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Mega Edition: The Supreme Court And It's Decision About Richard Allen's Lawyers (10/11/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're going to spin down to Indiana and
• 0:05
  Speaker 1: we're going to take a look at the opinion or
• 0:08
  Speaker 1: the order, I should say, that was passed down by
• 0:10
  Speaker 1: the Supreme Court, keeping Judge Gull in her position. And
• 0:14
  Speaker 1: I think it's very important that we do this so
• 0:16
  Speaker 1: that we all have the context that we need moving forward.
• 0:19
  Speaker 1: Because before you know it, this trial is going to
• 0:21
  Speaker 1: be upon us at some point and we're going to
• 0:23
  Speaker 1: be talking about it a whole lot. So let's get
• 0:26
  Speaker 1: into this order and let's see what the Indiana Supreme
• 0:30
  Speaker 1: Court had to say. The opinion by Justice Malter. Chief
• 0:36
  Speaker 1: Justice Rush and Justices Massa and Goff concur. Justice Slaughter
• 0:40
  Speaker 1: concurs in part and dissents in part with separate opinion. Malter, Justice.
• 0:46
  Speaker 1: The state charged Richard Allen with two counts of murder
• 0:49
  Speaker 1: because he couldn't afford an attorney. The trial court appointed
• 0:52
  Speaker 1: public defenders Andrew Baldwin and Brad Rossi to represent him.
• 0:57
  Speaker 1: But after about a year, the special judge presiding over
• 0:59
  Speaker 1: the case became concerned they were not representing Allen effectively.
• 1:04
  Speaker 1: So she disqualified them over Allen's objection, replaced them with
• 1:07
  Speaker 1: two new public defenders, and continued Allen's trial for at
• 1:11
  Speaker 1: least nine months so that his new trial attorneys would
• 1:13
  Speaker 1: have enough time to prepare. Allen then retained two appellate
• 1:18
  Speaker 1: attorneys who filed a verified petition for writ of mandamus
• 1:22
  Speaker 1: in our court requesting that we mandate 1. Baldwin and
• 1:26
  Speaker 1: Rossi's reinstatement, as court-appointed counsel, two, that Allen's criminal trial
• 1:31
  Speaker 1: begin within 70 days after we issue the writ, and three,
• 1:35
  Speaker 1: that a new special judge replace the current special judge.
• 1:39
  Speaker 1: The special judge and the Attorney General both opposed the petition,
• 1:43
  Speaker 1: and we held an oral argument. After considering all parties'
• 1:46
  Speaker 1: excellent written and oral submissions, we granted Allen's request to
• 1:50
  Speaker 1: reinstate Baldwin and Rossi, but denied his other two requests
• 1:53
  Speaker 1: in a short order, with this opinion to follow. Here,
• 1:58
  Speaker 1: we explain our reasons for those three decisions. In short,
• 2:01
  Speaker 1: we reinstated Baldwin and Rossi as Allen's court-appointed counsel because
• 2:05
  Speaker 1: the trial court did not find that their disqualification was
• 2:08
  Speaker 1: a necessary last resort after weighing the prejudice to Allen.
• 2:12
  Speaker 1: We denied Allen's request for trial within 70 days because
• 2:16
  Speaker 1: he did not make that request in the trial court.
• 2:19
  Speaker 1: And we denied Allen's request to replace a special judge
• 2:22
  Speaker 1: because he did not overcome our presumption of impartiality by
• 2:25
  Speaker 1: identifying facts showing clearly that the special judge is biased
• 2:29
  Speaker 1: or prejudiced. Facts and Procedural History In February 2017, two
• 2:34
  Speaker 1: teenage girls, Abigail Williams and Liberty German, were killed in Delphi, Indiana.
• 2:41
  Speaker 1: Five years later, in October 2022, Allen was arrested and
• 2:45
  Speaker 1: charged with murdering them. The trial court judge transferred Allen
• 2:49
  Speaker 1: to the Department of Corrections for his safety. While he
• 2:52
  Speaker 1: awaits trial and then recused himself. A special judge was
• 2:56
  Speaker 1: then appointed, and because Allen couldn't afford an attorney, the
• 2:59
  Speaker 1: judge appointed Baldwin and Rossi to represent him at public's expense.
• 3:03
  Speaker 1: But a year later, the special judge lost faith in
• 3:06
  Speaker 1: their ability to assist Allen with his defense effectively, so
• 3:10
  Speaker 1: she ultimately disqualified them as counsel. A leak of confidential
• 3:15
  Speaker 1: case materials, including crime scene photos, triggered the disqualification. Baldwin
• 3:20
  Speaker 1: and Rossi represent that in August 2023, one of Baldwin's
• 3:24
  Speaker 1: friends and former employees, Mitchell Westerman, visited Baldwin's office secretly,
• 3:29
  Speaker 1: copied discovery materials, including crime scene photos, and distributed them
• 3:34
  Speaker 1: to others. After discovering the leak, Baldwin and Rossi notified
• 3:37
  Speaker 1: the special judge and the prosecutor on October 6th. They
• 3:41
  Speaker 1: also explained that after Westerman told Baldwin on October 9th
• 3:45
  Speaker 1: what he had done, Baldwin and Rossi relayed the information
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  Speaker 1: to the prosecutor the next day. Two days later, The
• 3:51
  Speaker 1: prosecutor emailed defense counsel and the special judge informing them
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  Speaker 1: that the individual to whom Westerman allegedly provided the materials
• 3:59
  Speaker 1: committed suicide hours after refusing to answer questions from an
• 4:03
  Speaker 1: Indiana State Police detective investigating the leak. The special judge
• 4:08
  Speaker 1: responded to the email by expressing that she was deeply
• 4:11
  Speaker 1: concerned that Mr. Allen's defense is being compromised by all
• 4:15
  Speaker 1: these recent events. R Volume 1 at 223 She then
• 4:20
  Speaker 1: directed defense counsel to stop working on the case until
• 4:24
  Speaker 1: the judge could discuss the recent developments with the parties
• 4:27
  Speaker 1: during an October 19th hearing. In the meantime, Allen wrote
• 4:30
  Speaker 1: a letter to the special judge informing her that he
• 4:33
  Speaker 1: had discussed the leak with Rozzi and the impact it
• 4:36
  Speaker 1: could have on his defense, but he wanted Baldwin and
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  Speaker 1: Rozzi to continue representing him. Counsel for both sides met
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  Speaker 1: with the special judge in her chambers just before the
• 4:46
  Speaker 1: October 19th hearing to discuss the court's expectations for the hearing.
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  Speaker 1: During that meeting, the special judge informed Baldwin and Rossi
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  Speaker 1: that they had demonstrated gross negligence and incompetence and conveyed
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  Speaker 1: she had grave concerns about their representation of Allen. Supplemental
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  Speaker 1: report at 15. In support, the special judge said the
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  Speaker 1: attorneys failed to safeguard confidential case materials, including crime scene photos,
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  Speaker 1: emailed confidential work product to an unauthorized person and failed
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  Speaker 1: to timely report the leak. made extrajudicial statements about the case,
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  Speaker 1: and included inaccurate statements in various pleadings. Based on these concerns,
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  Speaker 1: the court informed counsel that she had decided to disqualify
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  Speaker 1: Baldwin and Rossi, but she offered to let them save
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  Speaker 1: face by withdrawing from the case so she wouldn't have
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  Speaker 1: to go into a public hearing a few minutes later
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  Speaker 1: and read a statement that she had prepared explaining why
• 5:42
  Speaker 1: she believed counsel was grossly negligent and ineffective. Allen wasn't
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  Speaker 1: present for this discussion, but after briefly speaking with Baldwin
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  Speaker 1: and Rossi, he relayed through them his objection to the
• 5:52
  Speaker 1: court's disqualification. Since the court presented Baldwin and Rossi what
• 5:57
  Speaker 1: seemed like a Hobson's choice, withdraw or be disqualified in
• 6:00
  Speaker 1: a publicly humiliating fashion, they conveyed they would withdraw over
• 6:04
  Speaker 1: Allen's objection to the court's disqualification decision. The special judge
• 6:08
  Speaker 1: accepted their withdrawals and conducted a brief public hearing without
• 6:12
  Speaker 1: them where she stated merely that there was an unexpected
• 6:16
  Speaker 1: turn of events and defense counsel had withdrawn from the case.
• 6:21
  Speaker 1: Report Volume 2 at 6. But after having a few
• 6:25
  Speaker 1: days to reconsider and discuss it further with Allen, defense
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  Speaker 1: counsel changed their minds and neither Baldwin nor Rozzi ever
• 6:31
  Speaker 1: filed a written motion to withdraw as required by Trial
• 6:35
  Speaker 1: Rule 3.1H. Instead, Rozzi refused. filed a verified notice of
• 6:39
  Speaker 1: continuing representation, notifying the court that he, in fact, would
• 6:43
  Speaker 1: not be moving to withdraw and would continue representing Allen,
• 6:47
  Speaker 1: and he filed a motion to disqualify on Allen's behalf,
• 6:50
  Speaker 1: arguing the special judge was biased and should recuse herself.
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  Speaker 1: The trial court struck both filings and ordered the clerk
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  Speaker 1: to remove them from the record because Rozzi was no
• 7:00
  Speaker 1: longer counsel of record. She also appointed two new public
• 7:03
  Speaker 1: defenders to represent Allen. Baldwin then filed a motion to
• 7:07
  Speaker 1: reconsider after informing the court that he would not file
• 7:10
  Speaker 1: a written motion to withdraw. He did not consider his
• 7:13
  Speaker 1: oral withdrawal effective and he would continue representing Allen. And
• 7:18
  Speaker 1: Baldwin and Rossi both entered new appearances as Allen's privately
• 7:21
  Speaker 1: retained pro bono counsel. But after a hearing on October 31st,
• 7:26
  Speaker 1: the court entered an order stating that the special judge
• 7:29
  Speaker 1: previously found gross negligence by Baldwin and Rossi in their
• 7:33
  Speaker 1: representation of the defendant. And nothing has changed in the
• 7:37
  Speaker 1: intervening 12 days that removes the court's grave concerns about
• 7:40
  Speaker 1: their representation. Report Volume 1 at 38. So over their
• 7:45
  Speaker 1: strenuous objections, the court disqualified them from representing the defendant
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  Speaker 1: and affirmed the appointment of new public defenders. The court
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  Speaker 1: also continued the January 8, 2024 trial date to October 15, 2024.
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  Speaker 1: On November 6, 2023, Allen petitioned this court for a
• 7:58
  Speaker 1: writ of mandamus The Discussion As we explained below, we
• 8:32
  Speaker 1: agree with Allen that he is entitled to have his
• 8:34
  Speaker 1: original court-appointed attorneys reinstated. But we agree with the state
• 8:39
  Speaker 1: and the special judge that Allen is not entitled to
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  Speaker 1: a writ ordering a trial to begin within 70 days
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  Speaker 1: or replacing the special judge. 1. Allen's request to reinstate
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  Speaker 1: his original court-appointed counsel presents extraordinary circumstances warranting relief. Allen
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  Speaker 1: argues the trial court exceeded its authority by disqualifying his
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  Speaker 1: original court-appointed counsel because disqualification was unwarranted and significantly prejudices
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  Speaker 1: both his defense and his opportunity for a speedy trial.
• 9:09
  Speaker 1: The state and the special judge respond that this original
• 9:12
  Speaker 1: action is not the proper procedural vehicle to evaluate Allen's claim,
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  Speaker 1: and even if it was, the special judge was within
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  Speaker 1: her authority to disqualify counsel because she was rightly concerned
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  Speaker 1: that that they were not fulfilling Allen's constitutional right to
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  Speaker 1: effective legal assistance. We agree with Allen. Our court has
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  Speaker 1: repeatedly reviewed attorney disqualification issues through the original actions, and
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  Speaker 1: we do so here because Allen's petition presents the sort
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  Speaker 1: of extraordinary circumstances for which there is not adequate appellate
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  Speaker 1: remedy that our original action rules require. A. We may
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  Speaker 1: review an attorney disqualification decision through an original action. This
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  Speaker 1: court has exclusive original jurisdiction to supervise the exercise of
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  Speaker 1: jurisdiction by all Indiana courts. Indiana's Constitution. Article 7, Section 4.
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  Speaker 1: Indiana Original Action Rule 1A. We exercise our supervisory authority
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  Speaker 1: through original actions for writs of mandamus or prohibition. Original
• 10:11
  Speaker 1: Act R1B. Each writ is an extraordinary remedy, equitable in nature,
• 10:16
  Speaker 1: and viewed with disfavor. State Example Relativity Commons v. Para, 987, NE2D, 1074, 1076, Indiana, 2013.
• 10:26
  Speaker 1: A writ will not be issued unless the realtor can
• 10:30
  Speaker 1: show a clear and obvious emergency where the failure of
• 10:33
  Speaker 1: this court to act will result in substantial injustice. It
• 10:37
  Speaker 1: will also be issued only when and where the trial
• 10:39
  Speaker 1: court has an absolute duty to act or refrain from acting,
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  Speaker 1: and original actions may not be used as substitutes for appeal.
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  Speaker 1: One issue our court has repeatedly reviewed through original actions
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  Speaker 1: is whether to disqualify counsel. Example, Kurtz v. Delaware Circuit
• 10:55
  Speaker 1: Court No. 5, M16, N.E. 2D, 658-661-62, Indianapolis, 2009. issuing
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  Speaker 1: a writ to disqualify a special prosecutor because the prosecutor's
• 11:08
  Speaker 1: relationship with an attorney against whom the defendant had recently
• 11:12
  Speaker 1: testified created an appearance of impropriety. State Example Jones v. Knox,
• 11:17
  Speaker 1: Superior Court at 1-728-NE2D-133-134, Indiana 2000, declining to issue a
• 11:20
  Speaker 1: writ to reinstate court-appointed counsel The trial court disqualified for
• 11:30
  Speaker 1: their insulting and absolutely improper comments because the attorneys had
• 11:34
  Speaker 1: affirmatively requested that they be allowed to withdraw. If the
• 11:38
  Speaker 1: trial court denied their request for a continuance, quotations omitted,
• 11:42
  Speaker 1: Myers v. Tippecanoe County, 432 N.E. 2D, 1377-1379, Indiana, 1982.
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  Speaker 1: declining to issue a writ requiring the trial court to
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  Speaker 1: withdraw its order, disqualifying the elected prosecutor, where the elected
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  Speaker 1: prosecutor was the defense attorney for the accused in two
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  Speaker 1: prior cases. State Example, Sendick v. Marion County, Superior Court,
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  Speaker 1: Room No. 2, 268 Indiana, 36, 373 NE2D 145, 147-48, Indiana, 1978,
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  Speaker 1: issuing a writ to remove private counsel from retained for
• 12:22
  Speaker 1: a state agency in a violation of statute. All right, folks,
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  Speaker 1: we're going to wrap up that first episode right here.
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  Speaker 1: And in the next episode, talking about this topic, we're
• 12:30
  Speaker 1: going to pick up where we left off. All of
• 12:33
  Speaker 1: the information that goes with this episode can be found
• 12:36
  Speaker 1: in the description box. What's up, everyone, and welcome back
• 12:39
  Speaker 1: to the program. In this episode, we're going to pick
• 12:42
  Speaker 1: right back up where we left off with the Indiana
• 12:45
  Speaker 1: Supreme Court and their opinion on removing Judge Gall and
• 12:50
  Speaker 1: the other issues that have been brought up down in Delphi.
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  Speaker 1: As in those prior cases, reviewing the trial court's disqualification
• 12:59
  Speaker 1: decision here is appropriate through an original action. That is
• 13:03
  Speaker 1: because this case presents extraordinary circumstances where denying a writ
• 13:07
  Speaker 1: will result in a substantial injustice, and Allen's petition is
• 13:11
  Speaker 1: not a substitute for an adequate appellate remedy. We reach
• 13:15
  Speaker 1: that conclusion for a few related reasons. For starters, disqualifying
• 13:20
  Speaker 1: Allen's counsel delayed his trial by at least nine months,
• 13:23
  Speaker 1: and the trial court has already concluded that Allen's pretrial
• 13:27
  Speaker 1: confinement presents extraordinary challenges. Normally, criminal defendants who must be
• 13:32
  Speaker 1: confined while they await trial are detained in the county jail,
• 13:36
  Speaker 1: while other defendants who are awaiting trial or who have
• 13:39
  Speaker 1: already been convicted and received shorter sentences. But here, for
• 13:43
  Speaker 1: Allen's safety, the original judge transferred Allen to the Department
• 13:46
  Speaker 1: of Corrections, which runs our state prisons, facilities that generally
• 13:51
  Speaker 1: detain inmates only after they are convicted and serving longer
• 13:55
  Speaker 1: sentences for more serious crimes. The special judge later reconsidered
• 14:00
  Speaker 1: the original judge's transfer order, and she too found it
• 14:03
  Speaker 1: reasonable and necessary to ensure the defendant's safety and to
• 14:07
  Speaker 1: prevent serious bodily injury. Report Volume 1 at 26. Allen
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  Speaker 1: is being held at the Wabash Valley Correctional Facility, which
• 14:17
  Speaker 1: is hours from Carroll County, where the charges were filed,
• 14:21
  Speaker 1: and Allen County, where the special judge serves. Allen's original
• 14:24
  Speaker 1: public defenders and his substitute public defenders have all challenged
• 14:29
  Speaker 1: the conditions of his pretrial confinement, including as they relate
• 14:33
  Speaker 1: to preparing his defense. We are in no position to
• 14:36
  Speaker 1: evaluate the claims in those motions, and the special judge
• 14:39
  Speaker 1: has concluded that at least some of Baldwin and Rossi's
• 14:42
  Speaker 1: claims about the confinement conditions are wrong. But even assuming
• 14:46
  Speaker 1: every aspect of Allen's pretrial confinement is proper, and again,
• 14:50
  Speaker 1: we're in opposition to say one way or another at
• 14:53
  Speaker 1: this point, extending it for at least nine months still
• 14:56
  Speaker 1: presents extraordinary challenges for which there is no adequate appellate remedy.
• 15:02
  Speaker 1: What's more, as we explain in greater detail below, we've
• 15:05
  Speaker 1: concluded the trial court lacked the authority to remove counsel
• 15:09
  Speaker 1: without one, considering other less drastic options, and two, weighing
• 15:13
  Speaker 1: the prejudice to Allen. So not only would Allen's trial
• 15:17
  Speaker 1: be delayed for at least many months if his original
• 15:20
  Speaker 1: attorneys were not reinstated, if Allen were convicted, correcting the
• 15:24
  Speaker 1: disqualification by vacating his conviction and ordering a second trial
• 15:28
  Speaker 1: would produce years of further delay and an enormous waste
• 15:32
  Speaker 1: of time and resources. That would not serve anyone's interests,
• 15:36
  Speaker 1: not Allen's, the state's, the victim's family's, the courts, nor
• 15:40
  Speaker 1: the publics. Of course, these concerns can generally be resolved
• 15:44
  Speaker 1: through discretionary interlocutory appeals. See Indiana Appellate Rule 14b1c, including
• 15:52
  Speaker 1: a basis for a discretionary interlocutory appeal that the appellant
• 15:56
  Speaker 1: will suffer substantial expense, damage, or injury if the order
• 16:01
  Speaker 1: is erroneous and the determination of the error is withheld
• 16:04
  Speaker 1: until after judgment, or the order involves a substantial question
• 16:08
  Speaker 1: of law the early determination of which will promote a
• 16:12
  Speaker 1: more orderly disposition of the case. And both the state
• 16:16
  Speaker 1: and the special judge argue that is the procedural route
• 16:19
  Speaker 1: Allen should have pursued instead. But Allen effectively couldn't, which
• 16:23
  Speaker 1: is another reason this matter is extraordinary. On top of
• 16:27
  Speaker 1: disqualifying counsel, the special judge stuck their later filings because
• 16:32
  Speaker 1: they were no longer counsel of record. without the ability
• 16:35
  Speaker 1: to file a motion requesting the special judge to certify
• 16:38
  Speaker 1: her order for interlocutory review, Allen's attorneys couldn't pursue that avenue.
• 16:43
  Speaker 1: To that point, the state and the special judge respond
• 16:46
  Speaker 1: that Allen should have had either his new public defenders
• 16:50
  Speaker 1: or the appellate attorneys he retained for his original action
• 16:53
  Speaker 1: pursue an interlocutory appeal instead. But it isn't clear how
• 16:58
  Speaker 1: either option was feasible. The newly appointed trial counsel had
• 17:02
  Speaker 1: nothing to do with the disqualification proceedings and Allen wasn't
• 17:06
  Speaker 1: present for them, so it is not obvious how Allen
• 17:09
  Speaker 1: could work with his new trial attorneys to pursue an
• 17:12
  Speaker 1: interlocutory appeal in the trial court. Maybe Allen's privately retained
• 17:16
  Speaker 1: appellate attorneys could have done so, but it is unclear
• 17:19
  Speaker 1: whether the trial judge would permit them to represent Allen
• 17:23
  Speaker 1: in the trial court along with the new substitute court-appointed counsel.
• 17:27
  Speaker 1: and it is unclear how it would work if substitute
• 17:30
  Speaker 1: court-appointed trial counsel disagreed with a privately retained appellate counsel
• 17:35
  Speaker 1: about whether to seek certification in the trial court. We
• 17:39
  Speaker 1: simply don't expect Allen to untie that procedural knot, and
• 17:42
  Speaker 1: he can cut through it with his original action instead.
• 17:46
  Speaker 1: Our prior precedents pointed appellate counsel to the original action tool,
• 17:50
  Speaker 1: and we decline to retire that tool for these sorts
• 17:53
  Speaker 1: of situations now. Having concluded that Allen's petition is properly
• 17:57
  Speaker 1: before us, we turn to its merits. B. Allen is
• 18:01
  Speaker 1: entitled to the reinstatement of his original court-appointed counsel. 1.
• 18:06
  Speaker 1: Court-appointed counsel may be disqualified only as a last resort
• 18:10
  Speaker 1: after considering the prejudice of the defendant. The Sixth Amendment
• 18:14
  Speaker 1: to the U.S. Constitution, applicable to Indiana through the Fourteenth
• 18:18
  Speaker 1: Amendment's Due Process Clause, Gideon v. Wainwright, 372 U.S. 335,
• 18:22
  Speaker 1: 339 through 345, 83, Supreme Court 792, L.ED.2D 799, 1963,
• 18:33
  Speaker 1: and Article 1, Section 13 of our Indiana Constitution guarantee
• 18:37
  Speaker 1: criminal defendants the right to have an attorney assist them
• 18:40
  Speaker 1: with their defense. U.S. Constitution, Amendment 6. In all criminal prosecutions,
• 18:46
  Speaker 1: the accused shall enjoy the right to have the assistance
• 18:49
  Speaker 1: of counsel for his defense. Indiana Constitution, Article 1, Section 13,
• 18:54
  Speaker 1: and all criminal prosecutions, the accused shall have the right
• 18:58
  Speaker 1: to be heard by himself and counsel. For defendants who
• 19:02
  Speaker 1: cannot afford to hire an attorney or retain an attorney
• 19:05
  Speaker 1: to represent them for free, that constitutional guarantee includes the
• 19:09
  Speaker 1: right to choose which attorney will represent them. United States v. Gonzalez-Lopez, 548, U.S. 140, 144,
• 19:14
  Speaker 1: 126 Supreme Court, 2557 165 L.ED 2D. 409 2006 and the
• 19:27
  Speaker 1: erroneous deprivation of his right constitutes structural error which unlike
• 19:32
  Speaker 1: other errors entitles criminal defendants who are convicted to automatic
• 19:36
  Speaker 1: reversal and the new trial idea 150 and 151 but
• 19:41
  Speaker 1: the right of counsel of choice does not extend to
• 19:44
  Speaker 1: criminal defendants who cannot afford an attorney and who can't
• 19:47
  Speaker 1: find one to represent them for free idea for free.
• 19:53
  Speaker 1: Allen can't afford an attorney, and he has asked us
• 19:55
  Speaker 1: to reinstate Baldwin and Rossi as his court-appointed counsel. Consequently,
• 20:00
  Speaker 1: he has no constitutional right to choose which attorneys will
• 20:03
  Speaker 1: represent him, but he didn't choose Baldwin and Rossi. The
• 20:06
  Speaker 1: trial court did. Allen just wants to continue with the attorneys,
• 20:10
  Speaker 1: the trial court chose for him, he is insisting on
• 20:13
  Speaker 1: the continuity of counsel rather than his choice of counsel.
• 20:18
  Speaker 1: Courts around the country are divided over whether the Sixth
• 20:21
  Speaker 1: Amendment guarantees criminal defendants the continuity of court-appointed counsel. Compare E.G.
• 20:27
  Speaker 1: United States v. Parker 469 F. 3D 57 61 2nd Circuit 2006.
• 20:29
  Speaker 1: There is no constitutional right to continuity of appointed counsel
• 20:39
  Speaker 1: with E.G. State v. McKinley, 860 NW 2D, 874 880,
• 20:45
  Speaker 1: Iowa 2015. Once established, the interest in maintaining a relationship
• 20:50
  Speaker 1: of trust with counsel is of no less importance to
• 20:53
  Speaker 1: an indigent client than to one with ample resources to
• 20:57
  Speaker 1: hire counsel. Our court has been generally of the same
• 21:01
  Speaker 1: view that a trial court is limited in its authority
• 21:04
  Speaker 1: to remove a criminal defendant's court-appointed counsel. State example, Jones
• 21:10
  Speaker 1: 728 N.E.2D at 134. And even courts that have concluded
• 21:16
  Speaker 1: there is no Sixth Amendment right to the continuity of
• 21:18
  Speaker 1: court-appointed counsel have agreed with that much. For example, though
• 21:22
  Speaker 1: the Colorado Supreme Court recently held there is no Sixth
• 21:26
  Speaker 1: Amendment right to the continuity of court-appointed counsel, it still
• 21:29
  Speaker 1: acknowledged that a defendant's interest in continued representation by a
• 21:34
  Speaker 1: lawyer they have been working with is entitled to great weight.
• 21:38
  Speaker 1: if they can demonstrate that prejudice would result from substitution
• 21:41
  Speaker 1: with a different court-appointed attorney, People v. Rainey, 527, PDOT 3D, 387, 394, Colorado, 2023.
• 21:50
  Speaker 1: The court concluded that interest flows from the due process
• 21:54
  Speaker 1: guarantees in the 5th and 14th Amendments to the U.S. Constitution,
• 21:58
  Speaker 1: rather than the 6th Amendment's right to counsel, ID at
• 22:01
  Speaker 1: 396 and 397. And while the U.S. Supreme Court has
• 22:05
  Speaker 1: not yet addressed whether there is a Sixth Amendment right
• 22:08
  Speaker 1: to the continuity of court-appointed counsel, it too is recognized
• 22:11
  Speaker 1: that the rights to due process and counsel overlap. See
• 22:15
  Speaker 1: Strickland v. Washington, 466 U.S. 468, 668-684-685-104 Supreme Court, 2052, ADL.ED, 2D-674-1984.
• 22:30
  Speaker 1: The Constitution guarantees a fair trial through the due process clauses,
• 22:34
  Speaker 1: but it defines the basic elements of a fair trial
• 22:37
  Speaker 1: largely through several provisions of the Sixth Amendment, including the
• 22:41
  Speaker 1: Council Clause. The Colorado Supreme Court also recognized that before
• 22:45
  Speaker 1: disqualifying court-appointed counsel, the court must determine that any remedy
• 22:50
  Speaker 1: short of disqualification would be ineffective. Rainey, 527, p. 3d at 395,
• 22:53
  Speaker 1: quotations omitted. In other words, disqualifying court-appointed counsel is a
• 23:01
  Speaker 1: drastic remedy that should only be a last resort. See
• 23:05
  Speaker 1: Ellis 822 S.W.2D 602-605 Tennessee Court of Appeals 1991. Courts
• 23:13
  Speaker 1: should therefore disqualify counsel with considerable reluctance and only when
• 23:17
  Speaker 1: no other practical alternative exists. United States v. Gerhardt 576 F. 3D
• 23:23
  Speaker 1: 459-464 7th Circuit, 2009. Thus, disqualification of defense counsel should
• 23:31
  Speaker 1: be a measure of last resort, and the government bears
• 23:34
  Speaker 1: the heavy burden of establishing that disqualification is justified. Quotations omitted.
• 23:40
  Speaker 1: And this approach aligns with how we have treated other
• 23:43
  Speaker 1: drastic litigation remedies that are in tension with parties' due
• 23:47
  Speaker 1: process rights. See State v. Lyons, 211, N.E., 3D, 500, 506, Indiana, 2023.
• 23:56
  Speaker 1: Courts exclude evidence only as a last resort because that
• 23:59
  Speaker 1: remedy frustrates a trial's truth-seeking function. Canaan v. State 541 N.ED
• 24:06
  Speaker 1: 2D 894-908 Indiana 1989 The trial court has broad discretion
• 24:12
  Speaker 1: in determining whether to declare a mistrial and ordinarily the
• 24:15
  Speaker 1: prerogative to declare one will be exercised only as a
• 24:19
  Speaker 1: last resort. Alright folks, we're going to wrap this one
• 24:21
  Speaker 1: up here and in the next episode dealing with this
• 24:24
  Speaker 1: topic we're going to pick up where we left off.
• 24:27
  Speaker 1: All of the information that goes with this episode can
• 24:29
  Speaker 1: be found in the description box. What's up everyone and
• 24:33
  Speaker 1: welcome back to the program. In this episode, we're diving
• 24:36
  Speaker 1: right back into the opinion that was passed by the
• 24:39
  Speaker 1: Indiana Supreme Court in relation to Richard Allen. While the
• 24:44
  Speaker 1: state defends the disqualification decision here, it appropriately acknowledges that
• 24:49
  Speaker 1: a trial court's discretion to disqualify court-appointed counsel significantly limited
• 24:54
  Speaker 1: the The state's brief accurately explains that while varied interests
• 24:58
  Speaker 1: may necessitate overriding a defendant's preference, disqualification is an extreme
• 25:03
  Speaker 1: remedy that should only be used when a court deems
• 25:05
  Speaker 1: it reasonably necessary to ensure the integrity of the fact-finding process.
• 25:11
  Speaker 1: or the fairness or appearance of fairness at trial, the
• 25:14
  Speaker 1: orderly or efficient administration of justice or public trust or
• 25:19
  Speaker 1: confidence in the criminal justice system. Attorney General's response at 15,
• 25:23
  Speaker 1: quoting Rainey 527 P. 3D at 394. So whether as a
• 25:29
  Speaker 1: product of a defendant's right to due process or the
• 25:32
  Speaker 1: right to counsel, the bottom line is this. A trial
• 25:35
  Speaker 1: court cannot disqualify court-appointed counsel over the objection of both
• 25:39
  Speaker 1: the defendant and the appointed counsel unless a. disqualification is
• 25:44
  Speaker 1: a last resort and b. disqualification is necessary to protect
• 25:48
  Speaker 1: the defendant's constitutional rights to ensure that proceedings are conducted
• 25:52
  Speaker 1: fairly and within our professional ethical standards or to ensure
• 25:57
  Speaker 1: the orderly and efficient administration of justice and c. those
• 26:01
  Speaker 1: interests outweigh the prejudice to the defendant. In a previous
• 26:05
  Speaker 1: original action, we said a trial court is limited in
• 26:08
  Speaker 1: its authority to remove a criminal defendant's court-appointed counsel. But
• 26:12
  Speaker 1: we went on to say it was unnecessary to explicate
• 26:15
  Speaker 1: the parameters of that authority. State example, Jones 728 and.
• 26:21
  Speaker 1: E2D at 134. While an original action is not the
• 26:25
  Speaker 1: appropriate vehicle through which to adjudicate or establish a right
• 26:29
  Speaker 1: or to define and impose a duty, State v. Fidel v. Porter,
• 26:35
  Speaker 1: Supreme Court, 475, N.E2D, 310, 312, Indiana, 1985. Here we
• 26:43
  Speaker 1: do find it necessary to explain the parameters of the
• 26:46
  Speaker 1: previously established limitations on the trial court's authority. The framework
• 26:50
  Speaker 1: we describe here mirrors how our court has treated other
• 26:55
  Speaker 1: drastic remedies that may conflict with parties' due process rights.
• 26:59
  Speaker 1: And our concern is that disqualifying counsel introduced structural error,
• 27:04
  Speaker 1: at least as it relates to disqualifying them as privately retained,
• 27:08
  Speaker 1: pro bono counsel, represents further extraordinary circumstances that prompt us
• 27:13
  Speaker 1: to exercise our jurisdiction now to preserve the integrity of
• 27:17
  Speaker 1: the trial proceedings going forward. 2. Disqualification here was not
• 27:22
  Speaker 1: a last resort. The special judge concluded Baldwin and Rossi
• 27:26
  Speaker 1: made four mistakes that demonstrated they may be unable to
• 27:29
  Speaker 1: assist Allen with his defense effectively. One, they failed to
• 27:33
  Speaker 1: secure confidential case materials, including crime scene photos. Two, Baldwin
• 27:38
  Speaker 1: misdirected an email, he says inadvertently, with confidential case materials
• 27:43
  Speaker 1: to a non-party client. without timely reporting the mistake to
• 27:46
  Speaker 1: the trial court or the prosecutor. Three, Baldwin and Rozzi
• 27:50
  Speaker 1: made extrajudicial statements while the prosecutor's motion for a gag
• 27:54
  Speaker 1: order was pending, which the special judge thought might prejudice
• 27:57
  Speaker 1: the case. And four, statements in Baldwin and Rozzi's motion
• 28:02
  Speaker 1: to reconsider a safekeeping order turned out to be wrong.
• 28:05
  Speaker 1: Respondents brief at 12 through 15, but the record does
• 28:09
  Speaker 1: not reflect the special judge disqualified counsel only as a
• 28:12
  Speaker 1: last resort after balancing her effective assistance of counsel concerns
• 28:17
  Speaker 1: against the prejudice to Allen that would result from substituting counsel. First,
• 28:22
  Speaker 1: the record does not reflect the disqualifying counsel was a
• 28:26
  Speaker 1: last resort. Each of the special judges for concerns could
• 28:30
  Speaker 1: be addressed through a combination of procedural rules and court orders,
• 28:34
  Speaker 1: including the gag order and protective order she entered. And
• 28:38
  Speaker 1: trial courts maintain both statutory and inherent authority to compel
• 28:42
  Speaker 1: compliance with their orders, and the procedural rules through contempt
• 28:45
  Speaker 1: proceedings and sanctions that include fines and even jail. Reynolds v. Reynolds, 64, N.E3D, 829, 833, 835, Indianapolis, 2016, Nassar, 644, N.E2D, 93, 95, Indiana, 1994,
• 28:52
  Speaker 1: McQueen v. State, 272 indiana 229 231 396 n.e.2d 903
• 29:14
  Speaker 1: 904 1979 recognizing that a fair trial judge can protect
• 29:18
  Speaker 1: the court against insult and gross violations of decorum by
• 29:22
  Speaker 1: the infliction of summary punishment by fine imprisonment or both
• 29:27
  Speaker 1: via contempt citation indiana code section 34 47 2 and
• 29:30
  Speaker 1: 1 2 4 and 3 contempt statutes indeed The trial
• 29:37
  Speaker 1: court's protective order invoked the court's contempt power. to enforce compliance. R.
• 29:42
  Speaker 1: Volume 1 at 51. Ordering that parties cannot grant anyone
• 29:46
  Speaker 1: access to discovery materials without the court's permission and without
• 29:49
  Speaker 1: the person seeking access, first signing an agreement subjecting them
• 29:53
  Speaker 1: to the court's contempt powers. There was no findings that
• 29:56
  Speaker 1: these tools were inadequate to resolve the special judge's concerns. Second,
• 30:01
  Speaker 1: the only basis for disqualifying counsel was the special judge's
• 30:05
  Speaker 1: concern that they could not assist Allen with his defense effectively.
• 30:09
  Speaker 1: Respondents brief at 10 through 15. To be sure, the
• 30:12
  Speaker 1: Sixth Amendment right to effective counsel imposes a baseline requirement
• 30:16
  Speaker 1: of competence on whatever lawyer is chosen or appointed. Gonzalez, Lopez, 548, U.S.
• 30:22
  Speaker 1: at 148. But there is no suggestion that Baldwin and
• 30:26
  Speaker 1: Rossi are out of their depth. Baldwin has over 30
• 30:28
  Speaker 1: years of experience representing thousands of clients around the state,
• 30:32
  Speaker 1: including clients charged with murder, rape, robbery, burglary, and other
• 30:36
  Speaker 1: violent offenses, and he has tried more than 125 jury trials.
• 30:41
  Speaker 1: Rossi has over 20 years of same experience, including three
• 30:45
  Speaker 1: murder trials and previous certification to handle death penalty cases. Moreover,
• 30:50
  Speaker 1: neither the state nor the special judge argue the counsel's
• 30:53
  Speaker 1: extra judicial statements or the statements in the motion harmed
• 30:57
  Speaker 1: Allen's defense. They do argue the disclosure of case materials
• 31:01
  Speaker 1: undermines Allen's defense, but they don't explain how. And they
• 31:05
  Speaker 1: don't argue these mistakes reflect that Baldwin and Rossi are
• 31:09
  Speaker 1: incompetent to handle Allen's defense or explain why disqualification is
• 31:13
  Speaker 1: necessary to protect Allen's right to the effective assistance of counsel. Notably,
• 31:19
  Speaker 1: neither the state nor the special judge direct us to
• 31:22
  Speaker 1: any case concluding that issues like these either in isolation
• 31:26
  Speaker 1: or combination, rendered counsel constitutionally ineffective or were sufficient to
• 31:32
  Speaker 1: warrant disqualification. Third, there is no showing that the special
• 31:36
  Speaker 1: judge's concerns outweigh the substantial prejudice to Allen from substituting counsel.
• 31:42
  Speaker 1: Baldwin and Rossi spent a year working with Allen, investigators,
• 31:46
  Speaker 1: and experts developing Allen's defense, and Allen says he is
• 31:50
  Speaker 1: ready to present it to a jury. The prejudice to
• 31:53
  Speaker 1: Allen begins with the fact that information and momentum spillage
• 31:57
  Speaker 1: is inevitable as one trial team hands a complicated case
• 32:00
  Speaker 1: like this over to another. Add to that, Allen has
• 32:04
  Speaker 1: already been in jail for about a year and a
• 32:06
  Speaker 1: half now, and substituting counsel requires a nine-month delay in
• 32:10
  Speaker 1: the trial date with substitute counsel unsure whether they would
• 32:14
  Speaker 1: even be ready by then. That is not surprising given
• 32:17
  Speaker 1: that this is a complicated, high-stakes case. Further, it has
• 32:21
  Speaker 1: already been seven years since the murders, and fact-finding only
• 32:25
  Speaker 1: gets harder as time passes, memories fade, and evidence is lost.
• 32:30
  Speaker 1: Matters of Peoples, 614 NE2D 555-557, Indianapolis, 1993. Our disciplinary
• 32:38
  Speaker 1: rules recognize that with the passage of time, clients risk
• 32:42
  Speaker 1: the loss of rights, witnesses, memories fade, and evidence may disappear.
• 32:47
  Speaker 1: The record does not reveal any weighing of these concerns.
• 32:51
  Speaker 1: Because the record does not reflect disqualification was a last
• 32:54
  Speaker 1: resort that was necessary after balancing the trial court's concerns
• 32:58
  Speaker 1: against the prejudice to Allen, Baldwin and Rossi must be reinstated. 2.
• 33:04
  Speaker 1: Allen's remaining requests present no extraordinary circumstances warranting relief. Allen's
• 33:10
  Speaker 1: second request is that we mandate that the trial court
• 33:13
  Speaker 1: order Allen's trial to commence within 70 days. Allen and
• 33:17
  Speaker 1: his attorneys... prepared and signed a speedy trial motion, but
• 33:20
  Speaker 1: they never filed it with the trial court. Until a
• 33:24
  Speaker 1: trial court has refused to rule properly, there is no
• 33:27
  Speaker 1: basis for relief in this court. Original Act R. 3. A. 4 State, Exclusion,
• 33:33
  Speaker 1: Wonderly v. Allen, Circuit Court 274, Indiana 572, 574 and 75, 412, N.E.2D 1209, 1211, 1980.
• 33:36
  Speaker 1: We therefore deny Allen's request. to order that his trial
• 33:49
  Speaker 1: begin within 70 days, although his attorney remained free to
• 33:53
  Speaker 1: make such a request in the trial court if Allen wishes.
• 33:56
  Speaker 1: Allen's third request is that we appoint a new special
• 33:59
  Speaker 1: judge to avoid the appearance that the trial court is
• 34:02
  Speaker 1: biased against the defense. But Allen has not stated facts
• 34:05
  Speaker 1: showing clearly that the special judge's disqualification is required. We
• 34:10
  Speaker 1: begin with the presumption that a trial judge is unbiased.
• 34:13
  Speaker 1: Smith v. State, 770, N.E., 2D, 818, 823, Indiana, 2002.
• 34:20
  Speaker 1: To overcome that presumption, the party seeking disqualification must identify
• 34:25
  Speaker 1: facts reflecting the judge's actual bias or prejudice. Our law
• 34:30
  Speaker 1: is well-settled. that prejudice is not inferred from adverse judicial rulings,
• 34:35
  Speaker 1: Zavodnik v. Harper, 17 N.E. 3D 259-269, Indiana 2014. And
• 34:38
  Speaker 1: that is all Allen identifies here, the special judge's adverse
• 34:41
  Speaker 1: ruling disqualifying counsel. No doubt that adverse ruling was significant,
• 34:52
  Speaker 1: but nothing in the record suggests the special judge's decision
• 34:56
  Speaker 1: emerged from bias or prejudice against Allen. Just the opposite.
• 35:00
  Speaker 1: The special judge explained she disqualified counsel because she was
• 35:04
  Speaker 1: trying to protect Allen's right to the effective assistance of counsel.
• 35:07
  Speaker 1: And we don't minimize her concern. She faced a significant
• 35:10
  Speaker 1: dilemma given her conclusion that the defense counsel were no
• 35:14
  Speaker 1: longer effective. If she left counsel in place and Allen
• 35:17
  Speaker 1: was convicted, the conviction might have been vacated through post-conviction
• 35:21
  Speaker 1: proceedings based on ineffective assistance of counsel. Or if she
• 35:25
  Speaker 1: disqualified counsel and Allen was convicted, then the conviction might
• 35:28
  Speaker 1: have been vacated because she infringed on Allen's right to
• 35:32
  Speaker 1: the continuity of choice of counsel. She was in a
• 35:35
  Speaker 1: tough spot either way. Though we've determined the record does
• 35:39
  Speaker 1: not support her disqualification decision, we reach that conclusion with
• 35:42
  Speaker 1: the benefit of weeks to consider the issue. through briefing
• 35:46
  Speaker 1: and oral argument from excellent appellate attorneys, and the benefit
• 35:50
  Speaker 1: of five justices and their staffs pouring over the record, authorities,
• 35:54
  Speaker 1: and arguments. The special judge did not have those luxuries.
• 35:58
  Speaker 1: Nor does Allen point to anything suggesting that the special
• 36:01
  Speaker 1: judge is biased against Baldwin and Rossi. Of course, she
• 36:04
  Speaker 1: said their mistakes reflected gross negligence, and she was concerned
• 36:07
  Speaker 1: that their representation was ineffective. Supplement R at 15. But
• 36:13
  Speaker 1: judicial remarks during the course of a trial that are
• 36:16
  Speaker 1: critical or disapproving or even hostile to the parties or
• 36:19
  Speaker 1: their cases ordinarily do not support a bias or partiality challenge.
• 36:25
  Speaker 1: Noble v. State, 725, NE2D, 842, 848, Indiana, 2000. That is,
• 36:27
  Speaker 1: unless they reveal an opinion, that derives from an extrajudicial
• 36:36
  Speaker 1: source or reveal such a high degree of favoritism or
• 36:40
  Speaker 1: antagonism as to make fair judgment impossible. The special judge
• 36:45
  Speaker 1: said counsel made mistakes that rendered their representation ineffective, but
• 36:49
  Speaker 1: her statements were not based on any extrajudicial source or
• 36:53
  Speaker 1: any experience outside the case. Instead, her statements were based
• 36:56
  Speaker 1: entirely on her observations within this case. And while her
• 37:00
  Speaker 1: conclusion that counsel was were constitutionally ineffective was too harsh,
• 37:05
  Speaker 1: she wasn't wrong to be deeply concerned that sensitive case
• 37:07
  Speaker 1: materials had leaked. Though she mistakenly hit defense counsel's eject
• 37:11
  Speaker 1: button instead of the case's lockdown button, she was right
• 37:15
  Speaker 1: to try to get the situation under control quickly and decisively.
• 37:18
  Speaker 1: Her efforts did not reflect any bias or prejudice, and
• 37:22
  Speaker 1: Allen doesn't identify anything she has done that demonstrates she
• 37:26
  Speaker 1: isn't impartial. We therefore deny Allen's request to replace the
• 37:30
  Speaker 1: special judge. Conclusion. Having granted Allen's request to reinstate his
• 37:35
  Speaker 1: original court-appointed counsel and denied his remaining request through our
• 37:38
  Speaker 1: January 18, 2024 order, this opinion terminates the original action
• 37:44
  Speaker 1: proceedings in this court. Petitions for rehearing or motions to
• 37:48
  Speaker 1: reconsider are not allowed. All right, folks, that's going to
• 37:51
  Speaker 1: do it for this one. All the information that goes
• 37:54
  Speaker 1: with this episode can be found in the description box.
• 37:58
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 38:01
  Speaker 1: today's episode, we're going to dive back down to Indiana
• 38:04
  Speaker 1: and we're going to get an update on what's going
• 38:07
  Speaker 1: on in the Delphi murder case. And as you all know,
• 38:10
  Speaker 1: the circus has certainly come to town. Whether it's leaked
• 38:14
  Speaker 1: evidence or crazy theories about Odinites or lawyers trying to
• 38:20
  Speaker 1: get the judge removed, we have seen it all down
• 38:23
  Speaker 1: here in Delphi. And the madness doesn't seem to be
• 38:26
  Speaker 1: abating anytime soon. Today's article is from Law and Crime
• 38:31
  Speaker 1: and the headline accused Delphi killer says public will question
• 38:35
  Speaker 1: the judge's impartiality if she's not replaced and his attorneys
• 38:39
  Speaker 1: aren't reinstated. So this knucklehead Richard Allen, he wants the
• 38:44
  Speaker 1: two attorneys who had the leaked evidence to be reinstated
• 38:47
  Speaker 1: and put back on the case. Now, if he's willing
• 38:50
  Speaker 1: to sign a waiver saying that he's not going to
• 38:53
  Speaker 1: use that as the basis for an appeal later on
• 38:55
  Speaker 1: down the road, I might be inclined to let him
• 38:57
  Speaker 1: do it. If he wants to shoot himself in the foot,
• 39:00
  Speaker 1: go for it. There's not a jury in the world, folks,
• 39:03
  Speaker 1: that's going to listen to the nonsense that these people
• 39:05
  Speaker 1: are pitching about Odinites and the rest of it when
• 39:08
  Speaker 1: they have all this other evidence and believe one second
• 39:11
  Speaker 1: of it. So if that's the kind of nonsense you
• 39:14
  Speaker 1: want to use as far as your defense, I say
• 39:16
  Speaker 1: let him do it. This article was authored by Jerry Lamb.
• 39:21
  Speaker 1: Civil attorneys representing accused Delphi murderer Richard Allen have asked
• 39:25
  Speaker 1: the Indiana Supreme Court to step in and replace presiding
• 39:29
  Speaker 1: spokesman judge Fran Siegel, claiming that she violated Allen's constitutional
• 39:34
  Speaker 1: rights when she extrajudiciously removed his defense attorneys from the case.
• 39:40
  Speaker 1: In a writ of mandamus filed Monday, attorneys Mark K.
• 39:43
  Speaker 1: Lehman and Kara Schaefer-Weineke requested that the state's highest court
• 39:49
  Speaker 1: to formally reinstate Brad Rossi and Andrew Baldwin as Allen's
• 39:53
  Speaker 1: defense attorneys, arguing that their removal violated his fundamental constitutional
• 39:58
  Speaker 1: rights to counsel and a fair trial. You know that
• 40:01
  Speaker 1: old saying, be careful what you wish for? I think
• 40:04
  Speaker 1: that applies here. You better be real careful what you
• 40:07
  Speaker 1: wish for, especially considering that these lawyers have been running
• 40:11
  Speaker 1: at the yap about the judge, about the court system, etc.,
• 40:16
  Speaker 1: So they're going to be under a lot of scrutiny.
• 40:18
  Speaker 1: So if they don't have their shit airtight, it's going
• 40:20
  Speaker 1: to be a problem for Richard Allen. But considering the
• 40:23
  Speaker 1: fact that Richard Allen has already confessed from jail multiple times,
• 40:27
  Speaker 1: does it really matter who his attorneys are at this point?
• 40:31
  Speaker 1: I mean, obviously his constitutional rights have to be respected.
• 40:35
  Speaker 1: But considering the evidence, I don't think that the greatest
• 40:38
  Speaker 1: lawyer of all time would be able to get Richard
• 40:40
  Speaker 1: Allen off. Now, if there is prosecutorial misconduct, That's a
• 40:44
  Speaker 1: different story because that's basically a get out of jail
• 40:48
  Speaker 1: free card for Richard Allen. And those are the claims
• 40:51
  Speaker 1: that his legal team has made now for several months.
• 40:55
  Speaker 1: Although the court has not found any sort of prosecutorial misconduct,
• 40:59
  Speaker 1: it's been one of the center points for the defense.
• 41:02
  Speaker 1: No Indiana court has ever tolerated a trial judge removing
• 41:06
  Speaker 1: a lawyer from a case. Over the client's objection, based
• 41:09
  Speaker 1: on the judge's subjective belief, the lawyer is negligent or
• 41:13
  Speaker 1: even grossly negligent, the filing states, and courts across the
• 41:17
  Speaker 1: country regularly issue extraordinary writs in criminal cases to reinstate
• 41:22
  Speaker 1: defense attorneys who have been kicked off cases for conduct
• 41:25
  Speaker 1: the trial court found upsetting or negligent. I mean, look,
• 41:29
  Speaker 1: these pictures were leaked. Let's not forget about that. The
• 41:33
  Speaker 1: pictures got out there. They didn't just magically roam out
• 41:36
  Speaker 1: there on their own. They were taken from the lawyer's office.
• 41:40
  Speaker 1: So if that's not negligence, I don't know what is. Now,
• 41:43
  Speaker 1: is that enough to get him suspended from the trial? Probably,
• 41:47
  Speaker 1: in my opinion, it should be. But there are rules
• 41:51
  Speaker 1: and statutes and all kinds of stuff in Indiana that
• 41:54
  Speaker 1: I'm probably not aware of. But if I was making
• 41:56
  Speaker 1: the decision down here as the judge, I'd just make
• 41:59
  Speaker 1: him sign a waiver, meaning Richard Allen. All right, you
• 42:01
  Speaker 1: want to have these guys defend you? Great. Now you
• 42:04
  Speaker 1: have to sign this waiver letting everybody know that no
• 42:07
  Speaker 1: matter what happens at this trial, you're not going to
• 42:10
  Speaker 1: cry that you didn't have proper legal representation and legal
• 42:14
  Speaker 1: guidance throughout the process. Because you're signing this waiver here
• 42:18
  Speaker 1: saying that you did. And then if Baldwin and Rozzy
• 42:21
  Speaker 1: want to get up there and make fools of themselves,
• 42:23
  Speaker 1: let them do it. Gull officially removed Rozzy and Baldwin
• 42:27
  Speaker 1: from Allen's case during an October 31st hearing, despite the
• 42:31
  Speaker 1: fact that both attorneys had agreed to remain on the
• 42:34
  Speaker 1: case pro bono, or free of charge. I have great
• 42:37
  Speaker 1: concerns with your representation, Gull said to Allen during the hearing.
• 42:42
  Speaker 1: I cannot and will not allow them to represent you.
• 42:44
  Speaker 1: I am sorry that this happened to you, Mr. Allen.
• 42:47
  Speaker 1: The will they won't they, surrounding Rozzy and Baldwin's representation
• 42:51
  Speaker 1: of Allen, began when Gull came out of the chambers
• 42:54
  Speaker 1: at the start of an October 19th hearing and announced
• 42:57
  Speaker 1: that both Rossi and Baldwin had withdrawn from the case
• 43:00
  Speaker 1: in an unexpected turn of events. And they dispute that.
• 43:04
  Speaker 1: They say that they never withdrew, that they were removed
• 43:07
  Speaker 1: from this case. And that's the contention here, that they're
• 43:10
  Speaker 1: saying that they were removed improperly from representing Richard Allen.
• 43:15
  Speaker 1: During that hearing, the first to allow broadcast cameras to
• 43:18
  Speaker 1: film the proceeding was Gull said that Baldwin had orally
• 43:21
  Speaker 1: withdrawn from the case after sealed evidence was leaked from
• 43:24
  Speaker 1: his office and provided to a true crime podcast. She
• 43:28
  Speaker 1: then claimed that Rozzi was also withdrawing and planned to
• 43:32
  Speaker 1: submit a written notification to the court. And they contend
• 43:35
  Speaker 1: that none of that happened. They're saying that Judge Gull
• 43:38
  Speaker 1: made all of that up. But Rozzi never submitted his resignation. Instead,
• 43:43
  Speaker 1: he filed a series of motions seeking to have himself
• 43:46
  Speaker 1: reinstated and as Allen's attorney, and to have Gull disqualified
• 43:50
  Speaker 1: and replaced. In the motion to have Gull disqualified from
• 43:54
  Speaker 1: the case, Rossi said Gull ambushed him and Baldwin with
• 43:58
  Speaker 1: a planned Hobson's choice designed to coerce withdrawals. He also
• 44:02
  Speaker 1: alleged that Gull coerced an oral request to withdraw from
• 44:07
  Speaker 1: attorney Rossi and gave neither the opportunity to defend themselves
• 44:11
  Speaker 1: from her accusations. So these are all very heavy charges,
• 44:15
  Speaker 1: very heavy accusations. and certainly something that the Supreme Court
• 44:19
  Speaker 1: is going to have to take a look at, like
• 44:21
  Speaker 1: they're doing right now. And if they find some misconduct here,
• 44:24
  Speaker 1: forget it. You want to talk about this thing getting upended?
• 44:28
  Speaker 1: If they had not voluntarily withdrawn prior to the October
• 44:31
  Speaker 1: 19th hearing, Gull allegedly threatened to read a statement during
• 44:35
  Speaker 1: the hearing designed to professionally embarrass Rossi and Baldwin by
• 44:39
  Speaker 1: detailing their perceived gross negligence in representing Allen. The attorneys
• 44:44
  Speaker 1: who filed the latest writ also noted they are seeking
• 44:47
  Speaker 1: a release of the transcript from the behind-the-closed-doors meeting inside
• 44:52
  Speaker 1: of Gould's chamber prior to the October 19th hearing. Ooh,
• 44:55
  Speaker 1: that would be juicy. Let's get that. I'd love to
• 44:58
  Speaker 1: see the court minutes on that one, folks. The alleged
• 45:01
  Speaker 1: gross negligence at the crux of Gould's decision to remove
• 45:04
  Speaker 1: the attorneys stem from, among other things, the attorneys issuing
• 45:08
  Speaker 1: a press release on behalf of their client, accidentally emailing
• 45:12
  Speaker 1: a discovery log to a third party, improper statements made
• 45:15
  Speaker 1: in a motion file with the court, and a photograph
• 45:18
  Speaker 1: of sealed evidence being leaked from Baldwin's office without the
• 45:22
  Speaker 1: knowledge or consent of either attorney. And Baldwin claims that
• 45:27
  Speaker 1: the former associate broke into the office and stole the evidence.
• 45:30
  Speaker 1: I have my doubts about that, but we'll give him
• 45:32
  Speaker 1: the benefit of the doubt and we'll say that that's
• 45:35
  Speaker 1: what happened. Even if that's the case, you're still negligent
• 45:38
  Speaker 1: for leaving this stuff out. You're still negligent for not
• 45:41
  Speaker 1: having it secured. The latest petition to the Indiana Supreme
• 45:45
  Speaker 1: Court was filed about a week after other civil attorneys
• 45:49
  Speaker 1: representing Allen asked the high court to remove Gull for
• 45:52
  Speaker 1: failing to allow public access to filings in the case.
• 45:57
  Speaker 1: So Judge Gull is under heavy fire here. and I
• 46:00
  Speaker 1: wonder if she's going to be able to come out unscathed.
• 46:04
  Speaker 1: If there was ever a time when the openness mandated
• 46:07
  Speaker 1: by the trial rules and access to court records rules
• 46:10
  Speaker 1: was critical, it is the present case. One of the
• 46:13
  Speaker 1: most high-profile cases this state has ever seen, the filing stated.
• 46:18
  Speaker 1: For many Hoosiers, this is the first time they have
• 46:21
  Speaker 1: followed the workings of a court in this state. Yet
• 46:24
  Speaker 1: the trial rules and access to court record rules have
• 46:27
  Speaker 1: been repeatedly violated, leaving the public and the media in
• 46:30
  Speaker 1: the dark. And there's a lot to be said about that.
• 46:34
  Speaker 1: All these cases with all these gag orders, all of
• 46:37
  Speaker 1: these restrictions on transparency. Not very good, in my opinion. Now,
• 46:42
  Speaker 1: of course, if you're protecting the integrity of the case,
• 46:45
  Speaker 1: that's one thing. But when these gag orders are overly broad,
• 46:49
  Speaker 1: that's a whole different ballgame. And what's crazy to me, too,
• 46:52
  Speaker 1: is that there are so many of these gag orders
• 46:55
  Speaker 1: out here on just about every case. Before, it wasn't
• 46:58
  Speaker 1: something that was that prevalent, right? Well, now it seems
• 47:01
  Speaker 1: like every single case that has one article published about
• 47:05
  Speaker 1: it all of a sudden gets a gag order, which
• 47:07
  Speaker 1: is absolutely ridiculous. Similar to their previous filings, the civil
• 47:12
  Speaker 1: attorneys for Allen also requested that the court remove Gull
• 47:16
  Speaker 1: from the case, arguing that going forward, the public will
• 47:19
  Speaker 1: question the judge's impartiality. To restore the public's trust in
• 47:23
  Speaker 1: the integrity of the judicial process, in this high-profile case,
• 47:28
  Speaker 1: a new special judge should be appointed, the filing states. Well,
• 47:31
  Speaker 1: you know what? Considering there's already going to be a
• 47:34
  Speaker 1: gigantic delay, maybe they should think about starting new, just
• 47:38
  Speaker 1: starting fresh with a new judge, new attorneys, and a
• 47:42
  Speaker 1: new start. Because everything that we've seen down here leading
• 47:45
  Speaker 1: up to this has been an absolute travesty. And these
• 47:50
  Speaker 1: family members of Libby and Abby that are suffering through this,
• 47:53
  Speaker 1: it's all gross. And they most certainly deserve a lot
• 47:57
  Speaker 1: better than what they're getting. Allen is facing two counts
• 48:02
  Speaker 1: of murder in the 2017 slayings of Abigail Williams and
• 48:05
  Speaker 1: and Liberty, German, whose bodies were discovered in a wooded
• 48:08
  Speaker 1: area just off the Delphi Historic Trail system. Williams and
• 48:13
  Speaker 1: German vanish while walking the Manon High Bridge Trail near Delphi, Indiana,
• 48:18
  Speaker 1: on February 13, 2017. The trail traverses an abandoned stretch
• 48:24
  Speaker 1: of what was once the Manon Railroad and crosses an
• 48:27
  Speaker 1: old trestle over a small river or creek. The girls
• 48:31
  Speaker 1: were found dead the next day in an area near
• 48:34
  Speaker 1: the trestle, and their deaths were determined to be homicides.
• 48:37
  Speaker 1: And just when we thought we were getting close to justice,
• 48:40
  Speaker 1: the whole entire shit show that we see here had
• 48:43
  Speaker 1: to begin. So hopefully they get this all cleared up
• 48:46
  Speaker 1: at the Supreme Court level, and we have a better
• 48:49
  Speaker 1: idea of what our footing's going to be moving forward.
• 48:52
  Speaker 1: Because as of right now, this is most certainly the
• 48:55
  Speaker 1: biggest circus in town. All of the information that goes
• 48:58
  Speaker 1: with this episode can be found... In the description box.