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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 Gilmore continually requested a new court-appointed attorney after the previous ones had withdrawn.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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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