its affidavit, the State totally ignores its own behavior. The State

fails to even recognize that there might have been reasons why Judge Kay may have

had cause to be angry at the State. The State tries to claim the moral high ground

without any acknowledgment of its own conduct. The State tries to create the

impression, to this reviewing judge, that Judge Kay's anger was unprovoked and was

only the result of Judge Kay's alleged bias and prejudice toward the State.

Nevertheless, even though a party may provoke a judge's anger, such anger,

on behalf of a judge, can reasonably call into question the judge's impartiality. Once

a judge has become upset or angry at a party, even with justification, it appears that

the case law and rules governing disqualification mandate that a judge recuse himself

from the case. This is especially so in a situation, such as this, where the case is going

to be retried before the same judge. Judge Kay's apparent anger at the State's

conduct, even though justified, does reasonably call into question his impartiality on

a retrial.

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Judge Kay's Statement to the Layton City Prosecutor

Finally, there is Judge Kay's statement to the Layton City Prosecutor Christina

Neal. The exact wording of the statement is disputed by the State and Judge Kay.

However, the "gist" of the statement was to the effect that the testimony of an expert

witness (Dr. Fine) "would have 'blown' the State's case out of the water." That this

statement was made is acknowledged by Judge Kay. Once again, the analysis of this

statement is surrounded by great difficulty. First, if this reviewing judge were to rely

solely upon the original affidavit of the State on this issue, the affidavit would be

sorely inadequate. Clearly, in the State's original affidavit, the statement that Judge

Kay is alleged to have made to the unnamed Layton prosecutor is hearsay. It was not

based on first-hand observation. This court is extremely surprised that the Layton

prosecutor's affidavit was not attached, as an addendum, to the State's original

affidavit of bias and prejudice. To the State's credit, they have attempted to

supplement their original affidavit on remand by now submitting the prosecutor's

affidavit. But, even if this reviewing judge were to consider the belated affidavit, it

is seriously flawed because it gives no context as to the date and time that Judge Kay

allegedly made his statement to the Layton prosecutor. Even more belatedly, the

State has attempted to submit more information in regards to prosecutor Neal's

statement. However, it was only after Judge Kay responded to this reviewing judge's

questionnaire and disputed the timing of the prosecutor's statement that the State

tried to establish the timing and context of the conversation. Simply put, why didn't

the State submit all its evidence in the first place?

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Second, this reviewing judge is again troubled by the fact that there is a

profound discrepancy surrounding the time when this statement was alleged to have

been made. The State's affidavit and Judge Kay's affidavit are at odds over the timing

of this statement. The State's affidavit alleges that Judge Kay made this statement

prior to his ruling that granted the defendant a new trial. What is particularly

disturbing about the State's affidavit is that it would have been simple for the State

to have submitted Ms. Neal's affidavit as an addendum to its original affidavit. It

would have been even simpler to have asked her about the timing of Judge Kay's

statement. The State did not do this, or if they did, they did not bother to include it

in their original affidavit. In contrast to all of this, Judge Kay indicates that this

comment occurred after he made his ruling. Admittedly, as will be discussed later,

it does make a difference to this reviewing judge that Judge Kay even made this casual

informal statement. It would, however, have been particularly egregious if Judge Kay

had made this statement before his ruling. To be candid, given the slipshod manner

in which the State has approached its entire affidavit, this reviewing judge finds Judge

Kay's report of this event more credible.

As previously mentioned, regardless of whether Judge Kay made this

statement before or after his ruling, his making of the statement, at any time, is

troublesome. The standard for granting a motion for a new trial based upon the

nondisclosure of exculpatory evidence is whether there is a reasonable likelihood that,

had the evidence been disclosed, the result of the trial would have been different.

Whether or not Judge Kay meant to communicate something more than what he had

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already concluded in his decision granting the motion for a new trial, a reasonable

person hearing Judge Kay's statement could find that Judge Kay believed that had the

expert opinions of Dr. Fine been disclosed, the evidence would, without a doubt, have

produced a different outcome. To this extent, the statement uttered by Judge Kay can

be viewed as not merely equivalent to his findings in his decision granting the new

trial, but rather, as something more. One can reasonably infer, therefore, that in

making the statement, Judge Kay may have already made up his mind in regards to

the weight and effect that Dr. Fine's testimony might have on a jury in the retrial of

this case. The State, however, is entitled to have the testimony of Dr. Fine submitted

to the jury free from any bias that the trial judge might have about the effect and

weight of that testimony. Judge Kay's statement, in this instance, reasonably calls

•i^

into question his impartiality on an issue that even Judge Kay found significant enough

to grant a motion for a new trial.

While this reviewing judge finds most of the State's affidavit to be legally

insufficient, the allegations concerning Judge Kay's anger at the State and his

comment about Dr. Fine's testimony do reasonably call into question Judge Kay's

impartiality toward the State, on those two issues, in the retrial of this case. They are

legally sufficient to order Judge Kay disqualified from presiding over the retrial of this

case. This case is hereby ordered transferred to the Honorable Rodney S. Page for

further proceedings.

Neither party needs to prepare any findings of facts or an order consistent with

this ruling. These findings and this ruling will suffice.

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DATED this 15th day of November, 2001.

BY THE COURT:

W. Brent West, Presiding Judge

Second Judicial District Court

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