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Appeals court orders 2nd look at judicial bias in Weitzel case

Ruling lowers the standard for proving favor

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Thanks to the Utah Court of Appeals, Davis County prosecutors have another chance at preventing 2nd District Judge Thomas L. Kay from presiding over the second trial of Robert Allen Weitzel.

In a memorandum decision released Thursday, the court directed Presiding 2nd District Judge W. Brent West to take a second look at prosecutors' request to have Kay removed from the case.

The April motion alleges Kay's actions and comments both during and following Weitzel's six-week trial indicated a prejudice against the state, the eight jurors and family members of the five alleged victims.

In June, West determined no evidence of actual bias existed and denied the motion.

Prosecutors appealed the decision to the Court of Appeals, asking the three-judge panel to either remove Kay from the case or instruct West to evaluate the motion using a lower standard of proof.

Assistant Attorney General Laura Dupaix argued West applied an incorrect standard in reaching his decision. West should have looked for the appearance of bias rather than seeking evidence of actual bias, she said.

The court agreed.

"We do not question (West's) conclusion that there was no showing of actual bias in the record of the first trial," the decision states. "However, we direct (West) to reconsider whether, in light of the entire affidavit, 'the trial judge's impartiality might reasonably be questioned' as this case proceeds to a new trial."

According to Thursday's decision, the Utah Supreme Court has previously held that an "actual bias need not be found to support disqualification. An appearance of bias or prejudice is sufficient for disqualification."

Prosecutors contend Kay unfairly limited the amount and type of evidence at Weitzel's trial on five counts of first-degree felony murder. They also claim the judge made comments indicating a lack of respect for jurors and families of the deceased, such as an alleged comment that one family wanted their mother exhumed to aid in the civil case against Weitzel.

Weitzel, a psychiatrist, stands accused of overmedicating five elderly patients under his care at the Davis Hospital and Medical Center in Layton.

Jurors convicted Weitzel of lesser negligent homicide and manslaughter charges, but Kay awarded Weitzel a new trial when he determined prosecutors withheld information about a potential expert witnesses who may have aided the defense.

The decision did not specify a deadline for re-evaluating the motion. However, Dupaix expects it to happen quickly, as an Oct. 11 pretrial conference is scheduled before Kay. A new trial date has not yet been set.

E-mail: awelling@desnews.com