dissenting.
Lestenkof was entitled to have his case tried, if possible, on St. Paul Island, the place where his crime allegedly occurred. The record in this case shows that Lestenkof made extensive efforts to have his case tried in Saint Paul. The State made similar efforts to avoid trying the case in Saint Paul. The State ultimately prevailed. The State sue-ceeded in having Lestenkofs trial moved from Saint Paul to Dillingham, where he was convicted. In my view, the State has not met its burden of proving the necessity of depriving Lestenkof of his right to have his case tried in Saint Paul. I would accordingly reverse Lestenkof's conviction.
I base my conclusion on Alvarado v. State,59 a case decided by the Alaska Supreme Court nearly forty years ago. In Alvarado, the supreme court condemned the practice of taking a defendant from a small rural community, where his crime allegedly occurred, and moving him to a large city, where the jury did not represent a fair cross-section of the rural community in which the crime allegedly occurred. The Alaska Supreme Court held that the defendant had a right to be tried by a jury that was representative of the place where the alleged erime occurred.60 The Alvarado decision is based upon the defendant's constitutional rights to be tried by an impartial jury and his right to due process of law.61
The supreme court recognized that it would be difficult and expensive to conduct trials in some of the remote areas of the state. But the supreme court concluded that the United States and Alaska Constitutions required this result:
It is of paramount importance that the benefits conferred by the Constitutions of the United States and Alaska be extended with an even hand to the people of our state. When a large segment of the population lives in towns and villages scattered throughout the regions of the state, we cannot afford to succumb to the temptation of convenience by allowing the machinery of justice to become inflexibly entrenched within the enclaves of our major cities. Instead we must tailor our system of justice to meet the needs of the people. It is our judicial system which must take the *194initiative to assure compliance with the mandates of the Constitution; we cannot simply neglect or ignore communities of individuals located in remote areas of the state. Justice must be made available to all of the people of Alaska.[62]
In its holding in Alvarado, the supreme court emphasized the necessity of selecting juries that represented the community. The court emphasized that the jury is "a safeguard against the possibility of governmental tyranny and oppression.... As an institution, the jury offers our citizens the opportunity to participate in the workings of our government, and serves to legitimize our system of justice in the eyes of both the public and the accused."63 The court pointed out that one of the factors precipitating the American revolution was the fact that the King of England had made a practice of transporting colonists to England for trial.64
St. Paul Island is the largest Aleut community in the United States.65 Approximately 500 people live on the island, and approximately 86% are Alaska natives."66 The people of St. Paul Island have a distinctive culture and history.67 Lestenkof and his wife were long-term residents, who were well known by and related to many people on the island. It is not, therefore, surprising that there would be some difficulty in selecting a jury in Saint Paul. If a defendant has a good reputation, that will tend to be reflected in the jury pool. If the community has an interest in the case, that will also be reflected in the jury pool. In addition, there may be cultural differences in how members of the jury regard different offenses. Although these factors make it difficult to select a jury, those same factors are strong reasons for holding a trial in a place such as Saint Paul when the offense occurred there. If the defendant has a good reputation, he will have a "home field advantage." If there is significant interest in the community about the case, it is important that the community is able to participate in the trial and to see that justice is done in a way that reflects the values of the community. All of these factors are undermined if the defendant is forced to stand trial in a different community.
Consequently, the burden is upon the State to show that it was not reasonable to obtain a jury from the Saint Paul area once that area had been selected as the site of the trial.68 In my view, the State has not met its burden of proof in this case.
The United States Census Bureau estimated that the population of Saint Paul in 2006 was 449.69 The census fact sheet states that in 2000, 375 of the residents of Saint Paul were age eighteen or older.70 And yet there were apparently only about ninety names on the list of people called for jury duty. Apparently only sixty-eight of these jurors appeared in court.
Judge Morse expressed concern about whether there were sufficient jurors. Les-tenkof's attorney suggested that the court issue a public service announcement on the radio to ask more people to appear for jury service. Judge Morse agreed to do this, but questioned whether they would be able to obtain a full jury. Later, Judge Morse had the court clerk make telephone calls and other efforts to contact the jurors who had not appeared.
*195In a felony case, each party is entitled to ten peremptory challenges.71 But in this case, because the court and the parties anticipated having alternate jurors, each party was entitled to eleven peremptory challenges. Although it must have been clear that the court was going to have difficulty obtaining twelve jurors and that there would be no possibility of alternate jurors, the State exercised its eleventh peremptory challenge on the twelfth juror, leaving only eleven jurors to try the case.
Judge Morse stated that he could not force the State to go to trial with a jury of less than twelve unless they consented. Lesten-kof's attorney asked the court to bring in potential jurors from St. George, a nearby island. The State objected. Judge Morse concluded that it was not possible to bring in additional jurors from St. George. He concluded that he was going to have to declare a mistrial unless he could come up 'with some additional jurors. |
When court reconvened, Lestenkof's attorney pointed out that the State had used eleven peremptory challenges and that the State had been awarded the extra peremptory challenge on the basis that there would be alternate jurors. The attorney asked Judge Morse to revoke the State's peremptory challenge and reinstate the challenged juror. Judge Morse indicated that he would not revoke a peremptory challenge that had already been used. Next, Lestenkof's attorney asked to be able to revoke one of the peremptory challenges she had previously exercised. Judge Morse denied this motion. The defense made several other suggestions, including re-contacting jurors who had been excused on the basis of hardship or contacting people from the telephone book. The State opposed every suggestion. The State indicated that, in its view, the court had made considerable effort to obtain a jury in Saint Paul and that under these cireum-stances, the defendant was not entitled to have his case tried in Saint Paul. The State indicated that, in a prior murder case in Saint Paul, the court had obtained a jury pool of 230 people. But this had been done by a different procedure which had been agreed to by the public defender agency and the district attorney's office. Lestenkof's attorney pointed out that the pool of eligible jurors was obviously much larger than the number of jurors who had been summoned, so it would be possible to obtain more jurors. Judge Morse indicated that he was not going to take any further steps to obtain a jury. Lestenkof's attorney suggested that the State could stipulate to have the case tried by eleven jurors. But Judge Morse indicated that he would not require the State to stipulate. Judge Morse declared a mistrial
The next day, Lestenkof's attorney again asked Judge Morse to expand the jury pool. She pointed out that apparently only one-third of the people eligible for jury duty had been summoned and that the court could easily obtain additional people available for jury service. She asked the court to supplement the jury panel and bring back the eleven members of the jury who had previously been selected. Judge Morse again denied the motion. He stated that he was unable to obtain a jury in Saint Paul.
The case was later transferred for trial from Judge Morse to Superior Court Judge Fred Torrisi, who resides in Dillingham. Lestenkof again argued that the case should be tried in Saint Paul. He pointed out that he was entitled to be tried in Saint Paul if possible, there were approximately 300 potential jurors in Saint Paul, and therefore it would be possible to obtain a jury in Saint Paul. Judge Torrisi declined to reconsider Judge Morse's decision to move the case from Saint Paul. Lestenkof was tried in Dill-ingham. The State chartered a plane to transport all of the witnesses from Saint Paul to Dillingham for the trial. Lestenkof was convicted.
Under the Alvarado decision, Lestenkof had the right to be tried in Saint Paul, the place where his alleged crime occurred.72 In Alvarado, the supreme court recognized that it would be difficult and expensive to conduct trials in some of the remote areas of the state. It is obvious from the record that *196Lestenkof concluded that his best chance at trial was to be tried in Saint Paul. Consequently he made every effort to obtain a trial in Saint Paul. Conversely, the record shows that the State concluded that the jury pool in Saint Paul would not be favorable to it. Consequently, the State used all of its peremptory challenges and consistently opposed any proposals which Lestenkof made to expand the jury pool or try the case in Saint Paul.
The State has the burden to show that it was not reasonable to obtain a jury from the Saint Paul area onee that area had been selected as the site of the trial.73 The State has not met this burden.
First, it appears that the court started out with an insufficient number of potential jurors to be able to seat a twelve-person jury. According to the census, 375 residents of Saint Paul were eighteen or older. It is reasonable to assume that 300 people were eligible for jury duty. Yet apparently only ninety potential jurors were asked to report for jury duty. When only sixty-eight jurors reported, Judge Morse immediately recognized that it was questionable whether there were sufficient potential jurors to select a jury. It was foreseeable that it would be difficult to select a jury in Saint Paul. It is clear that the court started out with an inadequate list of jurors. It appears from the record that, in an earlier case, the court had anticipated this problem and had obtained a jury pool of 280 people. That was not done in this case.
Second, although Judge Morse certainly made significant efforts to obtain a jury based upon the limited list with which he started, in my view he should have been willing to take additional measures to secure Lestenkof's right to have his case tried in Saint Paul. The case law supports this. Calantas v. State74 involved a trial in Kodiak. In order to obtain a sufficient jury pool on short notice, the clerk of court obtained fourteen additional potential jurors from a list of 300 people. In order to do this, in violation of state statutes and a court rule, the clerk excluded approximately 100 people who did not live in Kodiak. From the remaining 200 names, she identified those whose names appeared in the Kodiak telephone directory. This left eighty names. From these people, the clerk was able to reach fourteen. Those fourteen, together with twenty-one from the original list, made up the panel of prospective jurors provided for Calantas's trial.75
Calantas objected to the method the court used to obtain the jury pool. He pointed out that the clerk's decision to disqualify all of the potential jurors who lived outside of Kodiak and to only summon the residents of Kodiak that she could reach by telephone was in clear violation of Alaska statutes and the court rules.76 The Alaska Supreme Court stated:
Selection of jurors by any method which fails to substantially comply with the statutory requirements is reversible error if the failure "prejudices the rights of a party." Here there is no doubt that there were technical violations of the statutory selection methods; like the Fifth Cireuit, however, we believe that such violations "constitute 'substantial failure to comply' [only] when they affect the random nature or objectivity of the selection process."[77]
The Supreme Court upheld the trial court's finding that "the situation was the result of extraordinary cireumstances calling for him to exercise his discretion" and upheld his finding that "the selection procedures had not prejudiced the defendant."78
In addition, in Erick, we concluded that the trial court had not made an adequate effort to secure a jury trial for the defendant in Fort Yukon.79 But we went on to say that, if the trial court had used reasonable efforts to obtain a jury in Fort Yukon but had been unable to do so, we would "be inclined to uphold the trial court's decisgion to *197give Erick a choice to have his case tried before a jury of seven selected from the Fort Yukon area, or before a jury of twelve with the jury panel supplemented from the Fairbanks area."80
Reading Calantas and Erick together, it is clear that Judge Morse had numerous options to secure Lestenkof's right to have his case tried in Saint Paul. He could have started out with a more extensive list of jurors, or he could have taken other actions, many of which were suggested by Lestenkof's attorney. He also could have given Lestenkof the opportunity to be tried by a jury of eleven. It is clear from the record that Lestenkof would have availed himself of this opportunity.
It is therefore clear from the case law that Judge Morse had numerous options available to him to obtain a jury in Saint Paul. In Calantas, the Alaska Supreme Court approved departing from the normal procedures for selecting a jury over the defendant's objection in order to hold a trial in Kodiak. And this court approved even more of a departure in Erick, had the defendant consented to such a departure. Yet even though it is obvious that Lestenkof would have agreed to almost any procedure to obtain a trial in Saint Paul, Judge Morse refused to consider these options.
From the record, it seems clear that Judge Morse was unaware of the full extent of his authority. We have previously held that when a court does not "consider the various alternatives available as a matter of discretion ... the court [has failed] to exercise any discretion at all."81
There is no question that it is extremely difficult to conduct trials in relatively isolated areas such as St. Paul Island. But in Alvo-rado, the Alaska Supreme Court made the decision, as a constitutional matter, to bring justice to all of the citizens of Alaska. For an individual defendant, such as Lestenkof, it was obviously critical for him to be tried in the area where he was known and where he was part of the culture. Also, for the residents of Saint Paul, it was important for them to see that justice was done and to participate in the justice system. Instead, Lestenkof and all of the witnesses were hauled off to Dillingham for trial. Lestenkof had a constitutional right to be tried in Saint Paul if at all possible. And it seems clear to me, from this record, that it was possible for him to be tried in Saint Paul.
In my view, unless we have a high standard for requiring defendants to be tried in places such as Saint Paul, defendants in those areas will frequently be deprived of their right to be tried in those areas and the promise of Alvarado to bring justice to all of the areas of Alaska will be compromised unnecessarily. I therefore dissent from the decision of the court.
. 486 P.2d 891 (Alaska 1971).
. Id. at 904.
. Id. art 896-97, 903.
. Id. at 905-06.
. Id. at 903-04.
. Id. at 902 n. 28.
. http://www.amiq.org/aleuts.html.
. U.S. Census Bureau, 2000 Census of Population and Housing, Summary Population and Housing Characteristics, PHC-1-3 Alaska 37 (2002), available at http://www.census.gow/prod/ cen2000/phc-1-3.pdf.
. hitp://www.tanadgusix.com; http://www. commerce.state.ak.us/dea/commdb/CIS.cfm? comm._boro_name=SaintPaul.
. Erick v. State, 642 P.2d 821, 824 (Alaska App.1982).
. http://www.census.gov/ popest/cities/ta-bles/SUB-EST2007-04-02.csv.
. U.S. Census Bureau, 2000 Census of Population and Housing, Summary Population and Housing Characteristics, PHC-1-3 Alaska 15 (2002), available at http://www.census.gov/prod/ cen2000/phc-1-3.pdf.
. Alaska R.Crim. P. 24(d).
. Alvarado, 486 P.2d at 904.
. Erick, 642 P.2d at 824.
. 599 P.2d 147 (Alaska 1979).
. Id. at 149.
. Id.
. Id. (citations and footnote omitted).
. Id. at 150.
. Erick, 642 P.2d at 826-27.
. Id. (footnote omitted).
. Cano v. Anchorage, 627 P.2d 660, 664 (Alaska App.1981).