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are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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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. N£¤ez, 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.
N£¤ez, 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); D¡az 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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