By TERRI HARBER
The murder trial of Daniel Myers, under way this week in Baker County Circuit Court, is missing one expected element.
Myers, 56, is accused of fatally shooting former Baker City resident Travis Weems, 39, outside Myers' cabin near Sumpter in January 2011. Myers has chosen not to attend the trial, which started Tuesday and is expected to continue through March 2.
Myers remains in the Baker County Jail, where he has been since he was arrested Jan. 27, 2011, the day Weems' was killed and his body found in Sumpter.
Myers' absence is his choice, said Judge Greg Baxter, who is presiding over the trial.
"The court would like for him to be heard, to contribute to the process," Baxter said Wednesday while the jury was outside the courtroom.
"He's voluntarily not participating."
Myers wanted to fire his court-appointed attorney, Mark Rader of Ontario.
Myers told Baxter in a hearing in late December that he thought Rader should have called certain witnesses during a Dec. 20 hearing on Myers' motion to suppress evidence in the case.
Baxter denied Rader's request.
The judge estimated that bringing in a new defense attorney would have postponed Myers' trial by at least six months.
Paul Levy, general counsel at Oregon's Office of Public Defense Services, the state agency that oversees the assignment of attorneys to defendants who can't afford to hire a lawyer, said Thursday that "in any sort of trial it's unusual for the defendant to not cooperate with the proceedings."
Portland attorney Rich Wolf, who frequently is assigned to defend murder suspects, said it's "unusual but not unprecedented" for a defendant in such a case to refuse to attend the trial.
In response to Myers' absence, Rader, each time District Attorney Matt Shirtcliff called a witness on Wednesday, asked Baxter to postpone the trial or declare a mistrial.
The jurors were taken out of the courtroom each time a witness was called, so they did not hear Rader's requests.
Rader cited the 5th, 6th and 14th amendments to the U.S. Constitution, and Article 1, Section 11 of the Oregon Constitutions as reasons why the trial should be halted.
These descriptions of U.S. citizens' rights include being able to confront witnesses about the nature and cause of accusations against them, requires there be a process for obtaining witnesses in their favor, as well as forbids depriving any person of life, liberty, or property, without due process of law.
Regarding the rights of those accused of criminal acts, the state constitution states that the defendant "be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face andhellip; "
Baxter denied Rader's request each time.
"I cannot effectively represent my client without his presence," Rader said. "I have no authority without my client here."
Rader declined to discuss the situation outside the court with a Herald reporter, saying he "couldn't speak for (Myers)."
Can't pick and choose
Just because defendants who can't afford to pay for their own attorney receive court-appointed representation, "it doesn't mean (they) can pick and choose," said Kathryn Aylward, director of the contract and business services division of the Office of Public Defense Services.
That a defendant can, at any time, fire a court-appointed attorney and be provided with a replacement is a "notion that doesn't really fly," Aylward said. The defendant "really didn't hire the person."
A change in court-appointed attorney isn't the best use of public funds "if the attorney has been doing a good job," Aylward said.
Finding a suitable attorney to step in could be problematic in Eastern Oregon because "we don't have a surplus of qualified attorneys there who can afford to do the work," she said.
While the defendants may have an idea about how to handle their case, there is a possibility that what they want "won't work or would be counterproductive" because they don't have the legal training and experience that a court-appointed attorney provides to them, she explained.
"And," she added, "some people don't like being told what to do."
Levy said that although it's not unusual for a defendant to ask for a new court-appointed attorney, the threshold for such a request to be granted by a judge is "pretty high."
Both Levy and Wolf agreed that Rader's requests for a mistrial or a postponement likely are intended to ensure that the issue of Myers' absence is on the trial record, and thus available as the basis for a possible appeal should the jury convict Myers.
"Every ruling that a judge makes is a potential point for appeal," Levy said.
In Myers' case, those rulings could include Baxter's denial of Myers' request for a new attorney, and the judge's rejection of Rader's motions for a continuance or mistrial.
In addition to the murder accusation, Myers is charged with unlawful use of a weapon, being a felon in possession of a firearm and unlawful delivery and possession of methamphetamine. The firearm possession charge stems from a felony drug conviction against Myers in 2006.
Myers' absence in the courtroom has not deterred Rader from defending his client.
On Wednesday he brought up federal rules of evidence in challenging the testimony of some prosecution witnesses.
Rader, citing Rule 702 regarding expert witnesses, questioned law enforcement witnesses about their professional qualifications to speak about text messages that are being used as evidence against Myers.
The witnesses had analyzed cell phone text messages between Weems, Myers and several other people.
Police concluded that the text messages were related to drug transactions.
Baxter denied Rader's argument that the use of interpretations are overly prejudicial and based on hearsay so the witnesses were allowed to testify.
Rader also suggested that the cell phones in question could have been used by people other than Weems and Myers.
Jayson Jacoby of the Baker City Herald contributed to this story.