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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. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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