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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 Gilmore continually requested a new court-appointed attorney after the previous ones had withdrawn.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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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