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Man entitled to warning that conduct may waive right to counsel

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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 Gilmore continually requested a new court-appointed attorney after the previous ones had withdrawn.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.

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  • 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.

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  1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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