0001 1 IN THE SUPERIOR COURT OF THE STATE OF ALASKA 2 THIRD JUDICIAL DISTRICT AT ANCHORAGE 3 ____________________________________ 4 ) ) 5 IN THE MATTER OF: ) ) 6 FAITH MYERS ) ) 7 ___________________________________) Case No. 3AN-03-277PR 8 9 10 11 ___________________________________________________ 12 13 HEARING BEFORE 14 JUDGE MORGAN CHRISTEN ___________________________________________________ 15 16 17 June 30, 2003 18 8:30 a.m. 19 20 21 22 23 24 25 0002 1 A-P-P-E-A-R-A-N-C-E-S 2 3 For Respondent: 4 James B. Gottstein, Esq. 406 G Street, Suite 206 5 Anchorage, Alaska 99501 (907) 274-7686 6 7 8 For The State: 9 Jeffrey T. Killip, Esq. Attorney General's Office 10 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501 11 (907) 269-5140 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 PROCEEDINGS 2 THE COURT: We're on record in case 3 number 3AN-03-277. This is in the matter of 4 hospitalization of Faith J. Myers. I just started 5 to say she was not present, but here she comes in 6 the door, so we'll wait. 7 Mr. Gottstein, I was just handed a 8 pleading entitled pretrial motions and brief. It's 9 pretty lengthy, but 15 pages long, so I personally 10 haven't read it. Are there any motions here that I 11 need to rule on or can you tell me what this 12 entails? 13 MR. GOTTSTEIN: Yes, I think it is what 14 we discussed on Friday. There is the motion to 15 dismiss for insufficiency of the allegations. 16 There is a motion in limine re witnesses not listed 17 in the petition. There is the motion in limine re 18 testimony on danger to self or others. 19 There is some -- the first two, I 20 think, are pretty much what we filed before. The 21 third one is new. There is also a motion on the 22 gravely disabled issue, the unconstitutionality on 23 the second prong of that. 24 I think that that is -- it really also 25 applies to the definition -- the jury instruction 0004 1 that we have on gravely disabled, which I have 2 submitted proposed jury instructions on that. I 3 don't have any proposed jury instructions from the 4 State. 5 THE COURT: Okay. 6 MR. GOTTSTEIN: The fourth -- are we 7 fourth? Was that fourth? Yeah, the fifth one is 8 commitment should not exceed 60 days because a 9 petition says that they are willing to just accept 10 a 60-day commitment. 11 I misspoke. Yeah, that's in the jury 12 instruction about the second prong of the gravely 13 disabled. And also clear and convincing proof 14 instruction. This is kind of more discussion about 15 why that is phrased the way it is, the clear and 16 convincing jury instruction. 17 Number eight we have raised before. 18 Number nine we have raised before. Ten we have 19 raised before. I think that will, you know, be 20 probably a subject. It relates -- certainly, it 21 relates to the jury instructions and it will also 22 probably be a subject of, you know, some of the 23 questioning. 24 THE COURT: What I'm going to do -- 25 first of all, let me make sure -- Mr. Killip, do I 0005 1 have everything I am supposed to have? I have 2 Mr. Gottstein's proposed jury instructions and I 3 have his motions and brief that I just referenced, 4 both delivered this morning, so I haven't read 5 either one of them, but I don't think -- am I 6 supposed to have received anything from you yet? 7 MR. KILLIP: I was hoping to have filed 8 proposed jury instructions this morning, but they 9 are being drafted. 10 THE COURT: That's fine. I just wanted 11 to make sure, given that the file has gone back and 12 forth, I wanted to make sure we didn't lose any 13 paper. That's fine. We don't need to take up jury 14 instructions this morning anyway, so that's all 15 right. 16 MR. GOTTSTEIN: I have also got -- all 17 of this has been served on Mr. Killip here this 18 morning. 19 THE COURT: Great. 20 MR. GOTTSTEIN: The witness list and 21 exhibit list. Should I give that to your clerk 22 now? 23 THE COURT: Why don't you just bring it 24 on up? That would be perfect. Thank you. I 25 appreciate you getting this all ready. It was 0006 1 probably a long weekend. Thank you. 2 Mr. Killip, the thing that I see that 3 may raise a problem as I glance at Mr. Gottstein's 4 motion is the motion to exclude witnesses not 5 listed on the witness list. I don't know how far 6 we'll get in actually presenting your case today. 7 The two witnesses that I am most concerned about 8 are the two from CTC because they haven't testified 9 before. Were you planning to call them today? 10 MR. KILLIP: Yes, Your Honor. They are 11 also listed on his witness list. 12 THE COURT: All right. Before you call 13 them, I am going to, I guess, put the burden on you 14 to remind me that we need to have a sidebar so we 15 can take up that issue. All right. 16 MR. KILLIP: Okay. 17 THE COURT: Assuming we get that far 18 today, and I don't know why we wouldn't. We just 19 need to seat a six-person jury, so we should be 20 able to today. Are there any matters that the 21 state wanted me to take up before we proceed? 22 MR. KILLIP: Yes, Your Honor. I 23 haven't read the pretrial motions brief that 24 Mr. Gottstein just served. 25 THE COURT: Did you say you have or 0007 1 have not? 2 MR. KILLIP: I have not. I just took a 3 quick glance at it. And I made a list of things 4 that we may want to take up first. The first one 5 was telephone testimony by Dr. Caletti. He left 6 API as the medical director several weeks ago, has 7 moved back to Maine and we tried to convince him 8 that it would be a good idea that he come back and 9 testify in person, but he obviously has his own 10 conflicts now that are not consistent with his 11 former role as the medical director at API. 12 And he is only available to testify by 13 phone and I informed Mr. Gottstein of that over the 14 weekend and he indicated to me he was going to 15 object to that, but that would be our offering that 16 he would testify by phone. I guess I'll just go 17 down the list. 18 Danger to self and others, I looked at 19 the petition again, the commitment petition and 20 Mr. Gottstein was correct in that there was not a 21 -- that box was not checked by Dr. Honeywell. From 22 our view, that was essentially a housekeeping 23 oversight on his part that we're basically asking 24 that the commitment continue for the same reasons. 25 The same situation continues to exist from the 0008 1 hospital viewpoint. Everybody has been on actual 2 notice of that. 3 This is a continuation of the same 4 proceeding of findings, shall be admitted. The 5 court has already found that she continues -- or 6 that she is gravely disabled and a danger to 7 herself and others. We're just having to establish 8 that that continues. 9 And also the -- under 47.30.915(7), 10 that's the definition of gravely disabled, it does 11 inherently include, from our viewpoint, at least a 12 risk to self, a danger to self, so if you check 13 gravely disabled, you are obviously checking danger 14 to self and/or others from our viewpoint. So we 15 would like to -- we intend to try and put on 16 evidence for both today. 17 THE COURT: Mr. Gottstein, I don't want 18 to tell you how to run your trial, but I'm just a 19 little concerned that your client is in the back of 20 the courtroom. Are you ready to invite her 21 forward? 22 MR. GOTTSTEIN: Yeah. In fact, Faith, 23 would you like to come up? 24 THE COURT: She has a right to be 25 present at counsel table. 0009 1 MR. GOTTSTEIN: Right. And I just 2 noticed that myself. 3 THE COURT: I am going to do my very 4 best to remember to refer to your client as 5 Ms. Tussing and I practiced all weekend. 6 (Indiscernible.) 7 THE COURT: I'm sorry? 8 MS. MYERS: I said these two children 9 are my heirs and my children through Ronald Wayne 10 Myers, who I divorced on June 23 of 1993 in a 11 dissolution by Master Brown. 12 THE COURT: I understand. 13 MS. MYERS: At the courtroom downtown. 14 THE COURT: All right. Mr. Killip, you 15 may proceed. 16 MR. KILLIP: Thank you, Your Honor. I 17 guess at some point we'll have to deal with the 18 findings of fact and how we're going to handle 19 that. From your viewpoint, we would offer the 20 court's order and the findings made in the order 21 and assume that that would be presented to the jury 22 as part of their findings of fact they can take to 23 the jury room after the trial. 24 I was wondering -- it may not be a bad 25 idea to request a preliminary instruction, kind of 0010 1 a cautionary instruction from the court because 2 there is a possibility that witnesses may testify 3 and refer to prior trials, you know, in my last 4 testimony at the trial, and the state is concerned 5 that that may create the inference in the jurors' 6 minds that maybe the state made a mistake and they 7 have to do it over again. 8 THE COURT: Well, it could create 9 inferences either way, so we'll admonish the 10 witnesses and I'm going to make sure both counsel 11 understand that you are to instruct your witnesses 12 not to make reference to prior testimony, because I 13 don't want any inferences to be drawn either way. 14 MR. GOTTSTEIN: I assume that their 15 attention can be drawn to prior inconsistent 16 testimony? 17 THE COURT: I think what we can do is 18 if the witness -- I thought about this weekend as 19 well. If the witnesses want to make reference to, 20 for example, saying as I have stated before, that's 21 fine. I think if you use the word testimony 22 regarding prior testimony, then, particularly in 23 this case or in earlier trial or in earlier 24 hearing, then there may be -- we may leave the 25 jurors guessing and influence them one way or 0011 1 another. 2 MR. KILLIP: Yeah. And another option 3 could be the court could just instruct the jury 4 that this is essentially just a continuation of 5 prior proceedings. 6 THE COURT: Right. Mr. Gottstein, if 7 you want to make an objection or if either one of 8 you wants to make an objection when the time comes 9 regarding a prior inconsistent statement, there is 10 no reason you can't do that without using the word 11 testimony. To the extent you are able to remember 12 to do that, I would appreciate it. 13 MR. GOTTSTEIN: Yes. Thank you, Your 14 Honor, but I can bring a transcript and show them 15 and stuff? 16 THE COURT: You bet. I am not changing 17 the evidentiary rules. I am just trying to make 18 sure that we don't insert that word, a reference to 19 an earlier hearing or trial, if we don't have to. 20 MR. GOTTSTEIN: Seems like we might. I 21 understand the concern. I will certainly do my 22 best. 23 THE COURT: That's all I'm asking. 24 That's all I can ask. 25 MR. KILLIP: Then one more item and 0012 1 that is we would have a standing objection to any 2 evidence concerning the efficacy of medications and 3 a challenge to the science of medications as 4 before. To that extent we would object to the 5 exhibits and witnesses listed in support of that 6 position that have been submitted by Mr. Gottstein. 7 The same experts that testified before 8 over the phone are on that list and my quick glance 9 at the list he gave me this morning was that 10 similar exhibits that were offered before to 11 support their testimony is also being offered, 12 including their previous testimony, and we would 13 object to all of that. 14 THE COURT: Mr. Gottstein? 15 MR. GOTTSTEIN: Yes. As the court will 16 recall, in that hearing, the question was that it 17 was offered for the proposition that even if the 18 court found that Faith was, you know, unable to 19 give informed consent to refuse medication, that 20 the court had to find that was in her best interest 21 and that was the context that this court found it 22 was irrelevant, but the state also has to prove in 23 two different places that what they are proposing 24 to do will benefit her. 25 And so it will only be offered in that 0013 1 context, and I think that is completely proper. 2 THE COURT: I think we are going to 3 have to take this up as we come to it in the 4 testimony because it will depend upon what reason 5 that kind of testimony is being offered. In one 6 context I have ruled that it is permissible and in 7 another I have not. All right. 8 I have stated to you both clearly I 9 think several times now in writing and on record 10 that the testimony that was offered at the 30-day 11 hearing I found to be permissible for the purposes 12 of -- because it went to Ms. Myers' credibility and 13 that is if the jury was left with the impression 14 that she was making a medical decision against 15 medical advice and there wasn't a valid dispute 16 within the psychiatric community by qualified 17 professionals then they might derive an incorrect 18 inference. I have allowed it thus far as to her 19 credibility. Ms. Tussing, I'm sorry. 20 MR. GOTTSTEIN: Your Honor, may I 21 respond? I have also got some things as well, Your 22 Honor. 23 THE COURT: All right. 24 MR. GOTTSTEIN: With respect to 25 Dr. Caletti's telephonic testimony, normally in the 0014 1 ordinary course I wouldn't object to it, but there 2 are a number of reasons why I think it is 3 inappropriate here. One is I think last Friday you 4 ruled that he was -- you asked why would he even -- 5 should he testify since he hasn't seen or been 6 involved with Faith for, you know, however long it 7 was and said well, he could review the records and 8 say if there is any changes. And I doubt if that's 9 happened. 10 The second is I think in this case the 11 credibility is, you know, when we have a jury here 12 the credibility of a witness is very important. 13 And I think that's hard to gauge over the 14 telephone. And the third is that if he does 15 testify I'll have a number of documents to testify 16 with him on, and that will be very difficult to do 17 over the telephone. So maybe they can get him up. 18 THE COURT: Let's take up that. Are 19 you going on to the next subject? 20 MR. GOTTSTEIN: Yes. 21 THE COURT: Okay. Let me take up that. 22 Does he have -- will Dr. Caletti have his records, 23 the file in front of him. 24 MR. KILLIP: No. The purpose of his 25 testimony would be his involvement in this case in 0015 1 the first two trials, his overseeing of her 2 treatment for the first two proceedings and then 3 also his overseeing of her treatment the last time 4 she was admitted in API. And in addition to his 5 expert opinion based on hypotheticals concerning 6 things that may have happened since he last 7 testified. 8 THE COURT: That's fine. And 9 Mr. Gottstein, I just so routinely, as do the other 10 judges in the superior court, allow telephonic 11 testimony because of the geography of this state. 12 I don't know why I would treat this case 13 differently, but you absolutely have a right to 14 cross-examine this man, and so what I want to do is 15 make sure that you have whatever documents you know 16 you are going to question him about faxed to him so 17 that he can have them in front of him, if that's 18 the kind of questioning you think you need to be 19 able to do where he can look at the record. 20 MR. GOTTSTEIN: Okay. It will probably 21 take a day or so for me to get all of those 22 together. 23 THE COURT: Well, that's something to 24 put on your list. I'm sure you have other things 25 on your list to do tonight then so that we can get 0016 1 that to him and make -- and I'll just have 2 Mr. Killip call him up in an order that allows you 3 to do that. In other words, he won't be called 4 today. 5 MR. GOTTSTEIN: Thank you, Your Honor. 6 With respect to the allegation of danger to self or 7 others, that I believe, that should be stricken. I 8 would point out and I mentioned this in the brief, 9 is it is not just that one -- it is not just that 10 one block. The whole petition is consistent with 11 that no longer being -- that not being an issue in 12 this petition, as are the hospitals own records. 13 And then with respect to his argument 14 about gravely disabled also including self-harm, 15 they have got to limit it to the definition of 16 gravely disabled. I think it is 47.30.915(A). 17 THE COURT: The statutory definition? 18 MR. GOTTSTEIN: Yeah. So that they -- 19 sure, gravely disabled under that standard, and I 20 think that's the only thing that they really ought 21 to be allowed to testify to because that's what the 22 petition says. It is certainly what the current 23 records say. And anything else is highly 24 prejudicial to my client on an irrelevant topic 25 because it is not in the petition. 0017 1 With respect to the findings of fact, 2 I also object strenuously to just presenting the 3 orders. The statute provides that, and I'm 4 paraphrasing, I can look it up, but I think I have 5 got it right, is that only facts of behavior found 6 -- the facts that this court found about behavior 7 are to be admitted. 8 And I think that they need to propose 9 what they think those are and we need to have an 10 opportunity to respond to that and then the court 11 should rule on what those are. 12 THE COURT: Before you go on, 13 Mr. Killip, do you agree with that statement of the 14 law? 15 MR. KILLIP: I think it was related to 16 behavior, which is pretty broad. 17 THE COURT: I don't have the statute in 18 front of me. That's my recollection. My 19 recollection is consistent with Mr. Gottstein's. 20 MR. GOTTSTEIN: It's consistent with 21 mine? 22 THE COURT: Is consistent, that it is 23 tied to the behavior, the specific findings 24 regarding behavior. 25 MR. KILLIP: Related to respondent's 0018 1 behavior. 2 THE COURT: Well, I think that the 3 findings that you are both talking about at the 30- 4 or 90-day would be contained within documents that 5 are at best their findings and conclusions, so 6 we're going to need to redact those. Mr. Killip, 7 why don't you go ahead and prepare a set? You can 8 just use a black marker. It doesn't have to be 9 fancy, proposing when you think relates to behavior 10 so that Mr. Gottstein can take a look at that. 11 MR. GOTTSTEIN: The other thing is I 12 would request that we get a copy of the CD after 13 each hearing so that we can have that available for 14 the next day. 15 THE COURT: Each trial day? 16 MR. GOTTSTEIN: Yes. I'm supposed to 17 tell you it is $10 per CD. 18 MR. GOTTSTEIN: Okay. 19 THE COURT: Mr. Killip, do you need a 20 copy as well? You can let us know if you do as you 21 would in any other trial. Can you make that a 22 standing order for Mr. Gottstein? Okay. 23 MR. GOTTSTEIN: I really would 24 appreciate that. 25 THE COURT: That's fine. Wait. I'm 0019 1 sorry. Before I go on, if we use the CD, doesn't 2 he need special equipment to listen to it or do we 3 have to give him a cassette tape? You can make it 4 as a CD that he can listen to? Okay. Great. 5 MR. GOTTSTEIN: Your Honor, I would 6 like one that can be -- the one that is to be 7 transcribed. 8 THE COURT: I don't follow you. 9 MR. GOTTSTEIN: Isn't there a version 10 that -- for the transcribers to use? 11 THE COURT: There is a version -- what 12 you are confusing me by is there is a version -- it 13 is a program that we use on a CD that you have to 14 have a special program on your computer to listen 15 to it. I think it is because it is zipped, but 16 anyway, it is condensed somehow. 17 And then there is a way she can put the 18 very same, you know, audio recording on a regular 19 CD that you can listen to without that special 20 program, but it is not going to have different 21 content. 22 MR. GOTTSTEIN: No, I understand. But, 23 Your Honor, my understanding is that there is a way 24 to do it so that each mike comes on as a separate 25 channel so that when the person transcribes, they 0020 1 can really tell who is talking. 2 THE COURT: You are right, when I go 3 downstairs to listen to the tape on the occasion 4 that I have to, there is a way to listen to one 5 microphone and make the other one quiet on the 6 equipment downstairs. I just don't know that you 7 are going to be able to do that in your own office. 8 MR. GOTTSTEIN: Right. Another thing 9 is I was supposed to file a brief on this day 10 pending appeal on the medication order last 11 Thursday, and because of the swirl of stuff I was 12 not able to do that. I intend to file it as soon 13 as I can, which won't be until at least a couple of 14 days after the trial, and move for late acceptance. 15 THE COURT: Any objection, Mr. Killip? 16 MR. KILLIP: Well, I guess the hospital 17 -- I mean the hospital really wants a decision on 18 the stay issue, but it really doesn't matter 19 because arguably -- I mean there is an argument 20 that the period of time for the stay being 21 entertained is already gone, so we need to get a 22 decision to this new petition or these new 23 petitions, so to that extent no, but I know the 24 hospital really wants a decision. 25 THE COURT: I am also very antsy about 0021 1 it, so just as soon as you can get it to me, all 2 right. Thank you. 3 MR. GOTTSTEIN: I assume that what your 4 law clerk so graciously handed to me this morning 5 are the orders from last Friday, is that correct? 6 THE COURT: Yes. I think he is 7 nodding. My administrative assistant had three or 8 four orders stacked up to serve on both of you by 9 hand on Friday and then because we were 10 anticipating calling you back when we got the 11 ruling on the review of the motion to disqualify 12 and that sort of never happened during the course 13 of the workday, so those were still -- and she is 14 on vacation now. Those are still sitting on her 15 desk this morning, so I asked him to serve you. 16 Those would be the order regarding the 17 $1,100 fee for your expert, Mr. Killip's orders to 18 get the CTC records, my ruling on the motion to 19 disqualify, Justice Fape's ruling appointing the 20 superior court judge to rule on the review. It is 21 that list of orders that we talked about Friday and 22 I apologize we didn't get them to you. 23 MR. GOTTSTEIN: And some of it is 24 ancient history, right? 25 THE COURT: I think all of it is -- 0022 1 MR. GOTTSTEIN: Okay. For my records, 2 because I hadn't had them, but I would note that on 3 the CTC records order, that recites that the 4 patient consented and I think this is actually 5 inaccurate, that -- 6 THE COURT: I thought you did in court. 7 I thought I asked you about -- 8 MR. GOTTSTEIN: Yeah, but I'm counsel. 9 THE COURT: Does it say patient? 10 MR. GOTTSTEIN: Yes. 11 THE COURT: Patient's representative. 12 I beg your pardon. 13 MR. GOTTSTEIN: The other thing is I 14 want to make sure that the order, and I didn't 15 bring a copy, but the order after reconsideration 16 last time that Ms. Myers is allowed to go to CTC at 17 any time that she is willing to and they will 18 accept her is still in effect. I mean I don't know 19 any reason why that wouldn't still be in effect. 20 THE COURT: The order regarding less 21 restrictive alternative? 22 MR. GOTTSTEIN: Yes. 23 THE COURT: It's the State's burden to 24 show that there isn't a less restrictive 25 alternative in this case and the reason that your 0023 1 motion for reconsideration was well taken is 2 because you raised the issue that there may well 3 be, so I required that the state have her assessed 4 right away to go to CTC, and she did go. 5 MR. GOTTSTEIN: Yeah, but, you know, I 6 meant like even during the pendency of this trial. 7 I think they are willing to take her back if she is 8 willing to go, so I just want to make sure that 9 that order is still in effect. 10 THE COURT: Mr. Killip. 11 MR. KILLIP: I'm sorry. I was 12 reviewing some of these documents. 13 THE COURT: The problem I am having is 14 that I don't know whether or not there is going to 15 be any kind of practical problem from having a 16 standing order regarding allowing Ms. Tussing to go 17 to CTC when she wants to. 18 Here is my difficulty, Mr. Gottstein. 19 You just offered something by saying it is your 20 understanding they would take her back as soon as 21 -- or if she wants to go back. You see, I don't 22 have any evidence of that. But I don't have any 23 objection to her going to CTC. 24 I certainly ordered that. It would be 25 the State's burden to show there isn't a less 0024 1 restrictive alternative, but if your position is 2 that she is able to go back any time she wants to 3 but she is just refusing, that's new news to me, 4 sir. I don't know that. 5 MR. GOTTSTEIN: I am not trying to 6 present any evidence here, but there is an existing 7 order with an existing set of conditions, and, as 8 far as I know, that order is still in effect. And 9 I just am trying to confirm whether that is true or 10 not. It seems like it is, but I wanted to confirm 11 that. 12 THE COURT: It would be unless there is 13 any reason for me to -- I certainly want to revisit 14 it. I don't know why she came back from CTC, you 15 see. I don't know whether they sent her back and 16 said she is not eligible. You haven't given me any 17 evidence of that, and I don't know if you both want 18 to give me a proffer if there is a stipulation. I 19 am just simply uninformed about what it is that 20 happened. You forget how little I know about this. 21 MR. GOTTSTEIN: If you want a proffer 22 at this point, my understanding is that Faith 23 didn't feel safe there and asked to go back. 24 THE COURT: To API? 25 MR. GOTTSTEIN: Yes. And that, you 0025 1 know, that things might be worked out in a way that 2 conditions would go that she would feel safer at 3 CTC. You know, and so I just want to make sure -- 4 and it's the conditions in the order that if that 5 happens again, if she chooses to, I am not sure 6 that she would. 7 THE COURT: I see. 8 MR. GOTTSTEIN: But that is still 9 available under the order. 10 THE COURT: I see. Mr. Killip? 11 MR. KILLIP: I agree with the Court. 12 We have a standing legal obligation to examine less 13 restrictive treatment options continuously. And it 14 is my understanding that a decision was made by CTC 15 to return Ms. Myers to API after a couple of hours 16 of being there and I have no information that CTC 17 is ready and willing to take her back right now. 18 And one of the reasons is I can't -- I 19 haven't been able to communicate with people from 20 CTC about this case. I got certified copies of CTC 21 records but they don't address this latest 22 interaction between API and CTC with Ms. Myers. So 23 the certified records I have are not helpful at all 24 and that's why one of our witnesses is still 25 unknown. I don't know who the person was that 0026 1 dealt with Ms. Myers and decided that she needed to 2 go back to API. But my understanding is it is not 3 an immediate option. 4 MR. GOTTSTEIN: Your Honor, if I may, 5 that's clearly up to CTC and Faith under the order, 6 so the hospital under the order doesn't get to say 7 no. 8 THE COURT: Well, I don't think that 9 Mr. Killip is. Mr. Killip has already stipulated 10 that CTC is a less restrictive alternative. The 11 question is whether it is available to her. If it 12 is available to her, then absolutely there is going 13 to be an order providing that she may be 14 transferred there. 15 MR. GOTTSTEIN: There is an existing 16 order that she can. 17 THE COURT: Right. Because at that 18 time, she wanted to go and they were willing to 19 take her and that's all I would need to see. 20 MR. GOTTSTEIN: So you are going to 21 vacate that order? 22 THE COURT: No, sir. I haven't vacated 23 the order. I am simply telling you that it was 24 ordered at that time for her to be transferred 25 because she wanted to go and CTC was willing to 0027 1 accept her, but at this point, you don't need to 2 show me that they are still willing to take her and 3 she is willing to go and that she would absolutely 4 have the order requiring the transfer. 5 MR. GOTTSTEIN: It seems like a 6 vacation of the order, but I understand what you 7 are saying. 8 THE COURT: But I want to state clearly 9 on the record I am not vacating that order. She 10 was authorized to go and she was taken, is my 11 understanding. 12 MR. KILLIP: Yes. 13 THE COURT: There is a difference. 14 Procedurally there is a difference. 15 MR. GOTTSTEIN: All right. Maybe we'll 16 both look at the order and see what -- I don't know 17 if anybody contemplated this situation when the 18 order was written. 19 THE COURT: Sure. 20 MR. GOTTSTEIN: I guess there -- with 21 respect to judge instructions, for me it would be 22 very helpful to know what they are, what they are 23 going to be before voir dire and it would be even 24 more helpful to know before opening. 25 THE COURT: But Mr. Gottstein, I didn't 0028 1 have them until -- I have your set this morning and 2 I have Mr. Killip's on its way, so I can't help you 3 there. I'm sorry. 4 MR. GOTTSTEIN: And then I guess, 5 Mr. Killip, are you willing to accept service for 6 API employees for subpoenas? 7 MR. KILLIP: Yes. 8 THE COURT: Thank you. 9 MR. GOTTSTEIN: Now, I have arranged 10 for Dr. Smith to come up tomorrow afternoon and 11 meet with Faith and staff and look into records and 12 all of that and testify Wednesday morning. And 13 that seemed kind of reasonable at the time. He is 14 scheduled to go back Wednesday night and it may be 15 out of order, but I'm wondering if we could do his 16 testimony Wednesday morning. 17 THE COURT: I am leaving it to you to 18 decide whether or not that gives your expert enough 19 time to do everything that he needs to do, but if 20 your only request from me is whether you can take 21 your expert up out of order -- Mr. Killip? 22 MR. KILLIP: That's fine, Your Honor. 23 THE COURT: No objection. Then that 24 will be the order. Just let me know when he is 25 ready to go and we'll work him on -- you need him 0029 1 Wednesday, is that right? 2 MR. GOTTSTEIN: Yes, Your Honor. 3 THE COURT: All right. That will be 4 fine. 5 MR. GOTTSTEIN: This is just a 6 housekeeping matter. Are the 180-day petitions, 7 are they given to the jury as a matter of course? 8 THE COURT: The only thing that is 9 given to the jury are exhibits that are offered and 10 admitted into evidence. 11 MR. GOTTSTEIN: So I would like to add 12 those to the exhibit list. 13 THE COURT: Mr. Killip, any objection 14 to the amendment of the witness list? 15 MR. KILLIP: To admit the witness list? 16 THE COURT: I misspoke. Any objection 17 to Mr. Gottstein amending his exhibit list? 18 MR. KILLIP: Amending it? 19 THE COURT: He wants to add the 180-day 20 petitions. I am not admitting any evidence. He 21 just wants to add them to his list. 22 MR. KILLIP: I am not sure. It seems 23 to me that if he wants to make a legal argument to 24 the jury about a box not being checked, that would 25 be improper, so I would like to know the reason for 0030 1 admitting the petition. 2 THE COURT: Is that the reason? 3 MR. GOTTSTEIN: No. I am not -- if 4 Your Honor rules that -- I mean it seems to me it 5 would be improper if you rule that they can testify 6 as to danger to herself or others not pertaining to 7 gravely disabled even though they don't allege that 8 in the petition, if you rule -- I don't think it is 9 proper for me to really bring that up. Tell me if 10 I'm wrong. I don't do this a lot, but it seems 11 like that -- 12 THE COURT: If I make a ruling that he 13 can amend his petition, then he can amend his 14 petition. He hasn't sought to do that at this 15 point. 16 MR. GOTTSTEIN: Right. He hasn't 17 sought to do that. He just wants to pretend that 18 they were checked. I don't know what he wants to 19 do, but it seems like that's what it is. 20 THE COURT: I think his position is 21 that it was an administrative oversight. I think 22 that was what Mr. Killip said, right? 23 MR. KILLIP: Right. And I guess I 24 failed to complete the circle and that would be we 25 would take the position that that box was checked, 0031 1 and if that means that we need to check it now, 2 then we would so move, but we take the position 3 that we're proceeding under both boxes. 4 THE COURT: Because it's the 5 continuation of the earlier proceeding? 6 MR. KILLIP: Yes, and because the court 7 has to find the same or has to make a finding of 8 fact from the previous proceedings, which include 9 danger to self or to others and because danger to 10 self and others is inherent in the grave disability 11 statutory definition, at least danger to self is. 12 THE COURT: I am not agreeing with you 13 necessarily that the one definition encompasses the 14 other, and I don't think I need to make that ruling 15 in order to say that you are allowed to amend your 16 petition to check that box. I will certainly allow 17 you to amend the petition to check the box, but I'm 18 withholding any comment on the rest of your 19 argument. 20 MR. GOTTSTEIN: Your Honor, I don't 21 think it is proper to -- I think it is altering a 22 document to go back and check the box. You know, 23 if there is an amended one with the box checked and 24 they would want to put that in as a separate 25 exhibit, I certainly wouldn't have any objection to 0032 1 that. 2 THE COURT: Yes. So thank you for 3 being clear. That's exactly what I intend. Not 4 that the petition be tampered with, but that an 5 amended petition be filed with, I guess, the box 6 checked is what you're wishing to do, and 7 Mr. Gottstein doesn't object to that, so that's 8 fine. It will be a separate document. 9 MR. GOTTSTEIN: Your Honor, you know, 10 that I do object to -- I do object to it. I know 11 that you have ruled against the objection. 12 THE COURT: All right. Fair enough. 13 This is why people in the back of the courtroom 14 shake their heads at lawyers and judges and -- 15 MR. GOTTSTEIN: Okay. This is just 16 another one. Is it permissible to highlight areas 17 of documents when we show an exhibit or the 18 transcript to draw their attention to the specific 19 point that I want to draw their attention to? 20 THE COURT: Yes. Mr. Killip may very 21 properly request that the entire document or other 22 parts of the document be shown to the witness. 23 MR. GOTTSTEIN: Sure. 24 THE COURT: Yes. 25 MR. GOTTSTEIN: I think I have got the 0033 1 exhibit list numbering right. I couldn't find my 2 last one. I think our last one was S and we 3 started new with T. 4 THE COURT: So you have just continued 5 your exhibits? 6 MR. GOTTSTEIN: Yes. 7 THE COURT: That's exhibits that I 8 received from you this morning, sir, this exhibit 9 list begins with A. 10 MR. GOTTSTEIN: Yeah. And then the 11 third page are the new ones. I think that's -- 12 THE COURT: I see. 13 MR. GOTTSTEIN: I think that's -- but 14 I'm not sure that we ended with S because I 15 couldn't find it. I looked. Okay. 16 THE COURT: Anything else? 17 MR. GOTTSTEIN: I think that's it, Your 18 Honor. 19 THE COURT: Mr. Killip, are you ready 20 to call up the jury? 21 MR. KILLIP: Yes, Your Honor. I do 22 have some handwritten witness lists and exhibit 23 lists for the Court and I'm happy to have these 24 typed up today. 25 THE COURT: Does Mr. Gottstein have a 0034 1 set? 2 MR. KILLIP: I believe so, yes. 3 THE COURT: The handwritten is fine to 4 have a working set for today. That's fine. In 5 fact, if they are legible, you don't need to type 6 them up. Well, actually, I probably would have 7 changed my mind. Your handwriting rivals my law 8 clerk's, so I'll require that you go ahead and have 9 them typed up, if you would, please, so we have the 10 record. 11 MR. KILLIP: I will, Your Honor. 12 THE COURT: You might think about 13 medical school with that handwriting. Is there 14 anything further? 15 THE COURT: We'll have to take a break 16 to have the jury pool called up, so why don't we go 17 ahead and do that. You can all stretch your legs 18 and use the rest rooms, and then what we'll do is 19 we're going to call the jury pool up and they are 20 going to be seated in the back and I'll just take a 21 minute with counsel to go over that before they 22 enter the room. 23 MR. KILLIP: I do notice that there are 24 a couple of witnesses here and I don't know at what 25 point they might be inappropriate for them to -- 0035 1 THE COURT: Thank you for calling that 2 to my attention. I didn't realize -- but I should 3 have realized that Ms. Tussing's family is here. I 4 guess there are some potential witnesses in the 5 back of the room. 6 Are you invoking the exclusionary rule 7 and asking that they be removed from the courtroom? 8 Should they wait outside? You have the right to do 9 that, to ask witnesses to wait in the hall. 10 MS. MYERS: My family does not wish to 11 testify against their mother. People have already 12 forced them to do that and they don't wish to do 13 that anymore. 14 MR. GOTTSTEIN: Yeah, I think I do. 15 THE COURT: That's fine. And it is 16 actually routine, not at all unusual, so whoever it 17 is in the back of the courtroom who has been 18 notified that he or she may be called as a witness, 19 I would ask that you just wait right outside. And 20 I can tell you since we're going to do jury 21 selection, if you want to go get a cup of coffee or 22 something, I'm sure Mr. Killip wouldn't mind 23 because it's going to be -- surely it will be an 24 hour, hour and a half before we're ready to 25 actually proceed. 0036 1 (Indiscernible.) 2 THE COURT: Since you are away from the 3 microphone, I'll just indicate that the court 4 visitor asked whether she needs to be present for 5 jury selection. I certainly think not. 6 Mr. Killip? 7 MR. KILLIP: Her choice. 8 THE COURT: If you have other work to 9 do, that's fine, but make sure that if Mr. Killip 10 knows how to find you, please. Anything further? 11 All right. We'll stand in recess then. 12 MR. GOTTSTEIN: Can I have the order 13 that Mr. Killip intends to call people today, who 14 he intends to call today? 15 THE COURT: Yes. 16 MR. KILLIP: My witness list is -- 17 THE COURT: Is it in order? 18 MR. KILLIP: Yes. 19 MR. GOTTSTEIN: Thank you. 20 THE COURT: We'll go off record. 21 (Off record.) 22 THE COURT: This is in the matter of 23 the hospitalization of Faith Myers, and the record 24 should reflect that both counsel are present in the 25 courtroom and the jury panel has joined us. Thank 0037 1 you so much for coming today. I appreciate your 2 service. 3 This is the time set for jury 4 selection. Let me start with two things. 5 Mr. Gottstein, your client is not present in the 6 courtroom and has a right to be here. Is it her 7 choice to be excluded today? 8 MR. GOTTSTEIN: I think that she wanted 9 to miss jury selection at this point. 10 THE COURT: That's fine. 11 MR. GOTTSTEIN: She may decide to come 12 in. 13 THE COURT: All right. I think she did 14 indicate that while we were off record, but I 15 instructed that she confer with you, so I just 16 wanted to be sure of that. The other thing before 17 I begin is that I have to make sure that you all 18 understand it is absolutely my obligation to make 19 sure that we have a fair and impartial jury and 20 that the playing field is level essentially. 21 It has come to my attention that you 22 may have encountered Mr. Gottstein's client, 23 Ms. Myers, in the hallway as you were waiting. Is 24 that correct? 25 I need a show of hands of people who 0038 1 saw or observed anything that might concern them. 2 Let me just explain first. Saw or heard anything 3 that might give you cause for concern that you 4 can't be fair or impartial today. I have one, two 5 -- could you keep your hands up. Thanks. One, 6 two, three, four, five, six, seven, eight, nine. 7 And who believe they may have seen or heard 8 something that might cause them to be impartial. 9 For those of you who believe you can 10 proceed today and serve impartially, could I see 11 those hands please? One, two, three, four. 12 Counsel, I can't seat a jury with this number of 13 people. 14 It is my understanding that what you 15 encountered out in the hallway is -- I'm sorry. 16 Mr. Gottstein? 17 MR. GOTTSTEIN: Yeah, I thought you 18 said you couldn't see. 19 THE COURT: What I said is I don't 20 think I can seat a jury. 21 MR. GOTTSTEIN: I'm sorry. I was just 22 getting out of your way, Your Honor. 23 THE COURT: I appreciate your manners. 24 But I need to have a little bit better record of 25 what it was that each of you saw or heard, so for 0039 1 those of you who believe that there really is a 2 problem and you can't honestly go forward or are 3 doubting whether you can forward, I need you to 4 come forward to the jury box so you are on 5 microphone, please. 6 Those of you who think you may have 7 trouble being impartial, I would like you to come 8 forward. And I am understanding the rest of the 9 people in the back of the courtroom either didn't 10 see or hear anything or don't think there is any 11 reason they can't go forward; is that right? All 12 right. 13 MR. GOTTSTEIN: Your Honor, I think 14 there are only four hands that said that they felt 15 they could be impartial, so I am not sure. 16 THE COURT: Yeah. That's why I was 17 just counting. The first time we did this -- maybe 18 I am mumbling. The first time we did this, I 19 thought that I counted nine people who said they 20 may have trouble being fair, they may not be able 21 to be fair. That's true of all five of you; is 22 that right? You are all indicating yes. 23 The others in the back room, I am 24 understanding that you think you are still eligible 25 to serve as jurors in this case; is that right? 0040 1 Madam Clerk, what I would like you to do is escort 2 those people into the jury room, please. 3 We're going to stand in recess for just 4 one minute and then I'll come back and inquire as 5 to these folks. Thank you. 6 MR. GOTTSTEIN: Your Honor, I guess I 7 am a little concerned that they raised their hands 8 to the first question and didn't come up, so it 9 seems to me that maybe people that raised their 10 hands ought to at least come up so that we can find 11 the circumstances out a bit better. 12 THE COURT: We will, Mr. Gottstein. 13 Folks, if you could just step into the jury room, 14 please. I'll take you up one at a time. And you 15 don't need to stand up every time I stand up. 16 Madam Clerk is going to escort all of you into the 17 jury room. We'll be off record for about two 18 minutes. 19 (Off record.) 20 THE COURT: We're back on record. I 21 don't know what occurred, but the record should 22 reflect that we have cleared the courtroom of the 23 jurors who felt that they could continue to be fair 24 and impartial and I'm understanding I am looking at 25 five people who saw or heard something that they 0041 1 think might not allow them to serve; is that right? 2 All right. 3 Counsel, do you wish to inquire or do 4 you wish that I inquire? 5 MR. GOTTSTEIN: Your Honor, if I may 6 ask follow-up questions, I would be happy for you. 7 THE COURT: Mr. Killip, is it all right 8 with you? 9 MR. KILLIP: Sure. 10 THE COURT: No objection. Then what I 11 would like to do is go forward. My understanding 12 is that I indicated that I was ready for the jury 13 panel to come up and you were brought around to the 14 outside of my courtroom in the public hallway; is 15 that right? Okay. 16 And at that point, you saw or heard -- 17 actually, could you guys come closer to the 18 microphone, please? Thanks. So I can start with 19 you. You are wearing a plaid shirt. If you could 20 just identify yourself. Remain seated. There is a 21 lot of courtroom protocol here. It doesn't need to 22 be quite that formal. Don't worry, but if you 23 could just give me your name, please. 24 MR. HARRINGTON: Travis Harrington. 25 THE COURT: Mr. Harrington, what is it 0042 1 that you saw or heard that caused you concern? 2 MR. HARRINGTON: We were coming down 3 the hallway and I approached as a woman was 4 seemingly out of control, very upset about 5 something, very loud, describing circumstances that 6 may have been part of this trial. I am not quite 7 sure what her -- what the trial is about, but a lot 8 of us heard her going on and on about not being 9 able to see her husband, the doctor having control 10 over her husband, something about being in a shower 11 and a man walking in on her. 12 I heard a lot of things that I don't 13 know we were supposed to be hearing at that time or 14 I don't know. 15 THE COURT: I really appreciate your 16 calling it to my attention. Can you just let me 17 know -- I take it you didn't know this person? 18 MR. HARRINGTON: No, but it quickly 19 became evident that she was probably part of 20 something going on in this room because another 21 person walked out and tried to lead her away. 22 THE COURT: Did you hear her or see her 23 speak to either of the lawyers? 24 MR. HARRINGTON: Yes. 25 THE COURT: Which one, please? 0043 1 MR. HARRINGTON: Him. He came out and 2 asked her -- 3 THE COURT: The dark suit or the light 4 suit? 5 MR. HARRINGTON: The dark suit, the 6 defendant. 7 THE COURT: So that's Mr. Gottstein. 8 MR. HARRINGTON: Mr. Gottstein came out 9 and asked her if she wished to be present for a 10 trial and then she continued to ask him if they 11 were going to have a trial and then said she needed 12 an hour break. 13 And then he said that was fine and the 14 other woman in the back with the glasses was trying 15 to calm her down throughout the whole thing and 16 then finally walked her off. 17 THE COURT: All right. Just let me let 18 the record reflect because your time is valuable 19 and you seem to be nodding your heads. Ma'am, I'll 20 start with you. Could you identify yourself in the 21 microphone, please? Is there anything you saw or 22 heard that differed from what you have just heard 23 this other juror say? 24 MS. CALKINS: No. My name is Janet 25 Calkins. No. It is just that, like he said, 0044 1 obviously she was out of control. The behavior 2 wasn't totally rational to the situation so that 3 might prejudice me if it was like a determination 4 on, you know, what was appropriate hospitalization 5 or not. 6 THE COURT: I didn't get your name. 7 MR. CALKINS: Janet Calkins. 8 THE COURT: Travis Harrington. Sir, 9 your name, please? 10 MR. PERRAULT: Louis Perrault. 11 THE COURT: Berrault? 12 MR. PERRAULT: Perrault, "P". 13 THE COURT: All right. Mr. Perrault, 14 did you hear essentially the same things? 15 MR. PERRAULT: Essentially the same 16 things. She was adamant about the fact that she 17 couldn't have her hour break and people were trying 18 calm her down, but other than that I heard 19 basically the same things. 20 THE COURT: All right. Gentlemen, I 21 need both of your names as well, please, and just 22 let me know if you heard anything different. 23 MR. LEGATO: Jon Legato. That's J-o-n, 24 L-e-g-a-t-o. And what I observed, ma'am, was when I 25 came up the hall and the lady, she was just walking 0045 1 in circles around this other person and the other 2 person looked like a stranger. She was just 3 standing there and she was just going on and on 4 about people opening the shower door and having to 5 wear clothes in the shower. 6 I tried to ignore her and then when 7 Mr. Gottstein came out, she was just like 8 Mr. Harrington explained, she was adamant that she 9 was supposed to get an hour break and didn't want 10 to be here. 11 THE COURT: All right. Sir, you are 12 the final prospective juror. 13 MR. QUINN: My name is James Quinn and 14 I didn't hear or see anything different than what 15 everybody else explained, but opinions have been 16 formed from what I witnessed already. 17 THE COURT: All right. I understand. 18 Counsel, I am going to thank and excuse these 19 jurors. That will be, for the record, Ms. Calkins, 20 Mr. Harrington, Mr. Perrault, Mr. Legato and 21 Mr. Quinn. And I want to not only thank you for 22 coming in today, but for being so candid about the 23 fact that you feel that you saw or heard something 24 that won't allow you to be a fair and impartial 25 jury. I certainly appreciate that very much. All 0046 1 right. Thank you. 2 I'll let the jury clerk know that you 3 are excused. You need to keep -- there is a 4 recording, a number that they gave you and you need 5 to keep calling in each night for the rest of this 6 week, but for today, you are excused and may go. 7 Thank you. 8 What I would like to do at this point 9 is call in the other folks. We'll do a head count 10 to see if we have got enough because, as I said, 11 we're very short on the jury pool this morning in 12 the jury room and I need to know which of them may 13 have raised their hands the first time around and 14 not the second, whether or not they misunderstood 15 me or what that was about. 16 MR. KILLIP: For the court's benefit 17 and Mr. Gottstein, there were five people that just 18 left and I can tell you that we would have 19 exercised a preemptory on one of them and maybe 20 even a for cause, so really four went out instead 21 of five because we would have bumped one of them 22 just based on information. 23 MR. GOTTSTEIN: I am assuming, Your 24 Honor, that he is now down to three? 25 THE COURT: Good try, Mr. Gottstein. 0047 1 Your Honor, I know Barbara Brown too, so I think 2 she'll tell you that. 3 THE COURT: It's a pretty small town, 4 so that happens often, but I'm going to bring them 5 all back in and I'll start by asking them which of 6 them raised their hands initially and didn't the 7 second time, and ask them why that is. 8 MR. GOTTSTEIN: And they will come -- 9 THE COURT: At this point, I think I 10 need to bring them in one at a time. So we'll do 11 that. I'll ask the clerk to please go ahead and 12 just bring in one of them at a time and seat them, 13 please. 14 MR. GOTTSTEIN: Your Honor, also, my 15 list of questionnaires doesn't seem to match -- my 16 questionnaires don't seem to match up completely 17 with my list. I don't know if you have noticed. 18 THE COURT: I think our clerk is having 19 the same difficulty. Mr. Killip, do you have jury 20 questionnaires that match? 21 MR. KILLIP: You know, I haven't 22 compared them yet. 23 THE COURT: Madam Clerk, is that the 24 problem you were having, that the jury clerk 25 doesn't give you the same questionnaires? 0048 1 THE CLERK: No. I was just listening 2 to one of the -- (indiscernible.) 3 THE COURT: We'll bring in the first 4 juror, Mr. Gottstein, and I'll see if you got the 5 questionnaire for that person. 6 MR. GOTTSTEIN: Okay. 7 THE COURT: Why don't you go ahead and 8 bring them in, please. Mike, would you take the -- 9 we'll remain on record. Could you take that paper 10 down off the easel? It's from a little lecture I 11 gave to the Girl Scouts last week about what the 12 district court is and the superior court, but we 13 really should have a plain blank easel before we do 14 jury selection. Thank you. 15 Sir, could you please come right over 16 here to the jury box and take a seat? Sir, it's my 17 job to make sure that everybody gets a fair and 18 impartial jury. And in this case there was an 19 indication that some of the jurors may have heard 20 one of the people involved in this trial make 21 comments out in the hallway, in the public hallway, 22 and I think you were out there with the rest of the 23 jury pool; is that right? 24 MR. CHAMBERS: Correct, Your Honor. 25 THE COURT: Could I get your name, 0049 1 please? 2 MR. CHAMBERS: My name is Richard Glenn 3 Chambers, Jr. 4 THE COURT: Mr. Chambers, thank you 5 very much. I don't know whether or not I mumbled, 6 but I might have, when I asked people to raise 7 their hands if they thought that they might not be 8 able to be fair and impartial. The first time I 9 counted nine hands and the second time I counted 10 five, so I just need to know. Are you one of the 11 folks who raised his hand the first time and not 12 the second? 13 MR. CHAMBERS: No, Your Honor. I 14 raised my hand on the second time. 15 THE COURT: Which means you think you 16 can be fair and impartial? 17 MR. CHAMBERS: Correct, Your Honor. 18 THE COURT: Did you see or hear 19 anything in the hallway that concerned you? 20 MR. CHAMBERS: No, Your Honor. I was 21 there while the defendant -- I take it she is the 22 defendant. I am not sure the details of the case. 23 While she was there in the hallway. She did make 24 statements in my presence, however, I don't feel 25 the statements she made would sway my decision 0050 1 either direction. I had no information from the 2 other side of the case. 3 THE COURT: Would your opinion be the 4 same if I told you that this case involves a 5 petition filed by the State of Alaska for the 6 involuntary commitment of Mr. Gottstein's client to 7 a mental institution? 8 MR. CHAMBERS: No, Your Honor. 9 THE COURT: The second petition filed 10 by the State of Alaska seeks permission to 11 involuntarily medicate Mr. Gottstein's client. 12 MR. CHAMBERS: Again, I would have to 13 hear the details and the facts of the case, Your 14 Honor. 15 THE COURT: All right. Mr. Gottstein, 16 do you wish to inquire of this prospective juror? 17 MR. GOTTSTEIN: Am I supposed to limit 18 just strictly probably to that issue? 19 THE COURT: Please. 20 MR. GOTTSTEIN: Can you describe what 21 you heard? 22 MR. CHAMBERS: She was rather agitated 23 and she was discussing with one of the persons 24 outside. I forget which person. She was with 25 three. Something about men coming into her room, 0051 1 viewing her while she is in the shower, stating 2 that she now showers with her clothes on because of 3 this. 4 One of the other persons went to her 5 and consoled her, got her to calm down. And then 6 there was a brief moment between herself and that 7 person with her requesting, you know, exact times 8 when breaks were going to be taken and that sort of 9 stuff. And then she came into the courtroom. What 10 was said after that, I am not sure. 11 MR. GOTTSTEIN: One of the issues in 12 the case is whether my client suffers from a mental 13 illness. Do you feel like what you have seen 14 indicates that one way or the other? 15 MR. CHAMBERS: No. I think at that 16 point, obviously, you know, if the State of Alaska 17 was trying to put me in a home, I would be rather 18 agitated myself. I feel the State would probably 19 have to come up with a little more evidence than 20 what I saw in the hallway. 21 MR. GOTTSTEIN: I don't have any more 22 questions. And you feel that you can disregard 23 what you heard out there and just decide this case 24 solely on the testimony that will be presented in 25 this court? 0052 1 MR. CHAMBERS: Yes, based on the facts, 2 sir, I do. 3 MR. GOTTSTEIN: You can totally 4 disregard what you heard out in the hallway? 5 MR. CHAMBERS: Yes, sir. 6 THE COURT: Anything further? 7 Mr. Killip? 8 MR. KILLIP: No questions, ma'am. 9 THE COURT: Sir, I'm going to thank you 10 and ask you to return to the jury room and I'll 11 admonish you clearly that you are not to discuss 12 what we have discussed here in the courtroom when 13 you return to the jury room. Okay? 14 So your conversation really truly needs 15 to be, and it would be natural if you are asked, 16 but if you are, you just need to tell them that you 17 were instructed by the judge not to speak to them 18 about it. Okay? 19 So you can talk about the air show this 20 weekend. You can talk about anything else you want 21 to talk about, but nothing to do with this case, 22 please. 23 MR. CHAMBERS: I understand, Your 24 Honor. 25 THE COURT: Thank you, sir. Can you go 0053 1 right out that door and they'll take you back to 2 the jury room. I think my clerk should be standing 3 right outside there and we'll call up the next 4 juror. I need another juror, please. 5 Madam Clerk, could you call the jury 6 room and see if there are clerks that have been 7 returned from Judge Card's jury selection? Ma'am, 8 could you please come right to the jury box and sit 9 in close proximity to that microphone, please? 10 Good morning. 11 My name is Morgan Christen. I am the 12 judge assigned to this case, as you probably 13 figured out from the way I am dressed. And I need 14 to know, please, could I start by getting your 15 name? 16 MS. JANIAK: Yes. My name is Elayne 17 Janiak. 18 THE COURT: And ma'am, I was under the 19 impression that when the jury pool was brought up 20 to just outside my courtroom in the public hallway 21 that some of you may have encountered a person who 22 is going to be involved in this trial. Is that 23 true of you? 24 MS. JANIAK: If the person is someone 25 who was referred to as Faith by someone else there, 0054 1 yes. 2 THE COURT: Okay. Did you see her 3 interact with Mr. Gottstein? That's the gentleman 4 in the darker suit. 5 MS. JANIAK: Yes. 6 THE COURT: All right. I am not sure 7 what it is you saw or heard, but the first problem 8 I have is that I think the first time I asked 9 people if they thought they might have trouble 10 being fair and impartial I think I counted nine 11 hands, and maybe that's because I mumbled, but the 12 second time I asked I only got five hands. 13 Are you one of the people who raised 14 your hand initially the first time? 15 MS. JANIAK: No. I think I can be fair 16 and impartial. 17 THE COURT: All right. I appreciate 18 that. It is terribly important that people leave 19 my courtroom knowing that they had a level playing 20 field and I mean terribly important, so I want to 21 be very, very cautious about this. Could you 22 please describe what it is that you saw or heard? 23 MS. JANIAK: Well, in relation to her 24 interaction with Mr. Gottstein, it was regarding 25 whether or not she was expected to stay in the 0055 1 courtroom or not stay in the courtroom and whether 2 there was going to be an hour break. 3 There was also some other interaction 4 with another woman there where she was expressing 5 quite loudly some dismay or I guess what I would 6 characterize as invasion of privacy issues. 7 THE COURT: All right. I want to make 8 sure that you understand this isn't an auto 9 accident case or something of that sort. This is a 10 case that involves the State of Alaska's petition 11 to involuntarily commit Ms. Myers into a mental 12 institution. Does that change your view about 13 whether can you be fair and impartial? 14 MS. JANIAK: I don't think so. I 15 really don't understand the circumstances under her 16 comments or her interaction with Mr. Gottstein, so 17 I think that my mind is certainly not made up in 18 any one way. I mean I don't understand what the 19 circumstances are. 20 THE COURT: All right. The standard I 21 always use is that if you believe you can be fair 22 and impartial such that if your roles were reversed 23 and you were in her shoes and she is in yours would 24 you be comfortable having you sit on the jury? 25 MS. JANIAK: Yes, I would. 0056 1 THE COURT: All right. I appreciate 2 that and I appreciate your candid responses. I 3 want to give both lawyers an opportunity to ask 4 questions of you as well. Mr. Gottstein? 5 MR. GOTTSTEIN: Yes, Your Honor. Thank 6 you. Judge Christen -- I can remain seated? 7 THE COURT: Sure. 8 MR. GOTTSTEIN: -- mentioned that this 9 case involves whether or not the State is entitled 10 to commit Faith to API involuntarily and also to 11 force her to take medications that she does not 12 wish to. The trouble that we have is that you are 13 only supposed to decide based on what you hear 14 here, not out there. 15 And so one of the issues in the case is 16 whether or not Faith is mentally ill. And so the 17 first question is do you think what you saw out 18 there has any -- would cause you to think one way 19 or the other about that? 20 MS. JANIAK: Again, I don't, because I 21 don't understand the entirety of the situation. I 22 mean what I saw was someone upset. I don't know if 23 that's a valid situation or not. 24 MR. GOTTSTEIN: Okay. So as I 25 mentioned, only people -- people are supposed -- on 0057 1 the jury are supposed to decide only on what they 2 hear inside the courtroom, so do you feel that you 3 will be able to completely disregard what you heard 4 out in the hallway and decide only on what is 5 presented here in the court? 6 MS. JANIAK: Well, perhaps I would say 7 that I can put it in context. I don't know that I 8 can completely disregard it. I mean -- it's a 9 tough question, because I have had that experience. 10 MR. GOTTSTEIN: You have had what 11 experience? 12 MS. JANIAK: Well, I mean I saw what I 13 saw. 14 MR. GOTTSTEIN: Oh, that experience. 15 Okay. 16 THE COURT: Anything further? 17 MR. GOTTSTEIN: No, Your Honor. 18 THE COURT: Mr. Killip? 19 MR. KILLIP: No, Your Honor. 20 THE COURT: Ma'am, I very cleverly did 21 not write down your name. I beg your pardon. 22 MS. JANIAK: The first name Elayne, 23 E-l-a-y-n-e. The last name is J-a-n-i-a-k. 24 THE COURT: J-a-n-i-a-k? 25 MS. JANIAK: Yes. 0058 1 THE COURT: Ma'am, I would like to 2 thank you and ask you to return to the jury room, 3 and I have to instruct you not to speak about this 4 trial in any way when you return to the jury room. 5 All right. Thank you, ma'am. 6 I know it is time consuming. I just 7 think we absolutely need to do this to make sure we 8 have a valid jury pool. 9 MR. GOTTSTEIN: I agree. I am just a 10 basket case because I am so tired. That's all, 11 Your Honor. 12 THE COURT: I understand. Come right 13 in, please. Can I ask you to move the microphone 14 over so you are closer to getting the recording? 15 Thanks so much. And your name, please? 16 MS. BROWN: Barbara Brown. 17 THE COURT: Good morning. My name is 18 Morgan Christen and I am the superior court judge 19 assigned to this case. It is terribly important 20 that we have a fair and impartial jury. I have to 21 know that when people leave my courtroom that they 22 have had a level playing field. 23 And so I was concerned to hear that the 24 jury pool may have seen or heard something in the 25 hallway that might influence them. When I first 0059 1 asked the question about whether folks could be 2 fair and impartial, several people raised their 3 hands. I counted nine. And the second time I 4 asked the question, five people raised their hands. 5 You are wearing a bright purple shirt this morning, 6 so I think I happened to notice you in the corner 7 back there and I think you didn't raise your hand 8 either time, but I want to be sure. 9 MS. BROWN: I didn't raise my hand. 10 THE COURT: So that means you think you 11 can go forward and be fair and impartial? 12 MS. BROWN: Yes. 13 THE COURT: One of the questions we 14 would ask you if we keep you in the pool is whether 15 or not you know either of the attorneys in this 16 case, and Mr. Gottstein is indicating that you know 17 him socially. 18 MS. BROWN: Yes. 19 THE COURT: Do you believe that would 20 influence you? 21 MS. BROWN: I wouldn't think so. I 22 don't know how things shake down in a trial, but I 23 wouldn't think so. Maybe he wouldn't like me 24 anymore if I went the other way or something. I 25 don't know. 0060 1 THE COURT: Now would be the time to 2 tell me if you think that's going to be a problem 3 for you. 4 MS. BROWN: No. Speaking my mind is 5 not a problem for me. It's a problem for the 6 people around me, but I have no problem. 7 THE COURT: All right. I don't know 8 whether you are a person who falls in the category 9 of not having seen or heard anything out in the 10 hallway. 11 MS. BROWN: I saw, but it doesn't 12 affect my impartiality. 13 THE COURT: Can you explain to me, 14 please, what it is that you saw? 15 MS. BROWN: There was a woman who had 16 gone down the hallway and then Mr. Gottstein came 17 out and said, "Where is Faith," and that other 18 woman evidently got her or something, but Faith 19 then started shouting her answers from down the 20 hallway as opposed to coming up. 21 And she was irritated. She had thought 22 she was going to get an hour break and she didn't 23 understand why she was being summoned back. And 24 then she looked around and said, "Well, if 25 you have the jury here and you are having jury 0061 1 selection, then I don't have to be here for that." 2 And Mr. Gottstein said, "Okay. Well, let's just -- 3 if you want to go, you can go." And then somebody 4 said, "Let's do this inside instead of it happening 5 outside." 6 THE COURT: Would your opinion that you 7 can be fair and impartial be changed if I told you 8 this is not a car accident case? This is a case 9 about the State seeking a petition to order that 10 Ms. Myers be committed to a mental institution. 11 Her mental health is at issue? 12 MS. BROWN: I guessed that. I know the 13 kind of cases Jim has. Personally my feeling is 14 there were a whole lot of people here who just 15 wanted to get out of jury duty and I have no -- I 16 am sort of more than open-minded about mental 17 illness. It is in my family. It is in me. 18 And so I looked at it and thought, 19 "Hey, some people are going to rush to judgment, 20 but this is like a regular old person. I mean if 21 you just looked at it at face value, she just 22 wanted to find out what was happening. She was 23 pissed off. It is like being kept waiting or 24 something. 25 THE COURT: Like I am keeping all the 0062 1 jurors waiting now. 2 MS. BROWN: But if they were in a 3 ratcheted-up mood or whatever, and if you kept them 4 waiting really, really long, since it was obvious 5 they were eager to get disqualified, then they 6 might behave like that too. 7 THE COURT: The standard I always use 8 is to ask if the roles were reversed and you were 9 Mr. Gottstein's client today and she was on the 10 jury, would you be comfortable with her serving as 11 a juror in your case? Do you think there is 12 anything you saw or felt that would in any way make 13 you uncomfortable in that regard? 14 MS. BROWN: If I was on trial for 15 mental illness? 16 THE COURT: If you and Ms. Myers 17 changed places today, would you be comfortable 18 having her on this jury? 19 MR. GOTTSTEIN: Comfortable having her 20 on the jury? 21 THE COURT: Other way around. I beg 22 your pardon. I want to know whether you think that 23 Ms. Myers -- if you were her, I want to make sure 24 that you can be as fair and impartial to her as you 25 would want her to be to you if your roles were 0063 1 reversed. That's what I intended to say. 2 MR. GOTTSTEIN: Your Honor, if I may, I 3 don't mean to -- 4 THE COURT: You can ask questions in 5 just a minute. 6 MR. GOTTSTEIN: It seems like -- 7 THE COURT: Mr. Gottstein, you can ask 8 your questions in just one minute. Okay. I just 9 want her to answer this question. It's pretty 10 standard for us to ask this question, whether you 11 can be as fair to her as you would want her to be 12 to you. 13 MS. BROWN: It's different from what 14 you first asked. 15 THE COURT: I may have misspoken. 16 That's probably why Mr. Gottstein is trying to 17 interrupt me and that's fair. That's all I want. 18 MS. BROWN: I think I can be very, very 19 fair. I think that I would want people on my jury 20 who held to a very high standard of fairness and 21 that's the same very high standard of fairness I 22 would hold myself to. 23 THE COURT: Okay. If I misspoke, I 24 apologize. Mr. Gottstein, it's your turn. Do you 25 want to ask any questions? 0064 1 MR. GOTTSTEIN: I have no questions, 2 Your Honor. 3 THE COURT: Mr. Killip? 4 MR. KILLIP: Thank you. Good morning. 5 I'm Jeff Killip with the attorney general's office, 6 so I represent the hospital in this case. And I 7 just had two questions. One was you indicated that 8 you know Mr. Gottstein, and the court asked you 9 about that and I wanted to just ask you a couple 10 more questions about how you know him and how you 11 would characterize your relationship with him. You 12 said you knew the cases that he does. 13 THE COURT: Mr. Killip, you are going 14 to have to get closer to the microphone or scoot it 15 around. 16 MR. KILLIP: I'm sorry. 17 MS. BROWN: I met Mr. Gottstein through 18 his wife. His wife and I are good friends. He has 19 a daughter and a son roughly the same age as my 20 daughter and they play together and do extra -- we 21 have dinner together and stuff like that. 22 I know his cases because we also share 23 some past experiences with mental illness and he 24 has talked -- we have shared like you should read 25 this book. You should meet so and so, blah, blah, 0065 1 blah, sort of stuff. 2 MR. KILLIP: I see. And through your 3 relationship with his wife, has she mentioned 4 anything about this case to you? 5 MS. BROWN: No. I don't know these 6 names or that person or anything. 7 MR. KILLIP: Okay. Okay. Thank you. 8 THE COURT: All right. What I'm going 9 to do now is ask you to return to the jury room and 10 I'm instructing you not to speak about what we have 11 discussed in here while you are sitting in the jury 12 room. And I appreciate your responses very much. 13 Your daughter is getting quite a civics lesson 14 today. 15 UNIDENTIFIED SPEAKER: The last time we 16 were in this courtroom, Goldilocks was on trial. 17 THE COURT: They always convict 18 Goldilocks. 19 UNIDENTIFIED SPEAKER: She was 20 Goldilocks. 21 THE COURT: Oh, I'm sorry. Thank you 22 very much. 23 UNIDENTIFIED SPEAKER: She was 24 acquitted. 25 THE COURT: Sir, if you could come 0066 1 right around to this jury box and sit kind of close 2 to that microphone, please, just right around that 3 little wall there, that would be great. 4 Sir, my name is Morgan Christen. I am 5 the judge, obviously, assigned to this case. And I 6 don't have your name. Could I get that first, 7 please? 8 MR. HANNA: Phil Hanna. 9 THE COURT: Your last name is? 10 MR. HANNA: Hanna, H-a-n-n-a. 11 THE COURT: Okay. Sir, it's my job to 12 make absolutely sure that I have fair and impartial 13 juries and that we have a level playing field here. 14 I was concerned that when the jury pool was brought 15 up just outside my courtroom in the public area 16 that some of the jurors may have seen or heard one 17 of the people who is going to be involved in the 18 case. 19 The first time I asked the question, 20 nine people raised their hands. 21 MR. HANNA: I was one of them that 22 raised my hand. 23 THE COURT: Okay. The question was 24 whether you think that you may have trouble being 25 fair and impartial, and you raised your hand to 0067 1 that? 2 MR. HANNA: Yes. 3 THE COURT: The second time I asked the 4 question I think just five people raised their 5 hands, and you did not? 6 MR. HANNA: No. 7 THE COURT: I need to understand why 8 you changed your answer on that. 9 MR. HANNA: Well, just when we walked 10 up, the commotion that was going out there, it was 11 just going on, it kind of drew a lot of attention 12 to it. After you asked the first question, I sat 13 there and thought about it, and I thought well, you 14 know, there was really nothing going on that would 15 sway me one way or the other, so on the second time 16 I didn't raise my hand. 17 THE COURT: All right. I appreciate 18 your candor. Let me explain to you that this case 19 is about mental illness. That's one of the issues 20 involved in the case. And I don't know whether you 21 saw or heard anything that might change your mind 22 about that, but if I told you, and I'm telling you, 23 that this case involves two petitions filed by the 24 State of Alaska. 25 One of them is for the involuntary 0068 1 commitment of Mr. Gottstein's client to a mental 2 institution. So there is a question about whether 3 the state can prove mental illness in this case. 4 Does that change your mind about whether you can be 5 fair? 6 MR. HANNA: Just from what I have seen, 7 I've pretty much drawn a conclusion of my own. 8 THE COURT: Did you say you have drawn 9 a conclusion of your own? 10 MR. HANNA: Yes. 11 THE COURT: And your conclusion is? 12 MR. HANNA: Not a real stable person. 13 That's kind of why I raised my hand the first time, 14 because just from what I seen outside the 15 courtroom, I figured that it was probably someone 16 from one of the local establishments, if you know 17 what I mean here. 18 THE COURT: Counsel, my inclination is 19 to thank and excuse Mr. Hanna. Any objection? 20 Sir, I appreciate you coming in today. I am going 21 to thank you and excuse you and I appreciate your 22 being so honest with me. I'll tell you that I'm 23 going call the jury clerk and let her know that you 24 have been excused for the day, but that you do have 25 to keep calling in on that recorded phone number 0069 1 the rest of the week. Thank you very much. 2 MR. HANNA: Thank you. 3 THE COURT: Next, please. Madam Clerk, 4 what did you find out about other jurors? 5 THE CLERK: One. 6 THE COURT: Call them up, please. That 7 person can just go straight back to the jury room. 8 That person can be taken straight back, so long as 9 they know not to let them go away. Okay. We're 10 not going to go off record to have you go get this 11 person. I just don't want that person to go away. 12 Sir, please have a seat right by the 13 microphone. Sorry to keep you waiting. My name is 14 Morgan Christen and I am the judge assigned to this 15 case, of course. And I need your name, please. 16 MR. PETERS: Aaron Peters. 17 THE COURT: Okay. Sir, it is my job to 18 make sure that everybody who is in this courtroom 19 has a fair and impartial jury. And I was concerned 20 to hear that the jury pool was brought up to the 21 public hallway just outside the courtroom and may 22 have heard something involving one of the people 23 involved in this trial. 24 I asked folks, you were one among 25 them, in the back of the courtroom to raise their 0070 1 hand if they thought they might have trouble being 2 fair or impartial. 3 MR. PETERS: Right. 4 THE COURT: And nine people raised 5 their hands the first time I asked the question. 6 Five people raised their hands the second time I 7 asked the question. So my first question for you 8 is are you one of the people who raised his hand 9 and then didn't? 10 MR. PETERS: I was a little confused at 11 first of what you were saying. Yes, I was one of 12 the persons that raised my hand. 13 THE COURT: I may have mumbled. 14 MR. PETERS: It's okay. 15 THE COURT: So my question for you now 16 is whether you think you can be fair and impartial 17 on this jury, knowing what you know right now. 18 MR. PETERS: Probably not. Seeing what 19 I did see out there, I was sitting right next to 20 her, and I heard some of the things she said and I 21 think it would be tough to have to listen to her 22 and, you know, judge her. 23 THE COURT: Can you explain to me what 24 you heard? 25 MR. PETERS: It wasn't -- she was 0071 1 talking about getting a medical clearance and 2 getting signed off by a doctor or her husband or 3 something. She didn't seem like she was all there 4 upstairs, so I don't know. I think that would 5 probably make me -- I don't know -- lean more 6 towards the other side rather than -- 7 THE COURT: Mr. Peters, I'm going to 8 thank you and excuse you from jury duty today. And 9 I'll let the jury clerk know that so you are not 10 AWOL, but you need to call in that phone number for 11 the rest of the week each night. Okay? In other 12 words, they may call you tomorrow or the next day. 13 MR. PETERS: Right. 14 THE COURT: Thank you, sir. 15 MR. PETERS: So does that mean I have 16 to come in at 8:00 tomorrow? 17 THE COURT: It means you have to call 18 the phone number and if your number comes up on 19 that recording then you have to come in tomorrow. 20 MR. PETERS: Okay. 21 THE COURT: But you may be excused for 22 the rest of the day today, and thank you very much. 23 Ma'am, could you please come right over to the jury 24 box and sit close to the microphone so that we can 25 hear you. 0072 1 My name is Morgan Christen. I am the 2 judge assigned to this case, and I need to get your 3 name, please. 4 MS. SIERRA: My name is Brenda Sierra. 5 THE COURT: Great. Ma'am, it is my job 6 to make sure that people who come into this 7 courtroom have a fair and impartial jury. And I 8 was concerned to learn that the jury panel may have 9 -- or some members of the jury panel may have seen 10 something in the public hallway just outside that 11 might cause them to not be fair or impartial. 12 The first time I asked the question of 13 the entire jury pool nine people raised their hands 14 and said they might not be able to be fair. The 15 second time, five people raised their hands. Were 16 you one of the people who raised their hands 17 initially and then did not the second time? 18 MS. SIERRA: No. 19 THE COURT: So both times I asked the 20 question, you indicated that you could be fair? 21 MS. SIERRA: Yes. 22 THE COURT: I want to make sure that 23 you understand, there is a difference here, between 24 whether or not you are a person who just simply 25 didn't hear or see anything and that's why you are 0073 1 telling me that or did you hear and see something 2 but you think it won't influence you? 3 MS. SIERRA: I didn't hear anything. 4 THE COURT: You didn't hear anything? 5 MS. SIERRA: I was one of the like last 6 person who came. 7 THE COURT: Did any of the other jurors 8 mention anything to you that caused you concern? 9 MS. SIERRA: No. 10 THE COURT: They didn't describe what 11 they saw or heard in the hallway? 12 MS. SIERRA: No. 13 THE COURT: Counsel, do either one of 14 you wish to inquire further of this witness? 15 MR. KILLIP: No, Your Honor. 16 MR. GOTTSTEIN: Not on this issue. 17 THE COURT: You are not waiving 18 anything. Ma'am, I would like you to please return 19 to the jury room and I'll instruct you not to 20 discuss in there what we discussed in here. We'll 21 try not to keep you waiting too long. Thank you so 22 much for your candor. 23 Sir, could you come right around and 24 sit by this microphone right over here, please. My 25 name is Morgan Christen. I am the judge assigned 0074 1 to this case and I need to start by getting your 2 name, please. 3 MR. NEWHALL: My name is Alec Newhall. 4 THE COURT: Alec Newhall. Did I get 5 that right? 6 MR. NEWHALL: Uh-huh. 7 THE COURT: Sir, because I am the judge 8 today, it is my job to make sure that we have a 9 fair and impartial jury. And I was concerned that 10 when the jury pool was just outside in the hallway 11 that some of the jurors may have heard or seen 12 something that might cause them to be unfair or not 13 able to be impartial. The first time I asked the 14 question, nine people raised their hands and the 15 second time, I think just five people raised their 16 hands. 17 Are you one of the people who raised 18 your hand the first time? 19 MR. NEWHALL: No. 20 THE COURT: So both times I asked the 21 question, you thought you could be fair and 22 impartial? 23 MR. NEWHALL: Do what now? 24 THE COURT: My question is do you think 25 you can be fair and impartial in this case? 0075 1 MR. NEWHALL: Yes. 2 THE COURT: Did you see or hear 3 anything in the hallway? 4 MR. NEWHALL: Huh-uh. 5 THE COURT: So it is not that you saw 6 something and you think it won't influence you? 7 You are just telling me you didn't hear anything; 8 is that right? 9 MR. NEWHALL: Yes. 10 THE COURT: Counsel, do you wish to 11 inquire further of this witness? 12 MR. KILLIP: No, Your Honor. Thank 13 you. 14 MR. GOTTSTEIN: No. 15 THE COURT: Thank you very much, sir. 16 Mr. Newhall, I'm going to ask you to return to the 17 jury room and I'm instructing you you must not 18 speak to the people in the jury room about what we 19 have discussed here. 20 MR. NEWHALL: All right. 21 THE COURT: Thank you, sir. Sir, could 22 you come around, please, to this microphone? My 23 name is Morgan Christen. I am the judge assigned 24 to this case and so it is my job to make sure that 25 we have a very fair and impartial jury. You may 0076 1 have a seat, please. Can I start by getting your 2 name? 3 MR. HIDALGO: Jeremy Hidalgo. 4 THE COURT: Jeremy, I didn't get your 5 last name. 6 MR. HIDALGO: Hidalgo, H-i-d-a-l-g-o. 7 THE COURT: H-i-d-a-l-g-o. Hidalgo, 8 that's just what you told me. Okay. Just like it 9 sounds. Great. Because I have to make sure we 10 have a fair jury, I was concerned that when the 11 jury pool was just outside in the public hallway 12 that some of the jurors may have heard or seen 13 something that might make it difficult for them to 14 be fair. And I am not sure if you are one of those 15 people or not. The first time I asked the 16 question, nine people raised their hands when you 17 were all seated in the back of the courtroom. 18 MR. HIDALGO: Uh-huh. 19 THE COURT: And the second time I asked 20 the question, just five people raised their hands. 21 Are you a person who raised their hand the first 22 time, but not the second time? 23 MR. HIDALGO: Yeah. 24 THE COURT: Okay. So which is it? Do 25 you think you can be fair and impartial? 0077 1 MR. HIDALGO: Uh-huh. 2 THE COURT: Can you explain to me why 3 you raised your hand the first time? 4 MR. HIDALGO: I thought you said like 5 who heard something and I heard it, but I wasn't 6 really paying attention. 7 THE COURT: Thank you for explaining 8 that. Could you please explain what it is you 9 heard or saw? 10 MR. HIDALGO: I don't remember right 11 now anymore. 12 THE COURT: Did you think it involved 13 somebody who is going to be a part of this trial? 14 MR. HIDALGO: Not at first, until you 15 told me. 16 THE COURT: Okay. Did you see that 17 person talk to either one of these lawyers? 18 MR. HIDALGO: I think he talked to him. 19 THE COURT: The man in the dark suit or 20 the man in the light suit? 21 MR. HIDALGO: Dark suit. 22 THE COURT: The man in the dark suit. 23 And could you tell at all what they were 24 discussing? 25 MR. HIDALGO: She wanted to be present 0078 1 for the jury selection or something like that. 2 THE COURT: Okay. Did you hear them 3 discuss anything else? 4 MR. HIDALGO: Huh-uh. 5 THE COURT: Did she appear any way that 6 seemed out of the ordinary to you? 7 MR. HIDALGO: Not really. 8 THE COURT: I want to make sure that 9 you understand. This case involves a request by 10 the State of Alaska for an order that 11 Mr. Gottstein's client, the man in the dark suit's 12 client, be committed to a mental institution, so 13 her mental illness is at stake. Does that change 14 your mind about whether you can be fair? 15 MR. HIDALGO: No. 16 THE COURT: All right. The case also 17 involves the State of Alaska seeking an order 18 allowing her to be medicated against her will. 19 Does that change your opinion? 20 MR. HIDALGO: No. 21 THE COURT: I'm going to ask both 22 lawyers whether they want to ask you anything 23 further about what it is you saw or heard in the 24 hallway. Okay? 25 MR. HIDALGO: Okay. 0079 1 THE COURT: Mr. Gottstein, we'll start 2 with you, please. 3 MR. GOTTSTEIN: I would like a little 4 bit more explanation of exactly what happened, what 5 you heard and saw. Kind of just -- was it just 6 kind of from when you first saw her. 7 MR. HIDALGO: I just heard her talking 8 and kind of just zoned it out. Not really paying 9 attention. 10 THE COURT: Mr. Gottstein, anything 11 further? 12 MR. GOTTSTEIN: No, Your Honor. 13 THE COURT: Okay. Mr. Killip? 14 MR. KILLIP: No questions. Thank you. 15 THE COURT: Okay. Sir, I'm going to 16 ask you to return to the jury room and I am 17 instructing you you must not speak to anybody in 18 the jury room about what we have discussed here. 19 MR. HIDALGO: Okay. 20 THE COURT: Okay. Thank you very much. 21 You can go right out that door. We'll try not to 22 keep you waiting too long. 23 Madam Clerk, is there just one left 24 that we haven't seen; is that right? 25 (Indiscernible.) 0080 1 THE COURT: Come right on in, please. 2 Could you sit by that microphone, please? Ma'am, 3 my name is Morgan Christen. I am the judge in this 4 case, of course, so it is my job to make sure there 5 is a very fair jury, a fair and impartial jury. 6 Could I start by getting your name? 7 MS. DAVIS: My name is Anna Rose Davis. 8 THE COURT: Anna Rose Davis? 9 MS. DAVIS: Uh-huh. 10 THE COURT: Ms. Davis, I was concerned 11 that some of the jurors or prospective jurors out 12 in the hallway, in the public hallway may have seen 13 or heard something that might cause some of them to 14 be impartial or have difficulty remaining 15 impartial. 16 MS. DAVIS: Right. 17 THE COURT: And the first time I asked 18 the question when you were all in the back of the 19 courtroom, nine people raised their hands. The 20 second time I asked the question, I think just five 21 people raised their hands if I counted correctly. 22 Were you one of the people who raised their hand 23 and then didn't? 24 MS. DAVIS: Right. I didn't hear. I 25 guess I wasn't listening close enough. I did see 0081 1 the lady, but I don't know if I -- I didn't hear 2 her say anything about anything, just that she 3 didn't want to be here. And I saw her in the rest 4 room, but -- 5 THE COURT: So far, you think you can 6 be fair and impartial? 7 MS. DAVIS: I don't think I have heard 8 anything that would make me not be able to serve. 9 THE COURT: All right. I appreciate 10 that. Let me make sure that you understand, 11 because no one has told you yet. This case is not 12 a car accident case or a contract case. This is a 13 case that's about mental illness in the main. The 14 State of Alaska is seeking a decision that would 15 allow Mr. Gottstein's client to be committed 16 involuntarily into a mental institution, so whether 17 she is mentally ill is a question in this case. 18 Understanding that, does that change 19 your opinion about whether you can be fair? 20 MS. DAVIS: I don't think so. 21 THE COURT: All right. The State is 22 also looking for a decision that would allow her to 23 be involuntarily medicated, to take medication 24 against her will. Does that change your mind, 25 ma'am? 0082 1 MS. DAVIS: No. I don't think so. 2 THE COURT: Could you describe for the 3 lawyers a little bit more about what you saw or 4 heard out in the hallway? 5 MS. DAVIS: I just saw her, the lady 6 saying that she didn't want to be here for this or 7 something along that line and then she walked over 8 to a group of people and then she went into the 9 rest room, and I saw her in there washing her 10 hands. And then the other lady came in and they 11 started talking, but I really wasn't paying 12 attention. I didn't know that this was her case or 13 anything, so I wasn't like trying to listen or 14 anything. 15 THE COURT: Okay. Anything else? 16 MS. DAVIS: No. 17 THE COURT: All right. What I have 18 done for each of the folks who have come in is I 19 have allowed the lawyers a chance to ask questions 20 as well, so I'm going to start with Mr. Gottstein. 21 MR. GOTTSTEIN: Your Honor, I don't 22 think I have her questionnaire. Do you have hers? 23 MS. DAVIS: I was outside when they 24 came and got them. It is in my book in the thing. 25 THE COURT: You have your questionnaire 0083 1 with you? 2 MS. DAVIS: Uh-huh. 3 THE COURT: What I'm going to do is ask 4 my law clerk, he is this guy over here, to escort 5 you back to the jury room. If you could bring it 6 in here, that would be great. And ma'am, I have to 7 instruct you not to discuss in the jury room what 8 we are discussing in here. 9 MS. DAVIS: Okay. 10 THE COURT: Thanks so much. We'll just 11 wait for you. Is that the only one that you are 12 missing? 13 MR. GOTTSTEIN: I am not sure. I don't 14 think so, Your Honor. 15 THE COURT: Mr. Killip, have you 16 noticed that you are missing any? 17 MR. KILLIP: That was the only one I 18 noticed so far. 19 MR. KILLIP: Is it possible to pull 20 other jurors in? 21 THE COURT: We have one more. 22 THE COURT: Thank you very much. 23 Mr. Gottstein, do you have questions for this 24 prospective juror, Ms. Davis? 25 MR. GOTTSTEIN: I think you said you 0084 1 basically didn't really hear anything? 2 MS. DAVIS: Yeah. No, I didn't really 3 hear anything. 4 THE COURT: Mr. Killip? 5 MR. KILLIP: No, Your Honor. Thank 6 you. 7 THE COURT: Ma'am, I'm going to ask you 8 to return to the jury room and I have to instruct 9 you not to speak in there about what we have spoken 10 in here. Thank you very much. 11 Do we have any others -- they have all 12 been in? Counsel, we have seven members of the 13 jury pool remaining, I believe, that I have 14 returned to the jury room that have not been 15 excused, because I excused a total of seven, so we 16 have got seven left. 17 My intention is to bring them all back 18 in here and proceed with jury selection. Judge 19 Card is doing jury selection as well and as folks 20 are excused from his jury pool, they will become 21 available. Right now, they have one, but in about 22 a half an hour, they may have, and they are 23 expecting to have sort of a flood of additional. 24 Mr. Gottstein, did you want to be 25 heard? 0085 1 MR. GOTTSTEIN: No, Your Honor. 2 THE COURT: All right. So we're going 3 to be calling back Mr. Chambers; Elayne Janiak, if 4 I am pronouncing that correctly; Ms. Brown; 5 Ms. Sierra, Brenda Sierra -- 6 MR. GOTTSTEIN: Excuse me, Your Honor, 7 can I get that list again? 8 THE COURT: Sure. It's Chambers, 9 Janiak, Brown, Sierra, Newhall, Hidalgo and Davis. 10 We excused Hanna, Peters, Calkins, Harrington, 11 Perrault, Legato and Quinn. 12 MR. GOTTSTEIN: I'm sorry. Could you 13 go through that again? 14 THE COURT: Yes. We excused Calkins, 15 Harrington, Perrault, Legato, Quinn, Hanna and 16 Peters. So I'm just going to check and make sure I 17 have got questionnaires for each of them, because 18 if I do, you all should as well. Okay. I have got 19 jury questionnaires for all of those seven people. 20 Mr. Killip, you do as well? 21 MR. KILLIP: Yes. 22 THE COURT: All right. Mr. Gottstein, 23 I think that means that you must, but if you don't, 24 just sing out and we'll copy one of ours for you. 25 All right? 0086 1 MR. GOTTSTEIN: It is Jeremy Hidalgo 2 that is being called back? 3 THE COURT: Chambers, Janiak, Brown, 4 Sierra, Newhall, Hidalgo and Davis. Mr. Hidalgo is 5 one of them, yeah. 6 MR. GOTTSTEIN: Okay. 7 THE COURT: Are you ready to proceed? 8 Mr. Gottstein, do you want your client present for 9 the rest of this? 10 MR. GOTTSTEIN: Well, I think it is up 11 to her. 12 THE COURT: All right. Is she outside? 13 MR. GOTTSTEIN: I don't know. 14 THE COURT: I'll give you a minute to 15 go check. 16 MR. GOTTSTEIN: Can we take a short 17 break? 18 THE COURT: We can go off record. Is 19 that what you are asking? 20 MR. GOTTSTEIN: Yes. 21 THE COURT: Sure. We can go off 22 record. We'll be back on record in about three 23 minutes. 24 (Off record.) 25 THE COURT: We're back on record. 0087 1 Mr. Gottstein, do you wish to bring your client or 2 are you ready to proceed? 3 MR. GOTTSTEIN: I told her she could 4 come in when she wanted to. 5 THE COURT: Okay. Terrific. 6 Mr. Killip? 7 MR. KILLIP: Yeah, two housekeeping 8 matters. One was I still had not had a chance to 9 have the copy machine agree with my wishes to copy 10 Exhibits No. 1 through No. 8, and they are Exhibits 11 No. 1 through No. 8 that were admitted for trials 12 one and two. 13 So they are the same identical 14 exhibits. They are color photographs for No. 1 15 through No. 7, and No. 8 is a poem that Faith gave 16 to her son, but I haven't copied those yet for 17 everybody, but they have been admitted before. I 18 could run down and try it again. 19 The second thing was we would be asking 20 that Dr. Honeywell be an advisory witness in the 21 duration of the trial, and he is scheduled to 22 appear about 11:00, so I just wanted to ask if that 23 was -- that permission would be granted. 24 THE COURT: Mr. Gottstein? 25 MR. GOTTSTEIN: Yeah, I understand that 0088 1 you allow him to be an advisory witness. The 2 copies I got last time of the photographs were not 3 really very good, so I don't know what we can do 4 about that. 5 THE COURT: I guess I am a little 6 confused. Were you talking about making black and 7 white copies off of this? 8 MR. KILLIP: Yes. 9 THE COURT: But you have got color 10 copies from the earlier proceeding. 11 MR. KILLIP: I do and I was hoping to 12 have them scanned and I could present them on CD 13 format or something like that to Mr. Gottstein at 14 some point, but -- 15 THE COURT: I don't have any objection 16 to using the ones that you have already admitted. 17 That seems to be the least cumbersome. 18 Mr. Gottstein, is there a problem with those 19 copies? 20 MR. GOTTSTEIN: Yeah. I never got 21 color copies of them. Your in-court clerk said 22 that they would have to be readmitted, I mean with 23 respect to my exhibits. 24 THE COURT: I am not ruling on their 25 admissibility. It is just a matter of the ones he 0089 1 is going to use physically in the courtroom to try 2 to get them admitted. And I prefer that he use the 3 ones that people can see, and the black and white 4 photos aren't going to be very helpful. 5 MR. GOTTSTEIN: So my copies are black 6 and white, and that's all I'm saying. 7 THE COURT: Well, just take that into 8 account, Mr. Killip. We need to make sure that 9 ultimately you have got to get color copies over to 10 Mr. Gottstein. For today, if we get that far 11 today, he is going to need a minute to look at -- 12 Mr. Gottstein is going to need a minute to look at 13 each one before you offer it so that he can 14 decipher what it is. 15 MR. KILLIP: Okay. 16 MR. GOTTSTEIN: Yes, Your Honor. And 17 -- well, I have had my own troubles with getting 18 ready and having copies of everything made, but it 19 would really be nice to have good copies while the 20 testimony is going on. 21 THE COURT: Yes, and that's why I want 22 to make sure that we have got -- using the color 23 copies that are already in evidence or part of the 24 record in this case, so I don't even know that 25 we're going to get that far today, Mr. Gottstein, 0090 1 but hopefully, you will have them in front of you 2 when we do. 3 Anything further? Okay. I am ready to 4 bring in the jury pool, poolette, seven people. 5 THE CLERK: Should I have them sit back 6 here? 7 THE COURT: Yes, we're going to take it 8 from the top. Thank you very much. 9 MR. GOTTSTEIN: Would you like a cough 10 drop? 11 THE COURT: Thank you. I have got a 12 bucket load of them up here. I just -- 13 MR. GOTTSTEIN: Halls Mentholyptus? 14 THE COURT: No. I have got -- all 15 right. We're on record. I have a cold that has 16 caused me to cough into this microphone for the 17 last two weeks, and I'm very sorry if I'm blasting 18 your eardrums out back there. I'll try not to. 19 Good morning, ladies and gentlemen. 20 We're ready to proceed. My name is Morgan 21 Christen. I think I have introduced myself to each 22 of you. I am obviously the judge assigned to this 23 case. 24 You have been summoned as prospective 25 jurors in this case. It is the case regarding 0091 1 Ms. Faith Myers. She may also be referred to as 2 Faith Tussing today. I am going to start by asking 3 all the lawyers to introduce themselves, please. 4 MR. KILLIP: My name is Jeff Killip and 5 I am an assistant attorney general here in 6 Anchorage and I work in the human services section. 7 And my case load is primarily child protection and 8 I also represent API in cases like this. 9 MR. GOTTSTEIN: My name is Jim 10 Gottstein. I am in private practice here in 11 Anchorage. I practice by myself. I do various 12 types of things. Here, I am representing Faith 13 regarding her involuntary commitment and forced 14 medication proceeding that the State is trying to 15 get forced on her. 16 THE COURT: Both of the lawyers in the 17 courtroom will have people joining them at counsel 18 table, and when they do, they will be introduced. 19 Mr. Gottstein will have his client and Mr. Killip 20 will have a representative for his part of the case 21 as well, and those folks will be introduced to you 22 when they join us. 23 In this case, we're going to seat a 24 six-person jury with two alternates. Typically, 25 you think of a jury as being 12 people, but in this 0092 1 case the statute requires that it be six, and that 2 is how we will proceed today. 3 It is terribly important that we seat a 4 fair and impartial jury, and I have already had 5 occasion to talk with many of you about that -- 6 well, all of you about that this morning. Part of 7 that process is allowing the lawyers to ask you 8 some questions. They have already asked you a few 9 questions about what happened outside, if anything, 10 but in the normal course of jury selection, they 11 would be allowed to ask you some more questions. 12 They are not trying to pry into your 13 personal affairs. I want to assure you of that. 14 If either of the lawyers ask you any questions that 15 cause you to feel uncomfortable, just let me know 16 and we can take that up out in the hallway. I 17 don't want you to feel embarrassed here. So now 18 I'll ask that each of you please stand and Madam 19 Clerk is going to administer an oath to you. 20 (Administering oath.) 21 THE COURT: Let me tell you something 22 about the trial so that you can each consider the 23 questions that are going to be asked of you. The 24 first is that the lawyers always give me their very 25 best guess, their best estimate of how long this is 0093 1 going to last, but that's very tough to estimate. 2 I believe that this case is likely to 3 last an additional four working days. It is always 4 possible it could run longer than that and I just 5 ask that you consider your personal calendars to 6 let me know whether or not that is likely to be a 7 problem. The trial day begins each day at 8:30 and 8 it ends at 1:30. 9 There is not a formal lunch hour, but 10 you are certainly given breaks just about once an 11 hour, and I always encourage people to bring a 12 snack if they want to eat it in the jury room to 13 help keep their energy up. 14 I always want to remind people as well 15 that jury service is truly a privilege that each of 16 us is entitled to under our system of justice. It 17 is unique in our country and something for each of 18 us to be proud of. It is an opportunity for each 19 of you to be the judge of the facts of a case and 20 it requires each and every member of the jury panel 21 to make either a financial or a personal sacrifice 22 to be here today, so I want to thank you for that. 23 I know you have other things to do in your homes 24 and in your places of work and with your families. 25 But I talk to jurors all the time at the conclusion 0094 1 of jury trials and invariably they tell me that it 2 was a very rewarding and important experience for 3 them. 4 Having said that, I need to ask if 5 there is anyone still present here today for whom 6 jury service would constitute a real hardship or an 7 emergency. And understand that I have to view that 8 with a very high standard, but if you have a 9 personal hardship or a real scheduling conflict 10 that you can anticipate, now would be the time to 11 let me know. Two of you have raised your hands. 12 MS. SIERRA: I have a 27-day-old baby 13 and I don't know if I will have a babysitter. 14 THE COURT: You have a 27-day-old baby 15 and you don't have babysitting available? 16 MS. SIERRA: I don't know if I will 17 have for the whole week. 18 THE COURT: Who is with the baby today? 19 MS. SIERRA: My mother is. 20 THE COURT: All right. 21 MS. SIERRA: She has health problems. 22 THE COURT: Your mother does? 23 MS. SIERRA: Uh-huh. 24 THE COURT: Ma'am, did you also raise 25 your hand? 0095 1 MS. DAVIS: Well, I live by myself and 2 I have been trying to put myself through school. I 3 really can't afford a week. I wouldn't mind being 4 here, but $25 a day doesn't really pay my bills. 5 THE COURT: I understand. Counsel, do 6 either of you wish to inquire? All right. At this 7 time, I can't excuse either one of you, but I'm 8 going to allow -- the decision hasn't been made yet 9 about whether you are going to serve on the jury. 10 I am very mindful of your financial sacrifice, 11 ma'am, and I have to make sure that you remember it 12 is a financial sacrifice for everyone here. 13 The lawyers are going to ask you 14 further questions about that as we go forward. 15 Okay. On the basis of what you told me now, so 16 far, I can't excuse either one of you. 17 Mr. Gottstein? 18 MR. GOTTSTEIN: Your Honor, I'm sorry. 19 May I ask just a question I should have asked 20 before, but if I may? This is for both of you. 21 Does the fact that she is not going to excuse you 22 even though you think that -- even though it is 23 going to be a hardship, will that make it -- will 24 you hold it against Faith that you are having to be 25 here when you really don't want to? 0096 1 (Indiscernible.) 2 MR. GOTTSTEIN: You don't think so? 3 Okay. 4 THE COURT: All right. I need to tell 5 you just a little bit about this case. I think I 6 have said to each one of you, but let me make sure 7 that I have, that this case involves a request by 8 the State of Alaska, a petition we call it, by the 9 State of Alaska that Mr. Gottstein's client, Faith 10 Myers, be committed involuntarily to a mental 11 institution. 12 The other petition filed by the State 13 is a petition that she be medicated, given 14 medication against her will. I have allowed the 15 attorneys to introduce themselves to you, but it is 16 important that you understand who they practice 17 with in case you might know somebody they might 18 practice with. And I don't think either attorney 19 did that in their first introductions, did you? 20 MR. GOTTSTEIN: Yes, Your Honor, I did. 21 THE COURT: Did you? 22 MR. GOTTSTEIN: I said I practiced by 23 myself. 24 THE COURT: Oh, I beg your pardon. All 25 right. And you all understand that Mr. Killip 0097 1 represents the State of Alaska so he is with the 2 state attorney general's office? Yes. All right. 3 Now I have to ask you a series of 4 questions straight out of the statute. If your 5 answer to any of these questions is yes, please 6 raise your hand or stand up or do something to get 7 my attention. All right. 8 The first question is is there any of 9 you who is not a citizen of the United States? 10 Is there any of you who is not a 11 resident of the State of Alaska? 12 Is there any of you who is not at least 13 18 years of age, besides Ms. Brown's daughter? 14 Is there any of you who is not in 15 possession of sound mind? Okay. 16 Is there any of you who is not in 17 possession of all of your natural faculties, that 18 is the ability to see, hear, smell, taste and 19 touch? No responses. 20 Is there any of you who is unable to 21 either read or speak the English language? 22 MS. SIERRA: I understand, but if 23 people speak too fast, it is hard for me to 24 understand. 25 THE COURT: All right. I appreciate 0098 1 your letting us know that. Have you been able to 2 understand everything we have said today? 3 MS. SIERRA: When we first got here, I 4 guess I didn't -- it was hard for me to understand 5 when you started talking, but now you are speaking 6 more slow. 7 THE COURT: I will try to make sure 8 that I speak a little more slowly. All right. 9 Is there any of you who has ever been 10 convicted of a felony and not unconditionally 11 discharged? No responses. 12 Is there any of you who has served as a 13 member of a jury panel within the last year? 14 Have any of you served on the grand 15 jury in the last year? All right. 16 Are any of you related to any of the 17 parties or witnesses in this case? You don't know 18 yet because you don't know who the witnesses are. 19 That is supposed to be a trick question though. 20 I'm teasing. 21 Mr. Killip, I need you to please read 22 through your list of witnesses and then I'll ask 23 Mr. Gottstein to do the same. 24 MR. KILLIP: I'm calling Rachel 25 Humphries, who is Faith Myers' daughter. And 0099 1 Michael Myers, who is Faith Myers' son. Dr. Robert 2 Honeywell, who is seated right here and he is a 3 staff psychiatrist at API. Emmit Laird and Raymond 4 Arrington. They are both nurse assistants at API. 5 Jerry Jenkins, who is the executive director of 6 South Central Counseling and possibly another 7 individual connected with South Central Counseling, 8 specifically with their crisis treatment center. 9 And Marie Ann Vasser, who is the court visitor in 10 this case. And then finally Dr. Nicholas Caletti, 11 who used to be the former medical director at API. 12 THE COURT: All right. Mr. Gottstein, 13 could you run through your list, please? 14 MR. GOTTSTEIN: Yes, Your Honor. Thank 15 you. 16 THE COURT: Sure. 17 MR. GOTTSTEIN: I won't repeat the 18 witnesses that he mentioned. I think it is Fred 19 Aeriola, who is an assistant at API. Andrew 20 Leeberg, who I think is a nurse at API. Betty 21 Wells, who is a court visitor. Jeff Jessee, who is 22 the executive director of the Alaska Mental Health 23 Trust Authority. 24 Faith Myers or Faith Myers Tussing. 25 Douglas C. Smith, M.D. He is a psychiatrist who 0100 1 practices in Juneau. Aaron Wolf, M.D., a 2 psychiatrist who practices here in Anchorage. 3 Martha Hutchinson. She is -- she works for South 4 Central Counseling Center. I am not sure exactly 5 what her qualifications are. 6 Laurel Silverschmidt, who I think is a 7 licensed social worker at API. Did I already say 8 Andrew Leeberg? I think I got him on twice. Ron 9 Adler, who is the CEO of API. Carolyn Lee, who is 10 a worker at South Central Counseling. 11 Then I think we're talking about the 12 same unknown person at CTC, the Crisis Treatment 13 Center. Is that the person that interviewed her? 14 THE COURT: We'll discuss it. 15 MR. GOTTSTEIN: Jeff Duncan, who runs 16 the Crisis Treatment Center. And Martin Engel, an 17 attorney in town here. 18 THE COURT: So my question is, ladies 19 and gentlemen, whether any of you are related to 20 any of the parties or witnesses that you have just 21 heard mentioned. 22 Okay. Are any of you employed by them? 23 No. 24 Do any of you otherwise know them? 25 Ms. Brown? 0101 1 MS. BROWN: I know two of them. 2 THE COURT: Which two, please? 3 MS. BROWN: Andrew Leeberg and Aaron 4 Wolf. 5 THE COURT: Okay. Could you explain 6 how you know them? 7 MS. BROWN: Again, I guess it is the 8 children connection. My daughter and Andrew 9 Leeberg's daughter were in the same preschool, so I 10 pretty much have known them since birth. And 11 Andrew and I were the two people working at an 12 arbitration for the preschool. Aaron Wolf is -- 13 his wife and I worked together for seven years. 14 THE COURT: In our community it is 15 often the case that someone is on the jury pool who 16 knows someone with some connection to the case. I 17 don't know whether these relationships are 18 particularly close or not, so my question is 19 whether or not they are such that you think you 20 would be swayed by them and might be impartial? 21 MS. BROWN: No, I wouldn't be swayed. 22 THE COURT: All right. So you think 23 you can be impartial? I did it again, didn't I? 24 Thank you. 25 All right. I have asked you whether or 0102 1 not you know either of the attorneys in this case. 2 Have any of you been involved in any other court 3 proceeding involving either of these two attorneys? 4 All right. And finally, do any of you 5 have any knowledge about this case other than what 6 you have already discussed when you have come in 7 here one on one or have you read or heard anything 8 about this case other than what you found out about 9 it today in the courtroom? 10 MR. GOTTSTEIN: Your Honor? 11 THE COURT: Excuse me? 12 MR. GOTTSTEIN: Never mind. I'm sorry. 13 THE COURT: Yes. 14 MS. BROWN: I know there was a case 15 written up in the newspaper. I don't remember the 16 person's name. I know it was a woman and I read 17 about that case. It makes me think that maybe this 18 is the same case, but I am not sure that it is. 19 THE COURT: All right. Do you remember 20 anything about the contents of the article in that 21 case? 22 MS. BROWN: I know it was an issue of 23 forced medication and her fighting. 24 THE COURT: Did you draw any 25 impressions or conclusions from the article? 0103 1 MS. BROWN: Yes. 2 THE COURT: Do you think you can keep 3 an open mind today? 4 MS. BROWN: Yes. 5 THE COURT: I am willing to allow you 6 to stay on the jury panel unless you think there is 7 some reason that you ought to be excused at this 8 point. 9 All right. Now I am ready to call you 10 each -- in fact, the whole group of you forward to 11 the jury box, please. While you are coming 12 forward, let me just tell you that we typically at 13 this point draw names at random, but since there 14 are seven of you and we're just seating a 15 six-person jury today, it is just fine for you all 16 to come forward. 17 Now that I have done that, I'm sorry, 18 you need be forward in the -- sorry about that. 19 Ms. Brown, you are juror number one. That's how we 20 do it this way. I have too many notes. Ma'am, can 21 I get your name again? It is Brenda -- 22 MS. SIERRA: Sierra. 23 THE COURT: You are juror number two. 24 Okay. And ma'am, your name? 25 MS. DAVIS: Anna Rose Davis. 0104 1 THE COURT: I wrote down each of your 2 names so I wouldn't have to ask it again and now I 3 am looking for that piece of paper. All right. 4 And ma'am? 5 MS. JANIAK: Elayne Janiak. 6 THE COURT: You're number one, two, 7 three, four. And sir, you're number five, and your 8 name is? 9 MR. HIDALGO: Jeremy Hidalgo. 10 THE COURT: Mr. Hidalgo, thank you. 11 Okay. And are you Alec Newhall? 12 MR. NEWHALL: Yeah. 13 THE COURT: Good. I remembered one of 14 you. You are number six, sir, Mr. Newhall. 15 MR. CHAMBERS: Richard Chambers. 16 THE COURT: And Mr. Chambers is number 17 seven. All right. What I need you to do is to 18 look at this printed card that's up here in the 19 jury box and I'll start with Ms. Brown. If you 20 could scoot the microphone down so that she doesn't 21 have to stand up, that would be great. And ma'am, 22 I just need you to answer each of those questions 23 in turn, please. 24 MS. BROWN: My name is Barbara Brown. 25 I live in midtown. Presently, I am self-employed 0105 1 -- well, I am on contract as the Director of 2 Leadership Anchorage for the Alaska Humanities 3 Forum and I am also a writer. 4 I am married to Tim Weepking and he is 5 controller of Odum Corporation. I have one child. 6 She is 11 years old. I was born in Brooklyn, New 7 York. I was raised in eastern Long Island, went to 8 college in California, lived in San Francisco until 9 '85 and then came up here. 10 I like running, kayaking, book design. 11 I sit on the board of directors for Alaska Center 12 for the Book and the Anchorage Literacy Project. I 13 was in a lawsuit when I was little -- well, like 14 16. A drunk driver ran into me, but I never went 15 to court. I have served on a jury. There is no 16 reason why I shouldn't serve on this jury. And 17 yes, you know I know the defense attorney. 18 THE COURT: You have disclosed that, 19 which I appreciate. Okay. I can't see the card. 20 Is that the last question? 21 MS. BROWN: Yes. 22 THE COURT: Ms. Sierra. 23 MS. SIERRA: My name is Brenda Sierra. 24 I live in Anchorage, Muldoon area. I was a student 25 until two weeks ago. I am married. My husband's 0106 1 name is Greg Lomax. He is an industrial hygienist. 2 I have two children, one girl that is three years 3 old and the baby who is three and a half weeks old. 4 I was born and raised in Puerto Rico. 5 I love languages. I love to travel. I don't 6 belong to any organization. I haven't been 7 involved in a lawsuit. I haven't been in court. I 8 haven't served on a jury. I guess I don't have any 9 reason that I shouldn't be here and I don't know 10 anybody involved in this trial. 11 THE COURT: Thank you. Ms. Davis. 12 MS. DAVIS: My name is Anna Rose Davis. 13 I live in Spenard. I work at Green Connection, 14 take care of plants, customer service, that kind of 15 thing. I am not married. I have no children. I 16 was born in Fairbanks. I was raised Fairbanks and 17 Anchorage. 18 Hobbies I guess would be plants, being 19 outside. I have had family members involved in 20 lawsuits and have to go to court. Do I have to 21 name all of them? 22 THE COURT: It is important that you 23 disclose it so if the lawyers want to ask you 24 follow-up questions they can. Have you yourself 25 been a plaintiff or a defendant in a lawsuit? 0107 1 MS. DAVIS: No. 2 THE COURT: But you have come to court 3 as a witness or as a supportive family member? 4 MS. DAVIS: I have been to court with 5 my father when he was going to court, but not like 6 with my other family members. 7 THE COURT: Okay. 8 MS. DAVIS: I have never served on the 9 jury. There is no reason I can't be here and I 10 don't know anyone involved in the trial. 11 THE COURT: Ms. Janiak. 12 MS. JANIAK: My name is Elayne Janiak. 13 I live in the Campbell Glenn neighborhood, which is 14 near Arctic and Dimond. I work for the U.S. 15 General Services Administration. I am a property 16 manager. 17 My husband's name is Carl Voyles. He 18 is -- he works for Alaska Housing Financial 19 Corporation. He is the director of construction. 20 I have four stepchildren. Their ages are between 21 25 and 32. I was born in Buffalo, New York and I 22 was raised there until I went to college in New 23 York City. 24 I guess my hobbies are civic 25 involvement. I am very interested in public 0108 1 transportation. I am a member of the group called 2 Transit Works and my community council, 3 (indiscernible). I like gardening and reading and 4 hiking. I have never been in a lawsuit nor has 5 anyone in my family that I can think of. I have 6 served on a jury 20 years ago in San Francisco. No 7 reasons why I shouldn't serve on this jury, and I 8 do not know anybody involved in this trial. 9 THE COURT: Thank you, Ms. Janiak. 10 Could you pass the microphone back? The cord 11 should be long enough to get to the second row 12 there. 13 MR. HIDALGO: My name is Jeremy 14 Hidalgo. I live in Lake Otis, Abbott area. I work 15 for Transworld Moving Company. I have no children. 16 I was born and raised in Anchorage, Alaska. My 17 hobbies are I like to skate. I have never been 18 involved in a lawsuit, never served on jury duty, 19 and I don't see any reason why I shouldn't be on 20 jury. And I don't know any of the people that have 21 been involved in the trial. 22 THE COURT: All right. Thank you. 23 MR. NEWHALL: My name is Alec Newhall. 24 I stay in Fairview. I have been trying to find a 25 job. I have got a girlfriend. Her name is Ruth 0109 1 Finnegan. I got two children. One is almost two 2 and one is almost one. I like biking and playing 3 games. 4 I don't know about that lawsuit. This 5 is my first time on the jury and I don't know 6 anybody on the trial or involved with the trial. 7 THE COURT: Thank you, Mr. Newhall. 8 Mr. Chambers. 9 MR. CHAMBERS: Yes. My name is Richard 10 Chambers. I live in hillside. I am currently loss 11 prevention manager for Lowe's hardware store. I am 12 not married. I have no children. I was born in 13 Houston, Texas, raised in Anchorage, Alaska. 14 My hobbies are motor sports and music. 15 I have been involved in lawsuits before, but that 16 was as a military policeman called as a witness 17 when I was in the Army. I have never served on a 18 jury. There are no reasons why I should not be on 19 this jury and I do not know anyone involved in this 20 trial. 21 THE COURT: All right. Thank you, all. 22 Now, what we do is allow the lawyers to ask 23 questions individually and we always start with the 24 plaintiff. In this case, that's the State, so 25 Mr. Killip will be allowed to ask you questions 0110 1 first. Remember, if there is a question that he 2 touches upon that causes you embarrassment or that 3 you would rather not discuss in the room full of 4 people, just let me know and we can step outside. 5 Okay. 6 MR. KILLIP: Good morning. Does 7 everybody understand that the way our government is 8 set up? We have got the legislature that creates 9 the laws and the court that interprets the laws and 10 it is your job today to decide whether certain 11 facts have been found and apply those facts to the 12 law. Does everybody understand that's the general 13 process? 14 Does anybody have a problem with doing 15 that? At the end of the trial, the judge will give 16 you the law for this case, and the fancy term is 17 jury instructions, but that's the law for today's 18 case. So you would be bound to follow that law as 19 the judge gives it to you at the end of the trial. 20 Does anybody have a problem with doing that as a 21 juror? No? 22 Now, you have already heard that 23 today's case is about, involves mental illness, and 24 that's a very powerful and loaded subject matter 25 for everybody. It is not -- does everybody 0111 1 understand that people don't say, "Oh, I choose to 2 be mentally ill"? Does everybody understand that? 3 It is a combination of genetics and 4 environmental factors and so nobody is accusing 5 anybody of doing anything wrong in this case. Does 6 everybody understand that that's the situation 7 today? 8 And within the last couple of years 9 there was a very popular movie, A Beautiful Mind, 10 that came out, along with a book. And I have 11 actually read the book. I haven't seen the movie, 12 but has anybody seen that movie? Okay. 13 Any strong feelings about the movie 14 when you saw it? Like, Ms. Brown, do you have any 15 opinion about the movie that you would like to 16 share? Did you think it was a good movie? 17 MS. BROWN: I thought it was a great 18 movie and I have opinions about everything. 19 MR. KILLIP: Okay. Now, Ms. Janiak, 20 did you indicate you saw the movie? 21 MS. JANIAK: Yes, I did. 22 MR. KILLIP: Did you have any strong 23 feelings, I guess, or opinions about mental illness 24 before you went in to see the movie that were 25 somehow changed or influenced by the movie, 0112 1 recognizing that it is Hollywood ultimately? 2 MS. JANIAK: No. 3 MR. KILLIP: And what about you, 4 Mr. Hidalgo? No? 5 THE COURT: Hidalgo, right? Is that 6 right, Hidalgo? 7 MR. HIDALGO: Yeah. 8 THE COURT: I think I mumbled and 9 Mr. Killip wrote it down incorrectly. I beg your 10 pardon. 11 MR. KILLIP: Did I pronounce your name 12 correctly, "Hidorgo"? 13 THE COURT: Hidalgo. That's the only 14 one I got right. I missed Ms. Janiak twice, but 15 I'm working on it. 16 MR. KILLIP: And does anybody have any 17 strong impressions about psychiatrists as 18 professionals, as people that have chosen that 19 trade as their place of professional work? 20 Does anybody have any strong feelings 21 about psychiatrists as opposed to a professional 22 baseball player or an opera singer or an artist or 23 a writer, lawyer, contractor, teacher? No? 24 Now, I just want to ask a couple of 25 questions of people individually. Ms. Davis, do 0113 1 you have any strong feelings about or impressions 2 about what you think you might be hearing today as 3 far as evidence? 4 MS. DAVIS: I don't know if I 5 understand that. 6 MR. KILLIP: Well, you understand that 7 this is a case about mental illness? 8 MS. DAVIS: Uh-huh. 9 MR. KILLIP: And the State's ability to 10 keep somebody in a hospital to address that mental 11 illness, and also to administer medication to help 12 treat that individual so they can get out of the 13 hospital? 14 MS. DAVIS: But not by her own will, 15 correct? 16 MR. KILLIP: That's correct. 17 MS. DAVIS: Well, I don't think anybody 18 should be forced to take medication if they are not 19 willing to take it. I don't think prescribed drugs 20 are actually really that good. I think that they 21 should be -- there is other ways to help a person 22 rather than give them drugs, so I don't think that 23 anyone should be forced to do that. 24 MR. KILLIP: Do you understand that 25 there is a law that Alaska law provides for that 0114 1 under certain circumstances? 2 MS. DAVIS: I didn't know there was a 3 law for that. 4 MR. KILLIP: How do you feel about 5 that? 6 MS. DAVIS: That there is a law? 7 MR. KILLIP: Yeah. Does it make you 8 uncomfortable? 9 MS. DAVIS: Yeah. I don't think there 10 should be one. Huh-uh. No. 11 MR. KILLIP: Under any circumstances? 12 MS. DAVIS: I don't know. I guess I 13 would have to see, but my aunt has been given 14 prescribed medication and it was on her own will, 15 but now she like has to take them. She can't ever 16 get off of them, you know. I don't think you 17 should have to have like a dependency upon them. 18 MR. KILLIP: Okay. Would you have a 19 problem if the judge were to instruct you at the 20 end of the trial that if an individual has a mental 21 illness and as a result of that mental illness is 22 either gravely disabled, meaning that person cannot 23 care for themselves, meet their own needs, live 24 independently, or if that individual is either a 25 danger to self or others, that would allow the 0115 1 State to keep a person in the hospital for 2 treatment of that mental illness? 3 How do you feel about that now if that 4 is what the judge tells you it is? 5 MS. DAVIS: I don't know. I guess if 6 they are like a harm to themselves maybe they 7 should be in some kind of secured environment, but 8 I don't know. 9 MR. KILLIP: These are not easy 10 questions, are they? 11 MS. DAVIS: No. 12 MR. KILLIP: And what if the court were 13 to tell you at the end of the case that if an 14 individual who does meet that criteria, if that 15 individual lacks the capacity to agree to take 16 medication, that the State would have the ability 17 to administer that medication to treat the illness, 18 how do you feel about that, if the judge were to 19 tell you that's the law? 20 MS. DAVIS: Well, again, I am not 21 strong about prescribed drugs, so I don't think 22 that that would be the way to go about it. 23 MR. KILLIP: Okay. Now, Ms. Sierra, do 24 you happen to know of anybody that has experienced 25 a mental illness or been affected by it in some 0116 1 way? 2 MS. SIERRA: No. 3 MR. KILLIP: Do you have any 4 impressions about people that may be coping with 5 mental illness, that they are not as good as other 6 people or somehow it's a character flaw or 7 something like that, they have done something 8 wrong? Do you have any impressions about that? 9 MS. SIERRA: No. 10 MR. KILLIP: You understand that that's 11 not what we're -- the State is not going to be 12 trying to show that today? Do you have a problem 13 with being able to sit here as a juror under the 14 circumstances that you have already revealed to 15 everyone about your background and what you bring 16 into the courtroom? No problem? 17 MS. SIERRA: No. 18 MR. KILLIP: Have you understood 19 everything that I have said? Am I talking too 20 fast? 21 MS. SIERRA: No. 22 THE COURT: Mr. Killip, could you swing 23 the microphone that way a bit so that when you step 24 to the -- there you go. And folks, if you could 25 pass the little microphone there around or try to 0117 1 get close to it, I would appreciate it. 2 MR. KILLIP: And Mr. Gottstein and I 3 can ask questions of each one of these jurors, each 4 one of you all day and through the week and through 5 the month until the cows come home. 6 What I think the bottom line question 7 is what the judge had already asked each one of you 8 and can you each sit as a fair and impartial juror 9 for this case. And is there anything that we 10 should know that could somehow influence any of 11 your abilities to sit as a fair and impartial juror 12 today? 13 Anybody here? No? 14 THE COURT: Nothing further, 15 Mr. Killip? 16 MR. KILLIP: Nothing. Thank you. 17 THE COURT: Sure. Mr. Gottstein? 18 MR. GOTTSTEIN: Thank you, Your Honor. 19 Okay. Ms. Davis, if -- I kind of want to follow-up 20 on some of the questions that Mr. Killip asked. 21 And I guess my main question is do you 22 feel that if the judge instructed you that if X, Y 23 and Z happened, if you believe X, Y and Z, then the 24 State is entitled to force Faith to take the 25 medication, do you feel like you could follow those 0118 1 instructions? 2 MS. DAVIS: What do you mean? What 3 would I be following, making her go or what? 4 MR. GOTTSTEIN: Yes. 5 MS. DAVIS: I wouldn't feel comfortable 6 with it, no, but I guess I would have to. 7 MR. GOTTSTEIN: Huh? 8 MS. DAVIS: I guess I would have to, 9 right? 10 MR. GOTTSTEIN: So that if the facts 11 showed X, Y and Z, and I'm going to go into that a 12 little bit, but the facts showed -- you believe the 13 facts were that, for example, that she was mentally 14 ill, that Faith was mentally ill, that she was a 15 danger to herself or others -- well, excuse me. 16 Or let's say that she was so disabled 17 that she couldn't -- she was in imminent danger, if 18 left alone, should would be in imminent danger of 19 serious bodily harm and the facts showed that she 20 was totally incapable, totally irrational about the 21 medications, and the judge instructed you that in 22 those circumstances the State was allowed to give 23 her medication against her will, would you follow 24 those instructions? 25 MS. DAVIS: Well, I mean, wouldn't I 0119 1 have to? 2 MR. GOTTSTEIN: Well, I understand that 3 to be -- yes, you are supposed to, so I'm 4 understanding that you would follow those 5 instructions. Would that be fair? 6 MS. DAVIS: Right, but I wouldn't be 7 comfortable with it, no. 8 MR. GOTTSTEIN: Okay. I'm going to ask 9 some general questions to everybody. And first, 10 does anybody think that someone -- that everybody 11 that has a serious mental illness should be 12 involuntarily committed to a mental hospital? 13 Does anybody here think that if 14 someone has a mental illness, a serious illness 15 that if they are not taking their medications they 16 should be in the hospital? 17 Okay. Has anybody here had a family 18 member committed to a mental institution or had a 19 family member who was committed to a mental 20 institution? Okay. 21 Okay. We're still -- oh, and the 22 first thing I have to say -- I should -- meant to 23 say this. I wrote a note right here. That 24 Mr. Killip made a couple of statements here and 25 that even when he was asking questions they are not 0120 1 evidence. They are not testimony. 2 And one of the things he said was that 3 mental illness is genetic, and so you shouldn't 4 take that as at all testimony. That hasn't been 5 proven at all. I mean it is just something that he 6 said. 7 Okay. So we haven't really sorted out 8 exactly what the instructions are that you are 9 going to get, but we have some general ideas -- I 10 mean we know basically what the law is and we're 11 just sorting out exactly how the instructions are 12 going to be worded, so I might say something that 13 is a little bit different than how they come out in 14 the jury instructions and you shouldn't really take 15 anything by that. 16 THE COURT: Mr. Gottstein, Counsel, 17 could you both please approach? Pardon the 18 interruption. While we are doing this, if you 19 would like to stand and stretch, you are welcome to 20 do that. 21 (Begin bench conference.) 22 THE COURT: Are you going to go into 23 elements that are part of the State's petition? Is 24 that what you are about to do? 25 MR. GOTTSTEIN: Yes. I am going to ask 0121 1 them if you find that someone -- things like you 2 find them mentally ill and you find that they are a 3 danger -- that they are gravely disabled, let's 4 say, that if the State -- I'm not sure exactly how 5 I'm going to ask it -- has to also prove that there 6 is less -- that is considered less restrictive 7 alternative, for example. 8 And that, you know, if those were the 9 facts they would be able to return a verdict for 10 respondent. 11 THE COURT: You can ask them if they 12 will apply the law as I instruct them. You can 13 tell them that they are going to be required if 14 they take this oath to apply the law as I instruct 15 them to apply it. 16 I am just nervous about you setting out 17 elements of the statute if you are not absolutely 18 clear about what they are. You are certainly going 19 to have an opportunity to argue that in opening, I 20 mean state it in opening, argue it in closing. 21 I am not depriving you of that, but in 22 jury selection, I just want to be really careful 23 that if you give a definition that's not quite 24 right, the State is going to come back with a 25 vengeance, I'm sure, in argument. 0122 1 I don't want to create a possibility 2 of the jurors being confused is all, so if you are 3 going to read from the statute, I just want to make 4 sure you get the actual language. 5 MR. GOTTSTEIN: Oh, yeah. Okay. 6 THE COURT: Mr. Killip, anything? 7 MR. KILLIP: No. 8 THE COURT: Okay. Thanks. 9 (End bench conference.) 10 THE COURT: Sometimes we do it that way 11 because it is quicker than asking you to all get up 12 and move and come back. And try to do everything I 13 can to not waste your time, so that's what that 14 fuzzy noise is about. 15 Mr. Gottstein, go right ahead. 16 MR. GOTTSTEIN: Okay. So because this 17 is a case involving some pretty important rights of 18 my client, of Faith, sometimes she is called the 19 respondent, the State has to prove its case by 20 what's called clear and convincing evidence, which 21 we know is -- 22 Does everybody understand what beyond 23 a reasonable doubt is? Okay. It is not quite 24 beyond a reasonable doubt. Okay. 25 And do people understand what -- it is 0123 1 not that easy a term to -- there is a term called 2 preponderance of the evidence, which is kind of you 3 weight a scale and the one that's tipped, that's 4 the one that wins. 5 And it is not either of those 6 standards. It is what's called clear and 7 convincing. And we haven't sorted out exactly how 8 you will be instructed on what clear and convincing 9 means, but it is not quite beyond a reasonable 10 doubt. 11 And the State has to prove its case -- 12 there are a lot of pieces of the case that the 13 State has to prove. And they have to prove all of 14 them, I think, by clear and convincing evidence. 15 So one of the things they have to 16 prove by clear and convincing evidence is that 17 Faith is mentally ill, the respondent is mentally 18 ill. Another thing, there is kind of one, two, 19 three or four that they have to prove. 20 And one of those four, for example, is 21 that the respondent is in danger of physical harm 22 arising from such complete neglect of basic needs 23 for food, clothing, shelter, or personal safety as 24 to render serious, accident, illness or death, 25 highly probable, highly probable, if care by 0124 1 another is not taken. 2 Does anybody not understand that? I 3 mean it is technical legalese and the judge 4 admonished me not to say anything other than what 5 the statute says. But I think you get the idea 6 about what, at least that definition of -- that's a 7 definition of gravely disabled and that's at least 8 one of the definitions. 9 If they -- they meet part of their 10 case, if they can prove by clear and convincing 11 evidence that the respondent is mentally ill. 12 Okay, they have met another element of 13 their case if they have proven by clear and 14 convincing evidence that the respondent is in 15 danger of physical harm arising from such complete 16 neglect of basic needs for food, clothing, shelter, 17 personal safety -- I'm sorry. 18 I'm reading too fast. Is in danger of 19 physical harm, physical harm, arising from such 20 complete neglect of basic needs for food, clothing, 21 shelter, or personal safety as to render serious 22 accident, illness or death highly probable if care 23 by another is not taken. 24 Okay. And the way -- so -- again, I 25 am not sure, but I think the way it is going to 0125 1 work at the end there will be like either a verdict 2 for petitioner or verdict for respondent. 3 Okay. So if the State proves by clear 4 and convincing evidence that the respondent is 5 mentally ill, Ms. Brown, and doesn't prove by clear 6 and convincing evidence that respondent poses a 7 substantial risk of bodily harm to herself as -- 8 that's the wrong one. Is in danger of physical 9 harm arising from such complete neglect of basic 10 needs for food, clothing, shelter or personal 11 safety as to render serious accident, illness or 12 death highly probable if care by another is not 13 taken. 14 If they prove the first one by clear 15 and convincing evidence, but they don't quite prove 16 the second one by clear and convincing evidence, 17 what would your verdict be? 18 Would it be verdict for respondent? 19 UNIDENTIFIED SPEAKER: Yes. 20 MR. GOTTSTEIN: So that would be it. 21 Okay. Let's say that they prove by clear and 22 convincing evidence that the respondent is mentally 23 ill, and they also prove by clear and convincing 24 evidence that -- the other thing that I read is 25 called gravely disabled -- they also prove that she 0126 1 is gravely disabled by clear and convincing 2 evidence. 3 And another element that they have to 4 prove by clear and convincing evidence is that the 5 petitioner, the hospital has by clear and 6 convincing evidence, has considered, but not found 7 that there are any less restrictive alternatives 8 available to Ms. Myers. 9 Okay. So Ms. Sierra, if the State 10 proves by clear and convincing evidence that the 11 respondent is mentally ill and proves by clear and 12 convincing evidence that the respondent is gravely 13 disabled, and you remember the food and shelter and 14 death highly probable and other things, if they 15 prove both of those things, but they don't prove by 16 clear and convincing evidence that there are any 17 less restrictive alternatives available to the 18 respondent, what would your verdict be? 19 MS. SIERRA: What was the last part 20 again? 21 MR. GOTTSTEIN: That the hospital has 22 considered, but not found, that there are any less 23 restrictive alternatives available to the 24 respondent. They don't prove that. 25 They prove that she is mentally ill. 0127 1 They prove that she is gravely disabled, but they 2 haven't proven that they have considered and 3 haven't found -- they have considered but haven't 4 found that there are any less restrictive 5 alternatives. 6 What would your verdict have to be if 7 that is one of the elements? Ms. Davis, do you? 8 MS. DAVIS: I would go with the 9 respondent. 10 MR. GOTTSTEIN: Verdict for respondent? 11 Okay. Okay. Let's say that they have proven -- 12 THE COURT: Mr. Gottstein, Mr. Killip, 13 both of you, could you both please approach just 14 quickly? 15 (Begin bench conference.) 16 THE COURT: I think the jury is getting 17 confused. I'm going to instruct them on the law so 18 could you -- I don't know if you want to ask them 19 questions. Go to bias and go to the typical types 20 of voir dire, but I am concerned about your going 21 over the statute with them in a way that I am 22 thinking they are getting confused. 23 MR. GOTTSTEIN: (Indiscernible.) 24 THE COURT: What? 25 MR. GOTTSTEIN: It is confusing. Okay. 0128 1 THE COURT: So can you move onto 2 another area, please? 3 MR. GOTTSTEIN: Can I do it just a 4 little bit further? 5 THE COURT: One more. 6 (End bench conference.) 7 MR. GOTTSTEIN: Mr. Hidalgo, if the 8 State proves by clear and convincing evidence that 9 the respondent is mentally ill and proves by clear 10 and convincing evidence that she is gravely 11 disabled, but the law says that they also have to 12 prove that she has received appropriate and 13 adequate care and treatment during her stay there 14 now, and they don't do that, what would your 15 verdict be? 16 MR. HIDALGO: Can you repeat the 17 question? 18 MR. GOTTSTEIN: Yeah. Let's assume 19 that they have proven that the respondent is 20 mentally ill and let's say that they have proven 21 that she is gravely disabled, but they don't prove 22 by -- but they don't prove that she has received 23 appropriate and adequate care and treatment, if 24 they are required to, if they don't prove that and 25 they have to prove that to win their case, what 0129 1 would your verdict be? 2 Verdict for respondent or verdict for 3 petitioner? 4 MR. HIDALGO: Respondent. 5 MR. GOTTSTEIN: I don't think I have 6 any other questions. 7 THE COURT: Ladies and gentlemen, you 8 may take a minute to stand up and stretch. This is 9 the time where I ask the attorneys to please 10 indicate by writing down on a piece of paper 11 whether they have any challenges for cause, so 12 while they are doing that, why don't you take a 13 stretch. 14 And if any of you would like a glass of 15 water, there is a pitcher right back there on that 16 little half-wall and you are welcome to get a drink 17 of water. 18 So, Counsel, if you have your 19 challenges for cause. 20 MR. KILLIP: May we approach for a 21 moment? 22 THE COURT: Sure. 23 (Begin bench conference.) 24 THE COURT: Before you make your lists 25 of challenges for cause, I have this many more, 12 0130 1 more jurors from Judge Card's courtroom that I can 2 call up. 3 And I will tell you that I am inclined 4 to excuse Ms. Sierra and Ms. Davis. One of them 5 has the brand-new baby and is having some trouble 6 with English and one of them has, you know, real 7 financial hardship. 8 I don't ever like to do that in front 9 of the whole group because otherwise everybody 10 claims financial hardship. In her case, I'm 11 certainly inclined to think it really is a 12 financial hardship. 13 So you may not want to use your 14 preempts on those two. Okay. What I'm asking you 15 to do now is make your challenges for cause. 16 MR. KILLIP: I don't have any. 17 THE COURT: I have to ask on record 18 whether you have passed for cause and then you can 19 say that on record. Do you have challenges for 20 cause? You don't want to challenge for cause? 21 Okay. So we'll just go back and I'll 22 ask you both the question. Thank you. 23 (End bench conference.) 24 THE COURT: Okay. Back on the record 25 and the jury is seated. Our very patient jury pool 0131 1 is seated. Mr. Killip, do you have any challenges 2 for cause? 3 MR. KILLIP: No, Your Honor. 4 THE COURT: Mr. Gottstein? 5 MR. GOTTSTEIN: Pass, Your Honor. 6 THE COURT: All right. Thank you very 7 much. Now it is time for the attorneys to exercise 8 their preemptory challenges. Again, I would ask 9 that you write them on a piece of paper and pass 10 them forward. 11 Just so you know what is going on, the 12 attorneys in our system are allowed to challenge 13 for cause if they think there is a reason that 14 under any circumstances one of you isn't qualified 15 to serve as a juror as a result of the answers that 16 you just provided. 17 Essentially going to whether or not you 18 can be fair and impartial. And they have both 19 indicated that they are passing on that. They are 20 not challenging any of you for cause. 21 And now they are given an opportunity 22 to write a list of -- the statute sets out a number 23 of people that they may ask to be excused without 24 providing any reason at all. They are both 25 entitled to an equal number of challenges on that 0132 1 basis. 2 So that's what they are doing. I 3 always like to let jurors know what is going on. 4 You are so patient with your time. 5 I just noticed all of the men are in 6 the back row and all of the women are in the front 7 row. It is fun for me to listen to jury selection. 8 I always think your lives sound so much more 9 interesting than mine. All of these interests and 10 hobbies. 11 Thank you. Does this have your name 12 on it? Why don't put your name on it so I can keep 13 it straight. Thanks so much. That's great. Thank 14 you. 15 All right. At this time I would like 16 to thank and excuse Mr. Chambers, juror number 17 seven and Ms. Brown, juror number one. I'll let 18 the jury clerk know that you both showed up, did 19 your duty, reported in, and I appreciate that very, 20 very much. 21 I think it will still be required that 22 you phone in to let them know that you are 23 available -- I'm sorry. That you phone in and 24 listen to the recording and appear if you are 25 called, but I will let them know that you were here 0133 1 and that you were here until past noon today. 2 Thank you both very much. 3 Do we have additional jurors ready? 4 There are going to be additional jurors called up. 5 At this point, as I indicated to counsel, I also 6 need to thank and excuse Ms. Sierra and Ms. Davis. 7 All right. I appreciate your service very much and 8 I'll let the jury clerk know that you were here 9 until after noon, but I do need you to call in on 10 the recording. Okay. Thank you both very much. 11 What's going to happen now for you 12 remaining is that we're going to bring in 13 additional jurors. You won't be requestioned, but 14 the other folks will be called in to fill up the 15 chairs, to go through this process until we can 16 seat a full jury. 17 We'll stand in recess for just a 18 moment. We're waiting for the other jurors to come 19 up from the room you were all in. 20 I'm going to excuse you and the clerk 21 will take you back to the jury room where you just 22 were and I need to instruct you, of course, not to 23 discuss the case while you are there. 24 And they should have coffee. Did you 25 notice whether they have coffee and tea for you 0134 1 there? If not, I'll make sure they get some. 2 Thank you. 3 (Off record.) 4 THE COURT: We're back on record in the 5 matter regarding Faith Myers. Both counsel are 6 present in the courtroom and the jurors have 7 returned. Mr. Killip? 8 MR. KILLIP: I thought you were handing 9 something out there. 10 THE COURT: No, I wasn't. All right. 11 What we need to do now is fill up the jury box and 12 continue the process again, essentially from the 13 top until we get a full jury panel. 14 So the other jurors have joined us in 15 the back of the courtroom and I will ask -- start 16 by asking you all -- do I need to take it from the 17 very top. Here we go. 18 Ladies and gentlemen, you have been 19 called as prospective jurors in this case. This is 20 a case entitled State of Alaska versus Faith Myers. 21 I want to ask both lawyers to please take a minute 22 to introduce themselves. 23 MR. KILLIP: I'm Jeff Killip. I am an 24 assistant attorney general here in Anchorage and my 25 case load is primarily child protection cases. I 0135 1 do that three-quarters of the time, and then 2 one-quarter of the time, I represent the Alaska 3 Psychiatric Institute. 4 And seated with me is Dr. Bob 5 Honeywell, who is a staff psychiatrist at API. 6 MR. GOTTSTEIN: My name is Jim 7 Gottstein. I'm an attorney in private practice 8 here in Anchorage. I practice by myself. I am 9 representing Faith Myers, the respondent, in this 10 case. Faith Myers Tussing. 11 THE COURT: Ladies and gentlemen, we 12 need to seat just a six-person jury in this case. 13 That is what is required in this case. We'll seat 14 a six-person jury and two alternates. 15 The parties to this case are entitled 16 to a fair and impartial jury and that's why we go 17 through this process, although I know it takes 18 quite some time. You as jurors must be as free as 19 humanly possible from bias, prejudice or sympathy 20 and not be influenced by preconceived ideas either 21 as to the law or the facts of this case. 22 And for that reason, I'm going to ask 23 you a series of questions, and both of these 24 lawyers are going to be given an opportunity to ask 25 you questions as well. If they touch on an area 0136 1 that is sensitive or might cause embarrassment, you 2 would rather speak about privately, just let me 3 know and we'll step out into the hall and we can do 4 that there for you individually. 5 The important thing is that you answer 6 all of the questions asked of you just as honestly 7 and completely as possible. I would like to start 8 by asking you to please all stand and raise your 9 right hand and the clerk will administer an oath. 10 (Oath administered.) 11 THE COURT: I have to tell you 12 something about this trial so that you can each 13 consider the questions that are going to be asked 14 of you. First, it may have been explained to you 15 already, but I am not sure, that the trial day will 16 last from 8:30 in the morning until 1:30 in the 17 afternoon. 18 You all understand that? All right. 19 This trial is expected to last something on the 20 order of four additional days. It may be five 21 days. We're going to try to keep it to four days. 22 So please consider that when I ask you in a minute 23 whether or not that's going to create a true 24 scheduling emergency for any one of you. 25 We'll take breaks frequently 0137 1 throughout the course of the day, usually about 2 once an hour, and I always encourage people to 3 bring a snack so they can eat it in the jury room 4 and keep their energy up for the case. 5 All right. I have told you a little 6 bit about the schedule that I'm anticipating. Is 7 there anyone of you that has what is considered -- 8 what you would consider to be truly a scheduling 9 emergency that you think disqualifies you from 10 sitting on this case? 11 I am not seeing any hands. All right. 12 I appreciate that. Now, let me tell you a little 13 bit about this case so I can ask you essentially 14 the same question. 15 This case involves two petitions filed 16 by the State of Alaska. The first is a petition 17 for the involuntarily commitment of Ms. Myers 18 Tussing. That's the party represented by 19 Mr. Gottstein, in the darker suit. And the 20 question is whether she is to be involuntarily 21 committed to a mental hospital. 22 The second petition is to administer 23 psychotropic medication to Ms. Myers Tussing 24 against her wishes. 25 You will be given further 0138 1 instructions, including the definition of mental 2 illness if you are selected for the jury, but I 3 just wanted to give you a general understanding of 4 what the nature of this case is for now. 5 The next thing I need to do is ask 6 both attorneys to please provide lists of the 7 witnesses they intend to call and please include 8 the -- while we're at that time, please include a 9 discussion of who you practice with and the 10 parties, names of the parties. 11 MR. KILLIP: I am Jeff Killip. Again, 12 I work for the state attorney general's office. 13 And we anticipate calling about nine witnesses in 14 this trial. The first one is Rachel Humphries, who 15 is a daughter of Faith Myers. 16 The second one is Michael Myers, who is 17 the son or a son of Ms. Myers Tussing. Dr. Robert 18 Honeywell, staff psychiatrist over at API. Emmitt 19 Laird and Raymond Arrington. They are two nurse 20 assistants over at API. 21 Jerry Jenkins is the executive director 22 of South Central Counseling. An individual from 23 South Central Counseling's Crisis Treatment Center. 24 We don't have the name of that individual yet. And 25 Marie Ann Vasser, who is appointed as the court 0139 1 visitor in this case. 2 And finally, Dr. Nicholas Caletti, who 3 was the former medical director over at API. And 4 those are the witnesses we intend to call today. 5 THE COURT: Thank you, Mr. Killip. 6 Mr. Gottstein, could you do the same, please? 7 MR. GOTTSTEIN: Thank you, Your Honor. 8 I won't relist of the witnesses that Mr. Killip 9 just listed. We would intend to call Fred Aeriola, 10 or might call him. He is an assistant -- he works 11 at API. 12 Andrew Leeberg. He also works at API. 13 Betty Wells is a court visitor. She works for the 14 Office of Public Advocacy. You mentioned Jerry 15 Jenkins, right? 16 MR. KILLIP: Yes. 17 MR. GOTTSTEIN: Jeff Jessee, the 18 executive director of the Alaska Mental Health 19 Trust Authority. Faith Myers. She is the 20 respondent here. Douglas C. Smith. He is a 21 psychiatrist in Juneau. Aaron Wolf. He is a 22 psychiatrist in Anchorage. 23 Martha Hutchinson works for South 24 Central Counseling Center. Laurel Silverschmidt, 25 who also works at API, Alaska Psychiatric 0140 1 Institute. Ron Adler, who is the CEO of API. 2 Carolyn Lee, who works at either South Central 3 Counseling Center or the Crisis Treatment Center. 4 Jeff Duncan, who is head of, I believe, 5 the Crisis Treatment Center. And Martin Engel, 6 Martin Engel, an attorney in town. 7 THE COURT: Thank you, Counsel. All 8 right. Now I need to ask you a series of 9 questions. If your answer to any of these 10 questions is yes, please either raise your hand or 11 stand up or do something to get my attention. 12 First is there any of you who is not a 13 citizen of the United States? No hands. 14 Is there any of you who is not a 15 resident of the State of Alaska? No hands. 16 Is there any of you who is not at 17 least 18 years of age? 18 Any of you who is not in possession of 19 a sound mind? 20 Any of you who is not in possession of 21 all of your natural faculties, that is the ability 22 to see, hear, smell, taste and touch? No hands. 23 Anyone here who is unable to either 24 read or speak the English language, please? No. 25 Any of you who have ever been 0141 1 convicted of a felony and not unconditionally 2 discharged? No hands. 3 Any of you who has served as a member 4 of the jury within the last year? That would be 5 including a jury like this or the grand jury? No. 6 All right. 7 Any of you who is related to any of 8 the parties or the list of witnesses that were just 9 read to you? Related to them? No hands. 10 Any of you who have been employed by 11 them? 12 Are there any of you who otherwise 13 knows any of the lists of folks that the attorneys 14 just read to you? No hands. 15 All right. Do you know either of the 16 attorneys or either of the parties involved in this 17 case? No. 18 One more question. Do any of you have 19 any knowledge about this case other than what have 20 you heard today in the courtroom from any other 21 source at all? No hands. 22 All right. That's fine. The next 23 thing we're going to do, moving quickly, is to have 24 Madam Clerk please call at random. She will draw 25 your names out of a box to fill up the remaining 0142 1 jurors in the jury box. 2 THE CLERK: Juror number one, David 3 Fagerskog. Juror number two, Eric Juelson, 4 J-u-e-l-s-o-n. Juror number three, George Petering, 5 P-e-t-e-r-i-n-g. Juror number seven, Shawn Barrows, 6 B-a-r-r-o-w-s. 7 Juror number eight, Ronald McCollum, 8 M-c-C-o-l-l-u-m. Juror number nine, Jeffrey Rath, 9 R-a-t-h. Juror number 10, Mark Christenson, 10 C-h-r-i-s-t-e-n-s-o-n. Juror number 11, Cynthia 11 Strickland, S-t-r-i-c-k-l-a-n-d. Juror number 12, 12 Melvin Shephard, S-h-e-p-h-a-r-d. 13 THE COURT: That's 12? Okay. That's 14 fine. What you do next is, and you may have been 15 through this, I don't know, but for those of you 16 who haven't, I need get the microphone, please, 17 down to juror number one. 18 Sir, could you pronounce your name for 19 me? I can't read your handwriting. 20 MR. FAGERSKOG: Fagerskog. 21 THE COURT: Okay. Great. Sir, could 22 you go down this list of questions -- are you able 23 to read it from where you are? 24 MR. FAGERSKOG: Yes. 25 THE COURT: It is kind of turned 0143 1 sideways, but if you could answer those questions 2 for me. 3 MR. FAGERSKOG: My name is David 4 Fagerskog. I live on hillside. I don't know how 5 much of a neighborhood area you want me to say. 6 Service High School area. I am a DC manager for 7 McKesson Pharmaceuticals here in Anchorage, Alaska. 8 Number of children are two. I have a 9 son that is 20 and a daughter that is 18. My 10 birthday is 9/4 -- or my birthplace rather is 11 Portland, Maine. 12 Hobbies, interests and things like 13 that, I am involved in church pretty much. I have 14 never been involved in a lawsuit or a court 15 hearing. I have never been on a jury. Any reason 16 why I shouldn't be on this jury? I don't have a 17 real reason. 18 I just would prefer not to be involved 19 with -- I don't know what is going to be decided 20 here, but I would prefer not to be involved with 21 deciding whether somebody should have their 22 personal rights taken away. 23 That's my perception. I don't know if 24 that is what is being discussed. I'm not involved 25 with any trial. 0144 1 THE COURT: Mr. Juelson, you are juror 2 number two. 3 MR. JUELSON: I am Eric Juelson. I 4 live out in Muldoon Road. I am a janitor with 5 Assets. I am single with no children. I was born 6 and raised in Kodiak, Alaska. 7 My hobbies, interests are computers, 8 golf, such and such. My organizations is Arc of 9 Anchorage. No on number seven. 10 THE COURT: Can you read number seven 11 for me? I can't see it. 12 MR. JUELSON: Have you or any member of 13 your family been involved in a lawsuit or -- 14 THE COURT: Thank you. I know it from 15 there. Okay. 16 MR. JUELSON: On eight, no. I have 17 never served on a jury before. Any reasons that I 18 shouldn't -- I don't know. I got a disability, but 19 I don't know how that would be. And ten, I don't 20 know anybody on the trial. 21 THE COURT: Okay. Thank you. 22 Mr. Petering? 23 MR. PETERING: George Petering. My 24 neighborhood is Spenard, Turnagain area. My 25 occupation, I am owner, operator, of Office Product 0145 1 Services. Brief work history, I am retired Navy. 2 I have been a geologist before that. 3 Number of children, I have a little 4 girl that's 33. My birth place is Cincinnati, 5 Ohio. Raised in Florida. Hobbies, sailing and 6 photography. Organizations, Seward Yacht Club. 7 Yes, I have been involved in a 8 lawsuit. Never served on a jury. Don't know any 9 reason why not to serve on this jury. And I don't 10 know anyone involved in the trial. 11 THE COURT: Okay. Thank you, sir. 12 Could you pass the microphone directly behind you? 13 The other three in line have done this drill. 14 MS. BARROWS: My name is Shawn Barrows. 15 I live at the end of Hiland Road in Eagle River. I 16 am a contract administrator for ASRC Energy 17 Services. 18 Prior to that, I worked for Global 19 Power and Communications as an administrator or 20 manager and a financial analyst for Credit Union 21 One prior to that. I have four children, 15, 14, 22 13 and 12. 23 I was born and raised in Juneau, 24 Alaska. My hobbies are reading, beading. And do 25 whatever my children are involved in. 0146 1 The organizations that I am in are 2 Society of American Military Engineers, Oracle 3 Applications Users Group and PTAs. 4 Yes on number seven, have you or any 5 member of your family been involved in a lawsuit. 6 Yes. Yes, I have served on a jury, grand jury in 7 1982. No, there are no reasons why I should not 8 serve on this jury and no I do not know anyone 9 that's involved in this trial. 10 MR. MCCOLLUM: My name is Ron McCollum 11 and I live in southwest Anchorage. I am in 12 telecommunications sales. I am divorced. One 13 child, boy of eight years old. I was born and 14 raised in West Texas. The only hobby I have is 15 golf. 16 On number seven, have never been 17 involved in a lawsuit. I have served on a jury in 18 1978. And on number nine, why or any reason why I 19 should not serve on this trial. I think I would 20 have a hard time forcefully committing somebody. I 21 think this is what this whole trial is about. 22 And then number ten, do you know 23 anybody involved in this trial, no. 24 THE COURT: Thank you, sir. 25 MR. RATH: My name is Jeff Rath. I am 0147 1 an elementary school teacher. Excuse me. My 2 neighborhood, sorry. I live in the College Gate 3 area. 4 I am an elementary school teacher of 5 seven years. I am divorced, have two children, 6 seven and four. Birth place, Omaha, Nebraska. 7 Hobbies, fishing, outdoor activities, golf, 8 reading. 9 Organizations, Cook Inlet Literacy 10 Consortium. Interested, as someone said before, 11 with my children. Nobody in my family has been 12 involved in a lawsuit. No, I have not served on a 13 jury. 14 No, I do not see any reasons why I 15 shouldn't serve on the jury. And no, I do not know 16 anyone involved in this trial. 17 THE COURT: Thank you, sir. 18 MR. CHRISTENSON: My name is Mark 19 Christenson. I live out in Eagle River. I work 20 for VECO Alaska as a software manager. And I am 21 married and have three kids, 23, 14 and 11. 22 And I was born in Whittier, California. 23 Hobbies are hunting, fishing, skiing, anything 24 outside. I have not been in a lawsuit before. I 25 have not served on a jury. 0148 1 And I don't see any reasons why I would 2 not serve on this jury and I do not know anybody 3 involved in this trial. 4 MS. STRICKLAND: My name is Cindy 5 Strickland. My neighborhood is Turnagain View. My 6 occupation is accounting. I work at Alyeska 7 Pipeline. My husband's name is Derek and he is a 8 heating and refrigeration technician. 9 I have two children. One is 20 and one 10 is two and a half. I was born in Indianapolis and 11 raised in Alaska. Church, my hobbies, church, 12 sports, outdoor activities. 13 I have not been involved in a lawsuit. 14 I have served on a jury about four years ago. 15 There is no reason why I couldn't serve on this 16 jury and I don't know anyone involved in this 17 trial. 18 MR. SHEPHARD: I am Mel Shephard. I 19 live in Spenard. I am a plumbing contractor, 20 self-employed. Been that way for 29 years. I am 21 married for 39 years. 22 My wife's name is Anna Marie and she is 23 a foster parent, runs a B and B. I am also a foster 24 parent. Our daughter is 38, and we have a foster 25 child is 13 who is handicapped in a wheelchair, 0149 1 cerebral palsy, et cetera, et cetera. 2 Hobbies, I like to fly. I like to 3 hunt and fish. I am a member of the Civil Air 4 Patrol, Alaska Airmen's Association, NRA, very 5 active in church. 6 Yes, I have been involved in lawsuits 7 and wasn't real happy with it. Have you ever 8 served on a jury? I have been sitting here like 9 this for about five times and I have never served. 10 I have been called every two years for as long as I 11 can remember and I'm not real happy about that 12 either. 13 Is there any reason why I can't serve? 14 Well, it is a financial hardship for one thing. 15 Nobody pays me for being here. My business doesn't 16 go on without me. I am not real fond of the court 17 process. I would have problems taking somebody's 18 rights away. And I don't know anybody in this 19 trial. 20 THE COURT: Thank you, sir. Now, it is 21 time for the individual attorneys to ask you 22 questions. We'll start with Mr. Killip for the 23 State. 24 MR. KILLIP: Thank you, Your Honor. 25 Good afternoon. I am Jeff Killip. Again, I am 0150 1 with the attorney general's office. Just wanted to 2 ask you a few questions. 3 Does everyone understand that at the 4 end of the trial the judge will instruct you as to 5 what the law is and that it is your job to apply 6 the facts as you find them to the law? 7 Any questions about that? Okay. And 8 does anybody have any problems doing that? What 9 if, for example, the judge tells that you the law 10 is something that you may not entirely agree with, 11 but that's the law. 12 Do you think that any of you would have 13 trouble following your oath to apply the law to the 14 facts in the case? 15 We all understand that if a law needs 16 to be changed the proper avenue is to go to the 17 legislature and change the law or improve it if 18 that's an issue. 19 This is a case about mental illness 20 and the State's ability to treat somebody who has a 21 mental illness. And we are going to allege -- we 22 have alleged that an individual does have a mental 23 illness. Her name is Faith Myers Tussing. 24 And we want the jury, we want you to 25 consider whether that's in fact the case. Does 0151 1 anybody have any strong feelings about mental 2 illness as a subject matter? 3 I assume that most of you have heard 4 about the movie A Beautiful Mind. Have any of you 5 seen that movie? Okay. 6 And Mr. Fagerskog, did you have any 7 preconceptions about mental illness that were 8 changed in any way by the movie? 9 MR. FAGERSKOG: No, it's a movie. 10 That's exactly what it is. 11 MR. KILLIP: Entertainment. Yeah. 12 Entertainment about a very important subject 13 matter. And does everybody understand that mental 14 illness is not something that we choose to have, 15 people choose to have mental illness? 16 For whatever reason, it just happens 17 and people try to manage it and that it is nobody's 18 fault. It just happens. Does anybody disagree 19 with that statement? 20 Now, how about a choice of profession 21 of psychiatry, does anybody have any strong 22 feelings about that choice of profession for 23 people? 24 Okay. Mr. Shephard, you are nodding 25 your head in the back. 0152 1 MR. SHEPHARD: Well, I don't think much 2 of the profession. 3 MR. KILLIP: I appreciate your candor 4 and that's the purpose of this. 5 MR. SHEPHARD: They are not quite as 6 bad as lawyers. 7 MR. KILLIP: No offense taken. I have 8 been called worse. 9 MR. SHEPHARD: I don't consider you an 10 attorney. 11 MR. KILLIP: Does anybody else have any 12 trouble with the choice of psychiatry as a 13 profession? Okay. Does anybody have a problem 14 with the proposition that people generally choose 15 to go into psychiatry to help people in an area of 16 their interest, which is psychiatry? 17 Does anybody have a problem with that 18 proposition? Now, is there any reason -- we can 19 ask a lot of questions and this process has already 20 drawn on long enough, I think, today for everybody. 21 Is there any reason why any one of you 22 cannot serve as a juror today that has not already 23 been expressed? 24 Okay. Thank you. I have no further 25 questions, Your Honor. Thank you. 0153 1 THE COURT: Thank you, Mr. Killip. 2 Mr. Gottstein? 3 MR. GOTTSTEIN: Thank you. This is a 4 case that, as people have mentioned, that involves 5 someone's very important rights. And so I'm going 6 to ask some questions about that and how people 7 feel about that and some other things as well. 8 The first thing that I want to know is 9 if anybody feels that if someone is seriously 10 mentally ill they ought to be in the hospital. 11 And you are Mr. Rath? You think 12 someone who is mentally ill should be in the 13 hospital? 14 MR. RATH: (Indiscernible.) 15 MR. GOTTSTEIN: Now, if the law is that 16 someone can be whacked out beyond belief, you know, 17 seriously mentally ill, but they are not a danger 18 to themselves or gravely disabled, as the judge 19 would tell you about, and therefore the State isn't 20 entitled to put them in the hospital, would you 21 follow his instructions? 22 MR. RATH: (Indiscernible.) 23 MR. GOTTSTEIN: Okay. I think 24 Mr. Shephard, did you nod your head too that you 25 think everybody that is mentally ill -- 0154 1 MR. SHEPHARD: I didn't say everybody. 2 I kind of go along with what he said that it 3 depends on the severity and if they are not a 4 danger to themselves or especially to others, I 5 would say there is no -- (indiscernible.) 6 MR. GOTTSTEIN: Now, if the law says 7 that someone, again, say that someone is totally, 8 very mentally ill, but not a danger to themselves 9 or gravely disabled, basically then they are not, 10 under the law they are not supposed to be allowed 11 to be committed. Would you be able to respond with 12 a verdict for the respondent in that case? 13 MR. SHEPHARD: (Indiscernible.) I am 14 very law abiding and I generally go along with the 15 law. I don't agree with all laws and I understand 16 as a juror that you don't always have to agree with 17 the laws. (Indiscernible.) 18 MR. GOTTSTEIN: Okay. Did anybody else 19 think that people who are seriously mentally ill, 20 for that reason alone should be in the hospital? 21 Okay. How about people that are 22 seriously mentally ill, but not on any medication? 23 It's a little bit different question. People think 24 they should be locked up just because of that? 25 Okay. Now, you are going to get some 0155 1 instructions about how to evaluate witness' 2 testimony and that sort of thing. One of them is 3 about experts. And they have certain 4 qualifications and certain things attached to them, 5 but they are supposed to be evaluated the same as 6 any other witness under the law. 7 Does anybody think that because a 8 psychiatrist testifies to something that it should 9 be really taken at face value or shouldn't be 10 critically, shouldn't really be looked at to see if 11 it is true? 12 I don't think I stated that question 13 very well. If a psychiatrist says something, would 14 you automatically take it for true? Anybody would? 15 How about a police officer? Okay. I 16 think you maybe answered this, but does anybody 17 have a close relationship with a psychiatrist? 18 Ms. Barrows, I think it is. Could you 19 say that? 20 MS. BARROWS: Would you like me to 21 elaborate? 22 MR. GOTTSTEIN: Please. 23 MS. BARROWS: I have a stepdaughter 24 that is currently in a treatment facility, so I 25 have biweekly meetings with counselors, 0156 1 psychiatrists. 2 MR. GOTTSTEIN: You have a stepdaughter 3 in -- 4 MS. BARROWS: In a treatment facility. 5 MR. GOTTSTEIN: So does that -- how do 6 you feel about the, you know, what the psychiatrist 7 says about your daughter? 8 MS. BARROWS: I look at it from a very 9 positive frame of mind because they are there to 10 help this child. So I look on it very positively. 11 MR. GOTTSTEIN: How old is the child? 12 MS. BARROWS: Thirteen. 13 MR. GOTTSTEIN: Thirteen. So you 14 probably felt like you had to put her in? 15 MS. BARROWS: It wasn't a choice. If 16 you would like, we can discuss it out there, but I 17 would rather not discuss it. 18 THE COURT: You can come back to this, 19 if you like, but why don't you go on and ask her 20 other questions. 21 MR. GOTTSTEIN: Okay. Anyone else? 22 (Indiscernible.) 23 MR. GOTTSTEIN: Mr. Fagerskog, is that 24 how -- I'm sorry. Mr. Shephard. 25 MR. SHEPHARD: I have a nephew -- 0157 1 (indiscernible.) 2 MR. GOTTSTEIN: How about police 3 officers? Do you have a close relationship with a 4 police officer and could you tell me about that? 5 UNIDENTIFIED SPEAKER: The business I 6 am in, I am involved pretty heavily with the DEA 7 and the city police in Anchorage. I don't know 8 what else you want to know. 9 MR. GOTTSTEIN: Now, do you -- if you 10 had to -- you know, you are on a jury and a police 11 officer was testifying, would you give that more 12 credence than other people's testimony? 13 UNIDENTIFIED SPEAKER: The way I 14 understand your question is if -- I'm going to 15 answer it this way if the person's profession in 16 whatever field we're dealing with at the time, I'm 17 going to believe that person more than I would my 18 own because I am not a professional in that field. 19 So the answer would be if a policeman 20 was on the stand telling me something about 21 somebody, I would believe that because if it was in 22 his field because I am not a policeman. Is that 23 what your question is? I'm trying to understand. 24 MR. GOTTSTEIN: Yeah, but what about 25 facts? If the policeman said he did it and the 0158 1 defendant said I didn't and there really wasn't any 2 way to differentiate, would you automatically tend 3 to believe the police officer more than the 4 defendant? 5 UNIDENTIFIED SPEAKER: I would believe 6 it would be your job to question the police officer 7 to find out if the officer is telling the truth. I 8 would believe what came out of your questioning of 9 the police officer. I would use that. 10 MR. GOTTSTEIN: Okay. You mentioned 11 professional, if they were a professional then you 12 would tend to, you know, take their word for it. 13 What about if there were two professionals with the 14 same training saying opposite things? 15 UNIDENTIFIED SPEAKER: I guess it would 16 be the burden of the State to prove that one was 17 right and one was wrong or versus your job would be 18 to prove that the other one was right or wrong. 19 It is depending on which one has done 20 the research with that person coming across with 21 that diagnosis that you are trying to establish. 22 MR. GOTTSTEIN: So would you give the 23 State's psychiatrist more credence than the 24 respondent's psychiatrist? 25 UNIDENTIFIED SPEAKER: Depends on which 0159 1 one spent more time with that person to develop 2 their opinions. This case -- I don't know much 3 about the case, but this is a very hard thing for 4 me personally to deal with. 5 It is not as simple as did you break 6 into a store and did you not break into a store. I 7 mean this is different. We're dealing with 8 something different for me here, and I think I 9 would put the burden of proof on you two people to 10 decide, help me decide which way I would believe. 11 MR. GOTTSTEIN: Okay. Now, in this 12 case because it is such a, you know, a case of 13 respondent's right to remain free from confinement 14 and the right to decide whether or not she has to 15 take medication she doesn't want, the state has the 16 burden of proving its case, a bunch of different 17 elements by what's called clear and convincing 18 evidence, which is not quite preponderance of the 19 evidence and it is more than 50/50. 20 So if say, you know, you get the 21 psychiatrists and they are saying diametrically 22 opposed things, but the State -- and it's kind of 23 equal and the State has to prove whatever it is by 24 clear and convincing evidence, would your verdict 25 be for the defendant or for the petitioner, for the 0160 1 State? 2 UNIDENTIFIED SPEAKER: My answer to 3 that would be hopefully there is other evidence to 4 consider. If that's equal between those two, I 5 think you would have to have more evidence outside 6 that for me to help the State make a decision to 7 put somebody behind doors in a sense. 8 I mean I don't know how to explain it 9 to you. I don't know if -- see, innocent until 10 proven guilty is a simple thing to say, but in 11 this, I don't think you can say that. I don't know 12 what you say here. 13 It is not we have to believe you are 14 innocent until you are proven guilty. Here it is 15 -- I don't know what we're trying to say. 16 MR. GOTTSTEIN: That's a very 17 insightful thing, actually, and it really goes to 18 one of the elements of the case, which is for the 19 forced medication a person is deemed competent to 20 make a decision for herself unless proven by clear 21 and convincing evidence that she is not competent. 22 So that's kind of the same, wouldn't you say, for 23 that piece of it? 24 Okay. Now, for -- so let's go to that 25 question, whether or not the State should be 0161 1 allowed to give respondent, Faith Myers Tussing, 2 medication that she doesn't want to take. 3 Let's say that the State's 4 psychiatrists say she is not competent and the 5 psychiatrist, other psychiatrists say that she is 6 competent. And that's equal. Would you give a 7 verdict for the respondent or for the petitioner? 8 UNIDENTIFIED SPEAKER: If the person 9 that has to take the medication chooses not to take 10 the medication, and it is not going affect her as 11 far as being a danger to herself or it is not going 12 effect her as far as being a danger to other people 13 around her, then I would allow, in my mind, say, 14 okay, I would go with the decision in not letting 15 her take the medication. That's how -- that's part 16 of being free. 17 MR. GOTTSTEIN: Actually, you said 18 another really insightful thing, I think, when I'm 19 trying to pin you down on this, you said I want to 20 consider all of the evidence. And I think that is 21 a very insightful thing. 22 Ms. Strickland, as I mentioned, the 23 State has to prove its case by clear and convincing 24 evidence, and there are really two cases. And 25 there are a lot of pieces of things. 0162 1 And one of them is whether or not 2 someone is mentally ill and they have to prove that 3 by clear and convincing evidence or, you know, or 4 it's respondent for the verdict. 5 They also have to prove like an A, B, 6 C, or D and one of those is whether or not the 7 person is gravely disabled. And they have to prove 8 that by clear and convincing evidence as well. If 9 they prove by clear and convincing evidence that 10 she is -- the respondent is mentally ill, but they 11 don't prove by clear and convincing evidence that 12 she is gravely disabled, what would your verdict 13 be? 14 MS. STRICKLAND: I would have to know 15 the law and apply the facts to it. 16 MR. GOTTSTEIN: Right. And if the law 17 was they have to prove it by -- that she is gravely 18 disabled by clear and convincing evidence in order 19 to commit her, what would your verdict be? 20 MS. STRICKLAND: And the scenario is 21 that they haven't proved it? 22 MR. GOTTSTEIN: Yeah. 23 MS. STRICKLAND: Then the facts don't 24 apply to it or the facts don't support. 25 MR. GOTTSTEIN: So it would be verdict 0163 1 for respondent; is that correct? 2 MS. STRICKLAND: Correct. 3 MR. GOTTSTEIN: And if they prove -- 4 and let's say it is clear and convincing on mental 5 illness, but a little iffy on gravely disabled. 6 Let's say it is not clear and convincing, what 7 would the verdict be? 8 MS. STRICKLAND: The verdict on what? 9 MR. GOTTSTEIN: Whether or not she 10 should be committed. Would it be verdict for 11 respondent or for the State? 12 MS. STRICKLAND: I would have to know 13 more about the law, how to apply it. 14 MR. GOTTSTEIN: Well, if the law is 15 that they have to prove that she is gravely 16 disabled by clear and convincing evidence and they 17 don't do that -- 18 MS. STRICKLAND: It's an and, right, 19 both conditions? 20 MR. GOTTSTEIN: Yes. 21 MS. STRICKLAND: If they had to prove 22 both conditions with clear and convincing evidence, 23 yes, you need to prove both to be able to commit. 24 MR. GOTTSTEIN: Okay. Now, what about 25 if they prove mental illness by clear and 0164 1 convincing and they prove gravely disabled -- like 2 if you just had to weigh it, it kind of comes down, 3 yeah, if it was just a 50/50 thing, they have 4 proven a little over 50 percent, but not clear and 5 convincing and they have to prove it by clear and 6 convincing. 7 What would -- 8 MS. STRICKLAND: (Indiscernible.) 9 THE COURT: Mr. Gottstein, Mr. Killip, 10 could you both please approach? 11 (Begin bench conference.) 12 THE COURT: You need to be done, 13 please. 14 (End bench conference.) 15 MR. GOTTSTEIN: Okay. I just want to 16 follow that one more, kind of one more piece there. 17 Really a lot of different things that they have to 18 prove by clear and convincing. 19 So let's say that they prove mental 20 illness clear and convincing and prove gravely 21 disabled by clear and convincing, but they have to 22 prove that she has received appropriate and 23 adequate care while she has been there and they 24 don't prove that? 25 MS. STRICKLAND: If that third 0165 1 condition is equal to the others underneath the 2 law, there is not clear and convincing evidence -- 3 (indiscernible.) 4 MR. GOTTSTEIN: Okay. That's it, Your 5 Honor. 6 THE COURT: Okay. Ladies and 7 gentlemen, go ahead and stand and stretch. While 8 you are doing that, I am asking the attorneys to 9 please prepare their lists of challenges for cause. 10 What we're going to do is go off 11 record for a minute. Counsel, I am going to ask 12 you to go ahead and prepare your lists of 13 challenges for cause and preemptory challenges 14 while the jurors take a quick break to the rest 15 room. 16 (Off record.) 17 THE COURT: We're back on record. The 18 jury has rejoined us and both counsel are present 19 in the courtroom. Thank you, sir. 20 I told both of these guys they should 21 go to medical school with this handwriting. 22 Mr. Gottstein, I'm sorry, Mr. Killip, can you both 23 come forward. I literally can't read this. 24 (Begin bench conference.) 25 (Indiscernible.) 0166 1 THE COURT: Mr. Rath said that it 2 depended upon the degree of mental illness, I 3 believe. 4 MR. KILLIP: That was my recollection. 5 THE COURT: I am inclined to agree with 6 Mr. Gottstein on Mr. Shephard. I think 7 Mr. Shephard was pretty adamant about his 8 dissatisfaction with the process and said that he 9 thinks he understands essentially that there are 10 opportunities for jury nullification in spite of 11 the law, so I certainly am willing to refuse 12 Mr. Shephard for cause. 13 I think that Mr. Rath actually said a 14 couple of times that depends upon the degree of 15 mental illness and he would need to hear more. 16 I'll give you another shot at that. Do you want to 17 be heard on this? 18 MR. GOTTSTEIN: No, I better not. 19 THE COURT: Hang on. Have you done 20 your preemptory challenges? 21 MR. GOTTSTEIN: Well, I needed to know 22 this first, so I'll do that. 23 THE COURT: Can you do that for me, 24 please? 25 MR. GOTTSTEIN: Yeah, and then he 0167 1 doesn't have any? 2 THE COURT: Right. 3 (End bench conference.) 4 THE COURT: Ladies and gentlemen, so 5 that you understand what is going on, because we 6 are keeping you waiting. Each attorney under the 7 law has an opportunity to provide challenges for 8 cause if they believe that, because of your answers 9 you are not suited to serve as a fair and impartial 10 juror in this case. 11 In addition, they have an opportunity 12 and they have an equal number of peremptory 13 challenges that they assert where they may ask that 14 you be excused without giving a reason. They are 15 both entitled to that, so I have asked them to 16 write that down and we're almost there. 17 Thank you. Ladies and gentlemen, I 18 would like to thank and excuse juror number eight, 19 Mr. McCollum. Thank you, sir. 20 And for all of you who I am going to 21 excuse, I'll let the jury clerk know that you were 22 here and that you put in your full day of jury 23 service. You need to go ahead and phone in the 24 recording again tonight to see if you are going to 25 be called up for the rest of the week. I frankly 0168 1 don't know whether there are any other jury trials 2 this week. There won't be in this courtroom. This 3 is it. 4 Thank you, sir. I would also like to 5 thank and excuse juror number 12, Mr. Shephard; 6 juror number nine, Mr. Rath; juror number seven, 7 Ms. Barrows; and juror number one, Mr. Fagerskog. 8 Thank you very much. 9 Counsel, could you please approach 10 quickly? 11 (Begin bench conference.) 12 THE COURT: We have seven. I have one 13 alternate in the back of the room. This is a full 14 panel, plus one alternate. I could go with one 15 alternate or two alternates. It is up to you all. 16 How do you wish to proceed? 17 MR. KILLIP: That's fine. 18 THE COURT: How do you wish to proceed, 19 Mr. Gottstein? The woman in the little lavender 20 sweater is, I believe, the only other remaining 21 juror that we have available. 22 MR. GOTTSTEIN: Let's just go with this 23 one alternate. I think we can go with one 24 alternate. 25 THE COURT: That's what we'll do then. 0169 1 All right. 2 (End bench conference.) 3 THE COURT: Ladies and gentlemen, we 4 have come almost to the end of the trial day and we 5 can't make significant progress today, so you all 6 will be our jury panel. Madam Clerk, do you want 7 to give them different numbers so that you can put 8 them in the correct order? Do you want to do that 9 tomorrow morning? 10 THE CLERK: I can do that tomorrow 11 morning and I can show them tomorrow morning before 12 they come in. 13 THE COURT: Okay. That will be fine. 14 After we give you your new numbers for your seat 15 assignment, then that's it. We're not going to do 16 musical chairs anymore, I promise. 17 Tomorrow morning what we'll do is 18 we'll be here at 8:30 and we'll start with Madam 19 Clerk will administer an oath. I'll give you some 20 instructions. You are going to receive about 11 -- 21 I think it is 11 instructions tomorrow that will 22 help explain to you how this case is going to 23 proceed and how to weigh the evidence and what is 24 evidence. 25 So, for example, you haven't heard any 0170 1 evidence yet. This is all just lawyers talking 2 frankly at this point. So we'll proceed with that 3 with openings and we'll start with putting on the 4 witnesses tomorrow. Mr. Killip will begin. 5 Do any of you have any questions? All 6 right. So you know you need to be back here at 7 8:30 tomorrow morning. You have all been selected. 8 You are on the jury. All right. One of you will 9 serve as an alternate. That person won't be 10 designated until the end of the trial. 11 I need to make sure to admonish you 12 that no deliberations have started. You should not 13 discuss this with each other. You should not 14 discuss this with the attorneys or with anyone 15 else. If you happen to even just sort of run into 16 the attorneys in the elevator or in the hallway, it 17 is very important that you just even though you 18 will feel kind of rude or you might because it is 19 convention to say hello, but I would ask that you 20 not even do that. 21 Please just no talking with them at all 22 between now and tomorrow morning. All right. 23 Anything else, Counsel? 24 MR. KILLIP: No, Your Honor. 25 MR. GOTTSTEIN: I am not sure we need 0171 1 the jury for it, but -- 2 THE COURT: I'm getting ready to excuse 3 the jury and that's really what I was asking? 4 Nothing else to take up in front of the jury? 5 Then you are excused and thank you so 6 much for sitting through jury selection. I 7 appreciate it. April is going to show you where to 8 report to tomorrow morning. 9 You can go off record. 10 (Off record.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0172 1 TRANSCRIBER'S CERTIFICATE 2 3 I, Sonja L. Reeves, hereby certify that the 4 foregoing pages numbered 1 through 172 are a true, 5 accurate and complete transcript of the proceedings 6 in Case No. 3AN-03-277, In The Matter of Faith 7 Myers, transcribed by me from a copy of the 8 electronic sound recording to the best of my 9 knowledge and ability. 10 11 ___________ _______________________ 12 Date SONJA L. REEVES, RPR 13 Transcriber 14 15 16 17 18 19 20 21 22 23 24 25