A criminal defendant who cursed the judge and lawyers, spat at jurors, insisted on fighting over a closed case and repeatedly refused to shut up and behave forfeited whatever constitutional right he had to sit in the courtroom during his trial or testify in person, the Alaska Supreme Court said.

The trial judge in a witness-tampering case against Ty Douglas was right to worry that the defendant’s behavior would prejudice the jury to return a guilty verdict regardless of the evidence, or force a mistrial, the high court ruled Friday.

But it was a close call — the decision was 3-2.

Douglas was charged in Ketchikan with two violent rapes of his girlfriend. While awaiting trial for those crimes and under court order not to contact the victim, he called her 828 times from jail, trying to get her to change her testimony. As a result, he was charged with three counts of felony witness tampering plus 10 counts of unlawful contact and 10 counts of attempted unlawful contact.

The two cases were tried separately.

When a jury returned guilty verdicts in the rapes, Douglas “spat at the jurors and spectators and said he hoped they contracted diseases,” according to Friday’s opinion. In pre-trial hearings on the tampering charges, his bad behavior continued, becoming “gravely disruptive and disrespectful.” He liked to call court officers he disagreed with “vile pig-face man” and “fat ass,” the opinion says. He went through several lawyers.

Long transcript excerpts in the Appeals Court and Supreme Court opinions illustrate Douglas spewing nearly continuous streams of invective and threats, talking over anyone else who tried to talk. He repeatedly insisted on re-fighting the rape case long after it was over, and was unwilling to stop talking regardless of request, order or threat.

Superior Court Judge Michael Thompson finally had Douglas removed from the courtroom. He could listen to the proceedings on a speaker phone and write notes to his lawyer.

Thompson let Douglas return during several pre-trial hearings over more than a year to see if he would behave himself. He didn’t. He cursed and threatened the prosecutor and his own attorney and continued ranting about the closed rape case.

In June 2004, the day before the tampering trial was to begin, he punched his lawyer in the face outside court and the judge ordered a competency hearing. The psychologist said Douglas was competent and able to behave, but chose not to. When trial finally began, Douglas promised he would behave in front of the jury, pointing out that he wouldn’t want to “mess up in front of” them. But since his disruptive behavior continued right up to the trial, Thompson didn’t believe him.

There were two issues, the judge said: prejudicing the jury against himself and manipulating the system by forcing a mistrial. If Douglas engaged in his normal antics in front the jury, they’d want to “throttle” him, Thompson said.

The judge refused to allow him in the courtroom when the jury was there, and said he could testify if he wanted to, but only by speaker phone. Douglas refused to testify unless he could do so in person.

The jury convicted him and he appealed, arguing that being kept out of the courtroom violated his basic constitutional rights to confront his accusers and to due process.

The 33-page majority opinion, written by Justice Robert Eastaugh, agonized over the difficulty of insuring a fair trial for a disruptive defendant. A judge must give a defendant a reasonable number of chances to conform his behavior to minimal courtroom standards but what’s reasonable? At what point is it appropriate to let a defendant suffer the consequences of his own bad behavior — jury prejudice and a legally unfair trial? “We recognize that the decision to remove or restrain a disruptive criminal defendant implicates important constitutional rights,” the opinion says.

The justices posited a situation where a defendant so prejudices the jury that the judge is ethically obliged to call a mistrial even if the defendant doesn’t want one. But under some circumstances that could lead to a bar against re-trial, thus playing into the defendant’s hands. Even if a retrial were allowed, having to do everything again is costly and disruptive to witnesses, victims and the system.

In the end, the majority concluded Thompson correctly balanced the case before him. He repeatedly offered Douglas the right to be in the courtroom if he would amend his behavior. The justices agree that Douglas’ ultimate promise to behave was “not credible.”

“We commend Judge Thompson for his handling of this case,” Eastaugh wrote. He exhibited patience in the face of “scurrilous, abusive language and conduct. … Judge Thompson excluded Douglas only as a last resort.” But in a dissent written for herself and (now retired) Justice Warren Matthews, Justice Dana Fabe said Thompson didn’t go far enough.

“Although it is certainly true that Douglas had been disruptive in the courtroom on the past, the trial court failed to give him a single opportunity to honor his promise to behave appropriately in front of the jury.” The constitutional rights Douglas lost as a result are so important, that the court should have taken this chance, Fabe said.

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