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Douglas v. State (8/31/2007) ap-2117

Douglas v. State (8/31/2007) ap-2117

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


TY S. DOUGLAS, )
) Court of Appeals No. A-8997
Appellant, ) Trial Court No. 1KE-02-1684 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2117 August 31, 2007
)
          Appeal  from the Superior Court,  First  Judi
          cial   District,   Ketchikan,   Michael    A.
          Thompson, Judge.

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Tamara   E.  de  Lucia,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          In  June 2002, Ty S. Douglas committed two assaults (on
separate  days) against his girlfriend, K.I..  On both occasions,
Douglas  brutally beat K.I. and sexually penetrated  her  without
her consent.  Based on this conduct, Douglas was convicted of two
counts  of first-degree sexual assault, as well as two counts  of
fourth-degree assault.  This Court affirmed Douglass convictions.
See Douglas v. State, 151 P.3d 495 (Alaska App. 2006).
          While  Douglas  was  in jail awaiting  trial  on  those
charges,  he  spoke  to K.I. dozens of times by  telephone   even
though he had been ordered to have no contact with her.  In these
telephone conversations, Douglas repeatedly attempted to persuade
K.I.  to give testimony that would exculpate him.  Based on  this
conduct,   Douglas  was  convicted  of  both  witness  tampering,
AS   11.56.540(a)(1),  and  first-degree  unlawful  contact,   AS
11.56.750(a)(2).  He now appeals these convictions.
          Douglass  trial on the witness tampering  and  unlawful
contact  charges  was unusual in that the trial  judge,  Superior
Court  Judge  Michael  A.  Thompson,  barred  Douglas  from   the
courtroom.  Douglas listened to the proceedings by telephone from
another  location.  The outgoing voice signal on  this  telephone
was  muted, so that no one in the courtroom would be able to hear
anything that Douglas said.
          Toward  the  end of the trial, Douglas stated  that  he
wished  to  testify, and he asked permission  to  return  to  the
courtroom  to deliver his testimony.  Judge Thompson was  willing
to  let  Douglas  testify by telephone, but he refused  to  allow
Douglas  to present his testimony in the courtroom.  Douglas  now
appeals that ruling, arguing that Judge Thompsons refusal to  let
him return to the courtroom to deliver his testimony violated his
right to due process of law under the federal Constitution.
          But  as  we explain below, Douglass behavior at several
pre-trial  court proceedings was so intemperate, disruptive,  and
uncontrolled that Judge Thompson could justifiably conclude  that
it  would be impossible to conduct orderly proceedings if Douglas
was in the courtroom.  We therefore reject Douglass argument that
this procedure violated his right to due process.
          Douglas also argues that Judge Thompson should not have
allowed  the State to introduce evidence that Douglas had already
been  convicted of the two sexual assaults on K.I..  But  one  of
the  defense  attorneys strategies at trial was to  suggest  that
Douglas  had  never sexually assaulted K.I.   and  thus,  to  the
extent  that  Douglas might have urged K.I. to  give  exculpatory
testimony, he was only asking her to tell the truth.
          Given this defense strategy, the fact that Douglas  was
convicted of the two sexual assaults became relevant to the jurys
resolution  of  the witness tampering charge, and Judge  Thompson
could  reasonably  conclude  that the  probative  force  of  this
evidence outweighed its potential for unfair prejudice.   Because
of  this, and because Douglas raised no other objection  to  this
evidence,  we affirm Judge Thompsons decision to allow the  State
to introduce this evidence.
          Finally, Douglas argues that Judge Thompson should have
removed  Douglass  defense attorney from the case  after  Douglas
physically  assaulted  this  attorney during  an  attorney-client
conference  at the jail.  But the attorney declared that  he  was
willing to continue to represent Douglas even after this assault,
and  (as  we explain in more detail below) we conclude  that  the
situation did not require the attorneys disqualification.

     Judge  Thompsons  decision  to  bar  Douglas  from  the
     courtroom during his testimony
     
          One  of the key features of our criminal  law
is  a  defendants  right to attend their  trial.   This
right  to be present during the trial proceedings stems
from  a  defendants  right  of  confrontation  and  the
defendants right to receive due process of law   rights
guaranteed   by  both  the  federal  and   the   Alaska
constitutions.1
          Nevertheless, the United States Supreme Court
held in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057,
25  L.Ed.2d  353 (1970), that defendants can  lose  the
right  to  be  present  if they  engage  in  disruptive
behavior  that makes it impossible to hold  an  orderly
trial.   The  Supreme Court declared that trial  judges
must  be  empowered  to  deal  with  a  defendant   who
manifests  flagrant  disregard in the  courtroom  [for]
elementary standards of proper conduct.  Id., 397  U.S.
at  343, 90 S.Ct. at 1061.  Thus, a defendant can  lose
his  right to be present at trial if, after he has been
warned  by  the  judge that he will be  removed  if  he
continues  his  disruptive  behavior,  he  nevertheless
insists   on   conducting  himself  in  a   manner   so
disorderly, disruptive, and disrespectful of the  court
that  his  trial cannot be carried on with him  in  the
courtroom.  Id., 397 U.S. at 343, 90 S.Ct. at 1060-61.
          As  this Court explained in Rae v. State, 884
P.2d   163  (Alaska  App.  1994),  the  Allen  decision
suggests  three  alternative methods  of  dealing  with
disruptive defendants:  using the courts contempt power
to  coerce  the defendant into behaving;  ordering  the
defendants  removal  from  the  courtroom   until   the
defendant agrees to behave; or binding and gagging  the
obstreperous defendant so that no further disruption is
possible.  However, Rae holds that binding and  gagging
is a disfavored procedure in Alaska:  a trial judge can
resort  to this method only after a hearing,  and  only
after  affirmatively finding that lesser measures  will
be ineffective.  Id. at 165-66.
          In the present case, in a series of pre-trial
hearings,  Douglas  repeatedly engaged  in  disorderly,
disruptive,  and  disrespectful  behavior  toward   the
judge,  the  prosecutor, and the defense attorney.   As
explained  in  more  detail  below,  Douglas   received
repeated  warnings  to  control  his  behavior.    And,
despite  these  warnings, Douglas proved  unwilling  or
unable to control his outbursts.
          In the end, Judge Thompson ruled that Douglas
had forfeited his right to attend the trial.  The judge
ordered corrections officers to hold Douglas in a  room
on  another floor of the courthouse when the trial  was
in  session.  From this room, Douglas could  listen  to
the proceedings but could not be seen or heard himself.
          Douglas  does  not challenge Judge  Thompsons
initial  decision  to  exclude  him  from  the   trial.
However, toward the end of the trial, Douglas announced
          that he wished to testify in his own defense, and he
asked Judge Thompson to allow him to give his testimony
while  physically  present  in  the  courtroom.   Judge
Thompson   was   willing   to   let   Douglas   testify
telephonically,  but  he refused to  allow  Douglas  to
return  to  the  courtroom.  Douglas now  appeals  that
ruling.
          The  parties  agree that the  Supreme  Courts
decision  in  Allen  and this Courts  decision  in  Rae
provide  the  governing law.  The question  is  whether
Judge  Thompson abused his discretion under  Allen  and
Rae when he ruled that Douglas would not be allowed  to
return to the courtroom to present his testimony.
          In the pages that follow, we present extended
excerpts   from   the  transcripts  of  several   court
hearings.   One  of  our purposes is to  highlight  the
extreme  facts of this case  so that our decision  will
not  be  taken  as broad approval for trial  judges  to
exclude  defendants  from the courtroom  whenever  they
engage  in  disruptive behavior.  The  exclusion  of  a
defendant  from  the  courtroom can  not  be  justified
unless  the  defendant proves incapable of  controlling
their  disruptive  behavior despite admonitions  and  a
clear warning that continued disruption will result  in
the defendants removal.
          Our second purpose is more case-specific.  As
explained in more detail below, when Douglas  made  his
request  to  return  to the courtroom  to  present  his
testimony,  he  promised  to behave  himself.   Such  a
promise  would  normally require a trial  judge  to  at
least   temporarily   remit  any   previously   ordered
exclusion.   But we conclude that, under the  facts  of
Douglass case, Judge Thompson was justified in refusing
to  credit Douglass protestation that he would  control
his behavior.

  Underlying  facts  that  led Judge  Thompson  to  bar
  Douglas from the courtroom during the trial

          The  earliest pre-trial hearings in this case
(hearings that took place even before Douglas  went  to
trial  on  the  underlying sexual assaults)  show  that
Douglas  was  opinionated, assertive, and  a  generally
difficult  client  for a series of  defense  attorneys.
However,   in  those  early  hearings,  Douglas   never
directly  challenged the authority of the court.   More
importantly, whenever he was admonished to stop  making
inappropriate remarks or to stop speaking out of  turn,
he would control himself.
          But  Douglass  behavior became more  strident
and  uncontrolled during and after his  sexual  assault
trial.   Douglas  apparently engaged  in  one  or  more
outbursts during that trial; and just after the  sexual
assault  verdicts were announced and Douglas was  being
escorted from the courtroom, he spit at the spectators,
declaring  that  he  hoped  they  contracted  diseases.
Following this assaultive behavior, the judge presiding
over  the  sexual  assault case  Superior  Court  Judge
Larry  R.  Weeks   ordered that Douglas  be  physically
restrained at all further hearings in that case.
          Shortly  thereafter, on  November  20,  2003,
Judge  Thompson  held a status hearing in  the  present
case  (i.e., Douglass witness tampering case).  At this
hearing, Douglas declared that his defense attorney had
represented  him  incompetently at the  sexual  assault
trial.   The defense attorney, for her part,  asked  to
withdraw from any further representation of Douglas  in
the still-untried witness tampering case.
          (The  defense  attorney  also  attempted   to
withdraw from the sexual assault case, so that  another
attorney  could  represent Douglas  at  his  sentencing
hearing.  However, Judge Weeks refused to allow her  to
withdraw.)
          During this pre-trial hearing, Judge Thompson
and  Douglas discussed Douglass behavior at the  sexual
assault  trial,  as  well as Judge  Weekss  order  that
Douglas  be  physically restrained in future  hearings.
In  this  conversation, Judge Thompson  warned  Douglas
that  he  would  be removed from the  courtroom  if  he
became disruptive.  Douglas assured Judge Thompson that
his  behavior  at  the sexual assault  trial  had  been
calculated  that it was all done on purpose   and  that
he could behave himself if he wanted to:
     
          Douglas:  Well, Im not going to spit  on
     anybody, so youll see ...
     
          The  Court:   Well, I  think  they  were
     worried about that.  Thats why they ...
     
          Douglas:  I know.  Youll see, this, this
     Ill  behave  well,  and  maybe  in  the  next
     proceeding  when we come [to your  court],  I
     wont have to be so restrained.
     
          The  Court:  Well, well see.   I  should
     caution  you,  though:   Im  not  nearly   as
     indulgent as Judge Weeks [i.e., the judge who
     presided over Douglass sexual assault trial].
     Hes kind of older and more mellow than I am.

     Douglas:  Oh, no ...

     The  Court:  And, you know, if you  were
to get about two words out of line with me, I
think  youd  probably be  listening  [to  the
court proceedings] on [a] speaker phone,  and
I  dont think the [outgoing audio signal from
your  phone]  will be working,  either.   ...
But,  you  know, ... we dont  have  to  worry
about that today.

     Douglas:  Yeah, I know.  Im fine.

     The  Court:   Thats not an issue  today.
...   But  when the trial rolls  around,  you
know   if  we  start the trial  and  you  get
rambunctious  or  something,  I  cant  permit
that.  ...

     Douglas:  Well, ... I did that  so  that
my  appeal  lawyer will be able  to  hear  my
complaints,  and  how they werent  addressed.
Its  all   and  it was all done  on  purpose.
Everything I did had purpose.  So ...

     The  Court:  Well, I assume  that.   ...
But  we cant have that[.]  ...  I dont  think
its  so  much what [you] said as how  it  was
said.   I mean, I wasnt there [at your sexual
assault  trial],  but ... I  got  kind  of  a
briefing on it.

          Judge   Thompson  allowed  Douglass
attorney to withdraw, and Douglas received  a
new attorney, Daniel C. Wayne.  However, only
six  weeks  later,  at  a  calendar  call  on
January  6, 2004, Mr. Wayne asked to withdraw
from  the  case.  Douglas spoke at length  at
this  January  6th  hearing   and,  based  on
Douglass  comments  about  Wayne,  about  the
prosecutor (Assistant District Attorney James
T.  Scott), and about the trial judge at  his
sexual   assault  trial  (Judge  Weeks),   it
appears    that    Douglass   behavior    was
deteriorating:

     Mr. Wayne:  I regret to say this, but Im
going to have to move to withdraw from [this]
case.  ...

     The  Court:  Youre [under contract with]
OPA [the Office of Public Advocacy], right?

     Wayne:  Yes, I am.

     The Court:  Well, do I need to know [the
specific problems you have encountered]?   Or
can you just get [the Public Advocate] to ...
[assign] someone else?

     Douglas:  Yeah, thats all.  Thats ...

     Wayne:  I ...

     Douglas:  [to Wayne]  You need  to  just
withdraw,  and  shut your mouth,  and  go  to
another case.
     .  .  .

     Wayne:   I  guess ... if it  would  work
best for [my] client and for the Court, I can
call  [the Public Advocate] and have  him  do
that.   But ... I want to withdraw  from  the
case.   I  dont want to be  I dont think  Mr.
Douglas should be  well ...

     Douglas:   [to Wayne]  Are you educated?
Can you speak?

     The Court:  Mr. Douglas, I ...

     Douglas:   I  mean,  my  goodness,  [he]
keeps tripping over [his] tongue.

     The  Court:  Mr. Douglas, Im  trying  to
talk to Mr. Wayne, so why dont you just stand
by  while I finish with [him], and [then,] if
you  need  to say something, well talk  about
it.

     [To Wayne]  Okay, so youre moving ... to
withdraw because what?  Apparently, you  guys
have  no relationship?  Or at least, if youve
got one, its a bad one?

     Wayne:   I   its  a  bad  one,  and  its
irreconcilable.   And I dont  know  how  much
farther I [can speak] in [explaining]  why  I
have to withdraw, but ...

     Douglas:    He  doesnt  [have   to   say
anything  more].   [To  Wayne]   Ive  got   a
recording of our conversation, pal, so if you
think youre going to do that  I asked to have
that call recorded, so you just go ahead, and
go on with your silliness.
     .  .  .

     The  Court:  Well, ... obviously, [Wayne
and Douglas] never made any progress or never
reached any kind of an understanding.

     Douglas:  Never.  We didnt even talk for
...  two months.  I hadnt even discussed  the
case  [with him] except for a crazy deal  hes
concocted  with  this crazy prosecutor.   Ill
tell you what:  This [prosecutor, Mr. Scott,]
is  going to end up in jail ... after this is
all   said   and  done.   He  has   destroyed
evidence; he has manipulated witnesses.   And
its  all on the record, and [these witnesses]
are  going to come testify, as soon as it  is
done.   And, Scott, you know its  true.   ...
Youre  not going to get away with this.   Its
all  on the record.  Anybody who reads  [the]
transcript [of my trial] finds me innocent.

     You    manipulated   the   jury.     You
[commented improperly on my right  to  remain
silent.]   That, right there, is  enough  ...
for  a  new  trial.   [And  you  engaged   in
improper  argument  in front  of  the  jury.]
What  kind  of courts are [there] in  Alaska,
where  ... a judge allows a prosecutor to  do
stuff  like  that in front of a jury,  whe[n]
theres no evidence to back it [up]?  ...

     And  how do you expect me to have a fair
trial,  when my lawyer doesnt even object  to
silly   This  is the craziest  place  I  ever
heard of.

     The Court:  Are you finished?

     Douglas:   Well, gosh, it just makes  me
mad.   Im sorry.  ...  I had to get that  off
my  chest, because theres ... a million other
things like that, too.

          Ten days later, Judge Thompson held
another  calendar  call.   The  State  Public
Advocate,    Joshua   P.    Fink,    appeared
telephonically  and informed  Judge  Thompson
that  his agency was having problems  finding
someone   to   be  Douglass   attorney.    In
response, Douglas told Judge Thompson that he
wanted  to  represent himself.  Douglas  then
launched   into   a  lengthy  recitation   of
complaints about the way his former  attorney
had  mishandled  the  sexual  assault  trial.
Douglas  proclaimed  his  innocence,  and  he
suggested  that  he  had  been  convicted  of
sexual  assault  through the  bad  faith  and
improper conduct of the authorities, as  well
as the incompetence of his own attorney.
          The   next  hearing  in  this  case
occurred on March 2, 2004.  By this time, yet
another attorney  William B. Carey  had  been
appointed to represent Douglas.  The  parties
discussed potential trial dates.  Apparently,
Douglas had still not been sentenced  in  the
sexual  assault  case, but  Judge  Weeks  was
planning  to  come to Ketchikan  three  weeks
later  (on March 24th) to hold the sentencing
hearing.
          Toward  the  end of the  March  2nd
hearing,   Douglas  suddenly   erupted   with
invective  and charges of corruption  against
the  prosecutor.   Douglas himself  suggested
that he should participate telephonically  in
future hearings, so that he would not have to
look at the prosecutor:

     Douglas:  Your Honor?  From here on out,
...   could   I   [attend   court   hearings]
telephonically?   Because I  just  dont  even
want  to  be around this vile, pig-faced  man
right here [i.e., the prosecutor, Mr. Scott].
I dont want to be around him.  Id rather have
a  telephone at the jail than be around  this
lying ...

     The Court:  Well, ...

     Douglas:  ... son of a ...

     The Court:  Well, Mr. Douglas, ...

     Douglas:  ... bitch.

     The Court:  Mr. Douglas, youre going  to
have to control yourself.

     Douglas:   I  cant.  This guy  stole  my
evidence.  He ...

     The  Court:  Well, were not going to get
into all ...

     Douglas:  He tampered with my witnesses.

     Defense Counsel:  Mr. Douglas, you know,
I   can   address  those  issues  with   [the
prosecutor].

     The  Court:  This is not the time to get
into all of that, I can tell you.  Youre just
going to have to settle down.

     Douglas:    Yeah,   youd   better    get
attorneys where you ...

     The  Court:   Mr.  Douglas,  youre  just
going  to  have  to  settle  down.   [To  the
defense  attorney]  2:30 on [April] 12th  for
[the next] calendar call?

     Douglas:  Yeah.

     The Court:  Is that all right, Mr. Carey
[the defense attorney]?

     Defense Counsel:  Yes, I can do that.

     The Court:  Okay.

     Douglas:  Pig-faced mother ...

     The Court:  [And] if you want to ask for
[Mr.  Douglas] to be telephonic at  the  next
hearing, ... we can probably do that.

     Douglas:   Yeah,  Id  rather   have   it
telephonic.  I dont want to see this fat-ass.
...

     Defense Counsel:  That might be  a  good
idea.

          Three  months  later,  on  June  3,
2004, Judge Thompson held a hearing to set  a
date   for   the  witness  tampering   trial.
Despite    Douglass   suggestion   that    he
participate    telephonically    in    future
hearings, it appears that Douglas was present
in  court  for  this  hearing  (although  his
defense    attorney,    Mr.    Carey,     was
participating telephonically).
          The  attorneys agreed  to  a  trial
date  of  June  15th, but they alerted  Judge
Thompson that there would be many motions and
procedural  questions to  decide  before  the
trial commenced, and they asked the judge  to
allow sufficient time for the presentation of
these  pre-trial  motions before  the  actual
trial began.
          Douglas      then      interrupted,
proclaiming at length that the prosecutor was
suppressing   evidence   that   would    have
demonstrated  his  innocence  of  the  sexual
assault  charges, and that his  own  attorney
was  refusing or neglecting to file important
motions.    During   his   remarks,   Douglas
insulted  and swore at his own attorney,  the
prosecutor, and Judge Thompson.  In the  end,
Douglass  behavior  led  Judge  Thompson   to
declare  that Douglas would be excluded  from
further hearings in the case:

     Douglas:  Mr. Carey wont be representing
me  if  he hasnt filed the motions that  weve
talked about.

     The  Court:   ...   You  wanted  to  say
something, Mr. Douglas?

     Douglas:  Yes, I do.  Mr. Carey  I  dont
know what hes [been] doing, but hes been   he
just  now  got  my  medical reports  from  me
yesterday.   He  hasnt gotten  any  discovery
from  any of the other [defense] attorneys[.]
...   And  hes been telling me to  take  this
deal  for eight months, and Ive been  telling
him  to  file a motion to get the colposcopic
photos that were suppressed by Mr. Scott [the
prosecutor].   Every district  attorney,  for
the  last twenty years, when theres a violent
rape,   the  first  place  they   go   is   a
colposcopic finding for ...

     The Court:  Im not sure I know what that
is.

     Douglas:   ...  gynecolog[ical]    well,
okay.   Weve  got  to prove  that  theres  no
tearing.   [The prosecutor] said  that  there
was  fisting  going on.  ...  And  theres  no
evidence [to support that].  And, also,  [the
prosecutor] had a  weve got issues about  the
expert witnesses.

     The  Court:  Well, lets just take [these
issues]  one at a time.  Mr. Scott, does  the
State have ... this [colposcopic] photo?

     Prosecutor:   No, no.  ...   Colposcopic
photos  are  used as a diagnostic  tool  [by]
physicians.   I dont use them, and  I  havent
used them since the Ragsdale [case].

     Douglas:  Thats because youre a  fucking
crook.

     Prosecutor:   I havent used  them  since
the  Ragsdale trial because jurors dont  like
looking at those photos.  So what I ...

     Douglas:   Youre  just brain-washing  my
dumb-ass  [defense] attorneys.   ...   Theres
nothing vulgar about [those photos].

     Prosecutor:   So what I do  is  ...  use
diagrams  and  testimony   which  I  used  to
convict Mr. Douglas in [his] other trial.

     Douglas:  Youre a liar, is what you are.
...   Theyre  internal  photographs.   Theyre
nothing  like youd see in some mens magazine.
...  People cant even see what they are.   So
quit  lying.  Quit lying to the public.   And
youre just a liar, James Scott.
     .  .  .

     Defense  Counsel:  Your  Honor,  if  Mr.
Douglas  will cool it for a second.  We  have
some  strategic disagreements.  ...  I  think
Ive  been around for long enough to know what
kind of decisions ...

     Douglas:   Hey, hey.  No, no,  no.   You
let me finish.  I havent finished.

     Defense  Counsel:  ... are an  attorneys
decision ...

     Douglas:   Thats  not  strategic.   [See
Alaska Professional Conduct Rule 1.2(a).]

     Defense Counsel:  ... and I think I know
which decisions are [for the] client ...

     Douglas:    That   [decision]   is   not
strategic.  [The prosecutor] said  there  was
tearing  [of  the] vagina.  This proves  that
there  was  no  tearing.  And, also,  in  the
written report from Doctor Meloche, he states
[that] theres no tearing.

     The  Court:  Well, I guess well see what
he says.

     Defense   Counsel:    Your   Honor,   Im
prepared to go ahead with the trial.

     Douglas:   No,  youre  not.   Youre  not
representing me, you mother-fucker.  You  get
off my case.

     The Court:  Mr. Douglas?

     Douglas:  You get the hell off my  case,
Bill Carey.  If you stay on my case, you will
never practice law again.

     The  Court:  Mr. Douglas, it looks  like
the  trial  will occur without your presence.
And,  right now, youre not even going  to  be
brought over here ...

     Douglas:  Fuck you, you mother-fucker.

     The Court:  Im sorry, what was that?

     Douglas:  Fuck you.

     The  Court:   Well, I think that  [those
remarks]  just confirmed my earlier thoughts.
Were  going  to  hold the  trial,  [but]  Mr.
Douglas will not be participating ... .  Well
see  you  here, Mr. Carey, and well  do  that
[pre-trial  motion] hearing at  3:00  on  the
14th [of June].

     Defense  Counsel:  Well,  I  reserve  my
objection  to my client not being present  at
this trial.

     The  Court:   Well,  I understand  that.
But,  obviously, he cant control himself.   I
cant  have him here in the courtroom carrying
on  like  that.  So well have our [pre-trial]
hearing  on  the 14th and on the 15th.   And,
you  know, if Mr. Douglas could talk me  into
letting  him  participate in  the  trial   Id
probably give him a chance to try to talk  me
into  it by telephone.  I dont think Im going
to do it face-to-face, though.
     .  .  .

     Defense Counsel:  Well, like I say,  Ill
reserve  my  objection.   I  understand   the
Courts concerns, at the same time.

          The  pre-trial motion  hearing  was
held  on  June 14th.  Despite Judge Thompsons
statement  (on June 3rd) that he  would  only
allow Douglas to participate by telephone  at
this hearing, Douglas was in fact transported
to the courthouse, and he personally attended
this hearing.
          Early   in  the  hearing,  Douglass
attorney  announced that Douglass defense  to
the  witness tampering charges would  be  the
assertion that Douglas was actually  innocent
of  the  sexual assaults charged against  him
so  that  when  he  urged his  girlfriend  to
testify  that he was innocent, he was  simply
urging her to tell the truth.
          The  defense attorneys announcement
led  to  a  four-way  conversation  in  which
Douglas   again  gratuitously  insulted   the
defense  attorney, declared that the attorney
was incompetent, and asked Judge Thompson  to
dismiss  the attorney and appoint a new  one.
Douglas also again gratuitously insulted  the
prosecutor  and declared that the  prosecutor
was guilty of criminal conduct.
          Toward    the    end    of     this
conversation,   Douglas   launched   into   a
soliloquy   that   was   unrelated   to   the
procedural issues that the attorneys and  the
judge  were discussing  a soliloquy in  which
Douglas  asserted  that the  evidence  showed
that he was innocent of the sexual assaults.
          Based  on Douglass behavior,  Judge
Thompson  again ruled that Douglas would  not
be  allowed to attend the trial.  Here is the
pertinent excerpt:

     Prosecutor:   If [Douglass]  defense  is
[that] this rape didnt happen, [and that  he]
was  just  telling [the victim] to  tell  the
truth  [by testifying that] it didnt  happen,
...  then the only way the State can  counter
that, and probably in the form of [a lengthy]
rebuttal case ...

     Douglas:   Listen  Im going  to  win  my
appeal, you fat-ass.

     Prosecutor:   ...  is [to  present]  the
rape  case  [again].  We  can  say,  ...  No,
actually,  he  is  telling  her  to   testify
falsely  because look at the photos of  [her]
bruises;  hear what Dr. Meloche  has  to  say
about the injuries to the perineum.  And itll
take  [well,] it took over a week [to present
that evidence] last time.

     Douglas:   Thats exterior [injuries  you
are  talking about].  Thats [got] nothing  to
do  with  penetration.  Penetration is  rape,
you fucking dumb-ass.

     Defense     Counsel:     Listen,     you
(indiscernible  simultaneous speech).

     Douglas:  Excuse me.  I cant take  this.
Hes a liar.

     Defense  Counsel:  You need to just  sit
and keep quiet.

     The Court:  Try to take ...

     Douglas:   Pig-eyed liar.  Hes going  to
hell  ... .  [To the prosecutor]  Youre going
to be swimming with [the victim, K.I.] in the
lake  of  fire, you fucking fat  pig.   Thats
what I meant by going swimming, you pig-faced
bastard.

     The  Court:  Well.  Let me note that ...
one  reason I had Mr. Douglas brought [to the
courthouse] today, instead of doing  this  by
phone, was just to see if there had been  any
...

     Douglas:  Well, I just cant sit here and
listen to lies, Your Honor.

     Defense Counsel:  Well, you have to just
sit here ...

     The  Court:  ... if there had  been  any
change  in  his  attitude.  And  there  hasnt
been.    Ill   have  to  think   about   this
overnight, and try to tell you what, if  any,
response  how I ...

     Douglas:  I would like to speak.  If  he
is going to speak, I want to speak.

     Defense  Counsel:  Youre going  to  lose
your  right to speak when youre abusive  like
that.   So  youve got to sit there  and  keep
cool.

     The  Court:  Ill let [the parties]  know
tomorrow  ... how, [or] if at all, Ill  limit
the  introduction  of evidence  [that]  would
amount  to  a  re-trial  of  the  rape   case
because I really dont think we should be  re-
trying  [that case].  And, obviously, to  the
extent  that  it becomes relevant,  the  fact
that  [Douglas]  has  been  [convicted]   you
know,  at  least  a previous jury  felt  that
there was sufficient evidence ...

     Douglas:    Oh,   thats   because   [the
evidence] was false.  False.  Everything  was
perjured ...

     Defense Counsel:  Mr. Douglas, ...

     Douglas:  ... and false.

     Defense Counsel:  ... just let me ...

     The  Court:  Mr. Douglas, your point  of
view  is  crystal clear.  Ive never  had  any
trouble at all understanding what ...

     Douglas:  Well, I can prove it all, too.
...  You get all the evidence right here, and
Ill ... point you right here, and ...

     Defense  Counsel:  Mr. Douglas,  let  me
just ...

     Douglas:   ...  and show you  that  [the
prosecutor] lied during the whole  course  of
the  trial,  and my lawyer didnt  do  a  damn
thing.   ...  [And] Im not going to sit  here
and let this happen to me again.

     The    Court:     I   understand    your
weltan[schauung], your world  view  on  this.
And what Im going to do on the ...

     Douglas:  And theres no way to ...

     The  Court:  I guess the chief  question
that  I thought was in front of us today was,
you  know, What would Mr. Douglass status  be
during the course of the proceeding?  And you
know, ... let me just say this:  ...  I think
[that  Mr. Douglas] has been asking Mr. Carey
to do things that Mr. Carey knows [either] he
cant do because the rules dont permit it,  or
[else]  its not even in Mr. Douglass interest
...

     Douglas:  Oh, no.

     The Court:  ... to do it.

     Douglas:   Oh, no.  ... Theyre going  to
show exterior ...

     Defense Counsel:  You need to ...

     Douglas:  ... photos.

     Defense  Counsel:  You need to be  quiet
for a second.

     The  Court:  Mr. Carey will have  to  be
permitted  to try [this] case as lawyers  try
cases, by ...

     Douglas:  Okay, Your Honor?

     The  Court:   ... following  the  rules,
because ...

     Douglas:   Can  I  put  this  on   [the]
record?

     The  Court:   ... as I  said,   ...  Mr.
Carey could lose his ...

     Douglas:   This has nothing to  do  with
licenses.

     The  Court:   ...  or  get  himself   in
trouble  if  he didnt follow the rules.   ...
[And]  let me say that I expect Mr. Carey  to
follow  the rules and try the case  that  way
which  I  expect  he has every  intention  of
doing, in any event.

     Douglas:  Okay, were going to have  were
going to have another ...

     The Court:  With respect to Mr. Douglass
participation ...

     Douglas:   ... plain error if  you  dont
put those photos in.

     Defense Counsel:  Shh.

     The Court:  With respect to Mr. Douglass
participation  in the trial,  since  he  cant
control  himself and hasnt been able  to  [do
so] for ...

     Douglas:  Well, what do you  what  would
you  do?  I mean, if youre getting raped   Im
the only one ...

     Defense Counsel:  Youre ...

     Douglas:   ... [who has] been  raped  in
this  this freaking whole episode.

     The Court:  Since he hasnt been able  to
control   himself   for  the   last   several
hearings,  I think my only option ...  is  to
have  Mr.  Douglas downstairs  on  the  third
floor [of this building], in the room that he
was  in when he was sentenced [for the sexual
assaults] by Judge Weeks, and hell have  some
...

     Douglas:    Thats   prejudicial,   right
there.   ...   I  didnt  I didnt  go  out  of
control [at my] last trial ...

     Defense  Counsel:  Mr. Douglas, just  be
quiet.

     Douglas:  ... in front of the jury.

     The Court:  In normal circumstances, ...
Mr. Douglas would be correct.

     Douglas:     [apparently,     to     the
prosecutor]   And youre going to  jail,  too,
you  lying  bitch.   You  fucking  stole   my
evidence.

     The Court:  Well, at any rate, thats the
way  were going to do it tomorrow.  And  hell
be downstairs in the ...

     Defense  Counsel:  Your Honor, Im  sorry
...

     Douglas:   [again,  apparently  to   the
prosecutor]   You  fucking think  its  funny?
You  stole  my fucking evidence  out  of  the
fucking    you   stole   letters   that   [my
girlfriend] wrote, and theyre missing still.

     The  Court:   [to  Douglas]   Just  keep
rolling.  [To all]  Thats the way were  going
to  have  to  do it.  ...  I cant  conduct  a
trial  in this kind of atmosphere.   I  mean,
the jury ... would be looking for ways ... to
throttle  Mr.  Douglas, [much  less]  convict
him.  And, you know, under the circumstances,
he  cant  get  a  fair trial if  hes  in  the
courtroom.

     Douglas:   Shit,  I havent  got  a  fair
trial   [a  fair] shake since Ive been  here.
This is all lies.  I could prove it.  Its all
on  the record.  Its all on  other [evidence]
that  [my  defense  attorney  at  the  sexual
assault trial] didnt bring up.  ...

     Defense  Counsel:  Your Honor, ...  [the
prosecutor] has suggested that maybe the jury
would  get  an  instruction  ...  that   [Mr.
Douglas  has] already been convicted  of  the
rape.   I  assume [that] thats not  going  to
happen.

     The  Court:   Well, I  may  or  may  not
permit  [the  victim] to answer questions  to
that  effect   or somebody to answer  such  a
question.   I dont know about [the  propriety
of]  handing [the jury] an instruction saying
that.   That,  I  would rather  not  do.   Id
rather  have it come from a witness  [rather]
than from me.

     Defense  Counsel:  Yeah,  well,  I  dont
think  that  [information]  should  come  in,
period.

     The   Court:   Although  I  could   take
judicial notice of such an event, because its
part of the court records.

     Douglas:  Theres going to be some photos
that are going to come in.  Are you going  to
have  plain  error?  Well be doing  this  all
over  again, just like [my] last trial.   Its
going  to  be re-done, I promise you.   Plain
error.

     And   [the  prosecutor]  made  so   many
comments   in   his   opening   and   closing
statements that its almost like he went  down
every list of not-to-dos in the [book].   Its
amazing.   He brought up so much  stuff,  its
amazing.
     .  .  .

     Defense  Counsel:  If Mr.  Douglas  will
just  shut up for a second, I would  like  to
ask  [the Court] for a protective order  that
no  mention of [Douglass] conviction  in  the
rape   case   be   brought   up   under   any
circumstance.

     The  Court:  I said [that] Im  going  to
think   about   it  overnight.    ...    That
conviction  ...  is  technically  a   hearsay
finding  by  [twelve] people  who  [wont  be]
present  [at  the  witness tampering  trial].
The  twelve  jurors who found him guilty  [of
sexual assault] arent here.

     Defense Counsel:  I agree.

     Douglas:  The only doctor ...

     The  Court:   They  arent  going  to  be
testifying.  So, yes, ...

     Douglas:  The only doctor that  saw  her
...  was  a  prison doctor, a state employee.
...  He gets [his salary from] the same place
...   that  you  do[.]   ...  And   hes   got
malpractice running up and down the coast.

     The  Court:   [to the attorneys]   Well,
you know, ... I cant compete ...

     Douglas:  Is it ...

     Prosecutor:  I disagree with the  courts
hearsay finding.

     The  Court:  My voice isnt strong enough
to compete with Mr. Douglass.

     Douglas:  Unbelievable.

     The   Court:   But  hell  be  downstairs
tomorrow,  hearing  everything  that  occurs.
[And] well take frequent breaks.

     Douglas:     And    his    opinion    is
unscientific  on  that, too.   There  was  no
scientific evidence [to support] his opinion.

     The   Court:   There  will  be  frequent
breaks [in the proceedings], where Mr.  Carey
can have an ...

     Douglas:   There  was  no  tearing,   no
nothing.

     The Court:  ... opportunity ...

     Douglas:   A  little  hemorrhoid   didnt
cause all that freaking ...

     The Court:  ... to ...

     Defense Counsel:  [to his client]   Just
shut up, will you?

     The Court:  ... confer with Mr. Douglas.

     Douglas:  Okay?  Weve got to have  those
photos.

     The  Court:   Are there other  pre-trial
issues that we should discuss, since were all
here?
     .  .  .

     Douglas:  Ive got  I, I  wait a  second.
I  am  putting in right now:  Sullivan Moquin
[phonetic]  raped her three months  before  I
did.   You  can ask Chris Poag.  I talked  to
Chris Poag.  He was going to testify [at  the
sexual  assault trial], but the judge wouldnt
let him testify.

     Prosecutor:  Thats not accurate.

     Douglas:   Judge Weeks wouldnt let  him.
Yes, it is true.  [He] went back and [asked],
Is  that  true,  [K.I.]?  And she  goes,  No.
Yeah,  it  is true.  Theyre both fired  since
then.

     [To   the  prosecutor]   Theres  an  FBI
investigation  going  on,  and  your  ass  is
grass,  too, pretty soon.  I told you  [that]
your  fat ass is going to be in orange [i.e.,
in  a  prisoners jumpsuit] here, pretty soon,
... and youre going to be there, [Mr.] Scott.

     The  Court:  I cant say [that] Im  going
to miss Mr. Douglas.

     Douglas:  [to the prosecutor]   The  way
you  carry on and on, I wouldnt doubt  [that]
your  daughters  hymen is  freaking  ruptured
from yourself.

     The Court:  I think were done.

     Prosecutor:   Ive  got  a  problem  with
that, Your Honor.

     The Court:  Yeah, I think were done.

     Douglas:  You sick bastard.

     The Court:  Yeah, I think were done.

     Douglas:  Hey, ...

     The  Court:   Actually, ... I  think  we
should   discuss   [the  remaining   matters]
without Mr. Douglas.

     Douglas:   Fucking pig.   Hey,  you  are
fucking  going  down,  you  fucking  asshole.
Hey,   you  better  get  the  pictures,   the
colposcopic pictures in, or its going  to  be
plain  error.  Its going to be fucking  over.
Ive  got  a few other things to put on  [the]
record right here.

     [Douglas  then  engages  in  a   lengthy
recitation  of  various  pieces  of  evidence
which,  he contends, show him to be  innocent
of the sexual assaults.]

     Defense Counsel:  Mr. Douglas, [all  of]
this  has  nothing to do with anything  right
now.

     Douglas:  Yes, it does.  Youre ignorant.
Youre fired.  Youre fired for not doing this.
[To  the Court]  Hes not doing his job.   Hes
been trying to get me to take a deal.  Theyve
offered me a deal with no time to serve, zero
time,  if I plead guilty to one felony.   ...
Just  plead guilty.  Do you know why?  So  it
will  look  bad for my appeal   because  they
know [that] Im going to win my appeal.

     The  Court:  I couldnt comment  on  what
their intentions are.

     Douglas:   This is insane.  I mean,  why
would  you offer me a deal with no  time  [to
serve] for one felony?

     The  Court:  I dont know.  I dont  know,
but Im not going to ask.  ...  Okay, well see
you guys ...

     Douglas:  Well, no one has told me that.
If  theyd  tell me that  if they told  me  it
wouldnt hurt me, wed drop all this.

     The Court:  See you guys tomor ...

     Douglas:   If  they told  me  [that]  it
wouldnt  hurt me on appeal, and I  could  get
him to say that in writing, I would   I would
we  could just go home.  Wed all go home.  Id
plead  guilty to ... tampering  if  it  didnt
hurt  my appeal in the other case.  ...   [It
would]  save us all a lot of trouble  if  hed
put that on the record.

     The Court:  Mr. Douglas, I dont know  if
it  would hurt or help.  At any rate, Ill see
you guys in the morning.

     Defense Counsel:  Yes.

     The  Court:  [And] Mr. Douglas  will  be
downstairs,  where you [can] have  access  to
him as often as you like.

     Douglas:  Hey, this guy is fired  if  he
doesnt do that  get the pictures.  And if  he
doesnt do that, hes fired.

     Defense     Counsel:      Well,     that
(inaudible).

     Douglas:   Hes already  hes told  me  to
plead guilty.  Hes begged me to plead guilty.
I wont plead guilty.

     The Court:  See you in the morning.

     Douglas:  [to the Court]  What  are  you
going  to do?  Are you going to fire him  for
[me]?   Are  you going to let me  get  a  new
lawyer, or what?

     Defense  Counsel:   I  dont  intend   to
withdraw.

     The  Court:  Were going to have a  trial
tomorrow, starting at nine oclock.  So  [Ill]
see  you folks at nine, then. ...  I had your
client  brought  over,  Mr.  Carey,  frankly,
because I had a feeling that he was going  to
carry  on ... .  I just wanted to ... see  if
he  had  a change of heart, and he hasnt  had
[one].

     So  ...   [Mr. Douglas] will be  in  the
conference  room on the third floor  [of  the
courthouse].  ...  Hell have two  [Department
of  Corrections] personnel with him.  He  can
raise all the hell he wants down there.   ...
When  and  if we get to [the] stage  [of  the
trial]  where  he might or  might  not  be  a
witness,  ...  thats an altogether  different
matter. ...

     Defense  Counsel:  I believe  [that]  he
intends to be a witness.

     The Court:  Well, I dont believe that he
can  be ... prohibited from doing that.   But
at  least  the  rest of the trial  should  go
relatively smoothly.

          The  next morning (June 15,  2004),
when  the  court convened for Douglass  trial
(with a pool of prospective jurors waiting in
another  room), Judge Thompson  gave  a  more
formal explanation of his decision to exclude
Douglas from the courtroom during the trial:

     The  Court:  Mr. Douglas ... waived  his
right  to  be personally present ...  [or]  I
guess  a  better  word,  actually,  would  be
forfeited.   But at any rate, ... despite  my
pressuring  and cajolery and threats  ...  to
get  him to conform his conduct to the normal
conduct  we  expect during court proceedings,
he  [remains] disruptive[.]  We just  wouldnt
be  able  to [conduct] the trial if  he  were
physically present.  He just cant keep quiet.
...   He  has to do all the talking.   And  I
dont  mean [just] speak[ing] for himself  [as
opposed to speaking through his attorney].  I
mean [that] he has to do all the talking, and
nobody else can get a word in edgewise.  And,
under those circumstances, ... he would  just
simply  prejudice  the jury against  himself.
And   [my  other]  choices  are,  either   by
mechanical or medical means, [to] subdue him,
and  ...  Im ... simply not going to drug  or
duct-tape a defendant.  Im just not going  to
do it.  ...

     I intend to take frequent breaks, pretty
much  at Mr. Careys option, whenever he calls
for  one,  so  that he can confer  [with  Mr.
Douglas] to the extent that he wishes to,  or
Mr.  Douglas wishes to confer with him.   ...
I  want them to have plenty of contact  [with
each  other  outside] the jurys presence,  of
course.  And well do that.  ...   I dont know
of any other way to do it.

     If  anybody  has  a suggested  procedure
short of that, Id be glad to hear it.

     Defense  Counsel:  No,  Your  Honor.   I
think  that under ...  Rae [v. State],  youve
got  a  couple  of options, [but  the  option
that]  the  Court  has  just  announced  [is]
probably  ...  the  best one  for  right  now
still reserving my [previous] objection.

          The  defense attorney then informed
Judge  Thompson of an event that had occurred
the  previous  evening  an event  that  would
delay   Douglass  trial  for  another  eleven
weeks:

     Defense  Counsel:  Your Honor, if  youre
prepared  to  move  on, theres  been  another
situation  that  has  arisen  in   the   past
fourteen  hours or so ... that  you  need  to
hear about.

Mr. Carey proceeded to inform Judge Thompson that, on the
previous  evening, Douglas had punched him in the  face
when  Carey  went  to the jail to confer  with  Douglas
about the case.
Carey told Judge Thompson that he had consulted the Bar
Counsel  (i.e., the Alaska Bar Associations  discipline
counsel) concerning his ethical obligations in  such  a
situation,  and (apparently based on that conversation)
Carey  declared that he did not wish to  withdraw  from
the case.  However, Carey asked Judge Thompson to order
a competency examination for Douglas.

     Defense  Counsel:  [He and I] have  had,
as  the  Court is aware, disagreements  about
strategies and that kind of thing ... .   But
I  think it has moved beyond that point.  Mr.
Douglas  is completely unable to assist  [me]
in  the preparation of the defense.  I cannot
get  him  to focus.  He got violent  with  me
last  night at the jail [and] did  punch  me.
...    Im   not  saying  [that]   he   doesnt
understand the proceedings against him.   But
he  is  completely unable to  assist  counsel
and  ...  it  goes beyond [his] disagreements
with [me].  Hes just not able to focus.

A few minutes later, Carey added:

     Defense  Counsel:  I  want  to  make  it
clear  [that] Im not moving to  withdraw.   I
didnt ask for this to happen last night;  its
obviously   disturbing.   But  I   think   it
[speaks] more to the [lack of] competency  of
this  defendant.  It may be that there  is  a
...  mental defect that can be controlled  by
medication or otherwise [so as to] allow  him
to  assist  ...  and  to participate  in  his
trial.
     .  .  .

     Im not afraid of him.  I think hes going
to  be properly restrained [in the conference
room].    Ive  already  spoken  to   Judicial
Services ... to ensure that he was restrained
while I was in his presence.  ...  But as far
as  actually getting anything done [during my
conversations  with  him],  being   able   to
rationally  discuss matters  affecting  [his]
case,  his future, I dont think [that]  thats
going  to be possible right now.  And I  dont
think  its a matter of just myself.  I  think
its  a  matter  of Mr. Douglas  and  whatever
demons hes dealing with.

          In    response   to   the   defense
attorneys  remarks,  the prosecutor  asserted
that  Douglas  was  not  suffering  from  any
mental  illness  that Douglas  was  perfectly
capable  of  assisting in his defense  if  he
wished  to.   The  prosecutor contended  that
Douglas   was  purposefully  disrupting   the
proceedings:

     Prosecutor:    [Douglas  has   made   a]
conscious  decision  to  be  disruptive   and
threatening.  And that sort of [behavior]  is
something  that he has turned on  and  turned
off  throughout  the course  of  all  of  his
cases.   ... When he believes that  it  suits
him  to  be meek and [to] present himself  as
the  victim,  hell do that just  as  quickly.
And  sometimes hell turn on a dime.  ...  Mr.
Douglas is a remarkably manipulative guy  ...
.

          Judge  Thompson indicated  that  he
tended  to agree with the prosecutor, but  he
believed  that he was obliged to  investigate
the  possibility that Douglas  might  have  a
treatable mental illness  and the possibility
that,  if the mental illness could be treated
or  otherwise ameliorated, Douglas would then
be able to attend the trial:

     The  Court:   I guess well  release  the
jury,  and Ill ... order ... Mr. Douglas  ...
to API [the Alaska Psychiatric Institute] and
have  an  evaluation done.  Although  my  gut
feeling  is that were just going  to  get  [a
diagnosis  of] oppositional conduct  disorder
in other words, hes grumpy.  ...

     Mr.  Carey  has a point, though,  and  I
shouldnt  depreciate [what could be]  outward
manifestations ... of mental  illness  ...  .
It  could be that [the prosecutor] is  wrong,
and  that  Mr.  Douglas really  cant  control
himself.  ...  Although at times he  may  ...
put  on ... different facade[s], he may  have
lost  the ability to decide which one to wear
at  the appropriate time.  And, you know,  if
thats the case, [and if his condition can  be
treated], then I would much rather have ... a
placid  Mr.  Douglas here  in  the  courtroom
during [the] trial.  I mean, that clearly  is
far preferable to what were doing right now.

          A  little  over  two months  later,
toward the end of August 2004, Judge Thompson
held a hearing to announce the result of  the
mental  examination:  the  psychologist  from
API  had concluded that Douglas was competent
to    stand   trial.   In   particular,   the
psychologist concluded:

[Douglass] choice not to cooperate  with  his
defense counsel ... is not the product  of  a
mental  disorder  or defect;  rather,  it  is
[the]   product   of  his  over[-]controlling
personality disorder [and] his belief that he
has a legitimate legal defense which would be
undermined by following his attorneys  advice
...     .     [Douglass]    resistance    and
uncooperative behavior is a form  of  protest
of  the serious and grave circumstances he is
in,  and  he  may  be  expected  to  publicly
display his dissatisfaction with the criminal
justice  system in the form of  inappropriate
tirades in the courtroom.  [He] is capable of
conforming   his   behavior   to    courtroom
protocol.  He is just not willing to do  so[,
and  he] can be expected to publicly vent his
frustration ... .

The psychologist added that Douglas

is  able  to  calm  down and  ...  behave  in
a  fairly civil manner when he is not talking
about  his  legal  case[; but]  whenever  the
discussion turns to the charges against  him,
[or the] characteristics of his crime, and/or
discussions   about  [the]  victim   or   the
District    Attorney,    [Douglas]    becomes
extremely  angry  and threatening[,  although
his]  thought processes ... remain organized,
coherent,  and well-connected.   ...   He  is
extremely  angry  with the  victim,  his  own
attorney, and the District Attorneys  Office,
[all  of]  whom he accuses of ...  conspiring
against him.

          When  Judge Thompson announced  the
result  of  the  mental  evaluation,  Douglas
responded  with another rambling protestation
that  he had been unjustly convicted  of  the
sexual  assaults,  and he again  asked  Judge
Thompson  to appoint him a new attorney,  but
the judge again refused.
          Douglass  trial  commenced  on  the
morning  of  August  31,  2004.   When  court
convened,     Douglas    was    participating
telephonically  from  a  conference  room  on
another  floor of the courthouse.  The  judge
and  the attorneys began to discuss the issue
of  whether  the  prosecutor could  introduce
evidence    of   Douglass   sexual    assault
convictions  if (as discussed above)  Douglas
pursued   the   strategy  of  asserting   his
innocence of those charges.
          The  prosecutor stated that he  did
not  wish  to prevent Douglas from  asserting
his  innocence, nor did he wish to completely
re-try the sexual assault charges at Douglass
witness   tampering  trial.    Instead,   the
prosecutor   simply   asked   permission   to
introduce  the  fact that  Douglas  had  been
convicted of the sexual assault charges.   At
this point, Douglas interjected, But Ive  got
an appeal [of those charges].  Judge Thompson
responded, You can say that, too.
          Douglas  then launched, unprompted,
into  another extended declaration  that  the
sexual assault charges were completely false:

     Douglas:  Hey, I can get up there [i.e.,
on the stand] and say that theres no evidence
of  what  she [i.e., the victim]  says.   She
says  [that]  she was torn.  The doctor  says
no,  she  was  no tears.  I can prove  [that]
everything she said on those tapes are  lies.
As  a matter of fact, everything she says,  I
can  prove is lies; and everything I said  on
those tapes, I can prove to be true with hard
evidence, material evidence.

     The    Court:    [to   the   corrections
officers]   Can we disconnect Mr. Douglas  so
we dont have to listen to him?

     Corrections  Officer:   I   will,   Your
Honor.

     The   Court:   Yeah,  I  didnt  ask  Mr.
Douglas  for any comments.  ...  Mr.  Douglas
will  be  on the speaker phone in  the  sense
that  he can hear whats going on, but we dont
need any contributions from him.

     Douglas:   I  protest this, and  object.
This  lawyer  [i.e., Mr.  Carey]  is  not  my
lawyer.   He was punched in the face  because
he attacked me.  He was smiling down here [in
the conference room] at me, like hes going to
hes  going  to lose the trial.  Do  what  you
will, but this isnt going to work.

          A   few   minutes  later,  Douglass
defense attorney asked Judge Thompson  if  he
was  going  to  explain  to  the  jurors  why
Douglas  was  not  in the courtroom.   During
this   discussion,   the   defense   attorney
acknowledged  that, given the  circumstances,
and  given this Courts decision in Rae, Judge
Thompson  had  probably adopted  the  correct
course  of  action  when he  ordered  Douglas
excluded from the courtroom:

     Defense  Counsel:  I think  we  need  to
discuss  how  [to] advise the jury  panel  of
[Mr.  Douglass] absence ... and  the  reasons
for  that.  ...  Shouldnt we advise the  jury
as  to  why hes not present in the courtroom,
or at least say some...

     The  Court:   Well, Id  rather  not.   I
mean,  ...  it prejudices him,  I  think,  to
[tell  the jurors] that he [is] incapable  of
being quiet.

     Defense   Counsel:   Yeah.   I  noticed,
Judge,  [that]  in  the Rae  case   which  is
somewhat  similar to the situation ...  here,
...  an  obstreperous defendant,  [the  trial
judge  ordered him] bound and  gagged  ...  .
And  ...  the  Court [of Appeals] essentially
said, you know, Thats not how to do it.   The
best  way  is to do it the way were  actually
doing it [here].

     [But]  in  [the  Rae] case,  [the  trial
judge]  advised the jury that ... the  stress
of  trial had been too much, or was affecting
the  [defendant].  [That kind of explanation]
is  just  better for everyone.  I dont  think
[that]  we need to say that [Mr. Douglas]  is
going  to  yell and scream, or anything  like
that.

     The Court:  I wasnt going to say much of
anything.  I was just going to say [that]  he
is present by speaker phone, and ...

     Defense Counsel:  All right.

     The Court:  ... leave it at that.  I ...

     Defense    Counsel:    Thats    probably
sufficient.

          Judge   Thompson   then   explained
again,  for  the record, why he had  excluded
Douglas from the courtroom:

     The  Court:   If  I [havent]  said  this
clearly before, I dont think this was  really
my choice.  I think this was forced on me ...
because  Mr. Douglas just wouldnt or  couldnt
let anybody else get a word in edgewise.   If
he  is in the courtroom, nobody else will get
to  talk,  and  ...  we wont  get  very  much
accomplished.  ...  We cant try the case with
his  personal participation, because he  just
simply   cannot  or  will   not   ...     the
psychiatrist  [sic:   the  psychologist  from
API] seems to think that its will not  permit
the trial to go forward in a civilized way.

     And I ... cant subject the jury to that.
[The  jury would] be here for days and  days,
...  because Mr. Douglas has lots to say, and
he  likes  to  say it often and repetitively,
and  a lot of it isnt admissible[.]  ... [His
statements  are  not] under oath,  [and  they
are]  just all over the place.  ...  We  just
cant get anything done with him in here.  ...
I wish it [were] otherwise, but it isnt.


  Douglass  later request to come to the  courtroom  to
  present his testimony

          The jury selection at Douglass trial took one
day  (August 31, 2004), and the rest of the trial  (the
attorneys  opening  statements,  the  presentation   of
evidence, and the attorneys summations) took  place  on
the following day, September 1, 2004.
          Toward  the  end of the presentation  of  the
evidence,  and outside the presence of the jury,  Judge
Thompson  had the corrections officers re-activate  the
outgoing  voice signal of Douglass telephone,  so  that
Douglas  could  be heard in the courtroom.   The  judge
then asked Douglas if he wished to testify, and Douglas
declared  that he did wish to testify  but only  if  he
could deliver his testimony from inside the courtroom:
     
          Douglas:  Yes,  I want to testify, and I
     want  to be present in front of the jury.   I
     want[]  them  to  see a face  rather  than  a
     picture.  They cannot convict a picture.   He
     didnt file for absentia.  [sic]
     
          And  I  know  that this is  the  biggest
     farce  Ive  ever  heard of  that  she  [i.e.,
     K.I.]  got to testify without being in  front
     of  me.   I get to confront my accusers,  and
     the  witnesses against me.  They have to  see
     me, and [give their testimony] in front of my
     face.
     
          I  have   There are several ways  to  do
     that.   You could put me in a chair  and  gag
     me,  but I get to see eye-to-eye these people
     that  accuse  me of this.  And  Im  going  to
     appeal this, and this trial didnt take place.
     
     The  Court:   Well,  I  ...  again,   my
question  is,  Do you wish to  testify  under
oath in front of the jury?  ...  My intention
is  to  have you do it by phone.  But do  you
want to testify?

     Douglas:   Only if I get to testify  ...
face-to-face to the jury.  Thats the only way
I  will  testify, and thats the only way  its
proper.   And I protest if I do not  [get  to
testify in this manner].

     The Court:  Yeah.  See, Im afraid I cant
permit that.  I think the choice ...

     Douglas:  [Then] I will not testify.   I
will  have to be in front of [the]  jury,  to
let them see me as a person and judge me as a
whole person, not just a voice.

     The Court:  Well, I dont know.  Counsel,
any comment?  I made the decision ... that  I
couldnt  have  Mr. Douglas in  the  courtroom
because  he didnt seem to be able to  control
himself.  And the only way to control him  is
to be able to cut him off if he goes off on a
tangent or something  [not only] to avoid him
prejudicing  ...  his  own  case,   but   ...
probably causing a mistrial[.]
     .  .  .

     Defense   Counsel:    I   certainly   am
sympathetic  [to] the notion of any  criminal
defendant  wanting to be  able  to  face  his
accusers,  and  thats  the  way  to  do   it.
Obviously, there have been problems  in  this
case.

     The  Court:   Well, I think  [that]  the
right  to  confrontation [i.e., the right  to
face  ones  accusers] is a  different  matter
than  [the]  question of whether or  not  hes
going  to  testify  now.   I  understand  his
confrontation  issue.   ...   I   reluctantly
conducted the trial in this fashion, and  ...
this was not my preference.  ...  I dont like
doing it [this way].

     Defense  Counsel:  ...  If  Mr.  Douglas
wants  to testify, ... that is certainly  his
right.  [But] I am concerned about the  scope
of  his  testimony.  Im afraid that it  might
get off track.  And Ive advised him ... of my
concerns  in  that regard.  And Im  not  sure
what  mechanism we can possibly have, if any,
...

     The   Court:    [We]   dont   have   [a]
mechanism.   If  we had some  sort  of  video
setup  or something, then the jury could  see
him  [but  we would still be able to  control
his  presentation].  But  we  dont  have  any
equipment like that.  ...
     .  .  .

     Defense   Counsel:   Yeah.    Well,   Im
concerned  about [the] content [of  what  Mr.
Douglas  might  say], too.   Im  afraid  that
[his] testimony may  Its not usually my place
to object to my own clients testimony, but it
may ... get irrelevant; it may get way out of
...

     The    Court:    Yeah,   I    saw    the
[psychologists] opinion, and what he expected
would   probably  happen.   Mr.  Scott   [the
prosecutor], do you have any suggested ...

     Prosecutor:    ...   Because   of   [Mr.
Douglass] spitting and lunging issues, ... if
the   Court   is   inclined  to   ...   bring
Mr.  Douglas  [into the courtroom],  I  would
simply   ask   that  we  consult   with   the
[officers] who have to keep a hand on him  on
how  we  keep  him from spitting  on  us  and
lunging at us.
     .  .  .

     The Court:  Wait, wait, wait.  I hope  I
didnt  mislead  anybody.   I  dont  have  any
intention  of bringing Mr. Douglas  into  the
courtroom while the jury is in the courtroom.
...    Were  not  all  going  to  be  in  the
courtroom together.  ...
     .  .  .

     Douglas:   Oh,  this  is  going  to   go
somewhere  else   to Juneau, where  they  can
[Apparently,  to  the  prosecutor]  Youre   a
fucking moron.  And so is this Court.  I ...

     [At  this point, it appears that one  of
     the corrections officers muted the sound
     from Douglass telephone.]

     The  Court:   The  point  is  [that  Mr.
Douglas]  wants  to  testify,  but  he   cant
confine himself to relevant matter.  He  wont
answer  [the]  questions [put to  him].   ...
Because Ive tried to ask him questions during
[the]  hearings [in this case, and]  he  will
not  pay any attention to the question I ask;
he  wont answer the question I ask.  He  just
wants  to  make speeches.  And  his  speeches
ramble,  and  [they]  include  all  kinds  of
prejudicial  material ...  against  ...  [the
victim],   against  Mr.  Scott   [i.e.,   the
prosecutor],   against   his   own   attorney
[leaving] aside ... what he thinks about  me.
...

     If  he comes in here and carries on like
this   which is the only way I can assume  he
will  carry  on, because [at]  every  hearing
[over]  the  last six months, hes carried  on
like  this   the jury is going to make  short
work  of  the  verdict in this case.   Theyre
going to see somebody that probably ought  to
be  locked up, and thats all theyre going  to
[pay attention to].

     I   dont   take   this  [step]   lightly
because,  in  effect, [this]  strips  him  of
certain  constitutional  rights.   But,   you
know, hes doing the stripping; Im not.  I ...
simply  cant permit him to come in  here  and
turn this place into a circus[.]  Im just not
going to do it.  ...  I cant permit [him]  to
come up here and carry on in this fashion, in
this  high-handed  fashion  that  he  insists
on[.]

          Judge   Thompson   then   had   the
corrections officers re-connect the  outgoing
voice   signal   from   Douglass   telephone.
Without  waiting  for  a  question  from  the
judge, Douglas began speaking:

     Douglas:   [I  will]  testify;  I   will
testify.  [But] I want to see the jury eye-to-
eye.    That  has  to  happen.   I  want   to
testify[,  but]  I  will  not  speak   to   a
[telephone] speaker.  That is not the jury.

     The  Court:  Well, if  Mr. Douglas,  ...
the  Court has made its ruling.  [Youre]  not
going  to  be in here.  So, Mr. Douglas,  the
question  is,  will  you  testify  from  [the
conference] room?

     Douglas:  I will testify to the jury, so
that  they  can see my face when  Im  telling
them  the truth.  Thats all I want  [to] tell
the story of this entire episode, and exhibit
the proof [of my innocence], which my lawyers
did not do.

     I have all the proof: documents, medical
records,  everything  that  proves  that  she
[i.e.,  K.I.] is a liar and [that] everything
I  said is true.  I want to do that in  front
of the jury unimpeded.

     I  didnt act up in front of the jury [at
my] last [trial] until after the verdict [was
announced].  We were fine with the  jury.   I
sat  there through the whole trial.  I  didnt
want to mess up in front of [that] jury,  and
I  dont want to mess up in front of this jury
[either], and I wont.  ...  Im not  going  to
sabotage  myself  in front of  the  jury;  Im
going to show myself calmly.

          However,  having made this  promise
to  conduct  himself in an  orderly  fashion,
Douglas   immediately  (that  is,   with   no
intervening   conversation)   launched   into
another  extended  assertion  that   he   was
innocent of the sexual assaults  and that his
conviction  of  those crimes  was  due  to  a
combination  of  perjury by  his  girlfriend,
corrupt  dealings by the government, and  the
incompetence of his own attorney.
          When    Douglas   finished,   Judge
Thompson  declared that he  could  not  allow
Douglas  into  the  courtroom,  and  Douglass
attorney responded, Im not asking you to.
          Here  is the pertinent excerpt from
the transcript:

     Douglas:   ...  Im going to show  myself
calmly.   And  thats whats killing  me  right
here:   I  cant show myself.  The thing   and
these  lawyers didnt spend enough  time  with
all these records.  I know exactly.  Ive been
over this for two years  over everything that
happened  and these people dont know.

     But  she  [i.e.,  K.I.] didnt  have  the
letters.  Two letters disappeared.  She didnt
and those records show that she didnt receive
a call in her home from the jail that had any
(indiscernible),   no  time   on   it   until
September  7th.  The letter ... in  question,
[the  letter]  that  she wrote,  was  written
September 6th.  Its dated a big September  6.
That  letter disappeared too, for this trial.
Isnt that kind of suspicious?  That now three
letters   are  gone?   And  that  letter   is
supposedly    that  came  up  missing    that
Kristen   Swanson  [i.e.,  Douglass   defense
attorney  at his sexual assault trial]  says,
Yes, we lost letters during your trial.  They
[would have] ruined the States case, and they
came up missing.

     The Court:  Yeah, ...

     Douglas:  Now, this letter that  clearly
states   September  6th  in  a   big,   happy
handwriting, neat and clean ...

     Defense  Counsel:  Its  coming  in,  Mr.
Douglas.    Were   going  to  produce   [that
letter].

     The  Court:  Yeah, were going to get the
letter.

     Douglas:  Okay.  But then youre going to
have  to  show  that ... the forms  from  the
jail,  there was  they look  punch her  phone
number  into the computer, and there wasnt  a
call  until September 7th.  She [i.e.,  K.I.]
was  visited September 6th by those  lawyers,
and  her   and  Susan Crocker.   She  accused
Susan  Crocker of strong-arming  her.   Thats
why Susan Crocker got off the case ... .  But
she  did put that on [the] record, and I have
it  in Sharon Zinks report, that Sharon  Zink
wrote  in  her [own] handwriting, that,  yes,
[K.I.]  accused  us of strong-arming  her  to
write that letter of testimony.

     The Court:  Well, ...

     Douglas:   Theyre lying.  Thats  what  I
have to do.  If my lawyers will not show  the
proof  [of my innocence], I have to show  it.
And  I  can show it calmly.  Theres no reason
for me to get upset in front of that jury.  I
dont  want to make those people upset.   Now,
after  its over, dont bring me back in  there
for the reading of the verdict.  [But] Im not
going to act out [during my testimony].

     The  Court:   I dont hear anything  that
changes my mind.  I, you know, I ...

     Douglas:   Because you dont  care.   You
dont  want  to  see  me win  this  case.   My
everything points towards her [i.e., K.I.] as
a liar.

     The  Court:  Well, let me observe [that]
I dont care how the case comes out.  It makes
no,  ...  its nothing to me one  way  or  the
other.   [But]  I cant bring Mr.  Douglas  in
here.

     Defense Counsel:  Im not asking you to.

     The Court:  I know whats going to happen
if  ... he starts off like this and I try  to
interrupt him.  He wont be interrupted.   And
if I do interrupt him, ... were going to hear
[more  of]  what weve been hearing  regularly
when I do interrupt him  which is ... cursing
and carrying on.

     And ... if Mr. Douglas were permitted to
...  make his speech, the State would have  a
right, then, to cross-examine Mr. Douglas.  I
am  satisfied  ... that he would  not  answer
[the   prosecutors]  questions  except   with
invective  and  insults.  [And]  I  would  be
presented ... with the [potential problem] of
striking his testimony because he refused  to
submit  to cross-examination.  Because  I  am
quite confident that he will not answer  [the
prosecutors] questions, at least not in [any]
ordinary  sense,  and  Id  probably  wind  up
having to strike his testimony[.]

     I  think  the whole thing would just  be
pointless,   and  [would]  leave   the   jury
hopelessly prejudiced against him.

          Because  Douglas refused to testify
unless  he  was  physically  present  in  the
courtroom, the case was submitted to the jury
without his testimony.

Douglass argument that he should have been allowed
to present his testimony in the courtroom

          Douglas concedes that his behavior gave Judge
Thompson  good reason to exclude him from the courtroom
for  much  of the trial.  However, Douglas argues  that
Judge  Thompson was obliged to give him another  chance
to  come to the courtroom after Douglas promised not to
act  out  in  front of the jury when he  delivered  his
testimony.
          We  are not sure that this claim of error was
preserved in the trial proceedings.
          As  can be seen in the last-quoted transcript
excerpt, after Douglas presented his request to testify
while  physically  present in the courtroom,  his  next
remarks  were  another lengthy accusation  of  perjury,
corruption,  and attorney incompetence.  Hearing  this,
Judge  Thompson  declared that [he could]nt  bring  Mr.
Douglas  in here  to which Douglass attorney responded,
Im not asking you to.
          In other words, the defense attorney appeared
to   acknowledge  that  Judge  Thompsons  position  was
justified, and that Douglas should not be brought  into
court to give his testimony.
          Nevertheless,  because of the  importance  of
this  issue  to future cases, we will explain  why  we,
too,   conclude   that  Judge  Thompsons   action   was
justified.
          In  Illinois v. Allen, 397 U.S. 337, 90 S.Ct.
1057,  25 L.Ed.2d 353 (1970), the Supreme Court  stated
that  even after a defendant has lost the right  to  be
present   at   trial  (by  persisting   in   disruptive
behavior), the right to be present can ... be reclaimed
as  soon as the defendant is willing to conduct himself
[with  the  requisite] decorum and respect.   Id.,  397
U.S.  at  343, 90 S.Ct. at 1061.  In other words,  even
when  defendants act disruptively and (because of this)
are removed from their trial, they do not irretrievably
forfeit their right to attend future court proceedings.
          Frequently,  defendants will  (like  Douglas)
assert  their  innocence and, at the same  time,  their
distrust of their attorneys, or the prosecutor, or  the
court, or all three.  Some defendants are so disruptive
and disrespectful when making these assertions that the
defendants  must be admonished or warned  of  potential
consequences.   And  a few of these defendants   again,
like  Douglas   will be so persistent in this  behavior
that  a  judge must impose consequences if the judicial
proceedings  are  to  proceed in  a  fair  and  orderly
fashion.
          Nevertheless,   it   would   be   error    to
indefinitely bar a defendant from attending their trial
or  sentencing proceedings based merely upon their past
misconduct and the surmise that the disruptive  conduct
may  continue.   Such  an approach  would  violate  the
mandate  of  Illinois  v.  Allen,  which  states   that
defendants  must  be allowed to reclaim  the  right  to
attend their trial by altering their behavior.  As  the
Ohio Court of Appeals has observed,
     
          Virtually any defendant who is difficult
     to   deal  with  could  be  barred  from  the
     courtroom  [if  the law only  required  proof
     that]  he might act up in front of the  jury,
     or  [that]  the trial judge doesnt trust  him
     [to behave].  Such [an] expansion of the rule
     [in Allen] would emasculate the Confrontation
     Clause.
     
     State v. Brown (unpublished), 2004 WL 1445104
     at *11 (Ohio App. 2004).
               We  also note that the American Bar
     Association, in its standards relating to the
     function  of  a trial judge, recommends  that
     when  a  defendant has been removed from  the
     courtroom  because  of  disruptive  behavior,
     there [should] be a standing opportunity  for
     the defendant to return to the courtroom, and
     that the trial judge should periodically  ...
     offer[  the  defendant]  an  opportunity   to
     return  to  the  courtroom, conditioned  upon
     good  behavior.  ABA Standards  for  Criminal
     Justice, Special Functions of the Trial Judge
     (3rd ed. 2000),  6-3.8, Commentary, p. 66.2
          However, Allen does not say that  a
defendant automatically reclaims the right to
be present whenever the defendant promises to
behave.    Rather,  Allen   says   that   the
defendant  reclaims the right to  be  present
when the defendant is willing to behave.
          We  interpret this language to mean
that   a  trial  judge  is  not  obliged   to
uncritically  accept all promises  of  future
good  behavior.  If the record  affirmatively
demonstrates  good reasons for not  accepting
the  defendants  promise at face  value,  the
judge   does  not  need  to  keep  giving   a
disruptive  defendant  the  benefit  of   the
doubt.
          As  the  Tenth Circuit observed  in
United  States v. Nez, 877 F.2d 1475  (10th
Cir. 1989),

     [We do not read Allen] to mean that when
[a  defendant is] excluded [from] his  trial,
he should ... thereafter [be] brought back at
least  once  a  day to ascertain  whether  he
[will] promise to behave properly and  if  he
[does]  so  promise,  he  should  then   [be]
allowed to stay in the courtroom unless,  and
until,   his  next  outbreak,  ad  infinitum.
Allen contains no such requirement.

Nez, 877 F.2d at 1477-78.
          For  instance, in United States  v.
Ives,   504   F.2d  935  (9th  Cir.   1974),3
    the   defendant  was  removed  from   the
courtroom  on  several  occasions,  based  on
disruptive  behavior  such  as  refusing   to
answer  questions, arguing  with  the  judge,
striking the defense attorney, shouting  from
his   cell   beneath   the   courtroom,   and
physically    attacking    the    prosecuting
attorneys.  Id. at 943-44.
          Soon  after  Ivess  attack  on  the
prosecuting  attorneys, his defense  attorney
requested  that Ives be allowed to return  to
the  courtroom so that he could testify.  The
trial  judge ruled that Ives would not to  be
allowed  into  the courtroom again   and  the
judge  did  not  offer  the  alternative   of
telephonic  testimony.  In other  words,  the
trial  judge declared that Ives had lost  his
right  to  testify.  Id. at 944.   The  judge
explained his decision:

     The  Court:  I dont think I have to  sit
     back here and keep my fingers crossed about
[the  defendants behavior], having him [come]
up  here [to the courtroom], and then  [being
sent] downstairs, and then back up here again
... .  [King] Solomon might have been able to
determine what [the defendant] was  going  to
do when he got here, but how far do I have to
go?   ...  I am willing to go a long way, but
I  am not going to go overboard and have  him
back  up here and have a reoccurrence of what
has happened already on two occasions in this
trial, and once in the prior trial, as to his
efforts to attack people in the courtroom.  I
am not obliged to do that.

Ives, 504 F.2d at 944-45.
          As  the Ninth Circuit observed, the
defendants   request  (to   return   to   the
courtroom to testify) posed a dilemma to  the
trial judge:

If [the trial judge] refused to allow Ives to
testify, [Ivess defense] counsel would charge
that  the court erred by denying [Ives]  that
privilege; [but] if [the trial judge] allowed
Ives  to testify and Ives acted as the  judge
believed  he  would, [Ivess defense]  counsel
would  charge  that the court  erred  by  not
granting a mistrial.

Ives,  504  F.2d  at  945.   Based  on  Ivess
repeated  disruptive and assaultive behavior,
the Ninth Circuit concluded that [i]t was not
error  for the trial court to refuse to allow
Ives to testify in this case.  Id. at 946.
          In  the  present case, we need  not
reach  the issue of whether Douglass behavior
might   have  justified  Judge  Thompson   in
completely depriving Douglas of his right  to
testify.  Rather, the issue is whether  Judge
Thompson  could properly require  Douglas  to
present his testimony by telephone.
          As  can  be  seen from the  lengthy
transcript excerpts quoted above, Douglas was
fixated  on  proving  his  innocence  of  the
already-tried  sexual  assault  charges.   He
insisted that he had been convicted of  those
charges  due to his girlfriends perjury,  the
States  suppression of evidence, and his  own
attorneys incompetence (or even connivance).
          Moreover,     Douglas    repeatedly
expressed his disdain and contempt for anyone
who   disagreed  with  him,  or  anyone   who
attempted to interfere with his protestations
of  innocence  and  accusations  of  perjury,
misconduct, and incompetence.
          Just   as   significantly,  Douglas
repeatedly  and  lengthily  expressed   these
beliefs and attitudes whenever he chose, even
when  he  was  expressly admonished  that  he
should remain quiet, or that his remarks were
not  pertinent to the issue being  discussed.
As  Judge Thompson observed, [Douglas] has to
do all the talking, and nobody else can get a
word in edgewise.
          On  several  occasions, when  Judge
Thompson  or Douglass own attorney admonished
him  to  keep quiet and stop giving speeches,
Douglas replied that he could not do so.  For
instance, at the March 2nd pre-trial hearing,
Douglas  aimed  invective at the  prosecutor.
When  Judge  Thompson told Douglas  to  stop,
Douglas  replied that it was impossible   and
he  then accused the prosecutor of subverting
justice:

     The Court:  Mr. Douglas, youre going  to
have to control yourself.

     Douglas:   I  cant.  This guy  stole  my
evidence.  He ...

     The  Court:  Well, were not going to get
into all ...

     Douglas:  He tampered with my witnesses.

A    similar    colloquy     i.e.,    another
protestation   by   Douglas   that   it   was
impossible  for  him to remain  silent   took
place at the motion hearing on June 14th:

     Defense     Counsel:     Listen,     you
(indiscernible  simultaneous speech).

     Douglas:  Excuse me.  I cant take  this.
He [i.e., the prosecutor] is a liar.

     Defense  Counsel:  You need to just  sit
and keep quiet.

     The Court:  Try to take ...

     Douglas:   Pig-eyed liar.  Hes going  to
hell  ... .  [To the prosecutor]  Youre going
to  be  swimming with [K.I.] in the  lake  of
fire,  you  fucking fat pig.   Thats  what  I
meant   by   going  swimming,  you  pig-faced
bastard.

     The  Court:  Well.  Let me note that ...
one  reason I had Mr. Douglas brought [to the
courthouse] today, instead of doing  this  by
phone, was just to see if there had been  any
...

     Douglas:  Well, I just cant sit here and
listen to lies, Your Honor.

          We  also note that, at the close of
this   same   June  14th  hearing,   Douglass
attorney  (Carey)  rejected Douglass  demands
that he voluntarily leave the case, and Judge
Thompson  then refused Douglass  demand  that
the judge remove Carey from the case.  At the
next  opportunity  i.e., when Carey  went  to
visit  Douglas  at the jail that  evening  to
confer  about  the  trial  Douglas  assaulted
Carey.
          For these reasons, we conclude that
Judge  Thompson could justifiably  refuse  to
credit Douglass promise of good behavior.  It
is  possible that Douglass promise would have
been sufficient to warrant his return to  the
courtroom   if   the  sole  danger   to   the
orderliness  of  the  proceedings  had   been
Douglass  history  of  physically  assaultive
conduct.   If that had been the case,  it  is
conceivable that precautions could have  been
taken to eliminate the possibility of assault
while  still allowing Douglas to present  his
testimony in person.  But we need not resolve
that  issue  because, here, the record  shows
that  Judge Thompson was not so much  worried
by  the  danger  that Douglas  would  assault
someone as by the danger that Douglas  would,
by   his   verbal   conduct,  undermine   the
orderliness  of  the  trial  and  create  the
necessity for a mistrial.
          When  Douglas made his  request  to
return to the courtroom for his testimony, he
stated that he could not remain silent in the
face  of the purported perjury that was being
presented against him.  Douglas declared, [My
accusers]  are lying.  [And that] is  what  I
have  to  do [when I testify].  If my lawyers
will not show the proof [of my innocence],  I
have to show it.
          It   is  true  that  Douglas   also
declared  that  he could present  this  proof
calmly.   But,  based on Douglass  persistent
behavior  on  past occasions, Judge  Thompson
did  not believe that Douglas was capable  of
controlling himself:

     The Court:  I know whats going to happen
if  ...  he starts [proclaiming his innocence
and asserting the corruption and incompetence
of  everyone  else,] and I try  to  interrupt
him.   He wont be interrupted.  And if  I  do
interrupt  him, ... were going to hear  [more
of]  what weve been hearing regularly when  I
do  interrupt him  which is ...  cursing  and
carrying on.

     [I]f  Mr. Douglas were permitted to  ...
make  his  speech,  the State  would  have  a
right, then, to cross-examine Mr. Douglas.  I
am  satisfied  ... that [Douglas]  would  not
answer  [the  prosecutors]  questions  except
with invective and insults.  [And] I would be
presented ... with the [potential problem] of
striking his testimony because he refused  to
submit  to cross-examination.  Because  I  am
quite confident that he will not answer  [the
prosecutors] questions, at least not in [any]
ordinary  sense,  and  Id  probably  wind  up
having to strike his testimony[.]

          In other words, just like the trial
judge   in  Ives  (discussed  above),   Judge
Thompson faced the dilemma that if he refused
to  allow  Douglas to return to the courtroom
to  testify,  Douglas would  claim  that  his
constitutional rights had been infringed, but
if the judge allowed Douglas to return, there
was  every  reason  to believe  that  Douglas
would  engage in behavior that would  require
the  judge  to  declare a  mistrial   or,  at
least,  would  require  the  judge  to  order
Douglass removal from the courtroom (in front
of the jurors).
          Given  the record in this case,  we
do   not  believe  that  Judge  Thompson  was
working  from mere surmise when he  concluded
that   Douglas   would  engage   in   renewed
disruptive  conduct  if  he  was  allowed  to
return  to the courtroom.  As we noted above,
even  Douglass  own attorney  was  apparently
convinced  that there was little chance  that
Douglas  would behave himself  if  (as  would
almost   inevitably  happen)  he  was  cross-
examined    in   a   way   that   made    him
uncomfortable, or if he was admonished by the
judge  to  confine his remarks  to  pertinent
subjects and admissible evidence.
          For  these reasons, we uphold Judge
Thompsons  decision not to allow  Douglas  to
return  to  the  courtroom  to  present   his
testimony.

Judge   Thompsons  decision  to  allow  the  State   to
introduce  evidence that Douglas had been convicted  of
the underlying sexual assaults

          As  explained above, at the pre-trial hearing
of  June  14,  2004, Douglass attorney  announced  that
Douglass defense to the witness tampering charges would
be  the assertion that Douglas was actually innocent of
the  underlying sexual assaults  so that when he  urged
his  girlfriend to testify that he was innocent, he was
simply urging her to tell the truth.
          The  defense  attorneys opening statement  to
the  jury at Douglass trial conformed to this strategy.
The   defense   attorney  conceded  that  Douglas   had
physically  assaulted  his  girlfriend,  and  that  she
suffered  some  bad  injuries  as  a  result  of  those
assaults.  Nevertheless, the defense attorney asserted,
there  was  no  sex; that is, Douglas did not  sexually
assault  K.I..   Thus, when Douglas spoke  to  K.I.  by
telephone  and declared that there had been  no  sexual
assault,  he  was  not asking or suggesting  that  K.I.
testify  falsely, [or] offer misleading  testimony,  or
withhold testimony.
          Later   in  the  trial,  during  his   cross-
examination of K.I., the defense attorney elicited  the
fact that a post-assault medical examination failed  to
find  sperm  in K.I.s body.  In addition,  the  defense
attorney  elicited  the fact that  K.I.  was  extremely
intoxicated  when  she  was brought  to  the  hospital.
(Apparently, K.I. had a blood alcohol content  of  .295
percent at that time.)  Also, the defense attorney  got
K.I. to acknowledge that she had later sent a letter to
the  District  Attorney,  claiming  that  no  rape  had
occurred  and  that she had inflicted the  injuries  on
herself.
          In   response,  the  prosecutor   began   his
redirect  examination of K.I. by referring to the  fact
that  K.I. had been cross-examined in similar  ways  at
Douglass  earlier  trial for sexual assault,  and  that
Douglas had been convicted at that earlier trial.  This
prompted  the defense attorney to object and request  a
mistrial  which Judge Thompson denied:
     
          Prosecutor:   [K.I.], there was  another
     trial in this case, wasnt there?
     
          K.I.:  Yes, there was.
     
          Prosecutor:   ...  And you testified  in
     that trial, right?
     
          K.I.:  Yes, I did.
          .  .  .
     
          Prosecutor:  Were you subject to  cross-
     examination [in that other trial], like youre
     subject   to  cross-examination   now?    ...
     [Q]uestions   about   your   drinking?    ...
     [Q]uestions about psychiatric care that  youd
     received, and whether or not you were  taking
     any medications at the time?
     
          K.I.:  Yes.
     
          Prosecutor:   The  jury  [in  the  other
     trial]  heard  your  answers  to  all   those
     questions, right?
     
          K.I.:  Yes.
     
          Prosecutor:    [And]  Mr.  Douglas   was
     convicted of rape in ...
     
          Defense Counsel:  I object, Your  Honor.
     That  door  has not been opened at  all.   In
     fact, I move for a mistrial ... based on  the
     introduction of that [fact].
     
     The  Court:  Ill overrule the objection,
and  deny  [the] request for a  mistrial.   I
think   that  [your]  cross-examination   did
effectively  raise the issue  [of  whether  a
sexual assault actually occurred].  And, [as]
I  believe  I  indicated  ...  earlier,  [the
prosecutor]  could,  in fact,  bring  up  the
previous  conviction [if the  defense  denied
that a sexual assault occurred].
     .  .  .

     Prosecutor:   [to K.I.]  So  youve  done
this before, in front of another jury, and he
was convicted, right?

     K.I.:  Correct.

          On appeal, Douglas challenges Judge
Thompsons ruling on two grounds.
          First,  Douglas  argues  that   the
challenged   testimony  was  irrelevant   ...
[because   the]  defense  had  presented   no
evidence that the underlying sex[ual] assault
had  not occurred and, thus, the defense  did
not  open  the door to evidence of  [Douglass
sexual  assault] conviction.  As demonstrated
by  the  content  of  the  defense  attorneys
opening  statement and the defense  attorneys
cross-examination of K.I., this contention is
simply wrong (as a factual matter).
          Second,  Douglas  argues   in   the
alternative  that,  even  if  the  challenged
testimony   was  relevant,  it   nevertheless
constituted   evidence   of   another   crime
committed by Douglas, and it should have been
excluded  under Alaska Evidence Rules  404(b)
and  403  because  its  probative  value  was
outweighed   by  its  potential  for   unfair
prejudice.
          There  are  two  answers  to   this
contention.
          First,  the defense attorney  never
asked Judge Thompson to consider the issue of
probative  value versus potential for  unfair
prejudice.  The defense attorney argued  only
that  the  challenged evidence  was  strictly
inadmissible   because  (according   to   the
defense  attorney)  the  defense  had   never
opened the door to this evidence by asserting
that no sexual assault ever occurred.
          Second, even though this challenged
evidence  tended  to show  that  Douglas  had
sexually  assaulted  K.I.,  the  jurors  were
already  well  aware of this allegation,  and
they   had   heard  much  of   the   evidence
supporting  it.   The  whole  basis  of   the
witness tampering charge was that Douglas had
sexually assaulted K.I. and then later, in  a
series  of telephone calls from the jail,  he
asked  or  encouraged K.I. to lie about  this
matter  and  say that no sexual  assault  had
occurred.   During  her  testimony   at   the
witness   tampering  trial,  K.I.  repeatedly
asserted  that Douglas had, in fact, sexually
assaulted her.
          For  these reasons, neither of  the
arguments  raised in Douglass brief  has  any
merit.
          The    real   problem   with   this
evidence, as Judge Thompson noted at the pre-
trial hearing of June 14th,4 is that evidence
of  a  criminal  conviction  is  inadmissible
hearsay under Alaska law if it is offered  to
prove that the defendant actually engaged  in
the   conduct   that   would   justify   that
conviction.  See Spenard Action Committee  v.
Lot  3,  Block 1, Evergreen Subdivision,  902
P.2d 766, 780 (Alaska 1995) (holding that the
Alaska  Rules of Evidence articulate a policy
against   admitting  criminal  judgments   as
evidence  [of the underlying conduct]);  F.T.
v.  State, 862 P.2d 857, 863-64 (Alaska 1993)
(holding that the trial court erred in taking
judicial  notice  of  [domestic]  restraining
orders  [issued against a childs father]  for
the purpose of establishing that [the father]
          had committed acts of violence in the past.).
          That being said, there was no plain
error in admitting this evidence.
          First,   hearsay  that   would   be
objectionable  is nevertheless admissible  if
no hearsay objection is raised.5
          Second,  it  is arguable  that  the
doctrine   of   collateral  estoppel   barred
Douglas  from asserting that he was  innocent
of  the  sexual  assaults for  which  he  had
previously been convicted.
          The  Alaska Supreme Court has  held
that   defendants   who   plead   guilty   or
no  contest to a felony, or who are tried and
found  guilty,  are thereafter estopped  from
contesting   their  factual  guilt   of   the
essential elements of that crime in  a  later
civil  proceeding.  This is true whether  the
defendant   is   appearing  in   that   civil
litigation  as  a  plaintiff  6   or   as   a
defendant.7
          The  supreme court has not yet  had
occasion to decide whether this same doctrine
of  estoppel applies to situations  like  the
one  presented  in Douglass case   situations
where  a  defendant is convicted of a  felony
following a trial, and then the State pursues
related  criminal  proceedings  against  that
same defendant.
          However,  these  situations   would
seemingly  satisfy the four  requirements  of
the doctrine of collateral estoppel:  (1) the
plea of collateral estoppel is being asserted
against  a  party to the previous litigation;
(2)  the  factual issue to be precluded  from
re-litigation is identical to a factual issue
decided in the previous litigation; (3)  this
factual   issue  was  resolved  by  a   final
judgement  on  the  merits  in  the  previous
litigation;  and (4) the resolution  of  this
factual  issue  was essential  to  the  final
judgement  in  the previous litigation.   See
Snook  v.  Bowers, 12 P.3d 771,  777  (Alaska
2000).
          In  Hess  v.  State, 20 P.3d  1121,
1126  (Alaska 2001), the Alaska Supreme Court
noted  that the Commentary to Alaska Evidence
Rule  803  suggests that collateral  estoppel
may  apply  to these situations.   The  final
paragraph of that Commentary reads:

     Note on Omission  Omitted from this rule
is  an exception for [previous] judgments  of
...  conviction.  See Federal [Evidence] Rule
803(22).   ...  [T]he only reason to  include
     an exception for [previous] judgments of ...
conviction is to permit [the] finding of  one
trier  of fact to come before another  [trier
of  fact].   If  a judgment of guilt[]  in  a
criminal  case, which follows proof beyond  a
reasonable doubt, is to have [an]  impact  in
subsequent cases, the impact should be by way
of  collateral  estoppel, not  admitting  the
previous judgment.

(Emphasis added)
          One   could  argue  that   Douglass
convictions for sexual assault were  not  yet
final,  in  the sense that he still  had  the
right  to appeal those convictions.   But  in
Wyatt  v.  Wyatt,  65 P.3d 825,  831  (Alaska
2003),  the  supreme court noted that  Alaska
law  generally  gives  preclusive  effect  to
trial  court  judgements even when  there  is
still  a possibility that the judgement  will
be overturned on direct appeal.
          We  need  not resolve any of  these
issues in Douglass case.  We need only  point
out  that there is at least a plausible legal
argument  that Douglas should not  have  been
allowed  to  assert  his  innocence  of   the
underlying sexual assaults against K.I.  when
this  factual  issue was raised  at  Douglass
later  witness  tampering trial.   This  fact
(that the issue of collateral estoppel is  at
least  debatable) precludes  any  finding  of
plain  error with regard to the admission  of
evidence that Douglas was convicted of  those
sexual  assaults  because any  error  arising
from the admission of this evidence would  be
harmless  if,  under the law, Douglas  should
not have been allowed to assert his innocence
in the first place.

Did Douglass physical assault on his defense attorney
on  June  14th  require the  defense  attorney  to
withdraw from further representation of Douglas?

     As  explained  above,  serious  disagreements
surfaced at the pre-trial hearing on June 14, 2004
between  Douglas and his attorney, William  Carey.
Toward  the  close of that hearing, Carey  refused
Douglass  demand that he remove himself  from  the
case,  and  then  Judge Thompson refused  Douglass
demand that he (the judge) order Carey to withdraw
from the case.
     Later that day, Carey visited Douglas at  the
jail to confer with him about the trial (which, at
that  time,  was scheduled to start the  following
day).  During this visit, Douglas punched Carey in
the  face  and had to be restrained by corrections
officers.
     When  court  reconvened the next  day,  Carey
informed  Judge  Thompson what had  happened.   He
told  the judge that he had discussed this  matter
with the Bar Counsel (i.e., the discipline counsel
for  the Alaska Bar Association), and that he  did
not wish to withdraw from Douglass case.  However,
Carey  asked Judge Thompson to order a psychiatric
evaluation  of Douglas.  (This led to a  delay  of
Douglass trial until late August.)
          During  that  same court proceeding  of  June
15th,  the  prosecutor announced that  he  intended  to
charge  Douglas with assault, based on Douglass act  of
punching Carey.8
          The  prosecutor acknowledged that Carey,  for
admirable reasons, was not being a cooperative  victim.
The  prosecutor  declared, however,  that  the  assault
charge  could  be  prosecuted without  any  significant
cooperation from Carey, since the assault had  occurred
in the presence of corrections officers.
          The prosecutor then suggested that the States
decision  to  charge Douglas with this  crime  place[d]
Carey ... in a position that will make it difficult for
Carey   to  continue  [to  represent  Douglas].   Carey
responded:
     
          Defense Counsel:  Your Honor, I want  to
     make  it  clear  [that]  Im  not  moving   to
     withdraw.   I  didnt ask for this  to  happen
     last night.  Its obviously disturbing.  But I
     think it goes more to the competency of  this
     defendant.  It may be that [he has a]  mental
     defect  that can be controlled by  medication
     or  otherwise ... .  Right now, ...  [in]  my
     mind  ... and under the [pertinent] case law,
     deference [should] be given to [the]  defense
     counsel  who  knows the guy, who spends  time
     with the guy.
          .  .  .
     
          Im not afraid of him.  [I concede that],
     as  far  as  actually getting anything  done,
     being  able  to  rationally  discuss  matters
     affecting  [his]  case, I  dont  think  thats
     going to be possible right now.  [But] I dont
     think  that its a matter of just  myself.   I
     think  its  a  matter  of  Mr.  Douglas   and
     whatever demons hes dealing with.

          When  the  parties re-assembled  in
court two months later (August 20th), it  was
revealed  that  the State had obtained  a  no
contact order from a district court judge  in
the   assault  case,  an  order  that  barred
          Douglas from having any contact with the
alleged  victim  of  the assault   i.e.,  his
attorney, Carey.
          Carey  told Judge Thompson that  he
knew nothing about this no-contact order, and
he  also  told Judge Thompson that the  order
should  be vacated.  Judge Thompson indicated
his  agreement:  Mr. Carey cant proceed  very
effectively if he cant have contact with  his
client.  At this point, Douglas spoke up  and
said that he personally wanted the no-contact
order  left in place  so that Carey would  be
effectively removed from the case.
          However, Douglas did not argue that
Carey  had a conflict of interest because  of
the  assault.  Rather, Douglas asserted  that
Carey  was  intimidating him   by  trying  to
convince him to accept a plea bargain in  the
witness  tampering  case,  even  though   the
evidence  showed that Douglas was  completely
innocent of all wrongdoing:

     Douglas:   I  dont want [the  no-contact
order]  dropped.  I want  hes  the  one  that
hes  the  one that is intimidating  me.   Hes
telling  me  that Im wrong, [that]  I  should
take this deal.  ...  Right here, it says  in
[this]  letter, I want [to] state once  again
that  I think youre being exceedingly foolish
by  not accepting the offer that the district
attorney  has extended, which would give  you
no  additional jail time [and] only one class
C felony conviction.

     Thats one class C felony conviction  too
many.    I   shouldnt  have  any  convictions
concerning this woman.  ...  Shes a liar.
     .  .  .
     
     I  have a no-contact order with this man
thats defending me right now  supposedly  and
I  want to keep that no-contact order.  And I
dont  even   I shouldnt even be talking  with
this  man, or letting him hear me talk.  Were
breaking  the law right now.  I do  not  want
him  to  represent me.  He does not  have  my
best  interest  at heart.  I want  away  from
this   man.   ...   I  trusted  this  Kristen
Swanson  [i.e., the attorney who  represented
Douglas at his earlier sexual assault  trial]
to  take care of this business, and she never
did.   And  this is going to  shes  going  to
lose her bar license over this.  She had  all
of  this  [exculpatory] evidence before  her,
and she didnt use any of it.
     .  .  .

     Theres no way that we can carry on  with
Bill Carey.  I mean, theres no way.  ...  Ive
got  [his] letters right here that prove  and
if  we  do carry on, well just be doing  this
[all over again after the] appeal  because he
shouldnt be representing me after some of the
letters, and [the] comments he made in  these
letters,  that,  Im basically,  guilty.   Hes
saying  that Im guilty, and [that] Im a  fool
for  not  taking the deal the prosecutor  [is
offering], ... and thats not his place to  do
that.   I  am innocent.  Im an innocent  man,
and  ... hopefully the [appeal] process  will
prove  it.  But hes trying to force  me  into
by  intimidating me and telling me [that] hes
not scared of me, and that Im foolish and  Im
crazy.  Ive gotten it all in writing.  So you
might as well just get him off the case,  and
get me a [new] lawyer thats going to at least
try this case for me, you know.

          The   no-contact   order   is   not
mentioned again in the transcript, so it  was
apparently  vacated (or at least  ignored  by
all   sides).   However,  when  the   parties
returned  to court on August 27th (after  API
reported that Douglas was competent to  stand
trial), the prosecutor again raised the issue
of   Careys   continued   representation   of
Douglas:

     Prosecutor:   The  State  believes  that
there is a conflict [of interest between  Mr.
Carey and Mr. Douglas] because of the pending
assault [charge], and that that conflict  has
to  be  waived  in  writing  [before  we  can
proceed with Douglass trial].
     .  .  .

     The  Court:  I understand your point  of
view.   [But] I dont think its correct.   You
know, [there have been] a number of times  in
the  past where defense counsel were actually
afraid  of  their clients, but we managed  to
[proceed].   Otherwise,  you  would  place  a
premium on ...

     Douglas:  Hey, Im afraid of this lawyer.
...   Hes  got  animosity  towards  me,  Your
Honor.   ...   Theres no  way  this  guy  can
represent me.  Im going to appeal everything,
and  Ill win.  ...  Ive got a report from  an
officer that saw him square off at me  first.
...   Its  in  a  Department  of  Corrections
[report].   They saw it; they  witnessed  it.
The  guy  said, Mr. Carey squared off against
Mr.   Douglas.   ...   When  you  square  off
against  somebody thats been penned  up  with
seven men in one little cell illegally for  a
year,  ...  youre  going  to  get  your  face
punched.
     .  .  .

     Defense  Counsel:  Your Honor, ...  with
respect  to my representation of Mr. Douglas,
I  intend to continue.  I have consulted with
Bar Counsel ...

     Douglas:  Youre an idiot too, pal.

     Defense Counsel:  I have consulted ...

     Douglas:  Get off my case.

     Defense Counsel:  I have consulted  with
a number of ...

     Douglas:   Im  going  to  sue  you   for
everything youve got.

     Defense Counsel:  You can do that, sir.

     Douglas:   Im  going  to  sue  you   for
everything youve got.

     Defense Counsel:  But Im prepared to  go
ahead.
     .  .  .

     Douglas:   I  have a problem  with  this
attorney.  He hasnt researched my  case.   He
hasnt even looked at the  he doesnt even know
what  the things about.  Hes basically saying
that Im guilty [based on] what hes heard, and
thats not true.  Hes a liar, and hes  and hes
told  me that.  ...  Hes told me to take  the
deal.  ...  You heard [the prosecutor].  [The
prosecutor] said that theres a conflict here.

          From    Judge   Thompsons   ensuing
colloquy  with Douglas, it appears  that  the
judge  did not believe that Douglass  dispute
with  Carey arose from the assault.   Rather,
Judge   Thompson  concluded   that   Douglass
dispute  with  Carey was  the  same  type  of
dispute that Douglas had had with all of  his
preceding  attorneys:  Douglas  had  his  own
litigation  agenda, Douglas would not  listen
to  any  attorney  who  did  not  share  this
agenda,   and  Douglas  believed   that   any
attorney who could not be persuaded to  adopt
his view of matters was either incompetent or
was   consciously  trying  to  have   Douglas
convicted.
          In   other  words,  Judge  Thompson
concluded that it would do no good to appoint
another  attorney, for Douglass  relationship
with any new attorney would ultimately be  no
better than Douglass relationship with Carey.
Accordingly, Judge Thompson ruled that  Carey
could remain as Douglass attorney.
          On appeal, Douglas challenges Judge
Thompsons ruling on two grounds.
          First,  Douglas argues  that  Judge
Thompson  should  have  dismissed  Carey   as
Douglass     attorney    because     Douglass
relationship  with Carey had broken  down  to
the  point where they could no longer discuss
the case in any meaningful way.
          In our prior cases on this subject,
we  have  declared that personal difficulties
or animosity between a defense attorney and a
defendant   will  constitute  a  reason   for
removing   the   defense  attorney   if   the
attorney-client relationship has deteriorated
to  the point where the attorney is incapable
of effective communication with the defendant
or  the  attorney is incapable  of  objective
decision-making about the case.   LaBrake  v.
State,  152  P.3d  474, 482-83  (Alaska  App.
2007).9
          However,   a  defendant   may   not
purposely  frustrate  the  defense  attorneys
efforts  and  then claim that  the  attorney-
client relationship has become non-functional
because   of  the  defendants  own  lack   of
cooperation.10
          For  instance, in Sergie v.  State,
105   P.3d  1150  (Alaska  App.  2005),   the
defendant  claimed that he and  his  attorney
were   no   longer   communicating   in   any
meaningful  fashion.   However,  the   record
showed that Sergie was constantly angry,  was
rude   and   abusive  during  his   telephone
conversations with the attorney, and  refused
to  speak  to the attorney when the  attorney
visited  Sergie  in jail.   Even  though  the
attorney    himself   declared    that    his
relationship  with Sergie was damaged  beyond
repair, the trial judge refused to allow  the
attorney to withdraw  and we upheld the trial
judges decision.  We declared that the  trial
judge was not required to appoint new counsel
          for Sergie merely because Sergie refused to
cooperate  with the counsel he  already  had.
Sergie, 105 P.3d at 1157.
          See  also Annas v. State, 726  P.2d
552,  558-59 (Alaska App. 1986),  where  this
Court  held  that  a  defendants  refusal  to
cooperate  with his court-appointed attorney,
and  the  defendants demand that the attorney
withdraw  from  his case, did not  constitute
good cause for the defendants untimely filing
of   pre-trial   motions,   nor   did   these
considerations constitute good  cause  for  a
continuance of the defendants trial.
          In Douglass case, Carey stated that
his  inability  to communicate  with  Douglas
about  the  case was not due to any animosity
on  Careys  part  arising from  the  assault.
Rather,     their    lack    of    meaningful
communication  was due to Douglass  inability
to  focus  on  the issues that needed  to  be
discussed:

     Defense  Counsel:  [A]s far as  actually
getting   anything  done,   being   able   to
rationally    discuss    matters    affecting
[Douglass] case, I dont think thats going  to
be  possible right now.  [But] I  dont  think
that  its a matter of just myself.   I  think
its  a  matter  of Mr. Douglas  and  whatever
demons hes dealing with.

Judge  Thompson ultimately agreed with Careys
assessment, and the record amply supports the
judges conclusion.
          Douglas also argues that whenever a
defendant  assaults their  defense  attorney,
the  attorney  must be disqualified   because
now  the  attorneys  personal  interests  are
irretrievably in conflict with the  interests
of  the  defendant.  See Alaska  Professional
Conduct Rule 1.7(b).
          But  the record gives no indication
that   Douglass   assault   engendered   such
powerful anger or animosity in Carey that  he
was  no longer capable of objective and loyal
decision-making on Douglass behalf.   To  the
contrary:   The record shows that  Carey  did
not  abandon  his efforts on Douglass  behalf
following the assault, nor did Carey view the
assault as a personal affront.  Rather, Carey
viewed  the  assault  as an  indication  that
Douglas might be mentally troubled.
          As    the    prosecuting   attorney
remarked,  Carey did not support or cooperate
with  the States efforts to prosecute Douglas
for  this  assault.   Instead,  Carey  argued
(successfully)  to  Judge Thompson  that  the
assault  was  evidence of Douglass  potential
mental   problems,  and  that   the   witness
tampering trial should be postponed  so  that
Douglas might be evaluated at API.
          We note that Carey took the step of
consulting  the state Bar Counsel about  this
matter,   and  the  Bar  Counsel   apparently
concurred  that  Carey was  not  required  to
withdraw   from  further  representation   of
Douglas.
          We  further  note that, on  appeal,
Douglas   does   not   argue   that    Careys
presentation  of  his case was  deficient  or
even  questionable in any way.  Douglas  does
not  point to a single instance where  Careys
conduct   might   have  been  influenced   by
overriding    animosity    toward    Douglas.
Instead,  Douglas  offers  only  the  general
assertion that whenever an attorney has  been
assaulted by a client, the attorney  must  be
disqualified  from further representation  of
that client.
          We  do  not  agree that  a  clients
assault  upon an attorney invariably requires
the  attorneys disqualification from  further
participation  in  the  case.   Moreover,  we
conclude  that  Douglass  case  provides   an
example of a situation where disqualification
was not required.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
1  See  Illinois v. Allen, 397 U.S. 337, 338; 90 S.Ct. 1057,
1058;  25  L.Ed.2d 353 (1970); Snyder v. Massachusetts,  291
U.S.  97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Daz v.  United
States,  223  U.S. 442, 32 S.Ct. 250, 56 L.Ed.  500  (1912);
Wamser v. State, 652 P.2d 98, 101 n. 10 (Alaska 1982); Dixon
v.  State,  605  P.2d  882,  884  (Alaska  1980);  State  v.
Hannagan,  559  P.2d  1059, 1063 (Alaska  1977);  Noffke  v.
State,   422  P.2d  102,  104  (Alaska  1967);   Crouse   v.
Anchorage,  79  P.3d 660, 664 (Alaska App. 2003);  Henry  v.
State,  861  P.2d  582, 592 (Alaska App.  1993).   See  also
Alaska  Criminal  Rule  38(a),  which  declares  that  [t]he
defendant shall be present ... at every stage of the trial.

2  The  full  text  of  this standard and  its  accompanying
commentary are available at:
www.abanet.org/crimjust/standards/specialfunctions.pdf

3 Vacated in part (on grounds not relevant here), 421 U.S.
944,  95  S.Ct.  1671, 44 L.Ed.2d 97 (1975).   See  the
Ninth Circuits decision on remand:  547 F.2d 1100  (9th
Cir. 1977).

4 At the June 14th hearing, Judge Thompson explained that
Douglass  sexual  assault conviction, offered  for  the
purpose  of proving his factual guilt of the underlying
sexual  assault,  is technically a hearsay  finding  by
[twelve]  people who [wont be] present [at the  witness
tampering  trial].   The twelve jurors  who  found  him
guilty [of sexual assault] arent here.

5 See Rusenstrom v. Rusenstrom, 981 P.2d 558, 560 (Alaska
1999);  Bird  v.  Starkey, 914 P.2d  1246,  1248  n.  1
(Alaska  1996);  Byrd  v. State, 626  P.2d  1057,  1058
(Alaska  1980); Cassell v. State, 645 P.2d 219,  220-21
(Alaska  App. 1982); see also John W. Strong, McCormick
on  Evidence  (4th  ed. 1992),   55,  Vol.  1,  p.  221
(failure  to  object  to hearsay is  a  waiver  of  the
objection).

6 See Howarth v. Alaska Public Defender Agency, 925 P.2d
1330, 1332-33 (Alaska 1996).

7 See Lamb v. Anderson, 147 P.3d 736, 742 (Alaska 2006);
Wyatt v. Wyatt, 65 P.3d 825, 831 (Alaska 2003).

8  According  to  the Alaska Court Systems  on-line  records
database,  a  formal  charge  of fourth-degree  assault,  AS
11.41.230(a),  was filed against Douglas three  weeks  later
(on  July 7, 2004).  See State v. Douglas, File No.  1KE-04-
687   Cr.    Douglas  ultimately  pleaded  guilty  to   this
misdemeanor charge on October 4, 2004.

9 Citing Walsh v. State, 134 P.3d 366, 371 (Alaska App.
2006);  Mute  v. State, 954 P.2d 1384, 1385-86  (Alaska
App.  1998);  Gardner v. State, Alaska App.  Memorandum
Opinion and Judgment No. 5064 at 9-11 (March 29, 2006),
2006  WL  829758 at *4-6 (Mannheimer, J.,  concurring);
Wayne  R. LaFave, Jerold H. Israel, and Nancy J.  King,
Criminal Procedure (2nd ed.1999),  11.4(b), Vol. 3,  p.
554.

10See Coleman v. State, 621 P.2d 869, 881 (Alaska 1980).

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