ILNews

Man entitled to warning that conduct may waive right to counsel

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has reversed the finding that a man charged with murder is no longer indigent and that his difficult behavior caused him to waive or forfeit his right to appointed counsel. The appellate court concluded that the judge considered the defendant’s conduct, not his ability to pay, when finding him no longer indigent.

Stephen Gilmore was charged with murder in 2005. His first trial was declared a mistrial and he was able to post a cash bond. Gilmore received two court-appointed attorneys at that trial and expressed displeasure at the time with his attorneys, among other things.

When he was up for retrial in 2006, the two original attorneys filed a motion to withdraw representation, citing a major breakdown in the attorney-client relationship. Several other court-appointed attorneys, including one from another county, eventually filed motions to withdraw their appointments, citing major disagreements in trial strategy and breakdowns in communication. Gilmore continually requested a new court-appointed attorney after the previous ones had withdrawn.

In January 2009, the trial court decided to review Gilmore’s indigency status and found no changes, but in September 2010, the trial court issued an order finding he was no longer indigent. The judge also said he waived his right to counsel by his “obstreperous conduct.” The judge noted the cases raise the question of whether there are limits on one’s right to indigent counsel.

At the September 2010 hearing, the judge noted that Gilmore’s income from Social Security was in excess of Federal Poverty Guidelines, his home’s property was assessed at $54,000, and the attorney fees for his first trial were $21,000. But the judge went on to say that a court must also consider a defendant’s conduct and behavior when re-evaluating indigency.

The appellate court was troubled by this statement because “it indicates that the trial court based its indigency determination in whole or in part on its assessment of Gilmore’s conduct, not his financial condition. We have found no such requirement with regard to an indigency status determination,” wrote Judge James Kirsch in Stephen L. Gilmore v. State of Indiana, No. 40A01-1011-CR-553.

Having found that Gilmore’s assets and income were insufficient for him to afford to pay for his own attorney, the court can’t then reverse its decision without finding a change in circumstances since its earlier decision or determining the previous decision was an error, wrote the judge.

Regarding his right to court-appointed counsel, the COA agreed with the trial court that although a defendant has a right to an attorney, if indigent, he doesn’t have the right to abuse it. Gilmore’s conduct appears to be along the line of a waiver by conduct or forfeiture with knowledge. Because of this, he’s entitled to a hearing during which he should be warned that if his difficult behavior persists, the trial court will find he has chosen self-representation by his own conduct.

“While not condoning Gilmore’s apparent obstreperous conduct, because those warnings were not given to Gilmore, we conclude that the trial court erred by finding that Gilmore had waived his right to counsel,” he wrote.

ADVERTISEMENT

  • Well that's one side if this story...
    what about the other side--Mr. Gilmore's side? I understand that he has posted his side of the story, which apparently did not violate the comments policy, yet you removed his comments. Why? I think his comments help to round out the "mental picture" of this case...a case in which Mr. Gilmore has basically been railroaded from the beginning. He deserves to be heard.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

ADVERTISEMENT