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Court erred in denying court-appointed counsel

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The Indiana Court of Appeals reversed a man's convictions because the trial court failed to adequately ascertain whether he was indigent for purposes of court-appointed counsel.

In Bradley G. Shively v. State of Indiana, No. 12A02-0903-CR-235, Bradley Shively requested a court-appointed attorney at his initial hearing on charges of domestic battery, criminal confinement, and battery. The trial court denied his request at the initial hearing after asking how much money he made, if he had a house or car, and how much money he had in his checking account.

Shively moved to continue his trial and again asked for a court-appointed attorney. A different judge also denied his request. Shively proceeded pro se and was convicted on the charges.

Before sentencing, the trial judge that held the first indigency hearing conducted a more in-depth examination of Shively's finances and then appointed him counsel for sentencing.

While there is no set specific financial guideline for the determination of indigency, the trial court should have done a more thorough inspection of Shively's finances at his first hearing, the appellate court ruled. Both hearings provided just a rough estimate of his finances, and the record shows at his second hearing, Shively's financial situation was much worse. There weren't discussions of his obligations to his children, any debt payments or other fixed obligations, wrote Judge Michael Barnes.

The judge noted it's telling that Shively was appointed counsel after trial but before sentencing and found indigent for the purposes of this appeal. There doesn't appear to be any changes to his financial status between the second pre-trial hearing and the indigency hearing that happened after trial.

"If Shively was indigent for purposes of sentencing and appeal, it is difficult to perceive why he was not indigent for purposes of trial; there does not appear to have been any marked changed in Shively's financial status, particularly between the second pre-trial indigency hearing and the post-trial hearing," he wrote. "Although we understand the reluctance of a trial court to appoint an attorney for one who may be 'gaming the system,' in this instance we do not believe sufficient care was given to a close examination of Shively's financial situation."

Judge Barnes wrote as the case stands now, Shively is still indigent and should be considered so for the purposes of further proceedings on remand unless there is evidence his financial situation has markedly improved.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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