While the City Slept (19 page)

W
hether Isaiah was admitting a mental illness because he truly believed he had one, or because he believed it would be strategically advantageous at this particular moment, is unknown. “I think in his heart of hearts he knew he had an issue,” Judge Hayden later told me. “But he was not willing to turn control of it over to someone else.”

At the time, the standoff raised the question of whether Judge Hayden could force Isaiah to take medication. One problem was that the judge had just deemed Isaiah competent to stand trial. Judge Hayden could theoretically decide that Isaiah was decompensating and send him back down to Western State for “competency restoration” via medication. But there was also a problem with that. Western State had just said it didn’t think Isaiah needed any medications to be competent, so doctors there weren’t likely to prescribe him anything. Another, related problem: Isaiah didn’t have a current prescription for anything except buspirone, the antianxiety medication given to him after the jail psychiatrist decided he didn’t need lithium.

“Do I think he would be better off with medication?” Judge Hayden said at the hearing. “I sure do. Would I be happy if he would take his medication voluntarily? Absolutely. But the mechanism they give us trial judges is not to try to medicate our defendants to put them in the best emotional and mental state possible, but simply to make a determination whether they meet the threshold level of competence.”

To Isaiah, Judge Hayden said, “Mr. Kalebu, I’m trying to help within the boundaries that I have. I can’t simply order on a prescription pad what you need to take.”

—

Again, they had reached the law’s limits. Still, Judge Hayden summoned the jail’s lawyer to court to explain, in greater detail, the jail’s view of Isaiah’s present mental health needs. He had to sign another drag order to get Isaiah to this hearing, and Isaiah arrived again in the restraint chair, with a suicide smock on. “He also has a netting around his head and face that is normally used when an inmate is spitting or expelling or biting,” Schwartz said.

Judge Hayden began by reminding everyone that competency is “a minimal standard.” He said he stood by his competency ruling but explained, “My concern is that I have a bipolar defendant, at least in my judgment, a defendant who may be decompensating as I sit here, who clearly has issues, notwithstanding the fact that I believe he is competent, and notwithstanding the fact that Western State believes he is competent.”

The jail’s lawyer, Nancy Balin, told him it was “strongly” the jail’s opinion that Isaiah was not bipolar.

“Give me some fucking clothes,” Isaiah interjected. “I am sick of this shit. I am cold.”

Balin moved closer to Judge Hayden’s bench so that he could hear her over Isaiah’s outbursts, and then she explained how the jail had moved from prescribing Isaiah lithium, which he had refused to take in either pill or injection form, to prescribing him buspirone, which he apparently also wasn’t taking.

“I ain’t taking that shit,” Isaiah interjected. “They’re trying to poison me.”

“If you keep interrupting,” Judge Hayden told him, “I will have a hard time doing anything that can be of any help to you, including getting you into regular clothes or not.”

Isaiah kept interrupting. He said he was being treated like a dog. “I deserve way better than this,” he said. “I’ve accomplished so much shit in my life. I am a fucking emperor, and you guys treat me like this. I’m a million times better than you guys. You are fucking taking advantage of the situation.”

Balin said it was Isaiah who was attempting to take advantage of the situation, that this was all part of Isaiah’s “master plan,” which according to the jail psychiatrist, Dr. Brian Waiblinger, was to benefit from poor communication between the jail and the court and to try to make his behavior look like a failure of his medication, whatever that medication might have been. To what specific end, Balin didn’t say. “He’s a very, very smart individual,” Balin told Judge Hayden. “The other side of his intelligence and his cognitive abilities is that he is extremely manipulative and everything he is doing is according to a plan. What he just said in court is exactly what Dr. Waiblinger says he says all the time. What Mr. Kalebu just said that I hear is, ‘I am ready to be done with this bullshit.’ What Dr. Waiblinger clearly believes from two and a half years now of treating Mr. Kalebu, give or take, I don’t remember when he came in”—it actually had been about one and a half years that Isaiah had been sitting in the King County Jail, rarely medicated and awaiting trial, but perhaps it seemed longer to all—“is that he knows exactly what he is doing and he is of a mind to get out of here, and he will figure out how to do it. He is done with this bullshit. That is what he tells Dr. Waiblinger and his staff every single day, along with other things like, ‘You are dead to me’”—which is exactly what Isaiah had told his mother in 2008, after he was released from Harborview and his mother told him to take medication—“and, ‘When I get out . . . ,’ terms like, ‘You will be seeing me.’ He is scaring some of the staff because he does have a plan and it is very clear.”

Judge Hayden tried to square the jail’s current diagnosis for Isaiah with Isaiah’s history. “If he was indeed bipolar in 2008,” Judge Hayden said, “my understanding is that he doesn’t become non-bipolar in 2010.” The judge acknowledged that perhaps some symptoms had subsided but
said he’d never heard of anyone being “cured” of a bipolar disorder. He asked, “Am I wrong?”

“I am not a psychiatrist,” Balin replied, declining to answer.

Judge Hayden asked, “So, is Dr. Waiblinger saying to me, through you, that there were no medications that they can give him that would correct the behavior that we have seen repeatedly in this courtroom?”

“I would say he would say no,” Balin said. She described Isaiah’s courtroom behavior as being a consequence of “choice and purposefulness,” not a consequence of “his mental state or lack thereof, mental health or lack thereof.”

Isaiah interjected, “Why don’t I have a mattress if I’m not going to kill myself?”

They were at another impasse.

Isaiah’s lawyers were not in a position to ask the court to force their client to take lithium if he didn’t want to take lithium. The jail didn’t think Isaiah needed lithium anyway. Judge Hayden, as he’d said so many times already, was—like Balin—not a psychiatrist. “I am not going to prescribe drugs,” the judge said, making the point again. One of the prosecutors said, “We don’t disagree with the court’s analysis of the situation.”

In this sense, too, Isaiah was back to where he had been before. He would not be forced to take any medication he didn’t want to take, because the system either didn’t see the need or didn’t have the means to make it happen. For Isaiah, this might have been a victory of sorts, a small amount of retained control, a route to remain unknown by those he didn’t think should, or could, know him, a way to lash out at a supposedly concerned apparatus that hadn’t cared to know him until now, a path to being his idea of a man.

Schwartz, the defense attorney, described it all as “a dog chasing its tail” and called the jail’s decision that Isaiah was not bipolar “farcical,” because the jail had, for a time, demonstrated that it agreed Isaiah was bipolar by prescribing him lithium.

—

They were all—judge, jail officials, attorneys, Isaiah—now standing in the center of a grand psychological thicket, with no way out. One possible way of avoiding such outcomes had been suggested by Dr. Dixon, who at one point during the competency hearing had cause to point out something basic: correct diagnoses take time. “The strongest variable we have,” Dr. Dixon said on the stand, “is to continue to see someone over time, to see if their presentation is consistent.” This had never happened for Isaiah before he entered the criminal justice system, and once he entered the criminal justice system, there was little incentive or ability to make it happen. The person who’d spent the most one-on-one time with Isaiah was Dr. Lymberis, and the grand total for that encounter was nine hours over two days.

In addition, as a doctor from Western State pointed out during Isaiah’s competency hearing, the criminal justice system was not much bothered by Isaiah’s many different diagnoses, or even by Western State’s own differing diagnoses, because its only charge was to figure out whether or not Isaiah was competent to stand trial. “It’s really not a matter of getting the diagnosis right,” said Dr. Margaret Dean, one of the Western State doctors who determined Isaiah had no diagnosable mental illness. “It’s a matter of looking at the relevant capacities.” He was competent to stand trial, Dr. Dean had determined. Judge Hayden had agreed. And now, whatever his proper diagnosis, Isaiah’s time was up.

He was sent back to jail, forced medication off the table, and Judge Hayden announced that he was pondering having him watch the trial from a remote location because of his outbursts. Isaiah was now just over halfway between his twenty-fifth birthday and his twenty-sixth.

—

A month and a half later, during a hearing about the logistics of summoning a jury, Isaiah interrupted. “I’m done,” he said. “Take me back.” When
Judge Hayden said he would like Isaiah to be present for his trial if possible, Isaiah spoke of a grand conspiracy against him and told everyone to fuck off, individually. “Fuck you, fuck you, fuck you.” It went on. In the transcript of this hearing, Isaiah is recorded using thirty-four “fucks.” Someone tried to calm him down. “Can’t calm me down,” he said. “Fuck this shit.” He was taken back to jail, and the hearing continued without him. A month later, Isaiah was once again wearing his suicide smock, once again tried unsuccessfully to fire his attorneys, and once again loosed an impressive streak of swearing, some twenty-six “fucks” recorded. “Fuck this,” Isaiah said. “Get me out of this goddamn chair . . . You’ll fucking pay.” He told the judge, “You are fired.” Judge Hayden said, “Send him back now to the jail. He will watch the remainder of these proceedings—through deliberations and verdict—from a remote location. I won’t have this in front of the jury.”

Judge Hayden then addressed Isaiah directly: “Mr. Kalebu, I will not be seeing you again for some period of time.”

“Fuck that,” Isaiah said. Then, to Brandes, “Come see me. I got to talk to you.”

“I can’t come see you today,” Brandes said. “I have other cases.”

“Come tomorrow.”

“I can’t come tomorrow.”

“Fuck you.”

—

Isaiah had previously expressed a fondness for Brandes over Schwartz, had said her presence was reassuring to him. “Get me Ramona,” Isaiah had told Western State doctors when he was asked which of his attorneys he wanted to be present for his interviews at the facility. “I like her a lot.” At Western State, Isaiah also told doctors he preferred to interact with women because he couldn’t “open up” to men and that he preferred female monitors to male monitors because “I can manipulate them better.”

But when a woman was displeasing him, or when his attempts at
manipulation were failing, Isaiah responded with rage and lashed out by whatever means he found available. At Western State, when a female staffer wasn’t assigned to monitor him as he’d requested, he’d attempted to hang himself from a door handle that was specifically designed to make such suicide attempts impossible. Earlier in the pretrial proceedings, he’d once spit at Brandes in court when he was upset with her. Now he was upset with Brandes again and, from the chair he was strapped to, cursed her as he was being removed from court. The date: April 25, 2011. That spring afternoon, the judge and the lawyers set about the task of excusing all those potential jurors who had written in with hardships of hypertension, MRSA, and
more.

S
hrinking the jury pool down to manageable size took the entire month of May, and as the process moved forward, it continued to offer a unique tour of the social architecture of the city, as well as a running lesson in good humor and civics from Judge Hayden. A hardship request from a Drug Enforcement Administration employee was rejected as “weak.” A King County prosecutor’s hardship request, which complained of an extraordinarily busy trial schedule “due to large budget cuts,” was granted. A man employed as the mascot for the Seattle Mariners, whose job was to run around Safeco Field at home games wearing a moose outfit, was excused.

“Come on,” Schwartz said.

Brandes, his cocounsel, argued the other point of view. “I would miss him,” she said, “if I were at a game and that moose did not show up.”

She won, with Judge Hayden upholding his earlier decision. “Let the moose be the moose,” he said.

A number of others in the pool were excused for reporting detailed knowledge of the case from media accounts and for offering opinions that Isaiah was guilty, or mentally ill, or both. One unusual situation was that of a man who told the court that on his first day of jury service, while waiting in the long line to get into the courthouse, he’d figured out on his own that the trial was connected to the South Park attacks. “So I started reading about it on my handheld,” he said. The man also posted photographs of the long courthouse line to Twitter and Facebook. From his
online reading, the man learned that Norbert Leo Butz was Teresa’s brother and that Norbert had starred in
Catch Me If You Can,
which the man had seen in Seattle shortly after the attacks. The man was excused.

A woman employed by Boeing told the court she wanted to continue in the jury pool but her boss desired otherwise. Judge Hayden sided with the woman. Later, another Boeing employee, an engineer working on the 737 program, reported the same problem. “It is my recollection,” one of the prosecutors said, “that we were not immediately excusing employees of large international corporations who do lots of business here in King County Superior Court without further information.” Judge Hayden kept that Boeing employee, too. A FedEx pilot was excused for having an opinion about Isaiah’s guilt. So was a man who knew someone who lived near the red house, another man who needed to be at AA meetings, and a woman who explained, in her hardship request, that she worked at a bicycle shop frequented by Judge Hayden. “Is she saying she doesn’t like me?” Judge Hayden asked. The woman was excused.

As the pool continued to shrink, one man announced, “I’ve been invited on a business trip that I feel may really further my career.”

It turned out his career was working in a strip club to pay his student loans, and Judge Hayden asked, “What kind of business trip advances the career of a person who practices that profession?”

“White river rafting,” he said. “I’m the only manager invited, and they already bought my ticket.”

“White river rafting is related to strippers?”

“It’s a team-building exercise.”

He was excused.

A man who worked as a bartender later announced that he regularly served another potential juror. “What happens in the bar stays in the bar,” Judge Hayden said. “You know that.” Neither of them was excused on this account.

A financial hardship request came in from Judge Janet Garrow of King County District Court. Judge Hayden was unimpressed. “Let me suggest,”
he said, “that if, indeed, a judge has hardship for going onto jury duty, then the solution is not for me to let the judge go but for somebody to revisit the issue of a judge’s duties and how we pay judges.” He called it “outrageous” that an elected judge would even suggest that jury service is too much of a hardship. “Fortunately,” he said, “the press isn’t here today to hear this, or I suspect it would be all over the evening papers.” In fact, there were no evening papers left in Seattle at that point. Judge Garrow was kept in the pool.

A hairdresser, however, was excused for financial hardship. A woman who was needed to take care of an art collection was excused. A cyclist on “kind of an all-or-nothing team” was excused for a ride in Wyoming because, as he put it, “if I don’t show up, nobody rides.” (“Try touring Colorado,” Judge Hayden said as they chatted, briefly, about elevation gains. The judge is an avid cyclist himself and for a time was also a motorcycle enthusiast, touring around Washington State on an old Russian Ural with a sidecar for his wife and their dogs.) The chief financial officer for Amazon was then excused, not for financial hardship reasons, but for business reasons. “We spent about five minutes listening about all of his meetings,” one of the prosecutors said. A fisherman headed to Alaska was excused. A detective who needed to attend a wedding was excused. A custodian for the King County Courthouse, after being recognized by the judge and the attorneys, was offered the chance to argue for a return to work, but the custodian said he was allowed time off for jury service and was willing to stay.

—

Over the course of the month, a significant number of potential jurors were excused for knowing survivors of sexual assault or being survivors of sexual assault themselves and feeling this would interfere with the requirements of the job. “I was raped by a family member,” said one woman. “My heart’s racing right now,” said another. “It immediately kicks up a lot of emotion.” Still another woman spoke of being assaulted by a stranger in public, at night, when she was a teenager. She said she’d had a
healthy recovery and wanted to serve on the jury. “It was a very long time ago,” she said. “I’ve been very vocal about it as part of my recovery.”

Brandes asked her, “Were you able to immediately report it, or was there a delay?”

“I didn’t report it,” the woman said. “I felt like it was something that was my fault, that I let it happen.”

“Well, it wasn’t,” Brandes said.

“I know,” the woman said.

She was kept in the pool.

—

One in five American women, and one in seventy-one American men, have been raped, according to a recent study cited by the Centers for Disease Control and Prevention. When Judge Garrow came back for an in-person discussion of her hardship request, it turned out she also knew someone who was a survivor of rape. “It was a friend who I met who had been raped during college,” she said. “It’s a terrible crime. It affects people for the duration of their lives. So, certainly, I am always sympathetic towards people who have incurred that sort of violence towards them.” She was excused.

It was so common to know someone who had been sexually assaulted that the experience reached into the pool of people who ended up being selected as jurors. “My sister was attacked,” one person selected as a juror told the court. “He was a neighbor.” It was a long time ago, she said, and she and her sister hadn’t discussed it in years.

—

On May 25, 2011, with the jury pool now a fraction of its original size and opening arguments getting closer, Isaiah’s defense attorneys made one last attempt to have him found incompetent to stand trial. They’d hired another expert, Dr. Paul Spizman, at this point the seventh psychiatric
professional on the case, to conduct another evaluation of Isaiah. “When asked if he could tell me what occurred that night,” Dr. Spizman wrote, “he declined.” An insanity defense remained off the table.

Dr. Spizman, like others, found Isaiah to be reluctant to admit any mental health problems at all. At the same time, like others, he found Isaiah to be faking some signs of mental distress—“by his own acknowledgement,” Dr. Spizman noted. This seemed to confirm the theory at the competency hearing.

In his report, Dr. Spizman also bridged the findings of a number of previous evaluators, diagnosing Isaiah as bipolar with psychotic features and as having an unspecified personality disorder “with antisocial and narcissistic traits.” He declared Isaiah incompetent to stand trial and tried to peel the onion this way: “Mr. Kalebu appears to exaggerate symptoms due to his paranoia and personality attributes. As far as can be determined, it seems that his paranoia prevents him from trusting or working effectively with others. Therefore, he is reluctant to provide adequate information, such as working with his attorneys. Then, given his personality traits (e.g., narcissism) it appears he attempts to take control of the situation by exaggerating his symptoms. His antisocial aspects may also create motivation to move against any system that is trying to exert control over him.”

Isaiah was in court for this hearing, and Brandes noted “a distinct odor coming from the defendant,” as well as him being “not clean-shaven.” She recounted what she perceived as his renewed deterioration in recent months and also brought up the day when “Mr. Kalebu spit at me in court. I can consider that incident very much like I would as if an infant had spit at me. I don’t believe it was within his volition.”

Judge Hayden didn’t move from his earlier opinion. “I do not view him as being incompetent,” the judge said. “I view him as being goal-oriented, decisive, and volitional. He does act up in court. It’s my view he acts up when he decides he wants to. He acts out his own perceived way of pursuing his own goals. His decision-making in that regard is often
faulty, in my judgment, and he acts in a way that’s counterproductive to his best interests, but he does not perceive it that way.”

“Hey,” Isaiah said. “Do I get to talk?”

He presented the now-familiar complaints but did not offer to begin taking medication. Still, he said, “You guys don’t want to help me, you just want to fuckin’ put me on TV and say I’m a big ass monster.”

There was something to this. Local television stations had been airing tape of Isaiah’s being wheeled to court in a restraint chair—“surrounded by officers,” one TV reporter noted—and cursing in the courtroom. “Another profanity-laced outburst from Isaiah Kalebu,” went one trial update from KING 5 News, Seattle’s NBC affiliate. Another update, from the local ABC affiliate, began, “A psychiatrist calls the South Park murder suspect
a fake
for pretending to be mentally ill.” The complexity of the situation tended not to make it into the evening news reports, though one determined television reporter at the local CBS affiliate did try to get to the bottom of things by approaching Isaiah as he was being moved through the courthouse hallways and asking him, point-blank, if he’d committed the crime. As recounted on the station’s Web site, Isaiah replied, “Are you (expletive) retarded? Really, are you that (expletive) retarded?”

As the hearing on Dr. Spizman’s findings wound down, Isaiah asked to talk to yet another doctor. The request was denied, the hearing ended, and Isaiah was taken back to the empty jury room on the ninth floor from which he would watch the trial remotely. Out of Isaiah’s interruptive presence, jury selection moved toward its conclusion, while Isaiah’s lawyers moved toward the opening of the trial, no witnesses to call, a client unwilling to explore any mental health defense, and so a strategy of, simply, “general denial.”

—

The final days of voir dire saw 110 potential jurors gathered together, going through a series of in-court conversations with all four lawyers and the judge, talk-show-style.

“The Oprah method,” Schwartz said. “Don’t bother looking under your chairs.”

Judge Hayden kicked things off by asking how many of the remaining 110 had been victims of violent crime. Eighteen people raised their hands, and five more raised their hands when the category was broadened to victims of violence in which no crime was charged. Judge Hayden then asked who’d had a pleasant experience with a police officer. Thirty-one people, including JoAnn Wuitschick, the human resources worker for the University of Washington, raised hands. When the judge asked who’d had an unpleasant experience with a police officer, five people raised hands.

The judge asked whether there were any questions he or the lawyers hadn’t yet asked but should have. A woman raised her hand and said, “How about two of them: ‘Do you know anybody in the law field?’ I’m dating the assistant attorney general. Two, because this case was about two lesbians: ‘Are you gay?’ I am.”

This was noted but not a problem.

—

A number of jurors now began voicing concerns about whether they’d be able to “stomach,” as one put it, this trial. Second thoughts appeared to be settling in. The woman who was a survivor of rape, and previously said she wanted to serve on the jury, now changed her mind. “It would be re-traumatizing,” she said. She was excused. A prosecutor then presented a hypothetical scenario in which Judge Hayden said to the pool, “Okay, I want volunteers. Who wants to do this?” A number of hands shot up, including two women who ended up on the final jury. “Very interested,” said one of them. “It’s our constitutional duty,” said another person, who didn’t end up on the jury.

Brandes, when it was her turn to ask questions of the pool, elicited opinions as to why some people engage in deviant actions or exhibit deviant sexual appetites. “There are no wrong answers to this,” Brandes said.

“Well,” said the woman who worked with pulmonary researchers and
who ended up on the jury, “about the same as most everyone else has said: Would be either possibly mental, economic, the way an individual was raised. I think there are probably a number of root causes that would be hard to pinpoint.”

Brandes then wondered whether any jurors would have trouble with a trial that didn’t offer any explanation as to a defendant’s motivation. She would have known at this point, but of course would not have shared during jury selection, that she had a client who didn’t want his mental state used as a defense. “Is that something you’re going to have: ‘I wish I knew, where did this come from?’”

“I sometimes think it just happened,” a potential juror who didn’t make it into the box replied. “Facts are facts. They’re actually facts.”

—

This outlook was kin to the simple, core questions that would be considered during the trial. Did these crimes happen or not? And did Isaiah Kalebu commit these crimes or not? The jury would not hear about, or be instructed to consider, Isaiah’s mental state. The jury would not decide on Isaiah’s punishment, either. It would only decide on his guilt or innocence, based on facts established during testimony. Still, a number of potential jurors were becoming uncomfortable with what they might not know about how this process would play out. Fearing the death penalty might be involved, several told Judge Hayden they couldn’t be part of a trial that could lead to someone’s execution. They were all excused.