The judge in the case of a former Sitka physician charged with multiple counts of sexual assault has declared a mistrial, due to an inadequate jury pool.

Sitka Superior Court Judge Jude Pate made the ruling Wednesday morning (7-6-22), on the second day of jury selection, after it became clear that there would be too few jurors left, once both parties had dismissed undesirable prospects.

A new trial will be set for later in the year.

78-year old Richard McGrath is facing multiple criminal counts for allegedly assaulting three different women in his care while he was a doctor at Sitka Community Hospital in 2018 and 2019, by sexually touching the victims when they were unaware that a sexual act was being committed.

In empaneling juries for criminal trials in Alaska, attorneys for each side can drop as many as 11 prospective jurors through the “peremtory challenge.” In a high-stakes prosecution like McGrath’s, attorneys commonly use all 11 challenges, especially when it’s a complicated case with many witnesses, many of whom might be known to prospective jurors.

The Sitka Trial Court called what initially appeared to be a sufficient jury pool for the case, but some of the names proved to be duplicates, there was one no-show, and some of the prospective jurors were excused out of hand by the judge “for cause” – some reason that would affect their capacity to rule impartially on the case.

After a day-and-a-half, that left 35 prospective jurors. Superior Court Judge Jude Pate explained to them that the math wasn’t going to work.

“Each side gets to pick 11 people – even though they’d be fair and impartial – each side gets to draw 11 people off the jury,” said Judge Pate. “And I’ve heard from both parties that both parties are likely to use all of their 11 what we call ‘peremptory decisions’ to pull people off, even though they can be fair and impartial, which would leave us with two of you, or actually one of you. And then we don’t have enough jurors in reserve to make up the rest of the 14. So unfortunately, we won’t be holding this trial in Sitka. It will be in another location and Southeast, possibly Juneau, we’ll see.”

At the time he delivered this information to the jurors, Judge Pate believed that the parties had agreed to seek a change in venue, but McGrath’s attorney, John Cashion, said that was not the case, and that he would vigorously litigate any motion to move the trial out of Sitka. Judge Pate apologized for the misunderstanding, and said he wouldn’t further consider a change in venue without a formal motion – adding that the courts in Juneau and Ketchikan likely were as backlogged as Sitka.

Attorney Bailey Jennifer Woolfstead, with the state’s Office of Special Prosecutions, agreed that she did not see “a scenario at this point in which we are able to get to a jury.” Woolfstead said a mistrial would be “incredibly disappointing to the victims… and this is not a decision that either of us came to lightly in any sense of the word.”

Judge Pate agreed to allow the parties time to confer on possible dates for another trial sometime later this year, to be held in Sitka.

In addition to facing criminal charges, McGrath is being sued in civil court for Medical Malpractice, along with the City of Sitka which owned the now-defunct Sitka Community Hospital. The civil trial in that case has been set for May of 2023.