0001
 1    IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
 2         THIRD JUDICIAL DISTRICT AT ANCHORAGE
 3   
     __________________________
 4                             )
     IN THE MATTER OF:         )
 5                             )
     FAITH MYERS,              )
 6                             )
             Respondent.       )
 7                             )
     __________________________)
 8   
     Case No. 3AN-03-277PR
 9   
10              TRANSCRIPT OF PROCEEDINGS
11          July 1, 2003 - Pages 1 through 85
12                    TRIAL BY JURY
13         BEFORE THE HONORABLE MORGAN CHRISTEN
                   Superior Court Judge
14   
                             Anchorage, Alaska
15                           July 1, 2003
                             8:17 o'clock a.m.
16   
     APPEARANCES:
17   
     FOR THE STATE:          JEFFREY T. KILLIP
18                           Assistant Attorney General
                             Attorney General's Office
19                           1031 West 4th Avenue
                             Suite 200
20                           Anchorage, AK  99501
21   FOR THE RESPONDENT:     JAMES B. GOTTSTEIN
                             Law Offices of James
22                           B. Gottstein
                             406 G Street, Suite 206
23                           Anchorage, Alaska 99501
24   
25   
0002
 1                    TABLE OF CONTENTS
 2   TRIAL BY JURY
 3   OPENING STATEMENT BY STATE OF ALASKA:      Page 25
 4   OPENING STATEMENT BY RESPONDENT:           Page 33
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25   
0003
 1                  P R O C E E D I N G S
 2                       (Prospective panel absent.)
 3             THE COURT:  Thank you.  We're on record in
 4   Case No. 3AN-03-277.  This is the Faith Myers
 5   matter.  Mr. Gottstein and Mr. Killip are both
 6   present in the courtroom; the jury is not.  In fact,
 7   no one else is.  We're just here this morning.
 8             Mr. Gottstein, I read your pretrial
 9   motions just last night, and I don't know,
10   Mr. Killip, have you had an opportunity to read them
11   now?
12             MR. KILLIP:  Your Honor, I was at the
13   office again until 11:00 p.m. last night, and I
14   still haven't had a chance to read them.
15             THE COURT:  All right.  I want to make
16   sure that everyone understands clearly; we're now
17   between a rock and a hard place.  We have a jury
18   empaneled, and I'm not going to waste their time.
19   I'm going to go forward with the trial, but I'm
20   concerned about these motions.
21             I'm sorry I didn't see them a lot sooner,
22   Mr. Killip, so let me tell you what it is I need you
23   to respond to, because we're going to have to
24   revisit these and get substantive rulings on them.
25   On page 2 of Mr. Gottstein's pleading entitled
0004
 1   Pretrial Motions and Brief, he raises an issue about
 2   the adequacy of the petition.  He's raised that
 3   before as to the 30-day and 90-day petitions.  And
 4   the 30-day petition I think I made findings
 5   regarding the time pressure the State acts under to
 6   get that petition together.  The 90-day petition is
 7   the one, remember there was a petition and then
 8   there was an amended petition and Dr., I believe
 9   Hanowell, but it might have been Coletti, but I
10   believe it's Dr. Hanowell did a pretty lengthy
11   additional pleading that set forth in fairly
12   specific detail what it was the State was alleging
13   in that case.
14             But I've looked at this petition for the
15   180-day hearing and I'm concerned about its
16   adequacy.  And one thing that is common throughout
17   all these pleadings at this point that I'll just
18   have to ask you to help me out that we have is that
19   some of you are making references to arguments I
20   think you've only raised in front of the Supreme
21   Court.  And probably because you have, you know,
22   generated so many pleadings in this action in front
23   of this court and also in front of the Supreme
24   Court, you know, things might be getting a little
25   mushed.  But, remember, I don't review the Supreme
0005
 1   Court, the pleadings you file before the Supreme
 2   Court or review their orders, because they cc them
 3   to me and are understanding that I've read them, but
 4   I think that's part of the problem here.
 5             Mr. Gottstein, you're wanting to be heard?
 6             MR. GOTTSTEIN:  I certainly tried not to
 7   do that.
 8             THE COURT:  I'm sure you have.
 9             MR. GOTTSTEIN:  I -- it may be true and of
10   course everything was a rush, but I tried to make
11   each thing that I do actually sufficient unto
12   itself, although sometimes I have to say refer to
13   this and incorporate by reference --
14             THE COURT:  Yeah, yeah.
15             MR. GOTTSTEIN:  -- in desperation, but
16   I -- it seems -- I tried to make sure that
17   everything that was relevant to that motion was in
18   there, but maybe I failed to do that.
19             THE COURT:  No, no.  I well understand
20   that.  I've been where you're both at now; the time
21   pressures of preparing for trial.  So I fully
22   understand that, and I'm not casting aspersions, but
23   my sense is that that's part of what's going on
24   here.
25             The other thing is just logistically, I
0006
 1   don't have all the pleadings because, you know, now
 2   the file has gone to the Supreme Court and what they
 3   do is they make a dummy file, a backup file for the
 4   trial, so I only have part of the pleadings and
 5   you're referencing pleadings that I no longer have,
 6   you know, physically have with me.  So we can cross
 7   that bridge; I just can't accommodate it during
 8   trial.  I don't have them to be able to rule today.
 9             Also -- excuse me -- the other thing is
10   that because the allegations you've made in these
11   pretrial motions really go to the core of the case,
12   they're serious, and I need Mr. Killip to have an
13   opportunity to respond and he's working under the
14   gun, too.  But let me just point out the concerns I
15   have.  All right.
16             We need to look at this 180-day petition
17   and look at its adequacy.  I just reviewed it and I
18   do have, Mr. Killip -- I do have Dr. Hanowell's
19   180-day petition, the originals here with me.  I
20   don't know whether there were any other pleadings
21   filed with it as there were with the 90-day
22   petition.  I just don't know that information.
23             But I'm concerned about the adequacy of
24   the petition, both in terms of the specificity of
25   the behavior alleged and the fact that it lists none
0007
 1   under witnesses.  I alluded to this yesterday.  I
 2   think you have ten witnesses on your list; eight of
 3   them have testified before -- eight of them have
 4   testified before and two of them have not.  One I
 5   think you haven't been able to identify at this
 6   point, for understandable reasons.  But it causes me
 7   a concern about her due process right to notice.
 8             The other concern goes to paragraph 2 in
 9   the petition.  This is the handwritten portion
10   provided by Dr. Hanowell, and it says that she is,
11   you know, referring to Ms. Myers, she is unable to
12   provide adequately for her basic needs without
13   ongoing close outpatient follow-up.  And my question
14   is:  I need to hear back from the State about
15   whether ongoing close outpatient follow-up is a less
16   restrictive alternative.
17             I mean, is that telling me that
18   Dr. Hanowell thinks she can get by outside of
19   API with close outpatient follow-up?  And, again, I
20   hate to do this to you during trial, but it's just a
21   function of how this case goes when the statute says
22   you're going to do a jury trial in ten days, so here
23   we are.
24             Mr. Gottstein?
25             MR. GOTTSTEIN:  I didn't raise that, did
0008
 1   I?  I think you caught it.  Isn't that right?
 2             THE COURT:  You didn't raise it?
 3             MR. GOTTSTEIN:  Yeah.
 4             THE COURT:  It's my job.  It's okay.
 5             MR. GOTTSTEIN:  Now, you mentioned -- has
 6   the new kind of the amended petition been filed with
 7   the box?
 8             THE COURT:  I don't have it.
 9             MR. GOTTSTEIN:  You said something that
10   made me think that it had.
11             THE COURT:  No.  I have the original of
12   Dr. Hanoewll's 180-day petition, and what I meant by
13   explaining that is that some of the pleadings you
14   all have filed are in the Supreme Court, but that
15   amended -- the original 180-day petition is here.
16   So I have read his handwritten comments.  Okay.
17             Then on page 4 Mr. Gottstein raises the
18   issue about witnesses not listed in the petition.
19   I've already discussed that.  On page 5 he raises
20   that the petition does not allege that she's a
21   danger to herself or others.  What the 180-day
22   petition alleges is if she continues to exhibit
23   clear evidence of a severe psychotic process, but
24   she's felt to be unable to provide adequately for
25   her basic needs without ongoing close outpatient
0009
 1   follow-up.
 2             I think that the findings I entered at the
 3   90-day level, which are in the Supreme Court file,
 4   although I could print them off my computer if need
 5   be, I think.  I think some of the allegations about
 6   whether she presents a danger are overlapping here
 7   with whether or not she's able to provide for her
 8   daily needs.  But this all goes back to paragraph 2
 9   of the petition where I have a question about
10   whether Dr. Hanowell is raising the issue that she
11   can get by and provide for her basic daily needs if
12   she's got close outpatient follow-up.
13             Is that clear what I'm raising?  Do you
14   understand what I mean?
15             MR. GOTTSTEIN:  I think I do, Your Honor.
16   I'd also like to point out that, of course, the
17   findings of fact of this behavior at the 30- and
18   90-day hearings are admitted automatically, but that
19   says nothing about her current condition and that's
20   what the petition is supposed to do and...
21             THE COURT:  Right.  That's right,
22   Mr. Gottstein.  So I just want to give you fair
23   notice.  These are the issues that are troubling me.
24   Okay.
25             Mr. Gottstein, I have a question for you.
0010
 1   On page 8 of your pretrial motions and brief, you
 2   raise the question of clear and convincing proof
 3   instruction and you're making a point here that's
 4   missing me, to be honest with you.  And that has to
 5   do with the high standard of proof in this case by
 6   clear and convincing evidence, and you seem to be
 7   telling me that you've prepared a jury
 8   instruction -- let's see.  This says, clear and
 9   convincing proof rather than clear and convincing
10   evidence.  Am I misreading this argument at page 8?
11             MR. GOTTSTEIN:  Are you looking at the
12   jury instruction or the --
13             THE COURT:  I'm actually looking at your
14   motion.  We can take this up when we come to it in
15   jury instructions and I guess that's what I'll do,
16   but when we get there, I'm missing the distinction
17   that you're trying to make on page 8 about clear and
18   convincing evidence?
19             MR. GOTTSTEIN:  Your Honor, we've got
20   three standards, I think, that we're talking about;
21   preponderance of the evidence, clear and convincing
22   and beyond a reasonable doubt.  And my suggestion
23   was that sometimes clear and convincing is really
24   contrasted with preponderance of the evidence, so it
25   moves from preponderance to --
0011
 1             THE COURT:  Sure.
 2             MR. GOTTSTEIN:  --  clear and convincing
 3   more than preponderance.  Okay.  Not even
 4   approaching, Your Honor, reasonable doubt.  But in
 5   this case, we've got a situation and it's, you know,
 6   because of the confinement involved, the liberty
 7   interests, the Supreme Court was looking at, are we
 8   going to require beyond a reasonable doubt for this?
 9   They said, no, we're not going to require beyond a
10   reasonable doubt; we're going to require clear and
11   convincing, so something less.  And there's a pretty
12   wide range, I think, of instructions on what clear
13   and convincing means.
14             THE COURT:  Uh-huh.
15             MR. GOTTSTEIN:  And so I pulled the one I
16   found out of whatever it's cited to.
17             THE COURT:  You've cited AM. JUR.
18             MR. GOTTSTEIN:  Yeah.  So I just pulled
19   that one out.  Seemed good.  So that's my argument,
20   if you didn't understand that.
21             THE COURT:  I see.  Now, that's helpful to
22   me and I appreciate your explaining that.  So when
23   we get to jury instructions, we can discuss that and
24   that will be fine.  We're ready to proceed this
25   morning, I hope.  My intention is to go forward
0012
 1   because I have a jury waiting, but I'm not denying
 2   these motions.  I'm going to require that the State
 3   respond and I've given you a heads-up about the
 4   particular areas that I'm concerned about.
 5             MR. KILLIP:  Okay.  Thank you.
 6             MR. GOTTSTEIN:  Your Honor, is there a
 7   deadline for that response?
 8             THE COURT:  Let me think about that.  I
 9   have to just -- I have a scheduling issue that's
10   coming up.  I think what we're going to do in this
11   case, we'll get it worked out by the end of the day.
12   We're going to go forward with the jury trial.
13   Today is Tuesday.  I have you on my calendar
14   tomorrow, Wednesday, we have to break for the
15   four-day weekend -- I mean, three-day weekend, but
16   in this case I think it's going to be a four-day
17   weekend.  In other words, I think I can't have a
18   jury -- this jury trial go forward on Thursday.  I
19   think I have to leapfrog to Monday, and I'll know
20   about that very shortly.
21             MR. KILLIP:  I think I have a colleague
22   who has a trial in front of you on Thursday.
23             THE COURT:  Right.  That's a continuation
24   trial; it's also got a statutory preference and it's
25   been ongoing since March, as you know.  It's a child
0013
 1   in need of aid case.  It's just a confluence of
 2   crises.  So, we've pushed ahead to start this jury
 3   trial.  Because we have to break it anyway, my
 4   inclination is to go forward with that case,
 5   although I'm trying to get those lawyers on the
 6   phone about scheduling and then resume.  That would
 7   sort of kill two birds with one stone, if you will,
 8   because Mr. Gottstein had actually asked for
 9   additional time to prepare his case.
10             MR. GOTTSTEIN:  But now we're moving.
11             THE COURT:  We're trying.
12             MR. GOTTSTEIN:  Can I quickly go over a
13   couple --
14             THE COURT:  Yes, please.  It's just 8:30,
15   so.
16             MR. GOTTSTEIN:  One, I don't have jury
17   instructions -- we mentioned that.  Is there a
18   deadline for them to get jury instructions in?
19             THE COURT:  Mr. Killip, will you have
20   those today?
21             MR. KILLIP:  In all honesty, no.  My
22   support staff is short and when I got back
23   yesterday, not much progress had been made and they
24   couldn't -- and the instructions that I had, I
25   realized did not contained anything that addressed
0014
 1   the meds petition, just --
 2             THE COURT:  Let interrupt you because
 3   you've answered the question and it's 8:30.  What we
 4   really have to have is we've got to have them before
 5   the break, which will probably be a four-day break
 6   or three-day break, so that Mr. Gottstein and I have
 7   an opportunity to digest them and be ready to
 8   prepare the meeting that I have that's on record, of
 9   course, but that I have with the two of you to
10   really hash out the jury instructions doesn't need
11   to happen until early next week.  But I just want
12   you to get yours to me and to Mr. Gottstein before
13   that break so that we can spend that break time, you
14   know, reviewing them and being prepared.
15             MR. KILLIP:  So you're saying by the end
16   of business tomorrow or end of business Thursday?
17             THE COURT:  No, Thursday.
18             MR. KILLIP:  Okay.
19             THE COURT:  Because then Mr. Gottstein and
20   I would have them Friday, Saturday, Sunday to be --
21             MR. KILLIP:  Over the 4th of July weekend,
22   yes.
23             THE COURT:  Right.  That's okay.  We can
24   work over the weekend.  This is a very important
25   matter.  Okay.
0015
 1             MR. GOTTSTEIN:  The other thing, and I
 2   should have mentioned this before, but I was
 3   thinking about these exhibits.  Is there any way to
 4   get an opaque projector?
 5             THE COURT:  Sure.  Do you want an overhead
 6   projector?  Is that what you mean?
 7             MR. GOTTSTEIN:  No, opaque.  One where you
 8   can put actual pieces of paper on and it will --
 9             THE COURT:  Oh.  I think we've got -- I'll
10   ask.  I think we can.
11             MR. GOTTSTEIN:  And I can theoretically
12   make transparencies, but it's an old-fashioned tech
13   thing, low tech --
14             THE COURT:  Yep.
15             MR. GOTTSTEIN:  -- but I think it would
16   really be helpful for people to see what is being
17   looked at.
18             THE COURT:  Okay.  Let me see what I can
19   do for you.
20             MR. GOTTSTEIN:  Also, I noticed yesterday
21   that there were -- I'm talking about -- it was
22   mentioned to me and I didn't really address it --
23   that there were some witnesses in during part of the
24   jury selection at the end.  And I guess at this
25   point I don't really care if witnesses come in.  I
0016
 1   mean, it's --
 2             THE COURT:  Well, I actually tried to keep
 3   an eye out for that.  But, of course, I'm not
 4   necessarily familiar with all who's a witness and
 5   who's not, so...
 6             MR. GOTTSTEIN:  Yeah.  There were some CTC
 7   employees that came in pursuant to a subpoena, so...
 8             THE COURT:  I see.  I didn't realize that.
 9   So let me just be clear.  Are we invoking the
10   exclusionary rule at this point or not, Counsel?
11   It's up to you two.
12             MR. KILLIP:  I think it's a good idea,
13   Your Honor.
14             THE COURT:  All right.  Then we'll invoke
15   it and ask the witnesses to remain outside.  And for
16   Ms. Tussing's benefit, that's so that the witnesses
17   come in the courtroom and testify as much as
18   possible from their own memories and are not
19   influenced by what other witnesses have had to say.
20             MR. GOTTSTEIN:  Okay.  The other thing is
21   just kind of a housekeeping -- I've subpoenaed --
22   we've had subpoenas issued for some API personnel,
23   for docs, and if I could get the documents that they
24   intend to produce ahead of time, then things will go
25   a lot quicker.
0017
 1             THE COURT:  Okay.
 2             MR. GOTTSTEIN:  And, Jeff, do you have any
 3   problem with that?
 4             MR. KILLIP:  I haven't seen some of the
 5   subpoenas that Mr. Gottstein issued.  But, for
 6   example, Rod Adler, the CEO of API, mentioned that
 7   he received a subpoena yesterday from Mr. Gottstein
 8   that required him to bring e-mails that he's
 9   received from me.
10             THE COURT:  We're going to take this up.
11   That's going to be a problem, then.  We're going to
12   have to take that up.  I've now got a jury waiting
13   and it's my cardinal rule that I don't keep them
14   waiting.  So this, I think, can wait, Mr. Gottstein,
15   until the close of the trial day, can it not?
16             MR. GOTTSTEIN:  Okay.  Okay.
17             THE COURT:  Is there anything that we need
18   to take up before openings, because I really try to
19   not keep the jury waiting?
20             MR. GOTTSTEIN:  No, I think we can do it
21   afterwards.
22             THE COURT:  All right.  I appreciate that.
23             Mr. Killip, you'll be ready, then, to
24   begin your opening?  We're going to swear in the
25   jury.  We have another oath to administer and begin
0018
 1   with openings?
 2             MR. KILLIP:  Yes.  I know there was one
 3   thing I was going to mention and I can't even
 4   remember what it was.
 5             Oh, yes.  It's this -- I finally got the
 6   records late yesterday from CTC that we were
 7   seeking.
 8             THE COURT:  Uh-huh.
 9             MR. KILLIP:  And instead of calling Jerry
10   Jenkins and this other unknown person, we would like
11   to call four people that were -- that are referenced
12   in the records, and I don't think the testimony is
13   going to be all that long, but...
14             THE COURT:  When are you calling them?
15   Today or tomorrow?
16             MR. KILLIP:  Depending on how much
17   progress we make today.
18             THE COURT:  Okay.  I'm going to stop you
19   there.  Before you get to them, give me a heads-up
20   so that we can do a sidebar on that issue.  Okay?
21   And in the meantime, could you give those names to
22   Mr. Gottstein so he's got notice of them, please?
23             MR. KILLIP:  Yes.
24             THE COURT:  Madam Clerk, are you ready
25   with your last oath?
0019
 1             In that event, Counsel, I'm going to bring
 2   the jury in.  All set?  Okay.
 3             We'll stand in recess for just one moment
 4   while the jury --
 5             MR. GOTTSTEIN:  No, I think Ms. Humphries
 6   is a witness.
 7             THE COURT:  Okay.  Yeah, that's fine.
 8   Before the jury comes in, then, if you can excuse
 9   yourself, I'd appreciate it.  Thank you so much.
10   We're off record.
11                       (Prospective panel present.)
12             THE COURT:  Mr. Gottstein.
13             MR. GOTTSTEIN:  Yes.  I'd like to
14   introduce my client, Ms. Faith Myers Tussing.  She's
15   a respondent in this matter.
16             THE COURT:  We're back on record.  Both
17   counsel are present, Dr. Hanowell present, Ms. Myers
18   Tussing is present, and the jury is present.
19             Good morning.  It doesn't look much like
20   July 1 out there today, I don't think, but we all
21   managed to make it.
22             Ladies and gentlemen, I am now required to
23   read you some instructions that will outline how the
24   trial will proceed.  All right?
25             First, before you take the jurors' oath, I
0020
 1   must impress upon you the seriousness and importance
 2   of being a member of the jury.  Trial by jury is a
 3   fundamental right in Alaska.  Each case is to be
 4   decided by citizens who are fairly selected, who act
 5   without bias and who render a fair verdict based
 6   upon the evidence presented at trial.  You took one
 7   oath before you were questioned about your
 8   qualifications to be a juror.
 9             Now you're going to take a second oath,
10   and by this oath you swear or affirm that you will
11   decide the case on the evidence presented and also
12   according to the law that I'm going to instruct you
13   on as this case proceeds.  All right?  When you take
14   this oath, you accept serious and important
15   obligations.  They're very important obligations in
16   this case.
17             The jury system depends on the honesty and
18   integrity of each individual juror.  By this oath
19   you affirm that the answers you have given
20   concerning your qualifications to sit on this
21   jury -- those are the answers that you gave
22   yesterday -- and you're swearing that they were
23   complete and correct.  You affirmed that you are
24   truly impartial in this case.  You affirmed that you
25   have told the parties and me everything we should
0021
 1   know about your ability to sit as a juror in this
 2   case.
 3             If you believe that you should not take
 4   this oath or that there is something that we do not
 5   know, now is the time to raise your hand.  Okay.  No
 6   hands.  I will have you give your information to the
 7   parties privately if I need to, so this is your last
 8   opportunity.  No?  All right.  Then the oath is
 9   going to be administered at this time.  Ladies and
10   gentlemen, could you please stand and raise your
11   right hand?
12            (Clerk administers oath to jury.)
13             THE CLERK:  Thank you.  You may be seated.
14             THE COURT:  At this point I read just two
15   instructions to you.  And let me explain:  I'm going
16   to give you instructions about those written tablets
17   that you've got in front of you in a minute, and
18   I'll be telling you that you are entitled to take
19   notes.  But at the moment I'm going to read just two
20   instructions, then we'll have opening statements
21   from both of the attorneys.  All right.  And at the
22   end of the trial you'll receive these written
23   instructions in writing, so don't worry that I'm
24   reading them quickly.  You'll be able to see them in
25   writing.  All right.
0022
 1             First, ladies and gentlemen, you're
 2   instructed that you are not to discuss this case
 3   among yourselves or with anyone else until the very
 4   end of the trial.  In fairness to the parties to
 5   this lawsuit, you must keep an open mind throughout
 6   the trial.  You must not reach your conclusions
 7   until final deliberations, which will be after all
 8   of the evidence is in, after you've heard the
 9   attorneys' closing arguments, and after my
10   instructions to you to follow the law.  During
11   deliberations you should reach your conclusion only
12   after an exchange of views with other members of the
13   jury.
14             Second, do not permit anyone to discuss
15   this case in your presence.  If anyone tries to do
16   so, you must tell him or her to stop.  If they
17   persist, report that fact to the in-court deputy as
18   soon as you're available.  That's April.  All right.
19   You should not, however, discuss with your fellow
20   jurors either the fact that someone tried to talk to
21   you about this case or any other fact that you feel
22   necessary to bring to the attention of the Court.
23   She'll report that to me privately.  All right.
24             Third, although it's a normal tendency to
25   talk to people when frequently around them, please
0023
 1   do not converse in or out of the courtroom with any
 2   of the parties or their attorneys or any witness
 3   during the time you're a juror in this case.  By
 4   this I mean not only do not talk to them about the
 5   case, but do not talk to them at all, even to pass
 6   the time of day.  In no other way can all parties be
 7   assured of the absolute impartiality they're
 8   entitled to expect from you as jurors.
 9             The parties and their attorneys are
10   likewise instructed not to converse with any of you
11   for any reason.  You're not going to talk to them
12   and they're not going to talk to you.  Please do not
13   consider any of them rude or impolite if they see
14   you and they turn away.  They're simply following my
15   instruction.  After this trial is complete, you will
16   have the opportunity, if you wish, to talk to the
17   attorneys about the case.  And I'll tell you more
18   about that at the end of the trial.
19             Finally, do not conduct any investigations
20   outside of the courtroom.  Remember that you are to
21   decide the case only on the evidence presented here.
22   Now that you've taken your oath, you're ready to
23   serve as jurors.  To assist you in your task, I'm
24   going to explain to you the five parts of a trial so
25   that you can understand how this is going to
0024
 1   proceed.
 2             The first part is that the attorneys for
 3   the State and also for Ms. Myers Tussing will make
 4   opening statements, and they're going to tell you
 5   what their case is going to be about.  It's sort of
 6   a table of contents for you.  All right.  Then the
 7   attorneys will make -- excuse me -- I'm still really
 8   struggling with my voice.
 9             The statements that the attorneys make in
10   opening are not evidence.  They're simply the
11   lawyers' views of the case.  They're intended to
12   give you a preview of the evidence only.  The second
13   part of the trial is when the parties present their
14   evidence to you.  The plaintiff may call witnesses
15   and present exhibits followed by the defendant.  The
16   plaintiff may then present rebuttal evidence.
17             The third part after all the evidence has
18   been presented is that the attorneys will make
19   closing arguments to you.  Closing arguments are the
20   attorneys' opportunity to tell you what facts they
21   believe the evidence has proved and to suggest to
22   you the inferences they want you to draw from those
23   facts.  What the attorneys say in closing arguments,
24   just like what they're going to say in a minute in
25   opening, is not evidence.  It's just the middle part
0025
 1   of the trial that's really evidence.
 2             The arguments are solely to present the
 3   parties' contentions on the case.  The plaintiff has
 4   the right to the final opening and closing.
 5             Fourth, at the time of closing I will
 6   instruct you on the law which you must apply to
 7   reach your verdict in the case.
 8             Fifth, after I've instructed you on the
 9   law, and you'll get those instructions in writing,
10   you will retire to deliberate in the jury room to
11   reach your verdict.
12             We're ready to proceed with openings.
13   Mr. Killip.
14             MR. KILLIP:  Yes, Your Honor, thank you.
15             Good morning.  This is a serious case, and
16   I submit that there are two powerful themes before
17   you today.  The first one is life is not always fair
18   and people do not ask to be mentally ill; and the
19   second thing is that mental illness is a very
20   serious thing and it takes an incredible toll on the
21   individual, as you will see, and also on the
22   individual's family.
23             This case is about Ms. Faith Myers
24   Tussing, who's been struggling with a diagnosis of
25   paranoid schizophrenia for over 20 years.  And you
0026
 1   will hear testimony about how this has impacted her
 2   life, how she has really tried very hard to manage
 3   this disease and she's had good times and she's had
 4   not so good times.  You will hear testimony from her
 5   family.
 6             You will hear testimony from her daughter.
 7   And she will tell you that in the early part of this
 8   year she went to visit her mother at her mother's
 9   apartment, and her mother's apartment was a mess,
10   that there was garbage all over.  There were things
11   that were very strange in her apartment.  She had
12   created shrines and offerings and she appeared to be
13   living in an imaginary world.  And Rachel Humphries,
14   her daughter, will tell you that she noticed that in
15   the crawl space of her apartment she had set up a
16   living area, and that that was very, very concerning
17   to the daughter, and it told her daughter and the
18   rest of her family that their mother was not doing
19   well.
20             Her mother will also tell you -- excuse
21   me -- her daughter will also tell you that
22   Ms. Humphries (as soken) Tussing had told her she
23   was not taking her medication.  You will also hear
24   that when Ms. Myers Tussing was doing well, that she
25   has the ability to live independently and she has
0027
 1   all the freedoms that we enjoy and take for granted
 2   most of the time.  But when she's not doing well and
 3   when she's not taking medication, she really
 4   struggles incredibly hard and she loses that ability
 5   to live independently, and also she presents a
 6   danger to herself and sometimes to others.
 7             You will hear testimony from her daughter
 8   that when she went to visit her early in January,
 9   that her mother was unpredictably volatile to the
10   point where her daughter was concerned for her own
11   safety and for the safety of her 18-month-old
12   daughter that was with her at the time.
13             You will hear testimony that from two
14   psychiatrists; Dr. Hanowell, who is the staff
15   treating psychiatrist for Ms. Myers, and he is
16   seated to my left here, but left the room
17   momentarily.  And also Dr. Coletti, who was the
18   former medical director for API, who also oversaw
19   Ms. Myers' treatment over a period of time.
20             They will tell you that they are experts
21   in psychiatry, and that they have specialized
22   knowledge in this area of medicine.  They will tell
23   you of the significant ramifications that can ensue
24   if somebody suffers from a mental illness like
25   paranoid schizophrenia, and how that can severely
0028
 1   compromise one's ability to live and to function
 2   independently, and how that disease can affect
 3   whether one's a risk to themselves or presents a
 4   danger to other people.  They will also tell you
 5   that they have tried to provide appropriate
 6   treatment for Ms. Myers while she's been at the
 7   psychiatric facility, and the daughter will tell you
 8   that based on the concerns that she and the family
 9   had in early February of this year, that they
10   initiated proceedings that have culminated in
11   today's hearing.
12             The psychiatrists will tell you that they
13   have been trying to administer an appropriate
14   treatment plan for Ms. Myers, which includes the
15   careful and appropriate administration of
16   psychotropic medications to address some of these
17   severe symptoms so that she can raise her level of
18   function to the certain baseline minimum so that she
19   can leave the hospital and continue on with her life
20   and continue to live independently.
21             But because they have been unable to do
22   that for the last three months, Ms. Myers remains at
23   the hospital, and the hospital still wants the
24   ability to treat her with medications so that her
25   condition can improve and she can leave the hospital
0029
 1   and go on with her life.  Drs. Hanowell and Coletti
 2   will also testify that since she was admitted in
 3   January -- excuse me -- February 21st of 2003 at
 4   API, not only has her condition not improved, it's
 5   actually gotten worse.  And you will hear testimony
 6   from two nurse assistants that will tell you about
 7   incidents where Ms. Myers -- her behavior has been
 8   volatile and explosive, and they will tell you with
 9   their own observations of her crisis that the
10   hospital was trying to address.
11             Dr. Hanowell and Dr. Coletti will also
12   tell you that in their expert opinion that had they
13   been able to properly and carefully administer
14   psychotropic medication to Ms. Myers early on in her
15   admittance, that she -- her condition would have
16   improved sufficiently a while ago and she would have
17   been able to have left the hospital.
18             Now, one of the legal burdens that the
19   State has is we need to demonstrate that there is no
20   less restrictive treatment option for Ms. Myers.
21   Being essentially locked in a secure psychiatric
22   facility is not -- I don't think that's anybody's
23   first choice for treatment.  It's kind of a last
24   resort.  But what you will hear is that given the
25   options that are available in this community, since
0030
 1   her admission on February 21st, 2003, API has been
 2   consistently a least restrictive option for her.
 3             Now, you will hear testimony from some
 4   individuals from Southcentral Counseling Crisis
 5   Treatment Center, and that qualifies as a less
 6   restrictive treatment facility.  It's not a secure
 7   locked-down psychiatric facility like API is.  And
 8   the hospital has tried extremely hard to
 9   successfully release Ms. Myers Tussing over to the
10   Crisis Treatment Center, to step her down in the
11   level of intervention so that she can successfully
12   gain control of her situation and go on to live an
13   independent and safe life.
14             And you will hear testimony that in early
15   June the effort finally came together.  We finally
16   had an agreement from Ms. Myers and we finally --
17   there were finally conditions of that earlier
18   release that were successfully negotiated between
19   the CTC facility and Ms. Myers and API, and that she
20   went over there on June 11th and it was the
21   hospital's hope that she would stay there and that
22   she would be successful with that less restrictive
23   treatment alternative.
24             And what you will hear is that after
25   approximately two hours, she was brought back.  I
0031
 1   want you to listen carefully to the reasons as to
 2   why she was brought back.  There seems to be some
 3   possible disagreement or different views as to why
 4   she was brought back.  Some individuals from CTC
 5   will say it was CTC's decision to bring her back.
 6   Other CTC individuals may say it was Ms. Myers'
 7   decision to go back, to return to API.  But I think
 8   what you won't hear is that it wasn't API's decision
 9   to bring her back to a more restrictive treatment
10   setting.
11             Finally, you will hear testimony from the
12   court visitor, and her name is Marie Ann Vasser, and
13   it's her job to conduct an independent investigation
14   of Ms. Myers Tussing's competency to either agree or
15   not to degree to medication.  That's her job.  And
16   in connection with that investigation she generates
17   a written report, and you will see that written
18   report and what Ms. Vasser will tell you is that she
19   met with Ms. Myers approximately 60 days ago in
20   connection with these proceedings before, and then
21   she met with Ms. Myers again recently within the
22   last four days.
23             And Ms. Vasser will tell you that in her
24   opinion Ms. Myers is not competent to agree or not
25   to agree to medication.  And Ms. Vasser will tell
0032
 1   you that not only has Ms. Myers not improved since
 2   the last time she saw her about two months ago, but
 3   in her opinion she's gotten worse.  And Ms. Vasser
 4   will tell you that in her opinion she would
 5   recommend the use of -- the careful proper use of
 6   psychotropic medications to help this woman get back
 7   to that level of functioning and she can go on with
 8   her life.
 9             Now, when we were talking to you about --
10   during the jury selection process, I mentioned early
11   on that the State doesn't accuse Ms. Myers of having
12   done anything wrong.  The bottom line is, any one of
13   us could be the subject of these proceedings today.
14   Again, we don't choose to be mentally ill.  We don't
15   fault Ms. Myers for anything.  But the law does
16   provide an avenue for the State to intervene once a
17   situation gets to such a crisis level in order to
18   help that individual, so that individual can
19   function at a certain baseline level, so that
20   individual can leave the facility, function
21   independently, not be a danger to themselves and not
22   be a danger to others.
23             So, at the end of the trial, since --
24   after all the evidence is presented, we will have an
25   opportunity -- the attorneys will have an
0033
 1   opportunity to each step before you again and to
 2   summarize what we think the evidence has proven,
 3   what we think the evidence has shown.  Since the
 4   State has the burden of proof in this case, we have
 5   an opportunity to talk to you twice.  We have an
 6   opportunity for what's known as rebuttal closing,
 7   for the final comment on what we think the evidence
 8   has shown.  At that time we will ask you to look
 9   carefully at the evidence, to consider carefully the
10   evidence, and to return a verdict in favor of the
11   State, because in our view you will have had clear
12   and convincing evidence on each part of each one of
13   those petitions.
14             Thank you very much.
15             THE COURT:  Thank you, Mr. Killip.
16             Mr. Gottstein.
17             MR. GOTTSTEIN:  Thank you.
18             Gentlemen and ladies of the jury.  One
19   thing that strikes me about what we're about here
20   today is how important you all are to what's going
21   on in this process, because the jury is really the
22   protection for people, for anybody in Ms. Myers'
23   situation, from unwanted government intrusion into
24   their lives.  The United States Constitution
25   protects, you know, some liberties.  We like to
0034
 1   think that we live in a free society, and here we
 2   have two very, very important liberty interests at
 3   stake.
 4             One is locking someone up.  I mean, that's
 5   what being confined to a mental hospital means and
 6   we'll talk a little bit more about, you know, what
 7   they want to do with that.  I mean, they say it's in
 8   their best interests, but really -- and, in fact,
 9   they have to prove that it's in their best interests
10   to do that, and that's one of the elements.  Best
11   interest might not be the exact word, but that's
12   basically the justification for locking someone up
13   for a mental illness.  It's one of them.
14             And remember that she hasn't committed any
15   crime and people who've committed -- the Judge could
16   know a lot better than me -- but, you know, what
17   you'd think were relatively serious crimes would not
18   really realistically be facing 180 days.  She's
19   already been in 120 days.  And so they really have a
20   strong burden to show why they should be allowed to
21   do that.  Okay.  That's just on the locking up part.
22             Now the forced medication part is -- well,
23   let's -- in some ways -- let's ask the question:  Is
24   forced medication even a more important element?  Is
25   that a more important right than being locked up?
0035
 1   Because what the forced medication does is it
 2   changes -- and we'll have testimony on this -- the
 3   very way someone thinks.  Basically there will be
 4   some testimony about what it does, but it dampens
 5   down thinking so that other people like them better,
 6   less concerned about them, that sort of thing, just
 7   by clamping down on their brain.  We'll have
 8   testimony to that, I think.  Again, I'm not giving
 9   testimony.  I'm just telling you what I think we're
10   going to show here.  Okay.
11             The other thing that it does is that it
12   causes -- it's toxic.  There's no question about
13   that; it's toxic.  There's also no question that it
14   causes permanent brain damage over time,
15   particularly long-term use.  So, is that a more
16   important liberty interest to try and be free from
17   that than the confinement to the mental hospital?
18   Well, Faith has got that -- had that decision for
19   the last 120 days, because you've heard testimony,
20   if she would only take the medication, she'd get
21   out.
22             THE COURT:  Counsel, would you both
23   approach, please?
24                       (Begin bench conference.)
25             THE COURT:  Mr. Gottstein, they haven't
0036
 1   heard any testimony and you're making references to
 2   what's going to be admitted in this trial that I'm
 3   not so sure it's going to be admitted, so I'm just
 4   concerned for you, that you're making promises to
 5   the jury that you may not be able to keep.  I just
 6   want to caution you about that.  I haven't ruled on
 7   the admissibility of these issues, so I'm concerned
 8   that you're telling the jury they're going to see
 9   evidence they don't yet know if they're going to
10   see.  I'm just wanting to caution you.
11             MR. GOTTSTEIN:  I appreciate that, Your
12   Honor.
13                       (End bench conference.)
14             THE COURT:  Pardon my interruption.
15             MR. GOTTSTEIN:  Okay.  The -- to get back
16   to that, as I said, some people might even think
17   that they're just crazy for not taking the
18   medication and just getting out.  That alone proves
19   that she's crazy.  Some people might feel that way.
20   But she's made the choice that she's made, which is
21   to really fight the medication for the reasons that
22   she will articulate on the stand before you.
23             And then it will be up to you to decide
24   whether or not, you know, she's competent to make
25   that decision or the actual converse is true, is has
0037
 1   the State proven by clear and convincing evidence
 2   that she's not confident -- not competent to make
 3   that decision, that it's, you know, so crazy for
 4   reasons that they should be allowed to make her take
 5   those medications even though she doesn't want to.
 6   Okay.
 7             One of the things -- one of the
 8   instructions that the Judge will give you before you
 9   go is about, you know, how to view evidence and
10   stuff like that.  One of them is about expert
11   witnesses, and the Judge will instruct you about
12   things that nonexpert witnesses you look at and then
13   she'll instruct you about what expert witnesses and
14   what you'd call additional -- additional things
15   you'd look at with respect to expert testimony.
16             And I would really urge you to pay careful
17   attention to that, because one of the things that --
18   and use your common sense, you know.  I mean, the
19   instructions have a lot of common sense in there,
20   too, like what are people's motives for saying
21   things and, you know, that kind of thing.  Because
22   of the -- well, at this point I kind of wanted to go
23   through -- and I think it would be helpful to you.
24             When we started yesterday, I picked out
25   pieces of it -- but what I think that the State is
0038
 1   required to prove each element in order to get a
 2   verdict.  And there are really two different cases.
 3   There's a commitment case and there's the
 4   forced-medication case, and I think it's true that
 5   if you don't do the commitment, you can't do the
 6   forced medication.  Okay.  So, they have to prove by
 7   a preponderance of the -- by clear and convincing
 8   evidence -- oops, that's a big mistake -- that Faith
 9   Myers is mentally ill.
10             To me, frankly, there's some confusion in
11   my mind about what they're really charging her with
12   in terms of danger to self or others.  But if they
13   are, they have to prove by clear and convincing
14   evidence that Faith poses a substantial risk of
15   bodily harm, substantial risk of bodily harm to
16   herself as manifested by recent behavior, causing,
17   attempting or threatening that harm.  Okay.  Now,
18   what it is you've got -- they have to prove mentally
19   ill, and then there's kind of a one, two, three or
20   four, so this is one of the four.
21             Predicting, you know, predicting when
22   someone's going to be violent is a pretty difficult
23   thing, and you'll hear -- maybe hear some testimony
24   on that.  The other one is:  Has the State proven by
25   clear and convincing evidence that Faith poses a
0039
 1   substantial risk of bodily harm to others as
 2   manifested by recent behavior, causing, attempting
 3   or threatening harm, and is likely in the near
 4   future to cause physical injury, physical abuse or
 5   substantial property damage to another?
 6             The other one is:  Has the petitioner by
 7   clear and convincing evidence proven that Faith
 8   manifests a current intent to carry out plans of
 9   serious harm to that person's self?
10             Now, those three, I'm not even really sure
11   if they're in the case.  But if it is, that's what
12   they have to do.  You will hear -- okay, the fifth
13   one.  This one I know is in the case.  Has the
14   petitioner proven by clear and convincing evidence
15   that as a result of her mental illness, Faith is in
16   danger of physical harm arising from such complete
17   neglect of basic needs for food, clothing, shelter
18   or personal safety as to render serious accident,
19   illness or death highly probable?  They have to
20   prove by clear and convincing evidence that's highly
21   probable.
22             Now, they will have two doctors, two
23   psychiatrists testify on these issues, and we will
24   have two psychiatrists testify on these issues.  And
25   it will be your job to weigh the relative
0040
 1   credibility of those witnesses and, again, if it's a
 2   close call, it's got to be a verdict for the
 3   respondent.
 4             Jeff mentioned the issue of whether they
 5   had considered but not found any less restrictive
 6   alternative.  That's one of the things they have to
 7   prove by clear and convincing evidence.
 8             Here's another one that is very important.
 9   They have to prove that Faith Myers' mental
10   condition could be improved by the course of
11   treatment it seeks.  And we will be proffering
12   evidence on that issue, proffering testimony by
13   psychiatrists that are very knowledgeable about --
14   well, you can decide on those, what they are about
15   this issue.
16             Has she been advised of the need for but
17   has not accepted voluntary treatment?  Have they
18   proven by clear and convincing evidence that there
19   is no viable less restrictive alternative?  And I
20   think that's kind of unclear where the State is even
21   alleging on that at this point.  And then if there
22   is such a less restrictive alternative, but did
23   Faith refuse to go there by clear and convincing
24   evidence?  And that's kind of, you know -- Jeff
25   mentioned this incident at CTC and that's something
0041
 1   too, you know, that's going to come up, and the jury
 2   is going to have to try and sort that out.  But I
 3   will say that, you know, multiple tries are not at
 4   all unusual to get people out.
 5             And then another one that they have to
 6   prove, you know, except for the one, two, three or
 7   four one, they have to prove each one of these by
 8   clear and convincing evidence.  Has the State proven
 9   by clear and convincing evidence that Faith has
10   received appropriate and adequate care while she's
11   been there?  And the reason why I'm going through
12   this right now -- maybe it seems weird, I don't
13   know -- is because I want you to try and keep these
14   in your mind when you hear the testimony.
15             Because I think then it's easier to know
16   what the testimony really relates to and how it
17   relates to your decision if, you know, you can put
18   the testimony in context.  And that's why I'm
19   probably seemingly taking an inordinate amount of
20   time going through that.  So that's the commitment
21   process, and they've got to find all of the --
22   they've got to do all of these by clear and
23   convincing and one of these other ones, or you're
24   supposed to return a verdict for the respondent.
25   Okay.
0042
 1             Now, on the fourth, medication, again,
 2   this is a very important right, that people have
 3   their right to be -- to have control over their
 4   body.  I mean, it's a real flashpoint, and another
 5   area such as reproductive rights.  You know, I don't
 6   know how people come out about it, but obviously
 7   it's something that is a very important right, for
 8   someone to be able to say, no, I don't want you to
 9   inject something in me that's going to do something
10   to me.
11             Someone just yesterday was telling me
12   about a friend who was diagnosed with pancreatic
13   cancer and they talked about it, and he was a
14   doctor, and he died -- I mean, he said, well, how am
15   I going to die?  And the doctor said, what do you
16   mean, how are you going to die?  And he said, how am
17   I going to die?  And so he told him and then they
18   talked about the treatment options, and I think a
19   lot of you know what cancer treatment can be, how,
20   you know, like a drawn-out awful death.  And he
21   decided not to take that medicine.  Six weeks later
22   with his family and friends by his side he passed
23   away, and that was his choice.
24             I have a friend who did the other choice
25   and two-and-a-half years after he should have been
0043
 1   dead he's fighting like heck and he might make it.
 2   So, choice.  I think that's a very important thing
 3   in our country, that people be allowed choice.
 4             And what the forced medication petition is
 5   about is should the State be allowed to take Faith's
 6   choice about these very powerful medicines against
 7   her will?  That's the question.  And the answer to
 8   that comes down -- whether or not she's what's
 9   called competent.  Is she sane enough?  Is she
10   rational enough to make that decision?  That's the
11   essence of it.  And that's what you have to decide.
12             And we'll have them saying, no, our other
13   psychiatrists saying, yes, and Faith getting up on
14   the stand and telling you about why it is she
15   doesn't want to take them.  Okay.
16             The other thing is that there are some
17   other technical requirements that they have to do
18   and that are really in issue here.  One is:  Has the
19   State proven that it has given Faith information
20   that is necessary for informed consent in a manner
21   that ensures possible comprehension by her, in a
22   manner that ensures maximum possible comprehension
23   by her?  So that's one thing they have to prove by
24   clear and convincing evidence.
25             Same thing about an explanation of her
0044
 1   diagnosis, prognosis, et cetera.  I won't read the
 2   whole thing.  But they have to really tell her, you
 3   know, what would happen with or without medication.
 4   And I think you will get from the testimony that one
 5   of the problems here is there's a pretty wide
 6   disagreement about what happens with or without
 7   testimony and you'll get some expert testimony on
 8   that, I think.
 9             A couple other -- there's some other
10   things, you'll get instructions on it.  I don't
11   think I have to necessarily read all of them.  I
12   think you get the idea that each one of those has to
13   be proven by clear and convincing evidence.  This is
14   one that is, I think, maybe important and fairly at
15   issue is that they have to prove by clear and
16   convincing evidence that they have given Faith Myers
17   information about alternative treatment, their
18   risks, side effects and benefits, including the risk
19   of nontreatment.  Okay.
20             They have to prove that they have given
21   her a statement describing her right to give or
22   withhold consent to the administration and they can
23   go to court to override that.  And if Faith has
24   previously expressed opinions about medication,
25   including wishes that may have been expressed in a
0045
 1   power of attorney, living will or oral statements,
 2   including conversations with relatives and friends,
 3   that she does not wish to take the medication
 4   proposed by petitioner, has the petitioner proven by
 5   clear and convincing evidence that she was
 6   incompetent at that time?  In other words, if at a
 7   time when there was no question that she was
 8   competent, she said, I don't want to take these
 9   drugs, that's what is supposed to be honored.  Okay.
10             I think I'm losing you guys.  I want to
11   say a couple other things.  One is, you'll hear
12   testimony from, I think from the State basically,
13   that Faith is hopelessly going to be this way and is
14   going to have to do this for the rest of her life,
15   and that's really what she's resisting.  She wants
16   to get better.  Their course of treatment, I think
17   they will testify, will kind of maintain her at a
18   certain level.  And we, I hope, I expect to present
19   testimony that she has a real chance if she can stay
20   off the medications and do some work other ways to
21   really substantially get better.  Okay.
22             I think that the evidence will also show
23   that the hospital essentially only considers use of
24   medication, at least in Faith's case, and that
25   that's -- that's put this huge burden on Faith, that
0046
 1   there are -- and I think the evidence will show that
 2   there really are other, other sources of treatment
 3   that have a good chance of benefiting her.  And that
 4   this loggerheads that Faith has with her treatment
 5   team, with her doctors, just by itself is very bad
 6   for the getting-better process.
 7             So, I think you'll find all this very
 8   interesting, and I do hope and expect that you'll
 9   take your duties as jurors very, very seriously
10   because of the very important liberty interests that
11   are at stake here.
12             Thank you.
13             THE COURT:  Thank you, Mr. Gottstein.  All
14   right.  Ladies and gentlemen, you've now heard
15   opening statements, and we're going to proceed with
16   part two of the trial where you'll hear the evidence
17   in this case.
18             There are four sources of evidence, and if
19   you want to take notes, you may, but you're not
20   required to.  Okay.  The first is going to be sworn
21   testimony of witnesses, witnesses on the witness
22   stand, there may be one or two telephonically, but
23   you'll know that they're sworn.  You'll hear us
24   administering the oath.  That's evidence.  All
25   right.  Two is exhibits that are admitted into
0047
 1   evidence.
 2             Three is facts that are admitted to or
 3   stipulated to by the attorneys, and the fourth kind
 4   of evidence is any fact that I take judicial notice
 5   of.  If I take judicial notice of a fact, you'll
 6   know it.  I'll signpost that for you very clearly.
 7   All right.
 8             The evidence is presented to you in this
 9   case, not to me, because it is the jury's exclusive
10   duty to decide what facts of this case have been
11   proven and to apply the appropriate law to those
12   facts.  It's my job as the judge in this trial to
13   explain to you what law must be applied in this
14   case.
15             During the trial, I may ask questions of
16   the witnesses called by the parties.  My questions
17   are not more or less important than the questions
18   that might be asked by the attorneys in this case.
19   You should consider the answers to my questions just
20   as you would consider the answers to the questions
21   asked by the attorneys.  Do not assume that because
22   I ask a question I have any opinion about the case;
23   don't make any inference from that at all.
24             Nothing I do or say in this trial is
25   intended to indicate what I think the facts are or
0048
 1   that I believe or disbelieve any witness.  If I do
 2   anything or say anything that seems to indicate that
 3   to you, you should disregard it and make up your own
 4   mind.  It is the jury's job and not mine to evaluate
 5   the evidence and to decide what evidence to believe
 6   and what weight to give each piece of evidence that
 7   you hear.
 8             Every person who testifies under oath is a
 9   witness.  You as jurors are the sole judges of the
10   credibility of the witnesses.  In deciding whether
11   to believe a witness and how much weight to give a
12   witnesses' testimony, you may consider anything that
13   reasonably helps you evaluate the testimony.
14             Among the things that you might want to
15   consider are the following:  The witnesses'
16   appearance, attitude and behavior on the stand, and
17   the way the witness testifies; the witness' age,
18   intelligence or experience; the witness' opportunity
19   and ability to see or hear things that the witness
20   testifies about; the accuracy of the witness'
21   testimony; any motive the witness might have to not
22   tell the truth; any interest the witness has in the
23   outcome of this case; any bias of the witness; any
24   opinion or reputation evidence about the witness'
25   truthfulness; any prior convictions of the witness
0049
 1   which relate to honesty or veracity; the consistency
 2   of the witness' testimony, and whether it's
 3   supported or contradicted by other evidence that you
 4   hear in the case.
 5             You should bear in mind that
 6   inconsistencies and contradictions in a witness'
 7   testimony or between one witness' testimony and
 8   another witness' testimony does not necessarily mean
 9   that someone is lying to you or that you should
10   disbelieve the witness.  It's not uncommon for
11   people to forget or to remember things incorrectly,
12   and this may explain some inconsistencies and
13   contradictions.
14             It's not uncommon for two honest people to
15   witness the same event and see or hear things
16   differently.  It may be helpful for you to evaluate
17   the inconsistencies and contradictions to consider
18   whether they relate to important or to unimportant
19   facts.
20             At this point I only have a couple more
21   instructions, and then we'll get into the evidence
22   of the case.
23             The testimony of one witness worthy of
24   belief is sufficient to prove any fact.  This does
25   not mean that you're at liberty to disregard the
0050
 1   testimony of the greater number of witnesses merely
 2   from caprice or prejudice or from a desire to favor
 3   one side against the other.  It does mean that you
 4   are not to decide an issue by the simple process of
 5   counting the number of witnesses who have testified
 6   on the opposing sides.  The final test is not the
 7   relative number of witnesses, but the relative
 8   convincing force of the evidence.
 9             Expert witnesses will testify in this case
10   because of their special training, education, skills
11   or knowledge.  Their testimony may be of help to
12   you.  In deciding whether to believe an expert and
13   how much weight to give the expert's testimony, you
14   should consider the same things that you would when
15   you consider any other fact witness.  That's the
16   list that I just read to you.
17             In addition, you should consider the
18   following things:  One, the special qualifications
19   of the expert.  Two, the expert's knowledge of the
20   subject matter involved in this case, how the expert
21   got the information he or she testifies about, the
22   nature of the facts upon which the expert's opinion
23   is based, and the clarity of the expert's testimony.
24             As with other witnesses, you must decide
25   whether or not to believe an expert and how much
0051
 1   weight to give the expert's testimony.  You may
 2   believe all of it, part of it or none of the
 3   testimony of an expert witness.  You do not need to
 4   believe an expert even if the testimony is
 5   uncontradicted.  However, you should act reasonably
 6   in deciding whether you believe an expert witness
 7   and how much weight to give the expert witness'
 8   testimony.
 9             You'll recall that there are also exhibits
10   to consider as evidence.  In deciding how much
11   weight to give any exhibit, you should examine its
12   contents -- you'll have them with you in the jury
13   room -- examine the contents and see how the exhibit
14   relates to other evidence in the case.  The fact
15   that an exhibit may be given to you for your
16   examination does not mean that it's entitled to more
17   weight than oral testimony.
18             Some jurors prefer to take notes as
19   evidence is presented; other jurors prefer not to.
20   It's up to you to decide individually whether or not
21   you want to take notes.  Let me just be sure.  Do
22   you all have notepads and pens on your chairs?
23   Okay.  You do.  Great.  You may use them if you
24   choose to do so.  Do not let notetaking interfere
25   with your consideration of the evidence, however.
0052
 1             Each time you're excused from the
 2   courtroom the notes need to remain in the courtroom
 3   on your individual chairs and just turn your
 4   notepads upside down, please.  They'll be returned
 5   to you when you come back into the courtroom.  When
 6   you begin your deliberations, you may take your
 7   notes into the jury room with you, but one juror's
 8   notes are not to be given more weight in your
 9   deliberations than the memory of another juror who
10   elected not to take notes.  One more.
11             There are rules of law that prevent some
12   types of information from being presented as
13   evidence in a court of law.  That's why objections
14   may be made to certain questions of counsel, to
15   answers of witnesses, or to exhibits.  You may
16   wonder why some evidence must be excluded and,
17   frankly, it would take me too long to explain all of
18   that to you in detail.
19             But we usually sum this up by saying the
20   following things:  And that is that the evidence is
21   really designed to do two things.  First, the
22   evidence rules are to try to help you focus on
23   important and reliable evidence by excluding
24   irrelevant or unreliable information from your
25   consideration.
0053
 1             Second, the rules are intended to help you
 2   decide the case objectively, without being swayed by
 3   information that might cause you to respond in an
 4   emotional way.  You should not be influenced by the
 5   fact that objections are made to questions or to the
 6   presentation of evidence or that requests are made
 7   that I take certain actions, nor should you be
 8   influenced by the number of objections or requests
 9   that are made by the attorneys.  Objections or
10   requests are not evidence.
11             You should draw no conclusions about the
12   case from my response to them.  My rulings on these
13   matters will be determined by the law and will not
14   reflect anything about the merits of the case or my
15   views of the evidence or the witnesses.  So, please
16   remember that my rulings that exclude evidence or
17   that certain questions must not be asked or answered
18   are designed to help you decide the case fairly.
19   Okay.
20             I'm just about to ask Mr. Killip to call
21   his first witness.  Would you like to stretch,
22   perhaps, maybe for just a minute?  All right.  Why
23   don't we take a quick break.  You can use the rest
24   room and then we'll come right back.  Okay?
25             Off record.
0054
 1                       (Break taken.)
 2                       (Prospective panel absent.)
 3             THE COURT:  We're back on record.
 4             Mr. Gottstein, Mr. Killip has just raised
 5   an issue in your presence and in mine off record in
 6   chambers, and we want to go forward with it.  Your
 7   client, the record should reflect, is in the
 8   courtroom as well, the jury is not.  And I don't
 9   know whether or not you want to take this issue up
10   on an open proceeding or a closed proceeding.  We're
11   in a bit of a hybrid situation.  These are usually
12   closed proceedings, but Ms. Tussing has requested
13   the right to have a public trial.
14             MR. GOTTSTEIN:  We'll have it open, Your
15   Honor.
16             THE COURT:  All right.  That's fine.
17             Mr. Killip, you want to go forward with
18   what you needed to inform me of?
19             MR. KILLIP:  Yes, Your Honor.  Thank you,
20   Your Honor.
21             Yeah, just before opening statements
22   began, Dr. Hanowell informed me that, I believe he
23   said last night, there was a situation at the
24   hospital that required emergency medication of
25   Ms. Myers Tussing and Mr. -- Dr. Hanowell had
0055
 1   indicated what she had assaulted somebody at the
 2   hospital.  And although I don't have the statute in
 3   front of me, it's my understanding that she has the
 4   right to a trial free of medication, being
 5   medication free, and so that's where --
 6             THE COURT:  Was she medicated after this
 7   alleged assault?
 8             MR. KILLIP:  Yes.  Emergency medication,
 9   was my understanding.
10             THE COURT:  Dr. Hanowell is present in the
11   courtroom.  Mr. Gottstein, we can put him under oath
12   if you want, but what I need at this point is just a
13   proffer.  I don't know what medication was
14   administered or how it affects Ms. Tussing or how
15   long is it going to be in her system.  What can you
16   tell me about that, please?
17             DR. HANOWELL:  Yes, Your Honor.  Ms. Myers
18   Tussing received intramuscular Haldol,
19   five milligrams, and intramuscular Ativan,
20   two milligrams.
21             MR. GOTTSTEIN:  Haldol and -- excuse me --
22   and what?
23             THE COURT:  Ativan.
24             MR. GOTTSTEIN:  Ativan.
25             DR. HANOWELL:  And those should -- I mean,
0056
 1   there may be some lingering effects today for some
 2   folks.  If we wanted to be extra careful about any
 3   lingering effects, you know, probably we could say
 4   Thursday would be when it would be fully out of her
 5   system and shouldn't have any potential for
 6   lingering effects.
 7             THE COURT:  I appreciate you letting me
 8   know that.
 9             Mr. Gottstein, do you want to ask
10   additional questions?
11             MR. GOTTSTEIN:  No, but I'd like to
12   actually have Ms. Myers testify as to what happened
13   and then we've got a request that we'd like to make.
14             THE COURT:  I think I didn't hear you.
15   You want Ms. Myers Tussing to testify about what?
16             MR. GOTTSTEIN:  About what happened.
17             THE COURT:  Oh, what happened.
18             MR. GOTTSTEIN:  And then, just to let you
19   know what we're thinking is, you know, we talked
20   about that less restrictive order yesterday and the
21   situation with that and it's kind of at issue here.
22   But she would like authorization to go into
23   someplace where she's got maybe 24-hour personal
24   care assistance or something like that.  She calls
25   it hospice.
0057
 1             MS. MYERS TUSSING:  Respite or hospice.
 2             MR. GOTTSTEIN:  Respite.  She -- because
 3   of her experience with CTC, she's really reluctant
 4   to go back there.  We talked about maybe Providence,
 5   which really seems to make a lot of sense for a
 6   short time and so --
 7             MS. MYERS TUSSING:  No.  I want personal
 8   home care --
 9             THE COURT:  Okay.  Here's what we're going
10   to do.  I think --
11             MS. MYERS TUSSING:  -- so I don't have to
12   deal with strangers.
13             THE COURT:  Hang on, please.  I have a
14   jury waiting.  I think there is room to do what
15   you're suggesting, but I need to make a decision
16   about whether we're going forward with the trial and
17   when.  I need to make that decision first, please,
18   before -- it sounds like you want to have a
19   discussion or perhaps even a hearing about whether
20   there's a less restrictive treatment available
21   alternative -- alternative available to Ms. Myers
22   Tussing now.  But before we get there, I need to
23   know what to do with the jury and whether we're
24   going forward.
25             MR. GOTTSTEIN:  Right.  And we don't --
0058
 1             THE COURT:  Dr. Hanowell's position, his
 2   proffer is that this won't be fully out of her
 3   system until Thursday.  She could proceed Thursday?
 4             DR. HANOWELL:  Yes, Your Honor.
 5             THE COURT:  All right.  Today is Tuesday.
 6             MS. MYERS TUSSING:  Ma'am, I believe I
 7   could proceed today to witness.
 8             THE COURT:  The question is whether or not
 9   you want to proceed today.  After consulting with
10   your attorney, that's what I really need to know.
11   Mr. Gottstein.
12             MS. MYERS TUSSING:  I want to proceed
13   today because I want something done so I don't ever
14   have to go back to API today and continue to suffer
15   the same thing that will happen over and over.  As I
16   tell you what has been happening, you will see,
17   ma'am, that it happens every time that I go to
18   court.
19             THE COURT:  Let me explain to you
20   completely how I intend to proceed today.  Okay.
21   The first question is whether you want to go forward
22   with your trial understanding you have medication in
23   your system.  You don't need to do that if you don't
24   want to.
25             MS. MYERS TUSSING:  I understand, but...
0059
 1             THE COURT:  Okay.  Hang on.  If you don't
 2   go forward with the trial today, I'll make a
 3   decision about what to do about the jury, and then
 4   today we will take up the question about whether
 5   there's a less restrictive alternative available for
 6   you.  I mean, I will have that discussion today.
 7             MS. MYERS TUSSING:  You mean if we put off
 8   the other jury trial, then we will talk about a less
 9   restrictive, so that I don't have to go back to the
10   indignity of what they did to me last night at API?
11   Where I did not assault anybody, but I was
12   assaulted.
13             THE COURT:  Okay.  The answer to your
14   question is, yes, we will talk about it today.  I
15   don't know what I'm going to hear.  I don't know
16   whether --
17             MS. MYERS TUSSING:  Will something be done
18   to arrange for me either to have a witness
19   protection status at API or some kind of status
20   where I am protected like in a private respite home?
21   Because this is a matter that people have been
22   terrorizing and hurting and violating my rights.
23             THE COURT:  What I can tell you is that we
24   will talk about it today.  I'll hear what you have
25   to say, what Mr. Gottstein has to say, what
0060
 1   Dr. Hanowell has to say, Mr. Killip, and then we'll
 2   make a decision about whether there is a less
 3   restrictive alternative available to you.  I'm not
 4   promising you that I'm going to find that there is
 5   one.  I don't know yet because I haven't heard the
 6   facts yet.  What I need to know first is whether you
 7   want to go forward with the trial or whether you'd
 8   like to put it off until you have the medication out
 9   of your system.
10             MS. MYERS TUSSING:  I would like to today
11   talk about the less restrictive alternative because
12   I feel it's a moot point about the medication they
13   give, which has not done anything more than drag me
14   down to 132 pounds from 196 pounds and which has
15   made me into a quivering mass of neurosis because of
16   their abuse.
17             THE COURT:  Mr. Killip, do you have any
18   objection to my going forward to discuss less
19   restrictive alternatives today?
20             MR. KILLIP:  No, I don't, Your Honor.
21             THE COURT:  I think it's the appropriate
22   way to proceed.  I do need to talk to both attorneys
23   about this jury.  We haven't even started with the
24   first witness yet.  My inclination is to say that
25   what I need to do is to discharge this jury, and if
0061
 1   we go forward with the trial, we'll have to resume
 2   jury selection -- repeat jury selection.  Counsel?
 3             The only alternative is I could ask these
 4   people whether they're able to come back Thursday or
 5   Monday.  I don't know what their schedules are.
 6   When we went through jury selection, I told them
 7   this was going to take another four days, I thought.
 8   But if we're starting the first witness on Thursday,
 9   of course we have to figure out whether these people
10   are available to be here.
11             What are your druthers on that,
12   Mr. Killip?
13             MR. KILLIP:  So, what you're proposing is
14   to discharge the jury so that we can talk about less
15   restrictive alternatives now?
16             THE COURT:  Well, yes, except the question
17   is -- I want to make sure Mr. Gottstein's hearing
18   this.  The question is whether or not we're telling
19   the jury to go home and that they're not going to
20   resume as our jury, because there's such a delay so
21   that when we come back, we would have to do jury
22   selection again, or whether we're asking them
23   whether they're available to start a four-day trial
24   understanding we can't start until Thursday.
25             MR. KILLIP:  I guess I just wanted to
0062
 1   understand the need to let them go is because the
 2   Court feels that we need all day to discuss the less
 3   restrictive?
 4             THE COURT:  No.  I think the need to let
 5   them go is that Ms. Myers has medication in her
 6   system and Dr. Hanowell says it won't be out of her
 7   system until Thursday and my understanding is that
 8   she isn't waiving.  Did I misunderstand that?
 9             MR. KILLIP:  Okay.  That's what I
10   misunderstood.  I thought she was waiving that,
11   but...
12             THE COURT:  Oh.  Mr. Gottstein, please
13   clarify.  Have I messed that up?
14             MR. GOTTSTEIN:  No, you have not, Your
15   Honor.
16             THE COURT:  I think she said not.
17             MR. KILLIP:  Okay.
18             THE COURT:  So, understanding that, now I
19   realize why we're miscommunicating.  We have to
20   decide whether or not we're going to repeat jury
21   selection if we resume this trial, and I want that
22   decided now.
23             MR. GOTTSTEIN:  My preference, Your Honor,
24   would be to see if we can't keep the jury that we,
25   you know, so laboriously built -- or selected, if we
0063
 1   can.  Maybe, I mean, I don't know if we could start
 2   them --
 3             THE COURT:  Mr. Killip --
 4             MR. KILLIP:  Uh-huh.
 5             THE COURT:  -- is that your preference as
 6   well?  That's all I need.
 7             MR. KILLIP:  Yes, Your Honor.
 8             THE COURT:  All right.  Then what I'm
 9   going to do is request that both attorneys go with
10   me to the jury room, and we're only going to ask the
11   question about whether or not their schedules allow
12   it.  And if their schedules don't allow it, we're
13   doing jury selection again because we will have
14   inconvenienced them greatly.  Well, because we will
15   have inconvenienced them greatly and because we
16   haven't really even started the evidence here in
17   this case.  All right.  And weighing those factors
18   together, I think that's the way to go.
19             Mr. Gottstein, do you disagree?
20             MR. GOTTSTEIN:  No, Your Honor.
21             THE COURT:  Mr. Killip?
22             MR. KILLIP:  That's fine, Your Honor.
23             THE COURT:  All right.  That's what we'll
24   do.  We'll be off record.
25                       (Jury present.)
0064
 1             THE COURT:  All right.  We're back on
 2   record and the record should reflect that the jury
 3   has returned to their jury box all in their proper
 4   chairs.  Counsel are both present in the courtroom;
 5   Dr. Hanowell is present and Ms. Myers Tussing is
 6   present as well.
 7             I have explained to the jury in the
 8   presence of both counsel that it's not possible to
 9   go forward today with the trial, and we won't be
10   able to resume these proceedings, in part, because
11   the lawyers can't go forward for a reason I'm not
12   able to disclose to you and, in part, because my
13   calendar has a problem for one of the days and so
14   we're not able to resume this jury trial until
15   Monday.
16             I asked all of you to please consider
17   whether your calendars allow you to go forward; in
18   other words, to start that much later because it's a
19   great inconvenience to you, and I've given you my
20   business card in front of all the attorneys and have
21   asked that you confer with your calendars and simply
22   phone back and let me know.  I think there are just
23   two of you that think it will be a problem, is that
24   right?  Juror No. 1 and Juror No. 4, right, are
25   going to check with their employers and then phone
0065
 1   back to my chambers?  They'll speak either to my
 2   assistant or to my law clerk to let me know whether
 3   they have a problem going forward, which I
 4   appreciate very much.
 5             I need to advise you that this has been a
 6   public trial and so there are other folks in the
 7   courtroom who have been present, and I'm admonishing
 8   the jurors that you ought not read the newspaper
 9   between now and the end of this trial because I
10   don't know, frankly, whether or not there's been a
11   newspaper reporter present, whether there may be a
12   story that appears in a newspaper or on the news
13   regarding this trial or the reasons for delaying it.
14             So I'll ask that you not read the
15   newspaper and, of course, you must not talk to
16   anybody about this trial, not to each other and not
17   to anyone whom you might encounter.  And you see
18   that there are some folks in the back of the
19   courtroom here who have been present.  So I'll ask
20   all of you not to speak to any members of the jury
21   and, in fact, I'll require it.
22             Counsel, is there anything I'm forgetting?
23   Mr. Killip?
24             MR. KILLIP:  No, Your Honor.
25             THE COURT:  Mr. Gottstein?
0066
 1             MR. GOTTSTEIN:  No, Your Honor.
 2             THE COURT:  All right.  Thank you so much
 3   for your service and for your inconvenience and your
 4   good humor about our bad coffee.  We'll go ahead and
 5   stand in recess now and I'll see you Monday, I hope.
 6                       (Jury absent.)
 7             THE COURT:  Please be seated.  The record
 8   shall reflect that the jury has left the courtroom.
 9   This remains a public proceeding.  Mr. Gottstein and
10   his client are present.  Mr. Killip and his client
11   representative are present.  My intention, then, is
12   to go forward and discuss less restrictive treatment
13   alternatives, as I indicated.
14             Mr. Gottstein, is there a proposal?  Is
15   there something I need to know about?  I raised the
16   issue earlier about Dr. Hanowell's petition, this
17   most recent petition that indicates there may be a
18   possibility that, in your view, if I'm reading the
19   petition correctly, that Ms. Myers Tussing could
20   care for herself and tend to her daily needs if she
21   had close follow-up supervision on an outpatient
22   basis, or words to that effect, in your petition.
23             I don't know if you've had a chance to
24   discuss that with Mr. Killip.
25             DR. HANOWELL:  No, Your Honor, I didn't
0067
 1   have a chance to discuss that particular issue with
 2   Mr. Killip.
 3             THE COURT:  Mr. all right.  Gottstein, is
 4   there a proposal -- sometimes, Ms. Tussing, so you
 5   understand, sometimes the lawyers forget how little
 6   I know about this, about what's going on behind the
 7   scenes.  I just have the pleadings in front of me,
 8   you know, what's filed with the Court and what
 9   they've said in court.  I don't know, for example,
10   why it didn't work out at CTC.  I don't know whether
11   CTC remains an option for your client,
12   Mr. Gottstein.
13             MR. GOTTSTEIN:  I think it would be best
14   if Ms. Myers could respond to that, if she may.
15             THE COURT:  Sure.
16             MS. MYERS TUSSING:  When I was arranging
17   to go over to CTC, Cara Lee Walker and Carolyn
18   Cheek, who are respectively from Southcentral
19   Counseling Center and from -- I believe Carolyn
20   Cheek is a manager or director over at CTC.  And
21   they both knew my problems with men coming into the
22   bedrooms of the women and how much that was
23   debilitating to my emotional health, and also the
24   feeling that being around so many men was
25   sexualizing me, and I did not appreciate the men and
0068
 1   their freshness and their advances because I could
 2   not fight against their harassment.  When a man
 3   comes against me and he sexually harasses me in
 4   whatever way he does, if I'm not able to leave and
 5   go to a safe place, I feel like a victim, and I
 6   don't feel like I need to stand there and take that
 7   kind of treatment and especially as a married woman.
 8             THE COURT:  All right.  So --
 9             MS. MYERS TUSSING:  So this was a problem,
10   not only at APA (as spoken) where I was not allowed
11   a place to go and be safe, but it was also a
12   problem, it turned out, at CTC.  The first couple
13   hours we were there, even though I was promised that
14   it would be a safe environment, the first thing that
15   happened was a young man out doing my intake
16   sexually accosted me and I talked to Carolyn about
17   backing away, backing away, backing away, but after
18   the second time backing away, she said, you still
19   have to have him do your intake.
20             I said, why, when he is so clearly
21   sexually harassing me do I have to stand there and
22   take it?  I said, what you're offering me is either
23   stay here at CTC and allow the staff to sexually
24   harass me at their will or go back to API and be
25   sexually harassed at API and intimidated and harmed
0069
 1   physically.
 2             THE COURT:  So here is the question.  I
 3   don't know whether it was your choice to leave CTC
 4   and I don't know -- this is what really counts
 5   for today -- whether it's an option for you to go
 6   back there now.
 7             MS. MYERS TUSSNG:  I did not -- they asked
 8   me to make a choice.  I said, I choose to leave.
 9   Because they said, we cannot guarantee it will get
10   any better.  And I said, in that case I do not
11   belong in this environment; I need to look for
12   another environment.  So for me, for Faith, for
13   Faith Tussing, CTC is not an option.  For someone
14   else it might be.
15             THE COURT:  Is it an option for you if I
16   supervise -- I'm talking loosely now -- about
17   inquiring as to whether or not a female person may
18   do your intake at CTC?
19             MS. MYERS TUSSING:  I think the fact that
20   they did not keep their promises was another factor
21   that showed a lack of trust, a lack of
22   trustworthiness on their part and a lack of trust on
23   mine, and because of that I would like to pursue a
24   respite hospice.  You probably have not heard that I
25   have had three heart attacks while I was in API.
0070
 1   The fourth heart attack occurred about ten days ago.
 2             THE COURT:  Okay.  Ma'am?
 3             MS. MYERS TUSSING:  Yes.
 4             THE COURT:  Here's what I need.  Do you
 5   have a respite alternative you can offer?
 6             MS. MYERS TUSSING:  Yes, I do.
 7             THE COURT:  Do you know --
 8             MS. MYERS TUSSING:  My son -- my son will
 9   take me in and nurse me.  He has medical -- medical
10   knowledge.  My daughter might be able to, but I'm
11   not sure if her husband and I would get along.  I
12   don't know her husband.  My --
13             THE COURT:  Okay.  Hold it --
14             MS. MYERS TUSSING:  -- my ex-husband,
15   Dorrance Collins, would be very willing to take me
16   in in a hospice situation, and this would be paid
17   situations where they would be paid for their
18   nursing.  I have an income.  I am competent.  But I
19   cannot heal under the conditions that they offer me
20   at CTC because of the violence, because of the
21   assault, because of the drugs being punched into my
22   system.  Whenever I protest, somebody sexualizing
23   me, and because of the strangers who do sexualize me
24   and accost me in these places where many, many
25   people are mentally ill.
0071
 1             THE COURT:  Okay.  I'm going to ask you to
 2   wait now, please.
 3             MS. MYERS TUSSING:  Thank you.
 4             THE COURT:  Mr. Gottstein, I need to --
 5   you're welcome -- I need to know whether or not
 6   there's a less restrictive treatment alternative
 7   that's going to be available that will be -- to be
 8   clear, you're in a negotiation at this point, and
 9   the question is whether or not there's going to be
10   one that's going to be acceptable to the State and
11   to you, Mr. Gottstein.  Do you have one that you're
12   going to want to proffer?
13             MR. GOTTSTEIN:  Well, I think that --
14             THE COURT:  So, for example, I am happy to
15   get on the phone if I need to, with Counsel of
16   course, to try to talk to the folks at CTC to
17   determine whether or not it's possible for Ms. Myers
18   to transfer there and to facilitate that in a way so
19   that there are not male intake personnel, for
20   example, to try to alleviate her concerns about
21   that.  And I offer that and I'm first and foremost
22   interested in exploring that opportunity because the
23   State has already indicated they have no objection
24   to her going there.
25             MR. GOTTSTEIN:  I think, Your Honor, that
0072
 1   Faith has expressed concern about that for the
 2   reasons that she said, but there may be something
 3   else.  I think Southcentral may be able to arrange
 4   for an apartment and --
 5             MS. MYERS TUSSING:  My son has an
 6   apartment, Dorrance has an apartment.  There's no
 7   need to duplicate.
 8             THE COURT:  Ms. Tussing, Ms. Tussing, I'll
 9   ask you to wait, please.  I require everybody to
10   take their turn.  It's Mr. Gottstein's turn.
11             MR. GOTTSTEIN:  If the Court would allow
12   Faith to stay with Dorrance, if he's willing, or
13   with Mr. Myers if he's willing, that obviously would
14   be fine with me.  I also think that there's a good
15   possibility that Southcentral would be willing to
16   arrange something, not necessarily CTC, the Crisis
17   Treatment Center, but someplace where -- because we
18   understand about Faith's difficulties with men being
19   in proximity.  Someplace that could really allay
20   those concerns of hers and have, you know, someone
21   there with her.  I think they are willing to do
22   that, but I haven't -- I haven't arranged it yet.
23             THE COURT:  Okay.  Let me just be blunt
24   about this, because I think it's very predictable.
25   The State can't keep gearing up for this trial in a
0073
 1   way that's very, very disruptive to their calendars.
 2   They're giving it priority; they must give it
 3   priority.  But they're going to want to make sure
 4   that she's moved to an option that has the best
 5   possible chance of succeeding because, otherwise,
 6   you know, we could have the same situation where she
 7   moves to CTC for two hours or two days or something
 8   and then they're right back in the soup.  So, please
 9   bear that in mind.
10             MR. GOTTSTEIN:  Well, and actually that's
11   exactly the point.  If I may -- I'm sorry to
12   interrupt.
13             THE COURT:  You didn't.
14             MR. GOTTSTEIN:  -- is to set it up with
15   the maximum chance of success.  And I was out of
16   town when she went to CTC.  Frankly, I feel like if
17   I could have gone over there, it may have gone a lot
18   better.  If Katsumi could have gone over there, I
19   think it might have gone a lot better, you know.
20             And so I've talked with Mr. Jenkins about
21   this and he's very aware of the situation and trying
22   to arrange things.  I think that that might be a
23   possibility, for them to have whatever supervision
24   they feel is necessary.  I know that Faith is
25   comfortable with Dorrance or Mike; I would suspect
0074
 1   other people might not be.  But I think it might be
 2   arrangeable.  I understand your logistical concerns.
 3             THE COURT:  Well, yes, and the statute
 4   does say less restrictive treatment alternative.
 5             MR. GOTTSTEIN:  No, I understand.  I
 6   understand.
 7             THE COURT:  So, I'm looking for treatment,
 8   because as you've stressed, your client is suffering
 9   from illness and she wants to get better and I think
10   we all want that.
11             MR. GOTTSTEIN:  Right.  So maybe -- but
12   people are in apartments with other people and it's
13   a part of treatment all the time, too, so to quibble
14   quite a bit.  My suggestion is to talk -- is to try
15   and get Mr. Jenkins involved and see what we could
16   do.
17             THE COURT:  Mr. Killip and Dr. Hanowell,
18   would you like to be heard?
19             MS. MYERS TUSSING:  Who is Mr. Jenkins?
20             MR. KILLIP:  Yeah.  I think George
21   Jenkins, exploring that effort, trying to get him on
22   the phone; no opposition to that.  I think he
23   probably would want to pull in one or two other
24   people from Southcentral Counseling to see how
25   realistic that option might be.  From the hospital's
0075
 1   view, I know that they have -- they have really
 2   tried very hard, in part, due to the fact of
 3   Mr. Gottstein's involvement to try and create an
 4   acceptable less restrictive treatment alternative.
 5   And they have looked at -- they have looked at CTC
 6   very hard.  And I know that CTC had to negotiate
 7   directly with Ms. Myers on an acceptable early
 8   release plan and that would have to happen again.
 9   And the Department -- or excuse me -- the hospital
10   has also looked at Ionia down on the Kenai
11   Peninsula, which is a sort of a commune, informal --
12             MR. GOTTSTEIN:  They call it a village.
13             THE COURT:  Okay.
14             MR. KILLIP:  -- kibbutz kind of a
15   situation and it's not -- I know that Dr. Wolfe has
16   had some connection with overseeing, or at least
17   having some type of contact with that operation, but
18   that's not a formal treatment facility and it's not
19   something that you just take somebody to that --
20   it's not really a formal program.  So it's not like
21   the hospital can just discharge Ms. Myers Tussing
22   today to Ionia.  It doesn't really work that way.
23             THE COURT:  Is there treatment offered
24   there Dr. Hanowell?  Would she have therapy services
25   available there?  I'm mentioning therapy because up
0076
 1   until now the expert testimony I've received from
 2   Ms. Myers Tussing's witnesses is to the effect that,
 3   of course they're not in favor of psychotropic
 4   medication, but they're in favor of therapeutic
 5   services for her, so I'm not sure whether Ionia
 6   offers that.
 7             DR. HANOWELL:  Your Honor, I will say that
 8   Mr. Adler, our CEO, is more familiar with that
 9   program than I am, but I do in my conversations with
10   Mr. Adler -- my understanding is -- my feeling is
11   that the program would not offer sufficient
12   structure.
13             THE COURT:  It's why I keep coming back to
14   CTC, Mr. Gottstein, and whatever I can do to try to
15   make that workable for your client, because that's a
16   program that the State has already stipulated is a
17   less restrictive treatment alternative for your
18   client, and I am obligated to look at treatment
19   alternatives, so...
20             MR. GOTTSTEIN:  I understand, Your Honor.
21   The reason why I rose is another really key person
22   here I think is Dr. Wolfe, who has established, I
23   think, a pretty good rapport with Faith, and it
24   seems between all of that, and really especially
25   with Dr. Wolfe, that it might be -- we haven't, I
0077
 1   wouldn't say good, but fair chance of getting
 2   something put together.
 3             THE COURT:  All right.  Counsel, what
 4   I'm -- we're all thinking out loud here together --
 5   but I'm interested in going forward and giving you
 6   an opportunity to do that.  You have -- certainly,
 7   Monday we're resuming this trial, unless there's
 8   something worked out between now and then, but there
 9   must be time on your calendars because you thought
10   you were going to be here in front of me on record.
11             I just want to make sure Mr. Killip isn't
12   whipsawed there trying to listen to two folks.
13             So the question is whether or not you want
14   to reconvene in an opportunity to explore this
15   further, whether I'm going to be helpful at all or
16   whether you want to do this on your own with
17   Dr. Wolfe or with whomever.  What do you think about
18   that?  Mr. Killip?
19             MR. KILLIP:  Your Honor, we've asked
20   Mr. Gottstein to present something to us, so we
21   remain open to any reasonable offer of an idea.  We
22   just haven't gotten any, but we're -- we remain open
23   to that.
24             THE COURT:  Okay.  Mr. Gottstein, so they
25   couldn't be clearer, but they think the ball is in
0078
 1   your court.  They're waiting.  This trial is going
 2   to resume.  It has to resume on Monday if something
 3   doesn't get worked out.  So is there something I can
 4   do to help you formulate a treatment alternative,
 5   because I'm trying to use that word as often as I
 6   can so that we're communicating --
 7             MR. GOTTSTEIN:  No, I understand.
 8             THE COURT:  -- clearly.  For me to approve
 9   it, it's got to be a treatment alternative.
10             MR. GOTTSTEIN:  I guess the only thing,
11   Your Honor, that I could think of is if we put
12   something together that's acceptable to Faith and I
13   think ought to be acceptable to the Court, but they
14   reject it, that we may be able to have you take it
15   up with some speed.
16             THE COURT:  Sure.  I'll do everything I
17   can to make myself available.
18             Ms. Tussing, would you like to be heard?
19             MS. MYERS TUSSING:  Yes, I would.  These
20   people are talking in vaguenesses.  They're not
21   specifically giving you dates, times, where, when,
22   how much and why.  I can tell you right now that I
23   can pay my caregiver at least $600 a month, maybe
24   more.  I have money in the savings.  I am competent.
25   I can provide my own schedule.  I am self-motivated
0079
 1   to provide my own schedule.
 2             API restricted me to so much restriction
 3   that I was never out of the unit to any of their
 4   scheduled programs.  I was never allowed to do
 5   anything.  I was not even allowed to make my own
 6   bedroom pretty because they said it's not your bed;
 7   it's the State's bed.  You're not allowed to put a
 8   blanket up to protect yourself and make a door for
 9   your little horse stall.  You're not allowed to do
10   these things in our place; it's our place.  You have
11   to do it our way.
12             And because of that, ma'am, I would rather
13   be in a home with Dorrance, my ex-husband, who does
14   provide a schedule for me.  He does provide therapy
15   for me.  He provides a little painting during the
16   day.  He provides walks outside.  He provides
17   therapy of listening to music.  He provides therapy
18   of going to the movies.  He provides therapy of
19   companionship.  These are the kind of therapies I
20   need right now.
21             I have no white blood platelets.  That
22   means I either have cancer of the leukemia type
23   blood cells or it means I have AIDS or it means that
24   I have some problem with my immune system.  I have
25   had four heart attacks.  I know how to take care of
0080
 1   myself outside of a stressful, destructive,
 2   assaultive place where there are strangers who
 3   sexualize and rape me.
 4             THE COURT:  Ms. Tussing, stop now, please.
 5   Now would be my turn.
 6             MS. MYERS TUSSING:  Thank you.
 7             THE COURT:  You're welcome.  I'm very
 8   motivated to try to find a less restrictive
 9   treatment alternative for you.  That happens if I
10   sign an order allowing it, and I'm telling you, it's
11   my pledge to you that I'm very motivated to have
12   that happen.  All right.  Mr. Killip and
13   Dr. Hanowell, I know you view them as antagonistics,
14   but, but the ball is in your court with your lawyer
15   at this point.  They're waiting for a proposal.
16   It's not their fault at this point.
17             They're waiting for a proposal for you and
18   your attorney to present as a less restrictive
19   treatment alternative.  The only other point I want
20   to make to you is, it won't be the fault of your
21   lawyer or Mr. Killip if I don't approve it.  So to
22   give you very fair notice, the thing I'm going to
23   need to see is that it's a treatment alternative.
24   That's why I keep coming back to CTC, even though I
25   know you were unhappy with CTC.  If we can find a
0081
 1   way to make CTC work for you and if we can answer
 2   your concerns about what bothered you the first time
 3   there, that's going to be the alternative I am most
 4   interested in.
 5             MS. MYERS TUSSING:  Ma'am, I already know
 6   what treatments are healthy for me, so why would you
 7   make me take someone else's treatment, someone
 8   else's medicine, instead of my own treatment and my
 9   own medicine?
10             THE COURT:  Here is why.  Here is why.
11             MS. MYERS TUSSING:  I have done enough,
12   ma'am, for this life, for these people who do not
13   want any of what I have to give.  I have nothing to
14   give to you.
15             THE COURT:  Ms. Tossing, the answer to
16   your question is that I'm bound to follow the law.
17             MS. MYERS TUSSING:  And which treatments
18   is it that you're thinking I need when my illnesses
19   are medical, ma'am, and not psychological?  They
20   want to give me Ativan and Haldol, which I'm
21   allergic to and affect me in a very bad way.
22             THE COURT:  I have to ask you to stop now,
23   so that we can make progress on this matter.
24             MS. MYERS TUSSING:  I can give you how,
25   what, why, when and where, Your Honor.  I'm a little
0082
 1   less vague.
 2             THE COURT:  Mr. Gottstein, how much time
 3   do you need to come back?  Because I'm ready to go
 4   off record and let you come back with a proposal to
 5   Mr. Killip.
 6             MR. GOTTSTEIN:  Well, I mean, we'll have
 7   to see what we can put together.  I mean, there are
 8   all kinds of things.  But the one thing that I
 9   understand, from your perspective, CTC is kind of
10   the easiest thing for you to do.  But I assume that
11   if we came back with something that qualified as a
12   treatment, a treatment alternative, that that would
13   be something that you would consider?
14             THE COURT:  Well, the word I keep
15   underlining is treatment, so I'm going to give
16   Dr. Hanowell, of course, an opportunity to put his
17   two cents worth in.  If Dr. Wolfe wants to tell me
18   what he thinks, that's fine.
19             MR. GOTTSTEIN:  Exactly.
20             THE COURT:  But, yes, it needs to be a
21   therapeutic treatment program, sure.
22             MR. GOTTSTEIN:  Right.  Thank you, Your
23   Honor.
24             THE COURT:  Okay.  What I'm ready to do, I
25   guess, is go off record, because I don't think
0083
 1   there's anything more I can do here that is
 2   productive; understanding, Mr. Killip, I think
 3   you're in a holding pattern waiting for
 4   Mr. Gottstein to get you something, right?
 5             MR. KILLIP:  Yes.
 6             THE COURT:  Yes.  Go ahead.
 7             MR. KILLIP:  And the hospital has
 8   indicated that it would accept, as of like
 9   yesterday, last week, last month, if Dr. Wolfe would
10   be willing to accept Ms. Myers as his patient at
11   Providence, through Providence, their inpatient
12   program, the hospital would rejoice with an -- an
13   opportunity that would be acceptable to Ms. Myers
14   Tussing.
15             THE COURT:  All right.  I appreciate you
16   notifying me of that.  Mr. Gottstein's heard what
17   you had to say.
18             Are there any other options that you know
19   of now that would be acceptable to your client,
20   Mr. Killip?  Just information for Mr. Gottstein to
21   work from.
22             MR. KILLIP:  CTC.
23             THE COURT:  Okay.  Those are the two that
24   they --
25             MR. GOTTSTEIN:  And, Your Honor,
0084
 1   especially based on the petition, it seems to me
 2   that if Dr. Wolfe arranged for some outpatient
 3   treatment, too, that that ought to be acceptable.
 4             THE COURT:  Well, you can argue about it
 5   later, I guess, if they think it's not ultimately,
 6   I'd have to make that decision, but I'm mindful of
 7   the language in the petition.
 8             MS. MYERS TUSSING:  Is that on my broken
 9   finger or is that supposed to be more
10   psychologically?
11             MR. GOTTSTEIN:  We'll talk about it.
12             MS. MYERS TUSSING:  My problems are
13   biological, organic.
14             THE COURT:  Mr. Killip, is there anything
15   further from your perspective?
16             MR. KILLIP:  No, Your Honor.
17             THE COURT:  Mr. Gottstein?
18             MR. GOTTSTEIN:  No Your Honor.
19             THE COURT:  All right.  We'll go ahead and
20   go off record then.  Thank you.
21                       (Proceedings recessed.)
22   
23   
24   
25   
0085
 1                TRANSCRIBER'S CERTIFICATE
 2   
 3             I, LESLIE J. KNISLEY, hereby certify
 4   that the foregoing pages numbered 1 through 85 are a
 5   true, accurate, and complete transcript of the
 6   requested proceedings in Case No. 3 AN-03-277PR, In
 7   the Matter of: Faith Myers, Respondent, transcribed
 8   by me from a copy of the electronic sound recording
 9   to the best of my knowledge and ability.
10   
11   
12   ____________        _______________________________
     Date                LESLIE J. KNISLEY
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