Man shot by police having attorney problems

April 23, 2006

By MARY AMES

Frontiersman

PALMER - A man who has been in jail since he was shot by Palmer police in September says he's ready to go to trial, but a legal skirmish over his defense attorney has postponed his trial date.

After three representation hearings this month, Superior Court Judge Eric Smith set a trial date of July 3 for Shawn McCrary, 43, who faces five counts of third-degree assault, second degree criminal trespass and violating a protective order.

McCrary had barricaded himself in his estranged wife's South Gulkana Street house on Sept. 21 when four Palmer police officers and an Alaska State Trooper came to serve arrest and search warrants for him. McCrary let the officers in, but kept his Colt .45, according to Palmer Police Chief Russ Boatright. During negotiations to get him to disarm, McCrary made a threatening move towards the officers, and Palmer Sgt. Lance Ketterling shot him, Boatright said. The case remains under investigation by Anchorage police.

McCrary and his public defender, Bruce Brown, came before Judge Smith on April 6, saying they could no longer operate as a team.

Brown told Superior Court Judge Eric Smith that the level of trust had broken down completely.

Smith appointed the Office of Public Advocacy to take McCrary's case. On April 12, Rachel Levitt, head of OPA in Palmer, came before Smith to argue against her agency's appointment. Levitt and James Fayette, chief of the special prosecutions unit and prosecutor for the case, agreed.

Smith said if the Public Defender Agency stayed on the case, the office would have to build a wall around Brown to isolate him from the rest of the office.

Fayette, on speaker phone, said the conflict between Brown and McCrary was not a conflict in the legal sense, such as when an attorney knows a material witness; that Brown still would be bound to keep confidences, and could share trial preparations with a successor.

It is not the policy of the court nor of OPA to appoint another lawyer just because a client may not like the attorney who is appointed to a case, Smith and Levitt argued.

On April 13, Fayette, McCrary and Quinlan Steiner, head of the Public Defender Agency all made telephonic appearances in Smith's courtroom.

McCrary interrupted the proceedings several times in spite of requests by Levitt that he allow counsel to speak for him. McCrary also told Fayette to hang up the phone so he could speak to Steiner.

Steiner told the court that the PDs would represent McCrary, which Levitt said she didn't oppose.

Smith said if that was the case, they would go ahead with the trial, but Steiner asked for more time and another representation hearing.

&#8220It's best I talk with Mr. McCrary,” Steiner said. McCrary said he would refuse to speak with Steiner until Smith told McCrary he was giving a direct court order.

&#8220I'm telling you what's going on,” Smith said loudly enough to overcome McCrary's comments. &#8220You're represented by the Public Defender Agency.”

On Wednesday, with McCrary and Fayette again on the phone, Laura McDonald, another Palmer public defender, was at the defense table representing McCrary.

McDonald told the court she had been informed only Friday that she would be taking the case, and she had been in trial until 12:30, so she had just started reading the files.

&#8220There is a massive volume of records on the case,” McDonald said. &#8220I intend to see Mr. McCrary today or tomorrow, and I need 60 days before trial.

After all that, the matter of who will represent McCrary at trial remains a definite maybe.

&#8220Some people hired private counsel,” McCrary said. &#8220Lance Wells should file an appearance.”

Fayette said he heard from Wells earlier that McCrary's sister wanted to hire him, but that he hadn't heard from Wells since.

&#8220I don't know if he's in or out,” Fayette said.

Contact Mary Ames at 352-2284 or mary.ames@frontiersman.com.