0001 1 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA 2 THIRD JUDICIAL DISTRICT AT ANCHORAGE 3 __________________________ 4 ) IN THE MATTER OF: ) 5 ) FAITH MYERS, ) 6 ) Respondent. ) 7 ) __________________________) 8 Case No. 3AN-03-277PR 9 10 TRANSCRIPT OF PROCEEDINGS 11 June 26, 2003 - Pages 1 through 39 12 PRE-TRIAL CONFERENCE 13 BEFORE THE HONORABLE MORGAN CHRISTEN Superior Court Judge 14 Anchorage, Alaska 15 June 26, 2003 4:02 o'clock p.m. 16 APPEARANCES: 17 FOR THE STATE: JEFFREY T. KILLIP Assistant Attorney General 18 Attorney General's Office 1031 West 4th Avenue 19 Suite 200 Anchorage, AK 99501 20 FOR THE RESPONDENT: JAMES B. GOTTSTEIN 21 Law Offices of James B. Gottstein 22 406 G Street, Suite 206 Anchorage, Alaska 99501 23 24 25 0002 1 P R O C E E D I N G S 2 THE COURT: On record in Case No. 3 3AN-03-277. Excuse me. This is In the Matter of 4 the Hospitalization of Faith Myers. As I indicated, 5 the court visitor, Mr. Killip and Mr. Gottstein are 6 all present either in the courtroom or 7 telephonically. This case is set to go to a jury 8 trial tomorrow. 9 Mr. Gottstein moved for a change of judge 10 claiming a peremptory challenge, or right to a 11 peremptory challenge, and that was denied by Judge 12 Hensley. I'm just doing a recap because I've been 13 out of town for about four or five days. That 14 issue, I think, is on appeal? You filed a petition 15 for review to the Supreme Court on that question? 16 MR. GOTTSTEIN: That's correct, Your 17 Honor. 18 THE COURT: Okay. I think you also 19 simultaneously filed a motion for entry of a stay in 20 the Superior Court and in the Supreme Court. I'm 21 not sure if they're simultaneous or not, but almost 22 simultaneously. I entered an Order today denying 23 the stay in the Superior Court and my law clerk 24 tells me that we received a phone call not long ago 25 from the Supreme Court indicating that they've 0003 1 entered an Order denying the stay there, but I don't 2 have it. I don't know if either one of you have 3 that. 4 MR. KILLIP: Just the same phone message. 5 THE COURT: Did you get that Mr. 6 Gottstein? 7 MR. GOTTSTEIN: Yes, Your Honor. 8 THE COURT: Okay. That's all I have as 9 far as that goes as well. Okay. So, procedurally, 10 we're set to go to trial tomorrow morning, except 11 that I just got this motion from Mr. Gottstein, 12 which is a motion for disqualification, and I 13 appreciate your hurrying to get that to me so 14 quickly. I haven't read it; I just got it a minute 15 ago. The way we'll handle this is the way we would 16 in any other case, which is that it comes to me, I 17 read it, I rule on it, and if I find it meritorious, 18 then of course I'll notify you right away tomorrow 19 morning and we won't go to trial tomorrow morning 20 because the case will have to be reassigned to 21 another judge and that just can't happen on a dime. 22 You know, it just can't happen that quickly that 23 we'd be able to get a jury trial together for you. 24 If I read it and find it not meritorious, then what 25 happens is that I refer it to the Chief Justice and 0004 1 I think pretty routinely she has entered a standing 2 Order, I think I'm right about that, delegating to 3 the presiding judge either the decision to review 4 this or to appoint another Superior Court Judge to 5 review it, so you don't have to ask me to have that 6 done, in other words. That's going to automatically 7 be reviewed -- my decision will automatically be 8 reviewed if I rule that it is not meritorious. 9 Okay. So, either way, that takes a little time 10 tomorrow morning is what I'm trying to get at. And 11 so I'm glad to have it tonight because I can look at 12 it tonight and get that much done. 13 Having said all that, as we sit here, I'm 14 ready to go and planning to go for a jury trial 15 tomorrow. The jury clerk has called up a jury, 16 although I've indicated to her that we'll be calling 17 them up -- at best we'll be calling up a little bit 18 later tomorrow morning. We obviously can't start 19 right straight out of the box. And so I wanted to 20 use this time as a pretrial conference to give 21 you -- to cover the areas we would otherwise so that 22 you're ready to go tomorrow if you need to, because 23 I think you both indicated that you hadn't done a 24 jury trial, at least in the Superior Court here? 25 MR. GOTTSTEIN: Your Honor, I mean, I'm 0005 1 really not ready to go tomorrow morning. You can do 2 whatever you want with that, but I'm really not 3 ready and I would -- I've had, for whatever reason I 4 had made choices to go whatever direction I did -- 5 THE COURT: Sure. 6 MR. GOTTSTEIN: -- and so I really am not 7 ready to go tomorrow morning. 8 THE COURT: Mr. Killip? 9 MR. KILLIP: Our position is, Your Honor, 10 we would like to proceed tomorrow as planned. The 11 only modification we would ask for is to select the 12 jury tomorrow and then begin with the evidence on 13 Monday. And the reason for that is I've spent most 14 of this week responding to the emergency motions and 15 have not had a chance to prepare. But having said 16 that, I don't see any reason why we can't pick the 17 jury tomorrow, prepare over the weekend and go 18 bright and early Monday morning and get started with 19 the evidence. And I think the other -- the nice 20 thing about that is if we don't start with opening 21 statements tomorrow, then there won't be a concern 22 about sequestration with the jurors. We can pick 23 them, they can go home, they don't have to worry 24 about specific facts of the case and come back 25 Monday morning. But that would be our position, 0006 1 Your Honor. 2 THE COURT: Mr. Gottstein, I'm inclined to 3 go forward tomorrow with selecting the jury. I 4 don't know why there would be any reason we can't go 5 that far. I can certainly understand with all the 6 work that you've done on these motions practice you 7 might need more time to prepare, so I think where we 8 left off I indicated I'd like to pick the jury 9 tomorrow and then start with openings or maybe even 10 have Mr. Killip get his first witness in tomorrow. 11 If you'd like, we can put that off until Monday so 12 that you have an opportunity -- you'd have two more 13 days to prepare for the substance of the case, if 14 you will. I can certainly do that. 15 Is that your request? 16 MR. GOTTSTEIN: Well, I mean, I think it's 17 his request. I'm really, you know, I'll do 18 whatever. But, I mean, I'm -- I don't really want 19 to acquiesce. If the Judge rules with that -- rules 20 that way, then I understand that the Judge will rule 21 that way. 22 THE COURT: Okay. Well, that is my 23 ruling, then. I think it's certainly understandable 24 that you need some more time to prepare, so I'll 25 start the substance of the case and limit tomorrow 0007 1 to -- well, to ruling on the motion to disqualify, 2 to getting you a ruling one way or another finally 3 on that, and then at most jury selection tomorrow. 4 Since you -- Mr. Gottstein. 5 MR. GOTTSTEIN: If I may, what happens if 6 there's no ruling, you know, assuming that you deny 7 the motion to disqualify and there's no ruling from 8 the other judge -- 9 THE COURT: Right. Good question. We 10 won't go forward with selecting the jury until you 11 get a ruling, as you say, from the other judge or 12 review from the other judge. That can usually 13 happen within about an hour. It doesn't take very 14 long typically. Is that what you're asking? 15 MR. GOTTSTEIN: Yes, Your Honor. 16 THE COURT: Yeah. Judge Hensley knows 17 this was going to be coming because, I think he 18 does, there's a footnote indicating that this would 19 be the next step, I think. And I mentioned to him 20 today that I thought this would be here. I didn't 21 know if I'd have it this afternoon or tomorrow 22 morning, one way or another, so that he could be 23 available to break from what he's doing tomorrow to 24 get it tended to right away. 25 I have put the card up on the easel so 0008 1 that you can see the questions that all of the 2 jurors are asked in the course of the jury 3 selection. I mentioned that last time, but I didn't 4 have it in the courtroom. I will ask the statutory 5 questions and are you both familiar with what those 6 are? Let me take it from the top. 7 The jury clerk will bring in an entire 8 jury pool and for this group, she'll probably bring 9 in about 30 people and they'll be seated in the back 10 of the courtroom. Then I ask the -- well, the clerk 11 administers an oath and I ask the questions that are 12 in the statute about how old all the jurors are and 13 are they all United States citizens and have they 14 served on a jury before and have they been convicted 15 of a felony, anything that would disqualify them. 16 And if they're -- sometimes there's one or two of 17 those folks and those people are excused. Okay. 18 Then we're going to fill up the jury box 19 and those people are asked to go through questions 1 20 through 10 that you see there on the board; the 21 name, the neighborhood, their hobbies, their 22 birthplace and employment and whatnot. So you don't 23 need to be ready to ask those questions, gentlemen, 24 because all of them will have to go through those 25 questions as they sit here in the jury box. 0009 1 Then typically the plaintiff goes first. 2 In this case that will be the State, Mr. Killip, 3 will be entitled to question each of the witnesses 4 individually as we go forward. Okay. He can ask 5 questions he wants that follows up the questions 6 they have already answered. I ask that you not, of 7 course, reask the same questions. And then Mr. 8 Gottstein will do the same. And that, given that 9 we're looking to seat eight jurors total, six plus 10 two alternates, you know, I'm thinking you could 11 probably go through that panel in 20, 25 minutes 12 apiece. 13 Then what I do is take a break and ask 14 each of you to just jot down on a piece of paper 15 while we're in a break the jurors, the names of the 16 jurors that you want to exercise the bumps on, the 17 peremptory challenges. You'll each have three of 18 those. Okay? And pass those forward so that 19 neither one of you has to say out loud in the 20 courtroom in front of the other jurors, you know, 21 which of the jurors you're excluding. That's an 22 anonymous process for them. 23 If we go through that process and between 24 the two of you you've bumped three or four folks off 25 of the jury panel so that we no longer have enough 0010 1 to seat eight, then we fill those seats back up and 2 take it from the top again with the jurors starting 3 through the cards and then you can each have a turn 4 to question them individually. Does that make 5 sense? Okay. All right. 6 In the course of doing that, there's sort 7 of a script that I follow, as I indicated to both of 8 you. I wanted to make sure that you know that 9 there's a place in my script where I introduce both 10 of you, or I guess maybe I ask you to introduce 11 yourselves to the jury and ask you to introduce your 12 client or client representative to the jury, so I 13 want you to be prepared to do that so that you're 14 not caught off guard. 15 And also there's a very brief description 16 I give to the jurors, the whole prospective panel, 17 about just very generally what the nature of the 18 case is. In this case my inclination is to tell 19 them simply that it involves an involuntary 20 commitment petition and that the State has the 21 burden of proof to show that Ms. Myers suffers from 22 a mental illness such that she should be 23 involuntarily committed and that those terms will be 24 further defined for them later. 25 I think it should be a very concise 0011 1 statement, and I don't know why we'd need to tell 2 them more than that, so that when you have a chance 3 to question them, you can determine whether they 4 have particularly strong feelings about that. It 5 seems to me to be fair game to ask whether or not 6 they have family members who hae suffered from 7 mental illness or perhaps have even been 8 involuntarily committed. I think that's fair game 9 because that's a very sensitive issue. 10 Just so you know how we do this, I have a 11 long extension cord essentially with a microphone. 12 So I will tell the jurors that if they feel 13 uncomfortable talking about any of those subjects, 14 or embarrassed, that they can just indicate that to 15 me and then both of you and I and the juror will 16 just step outside and the microphone goes outside 17 with us so that each of you can ask your questions 18 and it's on record, but people don't have to speak 19 publicly if they feel confined or inhibited from 20 doing so. 21 Mr. Gottstein. 22 MR. GOTTSTEIN: Your Honor, you didn't 23 mention the forced medication as part of the brief 24 description, so I didn't know if you would want to 25 add that point. 0012 1 THE COURT: Mr. Killip. 2 MR. KILLIP: Well, I didn't bring my 3 statutes with me, but I was looking at them a little 4 more closely this week and I do understand, or it's 5 my understanding that the -- I think it refers to 6 the Court that makes the finding concerning 7 commitment; the same Court that makes the finding 8 concerning commitment shall also make the finding 9 concerning the medication. So, and I know we've all 10 be operating under the assumption that we'd be 11 dealing with both tomorrow, so I don't -- I can't 12 see any reason... 13 THE COURT: I think Mr. Gottstein is 14 right, then. If you're proceeding on both petitions 15 and you want the jury to come back with findings for 16 both, and Mr. Gottstein's client has invoked her 17 right to a jury trial as to both, correct? 18 MR. GOTTSTEIN: Well -- 19 THE COURT: That's the issue? 20 MR. GOTTSTEIN: -- it's a little bit 21 un -- Your Honor -- 22 THE COURT: You may be seated. 23 MR. GOTTSTEIN: -- it's a little bit 24 unclear because that petition came in after the 25 demand for jury trial, but I assumed that's we were 0013 1 going to do as well. 2 THE COURT: Yeah, and I'm not trying to 3 force you either way. 4 MR. GOTTSTEIN: Yeah. 5 THE COURT: If your client wants the jury 6 to hear both of those questions, that's just fine. 7 I just want to be clear if that was your intention. 8 MR. GOTTSTEIN: Well, of course I would 9 prefer that they be heard separately, but I 10 understand that the Court, you know, that the Court 11 views these as one case, so I understand that. 12 THE COURT: Yes, but even within the 13 context of one case, Mr. Gottstein, we could proceed 14 or at least I'd be willing to listen, if Mr. Killip 15 wanted to argue otherwise, but if your client's 16 intention was to ask that some issues be decided by 17 the jury and some by the Court, you know, that is 18 sometimes done. I was just understanding that your 19 client prefers to have both issues decided by the 20 jury. 21 MR. GOTTSTEIN: That's correct, Your 22 Honor. 23 THE COURT: Okay. Then that's what we'll 24 do. And so what I'll do tonight is type up a short 25 couple sentences and I'll give it to you both 0014 1 tomorrow morning so that you can preapprove it and 2 make sure you're comfortable with the brief 3 description I'm going to give the jury. 4 MR. KILLIP: Okay. If I may respond, Your 5 Honor? 6 MR. KILLIP: THE COURT: Sure. 7 MR. KILLIP: Given the briefing flurry of 8 this week, I have not drafted any proposed motions 9 in limine. And one of the issues that I was going 10 to look at, anyway, was this issue of the -- whether 11 someone is entitled to a jury trial on the 12 medication petition, and I just wanted to have the 13 opportunity to look at that. 14 But I think -- I know that we've all been, 15 at least I thought we were all proceeding under the 16 assumption that both of those issues were going to 17 be addressed tomorrow. And, in any event, the law 18 is clear. It says the same Court that makes the 19 commitment determination shall also make the meds 20 determination. So, but I just wanted to advise the 21 Court that that's one of things I'm going to be 22 working on tonight is the motion in limine. 23 THE COURT: All right. So, just to make 24 the record clear, where we've left it is that unless 25 you come forward with a motion seeking a ruling 0015 1 otherwise, the jury's going to be asked to make both 2 of those determinations. Okay. So the ball's in 3 your court if you want to ask us to revisit the 4 question on the medication petition. 5 MR. GOTTSTEIN: Your Honor, I would object 6 to the -- I mean, I understand the reason for it, 7 but I would object to, you know, having to respond 8 right then and have the trial go forward, and so I 9 would renew my request for a continuance to kind of 10 sort this stuff out. 11 THE COURT: All right. I don't know that 12 Mr. Killip is going to bring the motion yet. What 13 I've indicated is unless he does something, that the 14 ruling is that both petitions are going forward and 15 the jury's going to be the fact-finder on both of 16 them. Okay. So, if Mr. Killip wants me to revisit 17 that, then at that point, Mr. Gottstein, if you want 18 to seek a continuance or an opportunity to oppose 19 it, you can let me know. Okay? 20 MS. VASSAR: Your Honor? 21 THE COURT: Yes. 22 MS. VASSAR: I'm wondering if it would be 23 possible for myself to be excused from jury 24 selection. The visitor isn't usually involved in 25 any sort of jury selection process. 0016 1 THE COURT: Mr. Gottstein, do you see any 2 reason that the court visitor needs to be present 3 tomorrow? 4 MR. GOTTSTEIN: I have no objection. 5 THE COURT: Mr. Killip. 6 MR. KILLIP: No problem with that, Your 7 Honor. 8 THE COURT: All right. I can't think of 9 one either, so I think that's just fine, ma'am. 10 MS. VASSAR: Okay. So, and my 11 understanding is that we'll proceed on Monday, then, 12 with the substantive part of the case; is that 13 correct? 14 THE COURT: Yes, yes. Unless you hear 15 otherwise, if there's an Order entered tomorrow 16 requiring that the case be moved to a different 17 judge, I think it's safe to say that Mr. Killip can 18 let you know that. 19 MS. VASSAR: Do we have a tentative time 20 for Monday? 21 THE COURT: Yes, it would be 8:30. 22 MS. VASSAR: 8:30. I just hadn't gotten 23 any of that information. 24 The other question I had is: Before the 25 Court now is a third motion for forced medications, 0017 1 and is that what you would like me to respond to in 2 terms of preparing for this hearing on -- 3 THE COURT: Right. I'll let Mr. Killip 4 answer that because it's really his -- 5 MS. VASSAR: Okay. 6 THE COURT: -- case to put on. 7 MS. VASSAR: Because the other point I 8 wanted to make is the visitor is never involved in 9 involuntary commitment proceedings, so I would not 10 be preparing any report or weighing in on that. But 11 we are, of course, involved in forced medications. 12 THE COURT: Mr. Killip. 13 MR. KILLIP: Thank you. Yeah, Marie Ann, 14 that's exactly my understanding -- 15 MS. VASSAR: Okay. 16 MR. KILLIP: -- that we're basically 17 picking up where we left off from the last trial on 18 the issue of the forced medications. 19 MS. VASSAR: Would you like me to have a 20 report prepared by Monday for -- on the matter of 21 forced meds? 22 MR. KILLIP: That would be -- I think that 23 would be ideal. 24 MS. VASSAR: Okay. 25 THE COURT: Mr. Gottstein. 0018 1 MR. GOTTSTEIN: I would like to see in 2 advance a copy of that report entered, you know, 3 have an opportunity to, you know, prepare for that. 4 So, again, I don't think that there's sufficient 5 time to do that and I'll renew my request for a 6 continuance. 7 THE COURT: Okay. Since you've now done 8 this, I think, three times let me ask you how much 9 time do you think you need, Mr. Gottstein? 10 MS. VASSAR: Well, Ms. Welles did it the 11 first time, I did it the second time. I can try to 12 get out and see Ms. Myers tomorrow. And I'll 13 probably -- I mean, I'd like to have the weekend to 14 prepare. I could try to get it ready by Friday, but 15 that's kind of pushing it in terms of I don't know 16 what her schedule is there, I don't know, you know, 17 how quickly -- I hope to be able to see her 18 tomorrow, but I haven't made any arrangements with 19 API to do that yet. 20 I would -- I would make every effort to 21 get the report to both attorneys prior to the 22 hearing, and if I can get fax numbers from both of 23 them, I will do that. I should certainly have 24 something by Sunday, and if my -- or hopefully even 25 Saturday and I could fax it to them. I can't 0019 1 absolutely commit to having a report prepared and 2 ready by Friday. 3 THE COURT: I think I understand. Okay. 4 So, Mr. Gottstein, actually could we accomplish that 5 now? Do you want to give her your fax number so 6 she's got it? 7 MR. GOTTSTEIN: Sure. It's 274-9493. 8 THE COURT: Okay. 9 MR. GOTTSTEIN: I think Ms. -- 10 MR. VASSAR: That's Mr. Gottstein? 11 THE COURT: That's Mr. Gottstein, correct. 12 MS. VASSAR: Okay. 13 THE COURT: So, my Order, of course, is 14 that you serve him a copy by fax just as soon as you 15 can. 16 MS. VASSAR: Okay. 17 THE COURT: Mr. Gottstein, let me ask you: 18 If you get this report, if you have it by Saturday 19 or Sunday, you get it over the course of the 20 weekend, how much time is it you think you need to 21 prepare? 22 MR. GOTTSTEIN: I think, Your Honor, by 23 Wednesday. 24 THE COURT: Let me ask Mr. Killip, or I'm 25 not sure which of you would be in a position to 0020 1 know. You requested an Order reappointing the 2 expert to see your client. Has that happened? 3 MR. GOTTSTEIN: No. No, it has not yet, 4 Your Honor. 5 THE COURT: Do you know when it's -- is it 6 scheduled? 7 MR. GOTTSTEIN: Well, I -- it hasn't 8 really been arranged with API yet. He's 9 tentatively, you know, planning if we're going to go 10 forward, to come up this Sunday and do it, but 11 that's not very optimal because then he doesn't hae 12 a chance to talk to the regular, you know, weekday 13 staff. We also -- I think it would be helpful to 14 have the Order that we discussed on the record last 15 week appointing him, you know, and making clear that 16 he gets to do what he thinks is necessary. 17 THE COURT: Did you prepare one for my 18 signature? Okay. I did enter the Order last week. 19 Has there been any problem getting it arranged? 20 MR. KILLIP: I've already communicated it 21 to API to accommodate Dr. Smith and that he should 22 have, you know, all reasonable access to Ms. Myers, 23 so that message has already been communicated to the 24 client. And that was done shortly, very shortly 25 after the Court entered its verbal Order. So I may 0021 1 have even done that, if it wasn't this Monday, it 2 may have been last Friday. 3 THE COURT: Okay. Mr. Gottstein, I know 4 this is an aside, but I mentioned last time we were 5 on record that you'd asked me to find the proposed 6 Order to pay your expert's fees. 7 MR. GOTTSTEIN: Yes, Your Honor. 8 THE COURT: And I said I'd go fish it out. 9 The file, of course, is in the Supreme Court, so I 10 can't fish it out, but if you want to reprint it and 11 bring it -- or lodge it tomorrow, I'm happy to sign 12 that for you to make sure we get that housekeeping 13 detail tended to. Just so you know that since 14 there's a matter pending in the Supreme Court, now 15 the file physically goes over there. All right. 16 MR. GOTTSTEIN: Okay. That probably 17 should be sufficient as long as the people at API 18 understand that they're going to cooperate in 19 talking to him and so that we don't have the same, 20 you know, charge that he didn't do the stuff that 21 happened last time. 22 THE COURT: Well, they've been ordered to 23 cooperate and provide the complete medical record. 24 I haven't heard anything that tells me 25 that we shouldn't be going forward with jury 0022 1 selection certainly tomorrow and with starting the 2 case, the State's case in chief on Monday morning. 3 Mr. Killip sounds like he has his witnesses lined up 4 and ready to go. It's certainly your obligation to 5 do so. Do you know how long it's going to take you 6 to get your case put on so that Mr. Gottstein knows 7 when he can be prepared to have his witnesses ready? 8 MR. KILLIP: Yes. Assuming that we start 9 8:30 with opening statements and everything goes 10 fairly smoothly -- 11 THE COURT: All right. 12 MR. KILLIP: -- my guess is that we will 13 end up calling approximately ten witnesses and -- 14 MR. GOTTSTEIN: Your Honor -- I'm sorry, 15 Your Honor. 16 MR. KILLIP: -- some of them will be 17 fairly short, but none of them should come as a 18 surprise to anyone, and I will provide -- I can do 19 the list right now off the top of my head. 20 THE COURT: That was my next question: 21 Does Mr. Gottstein know who you're calling? 22 MR. KILLIP: Yeah. 23 THE COURT: So if you can identify them 24 now. 25 MR. KILLIP: Rachel Humphries, I 0023 1 believe -- if that's her name. She testified at the 2 first trial. 3 THE COURT: Is that the -- 4 MR. KILLIP: Daughter. 5 THE COURT: -- respondent's daughter? 6 MR. KILLIP: Yes. 7 THE COURT: Okay. 8 MR. KILLIP: Michael Myers, son. 9 THE COURT: Who has also previously 10 testified. 11 MR. KILLIP: Yes. Dr. Hanowell. Let's 12 see. Dr. Hanowell, then -- Humphries, Myers, 13 Hanowell, and then Raymond Arington. He testified 14 at a deposition. 15 THE COURT: Did you say Harrington? 16 MR. KILLIP: Arington, with an A. 17 THE COURT: Okay. 18 MR. KILLIP: And then Laird -- and I'm 19 spacing his last name. He testified at a -- at a 20 deposition called by Mr. Gottstein. That would be 21 number five. 22 THE COURT: Is he a care provider? 23 MR. KILLIP: Yeah, these are -- Mr. 24 Arington and Laird, that's his first name, are both 25 API nurse assistants. 0024 1 MR. GOTTSTEIN: Your Honor, I don't think 2 I took his deposition. I think he may have 3 testified at the second trial. 4 MR. KILLIP: I'm sorry. Yeah, he 5 testified at trial number two. Excuse me. 6 THE COURT: Okay. 7 MR. KILLIP: Yeah. And then we -- I'm 8 anticipating two witnesses from CTC. 9 THE COURT: Uh-huh. 10 MR. KILLIP: Jerry Jenkins, who's the 11 executive director for Southcentral Counseling, and 12 then some unknown person because I don't have a 13 release to talk to anybody about the Myers case over 14 there. But whoever dealt with Ms. Myers when she 15 went over there for the two-hour period and then CTC 16 made the decision to return her to API. So I assume 17 that was one person that we can call on that issue. 18 THE COURT: Ms. Myers was at CTC two 19 hours? 20 MR. KILLIP: Yes. 21 THE COURT: Okay. So it's the care -- 22 this would be a care provider person? 23 MR. KILLIP: Yes. Whoever made that -- 24 whoever had personal knowledge about that visit and 25 then also whoever made the decision to send her back 0025 1 to API, I assume that was one person. 2 THE COURT: Let me ask you: Is Mr. 3 Jenkins the person who executed the affidavit that 4 Mr. Gottstein supplied? 5 MR. KILLIP: Yes. 6 THE COURT: Regarding less restrictive 7 alternatives? 8 MR. KILLIP: Yes. 9 THE COURT: Okay. 10 MR. KILLIP: What are we up to now? Is it 11 seven or eight? 12 THE COURT: Eight. 13 MR. KILLIP: Eight, okay. 14 MR. GOTTSTEIN: I have seven, Your Honor. 15 THE COURT: One, two, three, four, five, 16 six, seven. You're right. 17 MR. KILLIP: And then we may need the 18 records custodian from CTC because, again, we don't 19 have the records from CTC on Ms. Myers. So we may 20 have to have the custodian of the records appear 21 with the records, unless Mr. Gottstein does not 22 object to an Order being entered now for us to have 23 those records so that we can -- 24 MR. GOTTSTEIN: Your Honor, I mean, I 25 think it's totally unfair to spring all this at this 0026 1 point. I had no notice of any of this. I have no 2 -- I don't have copies of those records. And to 3 expect me to respond to this without any opportunity 4 to prepare, I think, is unreasonable and a denial of 5 due process. 6 THE COURT: Well, these are treatment 7 records for the two hours she was at CTC? 8 MR. KILLIP: Yes. 9 THE COURT: Do they include more than 10 that? Are you looking for the evaluation -- records 11 of the evaluation or assessment? 12 MR. KILLIP: I'm just -- I'm looking 13 for -- this addresses the less restrictive treatment 14 component and I'm just looking for whatever 15 information CTC has concerning their consideration 16 of her for treatment recently. 17 MR. GOTTSTEIN: Your Honor, if I may. The 18 statute requires that all the witnesses be listed. 19 They listed none. Now we've got a series of 20 witnesses listed here on the eve of trial that I had 21 no idea. The statute also requires that the 22 specific facts and behavior that are being relied 23 upon to lock my client up be listed in the petition. 24 That wasn't done either. And I think that that's -- 25 it's a violation of the statute and I move to 0027 1 dismiss on that basis. 2 THE COURT: Mr. Killip. 3 MR. KILLIP: Yeah, these are -- this is a 4 continuation of the same proceeding. I think that 5 Mr. Gottstein has actual notice of these witnesses. 6 The -- I don't see any prejudice to Mr. Gottstein or 7 his client. It's not like we're calling experts 8 from Washington, D.C. on psychiatry or some other 9 person with personal knowledge about Ms. Myers that 10 has not been included in the prior two trials. 11 But the only witnesses that are really 12 being added by the State in this third trial are 13 witnesses from CTC that are connected to Ms. Myers' 14 request to be transferred over to CTC. So, I mean, 15 that's -- without the ability to call witnesses from 16 CTC that leaves a gap in the State's case that we 17 just can't address, and we don't have releases for 18 that information. 19 I don't know what the records say and, as 20 mentioned before, people won't talk to me from CTC 21 about the specifics of her case. So, we have no 22 ability to address that information without 23 proceeding in this fashion. And given the briefing 24 that has taken place as initiated by Ms. Myers and 25 her attorney this past several days, we have not had 0028 1 an ability to be proactive about providing advance 2 notice with a witness list. I think we said that we 3 would provide a witness list by yesterday. 4 That was the agreement that we made last 5 Friday on the record, so we're a day late on that 6 and we apologize, but I think that was 7 understandable under the circumstances. 8 THE COURT: I certainly don't find any 9 prejudice as to the witnesses that you've listed who 10 have previously testified in this case, and I would 11 include Mr. Jenkins in that because -- at least 12 certainly to the extent that you're covering the 13 ground that Mr. Gottstein presented in the sworn 14 affidavit. I don't think there's any surprises 15 there. I'm concerned about getting these records 16 produced to both of you so that you don't have to do 17 this on the fly and that way you both have an 18 opportunity to look them over and prepare for trial. 19 What needs to happen to get those -- they're clearly 20 discoverable. What needs to happen in order to get 21 them produced? 22 MR. KILLIP: Well, we would need the 23 authority to do that. If the Court would prefer us 24 preparing a written Order for the release of those 25 records, we can do that for the Court's signature, 0029 1 you know, first thing in the morning. 2 THE COURT: Mr. Gottstein, do you have 3 those records? Have you requested them? 4 MR. GOTTSTEIN: No, Your Honor, I do not 5 have those records. 6 THE COURT: Okay. We need to get those 7 just as soon as possible, so why don't you two put 8 together whether you want it to be a stipulated 9 Order or however you want it framed, that's fine. 10 But I think you need a clear statement that those 11 records need to be copied for both of you so that 12 they can get them produced. They shouldn't be 13 voluminous. I can't imagine they'd be voluminous. 14 There shouldn't be a problem getting both of them to 15 you by close of business tomorrow so that you have 16 the weekend to be able to prepare for them. 17 MR. KILLIP: Your Honor, and I think the 18 last witness would be -- two more witnesses. One 19 would be the court visitor, Marie Ann Vassar. 20 THE COURT: Yes. 21 MR. KILLIP: And that would be in 22 connection with the meds petition and competency. 23 And the last witness we would call would be Dr. 24 Coletti. 25 THE COURT: Dr. Coletti? 0030 1 MR. KILLIP: Dr. Coletti, who testified at 2 the first two trials. 3 THE COURT: All right. Mr. Gottstein, did 4 you prepare a witness list for the State? 5 MR. GOTTSTEIN: No, Your Honor. 6 THE COURT: Because you've been so busy -- 7 I understand; there's been a lot of pleadings. But 8 are you in a position where you're able to identify 9 your witnesses for Mr. Killip now? 10 MR. GOTTSTEIN: Well, Your Honor, I -- the 11 character, you know, the case that I thought I was 12 having to address is substantially different with 13 ten witnesses. So I really -- I really don't know. 14 I -- I expected, you know, to call Dr. Smith. May 15 call Dr. Wolfe, the -- Ms. Myers, of course. And 16 there may be some other people that -- that know her 17 that I might try and call that I haven't really 18 identified yet. 19 THE COURT: Gentlemen, I'm just realizing 20 we still have the court visitor on the phone 21 participating in this pretrial conference. Does she 22 need to stay on the line? Do you need her for 23 anything? 24 MR. KILLIP: No, Your Honor. 25 THE COURT: Mr. Gottstein. 0031 1 MR. GOTTSTEIN: I guess not, Your Honor. 2 THE COURT: Ma'am, you're welcome to 3 participate, but I'm sure you're busy. If you don't 4 need to be involved in all of these logistical 5 discussions, you don't have to be. You certainly 6 have permission, if you want, to excuse yourself. 7 MS. VASSAR: I would take you up on that 8 offer. 9 THE COURT: All right. 10 MR. KILLIP: Marie Ann? 11 MS. VASSAR: Yes. 12 MR. KILLIP: Yeah. Do you want my fax 13 number? 14 MS. VASSAR: Yes. 15 MR. KILLIP: It's 258 -- 16 MS. VASSAR: 258 -- 17 MR. KILLIP: -- 6872. 18 MS. VASSAR: -- 6872. Okay. Thank you, 19 Mr. Killip. 20 MR. KILLIP: Thank you. 21 MS. VASSAR: Thank you. 22 THE COURT: Mr. Gottstein, I haven't 23 addressed the other part of what you just -- you 24 just made an oral motion to dismiss, and I don't 25 want to lose track of it. If you think there are 0032 1 other reasons to dismiss the petition, the 180-day 2 petition, based upon statutory infirmities with what 3 is set out, I'm going to need to see that. 4 MR. GOTTSTEIN: Right now? 5 THE COURT: No, no. And in fact I don't 6 even need to see it tomorrow, but I'd need to see it 7 by Monday. 8 MR. GOTTSTEIN: Your Honor, I just thought 9 of another witness, which is Betty Welles. 10 THE COURT: Yes. All right. 11 Mr. Killip, you're aware of all of these 12 witnesses, or at least they're not new names to you, 13 correct? 14 MR. KILLIP: Correct. 15 THE COURT: All right. Are there any 16 other Orders that need to be entered so that we can 17 get access to the documents that you both need in 18 order to prepare for trial? Do any of these other 19 witnesses have anything by way of reports or 20 treatment records that have not otherwise been made 21 available to you? 22 MR. KILLIP: Not that I'm aware of. 23 There is one -- I'm sorry. 24 THE COURT: Mr. Gottstein. 25 MR. GOTTSTEIN: No. I -- I'm going to 0033 1 probably issue a subpoena duces tecum for Ms. Welles 2 or have one issued. But I don't that they're -- 3 they wouldn't be confidential records. 4 THE COURT: Those are records pertaining 5 to her visitor work? 6 MR. GOTTSTEIN: Right. 7 THE COURT: Yeah. Okay. Mr. Killip, you 8 were going to say something? 9 MR. KILLIP: Yes. We would like Dr. 10 Coletti to have the authority to review Ms. Myers' 11 chart for purposes of his testimony. 12 THE COURT: This is an issue just for the 13 record because Dr. Coletti is no longer employed at 14 API; is that right? 15 MR. KILLIP: Correct. 16 THE COURT: Okay. So, otherwise, he 17 wouldn't have a right to review the chart past the 18 time he left his place of employment at API? Is 19 that your concern anyway? 20 MR. KILLIP: Yes, that he's no longer 21 employed, it's confidential, don't want any problems 22 with that. 23 THE COURT: In what capacity are you 24 calling him? 25 MR. KILLIP: He would be a -- well, an 0034 1 expert in psychiatry and it would be based on his 2 personal -- his personal knowledge and connection 3 with this case up to the point where he left and 4 then I would like to call him -- incorporate into 5 his expert opinion whether anything that he opined 6 previously would change based on the updated 7 information that he's reviewed in the file. 8 And it would also be nice if he had an 9 opportunity to talk with the treatment team. I 10 anticipate that it would not be -- it may not be 11 reasonable to expect that Ms. Myers would be willing 12 to meet with him, so -- certainly that would be nice 13 too, but I don't anticipate that she'd be willing to 14 do that. 15 THE COURT: Mr. Gottstein. 16 MR. GOTTSTEIN: I object to any testimony 17 by Dr. Coletti for the reasons stated in my motion 18 for reconsideration. I think that he's shown that 19 he -- he's filed -- he's sworn to statements that 20 are demonstrably untrue and I think for that reason 21 that he should not be allowed to testify. I think I 22 also am not -- I don't recall specifically, but I 23 think in the motion for reconsideration there are 24 other instances where his demonstrable dishonest 25 testimony was presented, and I don't think that he 0035 1 should be allowed to testify. 2 THE COURT: I don't find reason to exclude 3 him, Mr. Gottstein, but certainly the areas where 4 you feel that he has testified inaccurately are 5 going to be fair game for cross-examination. You're 6 going to be allowed to demonstrate to the jury where 7 you think he has testified under oath in a way that 8 turned out to be inaccurate or incorrect. 9 Mr. Killip, why would you need to do 10 anything other than ask Dr. Coletti to testify 11 regarding the events up until the time he left API 12 and then beyond that can he not be asked to testify 13 in the form of a hypothetical question? 14 MR. KILLIP: We could do that also, Your 15 Honor. 16 THE COURT: That might be a little less 17 burdensome and I prefer that we proceed that way. 18 MR. KILLIP: We can do that, Your Honor. 19 THE COURT: Is there anything further, Mr. 20 Gottstein? 21 MR. GOTTSTEIN: I guess my problem is I 22 don't have a transcript of the second trial, and 23 that will make it difficult to cross-examine Dr. 24 Coletti, but... 25 THE COURT: I don't either. Was one 0036 1 prepared for any of the work that you did, Mr. 2 Killip? 3 MR. KILLIP: I don't think so, Your Honor. 4 THE COURT: Did you happen to order a tape 5 of it, or a CD? 6 MR. KILLIP: No. No. 7 THE COURT: No? I don't have one either. 8 Of course the courthouse does if you want to order 9 it up tomorrow so that you can have a tape 10 available, I can certainly request that it be made 11 available to you on very short notice. That's the 12 best I can do. 13 Is there anything further? 14 MR. KILLIP: No, Your Honor. 15 THE COURT: All right. So, what I'll do 16 is review Mr. -- you have this, Mr. Killip, this 17 motion to disqualify? 18 MR. KILLIP: I haven't -- Mr. Gottstein 19 let me look at his copy. I assume ours is back at 20 my office. 21 THE COURT: Is that right? 22 MR. GOTTSTEIN: Yes, it is. 23 THE COURT: Okay. All right. I'm going 24 to look at it tonight myself. If I require any kind 25 of response, if you want to give me a response, Mr. 0037 1 Killip, you can do that tomorrow morning. I don't 2 know that I will or not. I'm not prohibiting you 3 from filing one if you want to, but given that we're 4 just on the verge of this trial, my inclination is 5 to go forward and review it myself and rule on the 6 merits of it and then arrange to have it reviewed, 7 as I described at the outset of this pretrial 8 conference. All right? 9 MR. GOTTSTEIN: Your Honor, when do you 10 expect us here in the morning? 11 THE COURT: I think we're on for 8:30 12 tomorrow morning. 13 MR. GOTTSTEIN: Thank you. 14 THE COURT: But that's -- you two are 15 going to be here at 8:30 tomorrow morning and of 16 course, Ms. Myers -- have we made the arrangements 17 to have her transported? Is there any problem with 18 that? 19 MR. GOTTSTEIN: I haven't made any 20 arrangements. I think she's entitled to be here. 21 MR. KILLIP: Okay. I'll call API right 22 after we get off the record. 23 THE COURT: Great, yeah. If you could do 24 that, she's welcome to be here, and I want her to be 25 here if she chooses to be, certainly. So, we'll go 0038 1 forward on that basis. If you're here at 8:30, 2 we'll take up this issue first before I call in the 3 jury and then we can -- well, before I know whether 4 we're going to call in a jury and you can expect 5 that they'll probably be, unless I find this 6 meritorious on its face, in which case we won't go 7 forward tomorrow at all because we'll have to be 8 reassigned, you can expect that there will be at 9 least an hour delay even if I deny this petition 10 because it has to be reviewed by another judge, and 11 it may be longer than that. It'll be up to him or 12 her. All right. 13 MR. GOTTSTEIN: Your Honor, will you 14 expect us to stay here during that hour, or can we 15 go back to the office and get back here within ten 16 minutes or so? 17 THE COURT: Yes, as long as you don't go 18 far. As long as we know where to find you, that 19 would be fine. All right. Thank you both for 20 coming in this afternoon. 21 MR. KILLIP: Thank you. 22 THE COURT: We'll go off record. 23 (Proceedings recessed.) 24 25 0039 1 TRANSCRIBER'S CERTIFICATE 2 3 I, LESLIE J. KNISLEY, hereby certify 4 that the foregoing pages numbered 1 through 39 are a 5 true, accurate, and complete transcript of the 6 requested proceedings in Case No. 3 AN-03-277PR, In 7 the Matter of the Hospitalization of Faith J. Myers, 8 Respondent, transcribed by me from a copy of the 9 electronic sound recording to the best of my 10 knowledge and ability. 11 12 13 ____________ ______________________________ Date LESLIE J. KNISLEY 14 15 16 17 18 19 20 21 22 23 24 25