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Betsy Simon, Forum News Service, Published April 30 2013

Dickinson man chooses to defend himself in attempted murder trial

A Dickinson man invoked his Sixth Amendment right to represent himself next month at trial on an attempted murder charge.

Kevin R. Gardner, who appeared for the hearing at the Stark County Courthouse via interactive television from the Mercer County Courthouse in Stanton, where he is incarcerated, said he wanted to dismiss his attorney, public defender Kevin McCabe, and have him serve as backup counsel.

Gardner’s three-day trial is scheduled to begin May 29.

Gardner is accused of putting a gun to a Hettinger woman’s head at her home on Nov. 16 and pulling the trigger. The female victim allegedly heard a click, but the gun did not go off.

Gardner was charged with one count each of Class A felony attempted murder, Class A misdemeanor menacing and three Class C felonies, including aggravated assault-domestic violence, reckless endangerment and terrorizing.

“(McCabe) has no skin in this game. I do,” Gardner said during Monday’s hearing to explain why he wanted to dismiss his attorney.

Judge William Herauf said there are rules of evidence and criminal procedure that all attorneys at trial will be expected to follow, even Gardner.

Gardner, who was born in 1962, admitted that this is the first time he has been put on trial and he has a limited knowledge of how the criminal justice system works.

“I have one concept of evidence and, thus far, my court-appointed attorney said there will be certain things he will be obtaining, but it has not been done yet,” he said. “My freedom is worth a lot more than working relationships. I think I am the best chance I’ve got.”

Adams County State’s Attorney Aaron Roseland said he has never had a negative experience working with McCabe.

Roseland said because this is a serious domestic violence case, he is concerned about the potential for intimidation that could happen if Gardner represents himself.

“In my experience with Mr. McCabe, he has always been a zealous advocate for his clients,” Roseland said. “In this case, I have seen no less advocacy for his client. The fact is, the facts in this case are very bad and I think the defendant does not want to accept that. Mr. McCabe has and continues to satisfy the requirements in the Sixth Amendment.”

Upon his dismissal as counsel, McCabe is required to turnover any evidence that has been collected, but it will be Gardner’s responsibility to turn over any further evidence he gathers before the trial commences.

Though he was reluctant to allow Gardner to defend himself because of his lack of knowledge about how to conduct a trial, Herauf said he detected no mental incapacity that would prevent Gardner from defending himself against the charges and granted Gardner’s motion.

McCabe said he has never acted as backup counsel in a trial before and did not like the idea, but he did agree to the arrangement.

“I’ll be there to answer questions at the trial, but I will do no other work on this case,” McCabe said.