Olivia Covington foro www.theindianalawyer.com

After a public defender failed to secure a statutorily required signature on Kevin Isom’s petition for post-conviction relief, Isom, a convicted murderer who has been sentenced to death, lost confidence in his legal team. He refused to provide his signature after the error was discovered, vowing not to sign unless he was appointed new counsel.

Now, the Indiana Supreme Court must decide if Isom’s refusal constitutes a waiver of his right to post-conviction review or if the signature-less petition can still be considered in substantial compliance with state laws given Isom’s indication that he wants to continue with the PCR process. In oral arguments before the justices Thursday in Kevin Charles Isom v. State of Indiana, 45S00-1508-PD-00508, Isom’s counsel questioned his competency to make a knowing, intelligent and voluntary waiver and suggested that her client may not have understood the implications of his repeated refusal.

Ann Kaiser, a public defender who argued on behalf of Isom, told the court that her client has repeatedly said that he wants to seek post-conviction review, but will not cooperate unless he is given an attorney he has more confidence in. So far, Isom and the public defender’s office have not been able to resolve that issue.

Justices in 2015 affirmed the death penalty for Isom, who was convicted of three counts of murder for the 2007 shooting deaths of wife, Cassandra, and his 13-year-old stepdaughter, Ci’Andria Cole, and 16-year-old stepson, Michael Moore in Gary. All three victims were shot multiple times at close range with various weapons.

Because of his constant refusal to sign the verification form, the Lake Superior Court found that Isom had waived his right to post-conviction review, an order that prompted Isom to ask his counsel, “What just happened?” That question, Kaiser said, suggests that Isom did not knowingly, intelligently and voluntarily waive his PCR rights because he did not understand what he was doing.

But Justice Robert Rucker expressed discomfort with that argument and instead suggested that Isom may be trying to “game the system” by refusing to cooperate unless he gets to make the rules. Kelly Loy, who argued on behalf of the state, echoed Rucker’s concerns, telling the court that Isom was trying to force them to change the law to accommodate his desires.

But Kaiser contended that Isom is not competent to fully understand the implications of his actions.
For example, at one court hearing, Kaiser said her client believed his counsel was trying to conspire against him by wearing the same color suit as the prosecutor. And when situations get stressful, Isom is known for locking himself away and refusing to interact with others, another sign that he is not mentally competent, she said.

Justice Mark Massa echoed Rucker’s concerns and noted that it seemed as though Isom’s mind were calculating, not incompetent. Kaiser said Isom had not undergone a competency evaluation since 2008, so she had filed a petition for an evaluation to shed more light on the concerns the justices were raising.

But Loy repeatedly contended that not only was Isom not incompetent throughout his PCR proceedings, he was clear that he did not want to proceed. Loy argued that Isom had verbally declined a judge’s invitation to provide his signature three different times.

But Justice Steve David, along with Massa, repeatedly pushed Loy on one question – what would be the harm if Isom’s petition were found to be in substantial compliance, even without his signature?

Loy repeatedly told the justices that the petition couldn’t be in substantial compliance because Isom had stated that he didn’t want to proceed. That answer didn’t satisfy the justices, who told Loy they wanted to know what the legal harm would be. Loy finally said that the law puts the decision with Isom to decide if he wants to proceed, and, according to her argument, he had repeatedly indicated that he did not want to do so.

Even if the justices found the petition to be in substantial compliance, Loy argued that the case couldn’t go forward because of Isom’s indication that he would not sign. But if that were the case, then David said there could be no harm in holding the petition in substantial compliance.

But Loy said if the rules were bent for Isom, then it could incentivize other felons facing death to abuse the PCR process for their own gain. Oral arguments in the case can be viewed here.