FARMINGTON — He has an attorney; he just doesn't know yet exactly why he needs him.
Salt Lake attorney Walter Bugden made his first appearance here Thursday as the man who will defend psychiatrist Robert Allen Weitzel for the second time against allegations he killed five elderly patients under his care with overdoses of morphine.
But it is still unclear whether prosecutors can legally charge Weitzel with the original five counts of first-degree felony murder, or if they must stick with the lesser felony and misdemeanor charges he was convicted of last August.
Weitzel, 44, was awarded a second trial after 2nd District Judge Thomas L. Kay ruled prosecutors failed to notify defense attorneys of an expert who might have testified on the defense's behalf.
Bugden has filed a motion in 2nd District Court that contends retrying Weitzel on the murder charges constitutes double jeopardy and is prohibited under the U.S. and Utah constitutions.
"We agree that the state is entitled to retry Dr. Weitzel, but for only those offenses he was convicted of," Bugden said. "The state does not get to have second bites at the apple. It cannot force Dr. Weitzel to run the gauntlet multiple times."
By finding Weitzel guilty of the lesser offenses — two counts of second-degree felony manslaughter and three counts of class A misdemeanor negligent homicide — the jury essentially "acquitted" Weitzel of the murder charges, Bugden said.
Davis County Attorney Mel Wilson isn't so sure.
"I don't see anywhere that the jury did acquit him," Wilson said. "The fact that the jury found him guilty of a lesser included (offense) does not equal acquittal in my mind."
Wilson is prepared to argue the eight jurors compromised on the final verdict, meaning they never reached a unanimous decision on the first-degree murder charges. Since there was no formal vote, he said, there was no acquittal.
Attorneys will argue their motions in court May 18. Wilson indicated Thursday that if Kay rules in favor of the defense, he will take the matter up before the Utah Court of Appeals. An appeal from either side could delay the trial as long as two years.
Weitzel's patients — Ellen Anderson, 91; Ennis Alldredge, 85; Mary Crane, 72; Judith Larsen, 93; and Lydia Smith, 90 — all died within a 16-day period in December 1995 and January 1996 at Davis Hospital and Medical Center's geriatric-psychiatric unit. Prosecutors argued Weitzel systematically weakened them with a regimen of psychiatric and sedative medications, which led to their deaths.
However, Weitzel claimed he provided adequate comfort care for the terminally ill patients.
Weitzel lost his original defense attorney, Peter Stirba, last month when Stirba withdrew from the case to spend time with his wife, 3rd District Judge Anne Stirba, who is battling a long-term illness.
After losing his attorney, Weitzel mailed a six-page letter to more than 4,400 Utah doctors and established a Web site to solicit contributions to his legal defense fund. Outside the courtroom Thursday, Weitzel said many physicians have been supportive of his situation and have donated to the fund. He declined to comment on the extent of the contributions.
Weitzel is also facing 22 federal counts of fraudulently prescribing drugs for his own use. Stirba has withdrawn from that case, too, leaving Weitzel with an attorney from the Federal Legal Defender's Office for his June trial.
E-MAIL: awelling@desnews.com