The Delphi Murders: Questions and Answers for February 2024

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[00:01:36] Content warning this episode includes discussion of the murder of children.

[00:01:42] So occasionally in the Delphi case we get so many questions of one type or another that we decide to just stop everything and do a quick questions episode sort of a way to engage with our listeners who may wonder hey what's going on with this or what are your thoughts on this or that.

[00:01:59] So this is going to be one of those episodes will be compiling some of the most common questions we've gotten on Delphi recently and trying to answer those to the best of our ability.

[00:02:09] My name is Anya Keane I'm a journalist and I'm Kevin Greenley I'm an attorney and this is the murder sheet where true crime podcast focused on original reported interviews and deep dives into murder cases where the murder sheet and this is the Delphi murders questions and answers for February.

[00:02:59] So one question we get a lot is what the heck is going on in the Mitch Westerman case.

[00:03:20] Mitch Westerman of course is the former employee of defense attorney Andrew Baldwin who says that he serpitiously took photos of discovery materials that were on the table in a conference room at Andy Baldwin's law office and then subsequently shared them with the least one member of the public.

[00:03:45] Since then he has been charged with criminal conversion so the most recent thing going on there is that Westerman's defense attorneys have filed a motion to dismiss now there's lots of reasons you can file a motion to dismiss we just saw one filed in the Richard Allen case where the defense attorneys argued that this needs to be dismissed because the prosecution didn't play fair.

[00:04:14] They didn't give us some evidence they should have given us or they destroyed evidence that we needed in order was in our case.

[00:04:21] That's not the basis of the argument that Westerman's attorney is making so this argument is actually based on their reading of the law does the law apply to this case what they're saying is that everything in the PCA against Westerman could be true potentially but it still doesn't rise the level of a misdemeanor doesn't rise the level of a broken record.

[00:04:43] So that's essentially what they're saying yes they're contesting the definition of criminal conversion or they're arguing that the definition of criminal conversion doesn't match with what happened here right in order to be successfully convicted of criminal conversion you need to show that an individual knowingly and or intentionally exerted under authorized control over property.

[00:05:11] In this case over property that belong to attorney Andy Baldwin and they're saying we don't believe this needs that standard so we're going to go through this document and present their arguments would not be clear we're not saying we agree or disagree with these arguments will just trying to explain the arguments as we understand them.

[00:05:35] And I would imagine at some point there's going to be a response filed by the prosecutor explaining their side of it.

[00:05:42] The two factors they are focusing on are number one did a Westerman exert unauthorized control over something and number two was this property actually owned by Andrew Baldwin.

[00:05:56] And they quote from the Indiana code which defines exerting control over property as obtaining taking carrying driving leading away concealing abandoning selling convey and covering or possessing property or securing transfer or extending a right to property.

[00:06:17] Okay so they're saying this doesn't match any of those.

[00:06:22] They're saying all he did was take pictures and that when you take a picture of something according to them that's not the same as exerting control over it.

[00:06:33] Right.

[00:06:35] Okay so we always have analogies and stuff on our show they put some analogies in their document.

[00:06:44] A lot of good analogy so here's one analogy or comparison there are numerous examples of analogous behavior that are obviously not conversion.

[00:06:55] For example if an individual goes to a museum and takes a picture of a painting with a no photo sign next to it as that person committed conversion of course not.

[00:07:05] If someone takes a photo over their neighbor's fence of a flower of the flower garden have they converted their neighbor's flowers again of course not.

[00:07:14] And then they say like obviously it's different if the museum patron steals the painting or takes it away takes it off the wall and does something else with it.

[00:07:23] Yeah so they're making the claim that just taking a picture doesn't count as an authorized control.

[00:07:31] And this is certainly something we have heard this argument from other criminal defense attorneys who we've discussed this case with.

[00:07:39] That's true and it's not surprising.

[00:07:41] It makes sense maybe he's already signed an affidavit saying that you know what he did so it's a bit hard to put that rabbit back in the hat but you can say listen it just maybe we can find it morally dubious but we don't it's not legally problematic.

[00:07:59] And then the other issue they're discussing is was this property belonging Andy Baldwin in other words were these images the property of Andrew Baldwin and they're arguing that it's not the images were not copyrighted or trademark.

[00:08:15] And most perhaps if they were printed on paper maybe Baldwin on the paper.

[00:08:20] That's very lawyerly I think to me the first point makes a lot of sense because you're saying conversion doesn't fit what happened here and there they have some good analogies they have some good descriptions of that.

[00:08:32] The idea that Baldwin doesn't have some ownership of crime scene photos in a case where he's defending somebody just seems a bit.

[00:08:40] They're making the argument that if there's an ownership interest is owned by the state because other lawyers can see these images they're not copyrighted or trademark.

[00:08:52] They make an interesting comparison that they compare it to many times when you work in an office you use a common piece of software and you have a software license.

[00:09:03] And so what if a former employee of a firm continues to use the license to use the software after he leaves the firm they they they make the argument here that if doing so does not deprive anyone

[00:09:20] of the firm of the use of the software.

[00:09:24] This almost got them kicked off the case and also what we've been led to understand from some filings I remember from Nicholas McLean the Carol County prosecutor is that early on the prosecution identified these images has

[00:09:39] this have not come from the defense because there was some side by side element to it so whatever he took photos of seemingly was at the very least altered by the defense team in order to you know whatever they were trying to do with them.

[00:09:52] It's it's not it's not clear to me that they had didn't you know do something themselves with them for their internal use and so you could argue that they belong to Baldwin in that sense because it's not it's not the raw stuff from the law.

[00:10:08] It's not the raw stuff from discovery it's something he did so it's an interesting point and interesting argument just presenting the arguments is they are in this document was the key elements.

[00:10:21] So what will anticipate some sort of response from prosecution and we'll see if the motion to dismiss the case is successful.

[00:10:31] Now let's talk about something that you know caused a little bit of a stir I think in the in the Delphi space recently and that was a recent interview on court TV featuring court TV journalist Barbara McDonald.

[00:10:49] And this was when she was speaking with an anchor named Julie Grant and they were talking about evidence against Richard Allen.

[00:10:58] Don't you have a transcript of what exactly miss McDonald's on I do but first let me preface that this touched upon something that got a lot of people talking because it really had to do with.

[00:11:10] I think forensics and the integrity of the investigation itself even though was sort of offhandedly mentioned it definitely had a big impact so I wanted to talk about that but first so we can understand what we're talking about let's read a quick transcript.

[00:11:26] From that discussion so I'm reading quotes from again miss McDonald and specifically they're talking about quote the 40 caliber bullet the unspent round that was found between the bodies.

[00:11:39] And my understanding is that discovery was made some days after the murders so when the bodies were found on the 14th of February seven years ago tomorrow now they did secure that crime scene for about three days and they searched it and then they cleared it for about a day day and a half.

[00:11:55] And then they re-secured it my understanding is that unspent shell was discovered during that second search after the scene had been re secured and it was found under the dirt it wasn't just laying out in the open.

[00:12:08] It had been somewhat buried whether intentionally or through time in the elements we don't know but that is the bullet that they're saying was ejected or cycled through his pistol.

[00:12:18] Okay so let's be clear it's often been stated that the key piece of evidence against Richard Allen is this bullet discovered at the crime scene which links his gun and therefore him to the crime scene.

[00:12:33] And needless to say if the bullet was discovered several days later after the crime scene had been cleared and presumably other people had access to the area

[00:12:46] the evidence would be much much less compelling it would be pretty much close to worthless if that was the case.

[00:12:55] Yes.

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[00:15:05] So this is very, very important it's a pretty big detail to just throw out there and I would I would frankly if this was true I would have expected the defense attorneys to mention it in one of their many.

[00:15:20] Why don't we talk about some of those filings to maybe get into what they did say about the bullet because again.

[00:15:29] I think we'll talk about some of the quibbles and the issues that they have raised with the bullet so this is from the Frank's memorandum this sentence.

[00:15:40] Additionally allegedly found between the two girls buried under leaves and dirt was a single bullet again something from the Frank's memorandum.

[00:15:52] Also the defense has provided three photos of a bullet purportedly found in the ground between Abby and Libby and marked these photos as exhibit 23 as exhibits 23 24 25.

[00:16:05] And this one is also from the Frank's memorandum.

[00:16:08] It should be noted that as of the date of this memo the defense has no photographs of the bullet allegedly found between the girls after was removed from the ground.

[00:16:16] No photo or video for example shows the bullet as it was being pulled out of the ground.

[00:16:20] No photo or video of the bullet immediately after it was pulled from the ground.

[00:16:24] No video or photograph of all sides of the bullet immediately after was pulled from the ground.

[00:16:29] No photographs of the bullet next to a measuring device to show its length.

[00:16:34] No photos that show what the bullet looked like once it was pulled out of the ground could provide proof that it is the same bullet that ended up in the evidence locker room.

[00:16:42] Shockingly in his deposition Sheriff Liggett admitted that he has also not seen any photographs of the purported bullet taken once the bullet was pulled from the ground.

[00:16:51] In other words, the only photos that the defense has found in the discovery it has received are of the bullets still buried in the ground.

[00:16:59] At this time the defense has no idea if a photos of the bullet after it was removed from the ground even exist or two, the photos exist but the state has not yet turned over those important photographs over to the defense or three.

[00:17:12] The defense has missed these photos in the voluminous discovery.

[00:17:16] Either way the defense has asked the prosecutor to please locate these photographs.

[00:17:21] So they're raising all sorts of issues about their focusing a lot on the bullet on whether or not.

[00:17:27] The recovery of the bullet from the crime scene was properly photographed and documented.

[00:17:34] And again, they're covering their focus on the bullet a lot because it's a crucial piece of evidence.

[00:17:38] And if this claim was true, the bullet wasn't discovered until many days later after the crime scene had been released I would have expected the defense attorneys to make a big deal about it.

[00:17:50] I would be making the biggest deal in the world about it. I feel like that would be my number one thing.

[00:17:56] The bullet that allegedly ties my client to the scene could have been planted there later on.

[00:18:02] Yes.

[00:18:03] That's the headline.

[00:18:05] I will say that we first heard this rumor, I think close to a year ago.

[00:18:13] And we did our due diligence and we quickly established our satisfaction that this claim the bullet was actually recovered many days later was not true.

[00:18:30] There was absolutely nothing to it.

[00:18:31] And we didn't say that's on the show because frankly, we don't need a report on stuff that's not news because it's not true.

[00:18:39] Yes.

[00:18:40] If we if we started coming on the show and listing everything we heard that wasn't true, that would be every episode every day.

[00:18:49] There'd be episodes on like big foot and stuff.

[00:18:52] I mean there's also many stupid rumors out there.

[00:18:56] But when it gets reported and repeated on national news outlets, then the calculus changes somewhat.

[00:19:02] And you feel like you do have to say something.

[00:19:04] So this claim that was made on national television is not true.

[00:19:09] The bullet was not recovered days later. That's just simply not true.

[00:19:15] I would also suggest that it's worthwhile to go back and look at discussions of the bullet in court documents because again court documents are where the prosecutor and the defense attorneys are talking to the judge

[00:19:30] and are making an effort to be absolutely truthful in what they say.

[00:19:37] And let's go all the way back to the PCA which was the first time we all officially heard about the bullet.

[00:19:45] And I'm going to read how the bullet was first mentioned in that PCA.

[00:19:51] There was also a 40 caliber unsmit around less than two feet away from victim 2's body between victim 1 and 2's bodies.

[00:20:01] So what they're saying there indicates that they were determining the position of the bullet based upon its proximity to bodies.

[00:20:16] And if the bullet wasn't found until days later after the bodies had been removed, they wouldn't be saying that.

[00:20:24] They would be saying it was found near the location of where the bodies were.

[00:20:29] So it seems pretty clear from even this document that the bullet was found at the same time the bodies were still present at the crime scene.

[00:20:39] One thing that McDonald's report does get right seemingly is the idea that it's buried or the bullet was buried to some extent.

[00:20:46] To what extent? What exactly that means I don't know, but that is reflected to me in the Franks memorandum.

[00:20:54] But the idea that the scene was cleared and then they came back to it and then found it days later does not seem to be accurate at all.

[00:21:06] But of course, naturally because it's something attention grabbing in the Delphi case, it makes the rounds all over the place regardless of whether it seems true or even likely.

[00:21:19] And again, this claim is simply not true.

[00:21:23] Yeah, that would be a huge dereliction of duty on the parts of the defense they would make a big deal about that because that is a big deal.

[00:21:29] It's a huge deal.

[00:21:31] I just don't understand how some of this stuff gets around frankly to this extent.

[00:21:37] And frankly, it's troubling to me.

[00:21:41] One question we get a lot is this kind of interesting.

[00:21:45] It has to do with the defense in a virgin Allen and a lot of people have reached out to us expecting expressing some skepticism about the way that the Odeness theory is laid out by the defense.

[00:21:58] No, I'm not saying necessarily the Odeness theory that was laid out by Todd Click.

[00:22:02] I'm saying that this specific iteration of it, we've had a lot of people say this doesn't sound realistic.

[00:22:09] This sounds kind of cobbled together and there's not a lot of evidence backing it up.

[00:22:14] There's a lot of kind of conjecture on the part of the defense.

[00:22:17] And that's an opinion I think other people find it compelling.

[00:22:21] There's different opinions but the people who don't like the Odeness theory ask us can they hypothetically pivot?

[00:22:28] Can they actually say you know what this is not the strongest one we can go with?

[00:22:33] Let's actually say it was Ron Logan.

[00:22:36] Can they switch at this time?

[00:22:39] What is the answer to that Kevin?

[00:22:41] Sure.

[00:22:42] They can do whatever they want.

[00:22:44] Yes, they can switch.

[00:22:46] Investigating a case or start defending a case or prosecuting a case you might have theories or ideas that further investigation will make you determine maybe this wasn't quite right.

[00:22:58] So if they wish they can keep the theory as is if this is the defense they feel will result in the acquittal of Richard Allen they can certainly do that.

[00:23:08] They can fine tune it they say they can say well we were right in the big picture but maybe we got this little detail that little detail wrong.

[00:23:15] Can they do that or they can if they wish they can completely scrap it and come up with something different.

[00:23:20] I wouldn't be surprised if they brought mental health into it but again you know if they if they if they expanded because the theory seems to be cultivated now to get around mental health issues by having the guards be the impetus for his alleged incriminating statements.

[00:23:36] I wouldn't be surprised if they maybe circled around and said actually mental health issues are more of a in play here than we might otherwise think so that's just a guess on my part but it just shows you that it's not locked in stone it's not it's not sent and stoned at this point.

[00:23:53] That being said I think it would just be from a PR perspective would be a bad move to totally scrap at this point because it has gotten so much attention unless you had a really good reason to from the public confidence standpoint that's not going to look very good.

[00:24:10] Well it from the standpoint of people such as ourselves I would say on you and I and certainly everybody listening to this episode would be what I would consider a high information person when it comes to the Dalaii truth.

[00:24:26] And so you guys all know a lot about the case we know a lot about the case and so we would react to the news of a switch in defense strategies in a particular way based on that.

[00:24:41] But most people wouldn't care.

[00:24:42] In theory the jury are the only people whose opinions really matter and in theory you will have a jury who is not super aware of any of this or even if they have an understanding of the basics of the case because they've been you know because they're in Indiana.

[00:25:01] They might not know all the ins and outs are like oh the odinous theory versus the new theory I would I would think that they would not be having jurors who care about that sort of thing.

[00:25:10] So I'm not convinced they would pay a high price.

[00:25:13] I don't I'm not saying they'd pay a high price I think it would make a lot of people look at scants but that's not really a huge price to pay if it doesn't matter ultimately what matters is the opinions and thoughts and the feelings and the analysis of the 12 jurors who sit on Richard Allen's jury his peers who are going to be judging this for themselves it does not matter what some podcasters or with some youtubers

[00:25:39] or what some reporters or what any of us who are following the case think or say it's all that is that jury going to convict or is that jury going to a clear based on what the evidence they hear based on what the maneuvering and the expert witnesses.

[00:25:56] That's what that's what it comes down to but I can also say that just from a PR perspective the public the court of public opinion has played a role in this case so far and my view is that

[00:26:08] you know if it would be the same if Nick McLean suddenly dropped charges against Richard Allen and said we don't actually think it was him we think it was this guy that you know it was just at this point altering things to a huge degree would be I think make some people lose confidence in one side or the other unless there was some very good reason for that for that switch.

[00:26:31] One question we get a lot is why do we feel that Richard Allen is incarcerated in prison under the Indian Department of Correction rather than a jail.

[00:26:42] And I think that's a different question than what we think should happen I tend to think Kevin and I don't want to speak for Kevin so correct me if you feel differently but I tend to feel both of us we feel more comfortable if he was in a jail close to his lawyers that's just seems like there's a lot of complaints about that.

[00:27:00] And you know why not just kind of address that and whatever happens happens but when it comes to why do I think he is in prison rather than jail.

[00:27:11] I think he's I think he is at risk from other inmates in a low security setting and a jail might be more problematic if cells are shared or there's like common spaces where he could be harmed would be more difficult to keep him isolated.

[00:27:28] And I also think that it sounds like from the court documents we've read that he has been in at the very least intermittently suicidal or could be viewed as suicidal that sort of need for mental health treatment may be complicating where would be feasible for him to be incarcerated.

[00:27:50] That's sort of what I'm reading into it I would agree I would I would tend to think that you know maybe at this point he should still be put in a jail near his lawyers and but I can also understand where the concern would be coming from that would be perhaps prompting some of that so.

[00:28:06] That's where I kind of come down the middle on that to a certain extent even though I have an opinion about what should happen I agree we also get asked a lot about depositions on March 1st the investigators who worked on the leak investigation are scheduled to be deposed.

[00:28:27] And of course as listeners of this program are well aware on you and I played a role in that and so we've gotten asked do we expect that we will be deposed and my gut instinct well first of all.

[00:28:45] This case is always full of surprises so any prediction a person makes has to take that into account but with that said I would not expect us to be deposed yeah and I say that for a few reasons first of all we've been readily transparent on this program about what exactly we did.

[00:29:09] Who we notified about the leak and all those details I think what the defense is interested in or certainly what if I were the defense attorneys in this case what I would be interested in is not so much what to podcasters did but rather what did the state do and the investigators in some sense represent the state state actors.

[00:29:37] How did the state respond to this information how do they conduct their investigation how do they choose who would conduct the investigation what decisions did they make I think there have been some concerns raised by the defense that as a result of this investigation.

[00:29:59] Some communications that the defense believe should have been confidential may have been seen by.

[00:30:07] Prescuited McLeanland or others so I imagine they would also want information about that how did that happen do you feel that this is a violation of some sort of confidentiality I think that is if I was the defense those are the sorts of issues I would be concerned with also by having a lot of lawyers come in as witnesses defense lawyers.

[00:30:29] Maybe at least maybe telegraphing a little bit and I may be getting the wrong idea but telegraphing a bit about people who can come in say this isn't really contemptive court and here's why kind of a western defense of like something can be bad but not against the rules or the law.

[00:30:44] And so I would imagine they might be going for that as well digging into the facts but also maybe relying on some of those interpretations to bolster their points so I mean I don't know I mean anything happened at this point though I think that's my

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[00:33:11] So we're looking at the car in this case that the case is botched by one two or all parties and you know to just throw it all out.

[00:33:21] Yeah and I guess botched in this context means what wreck beyond salvation rack beyond salvation I guess if you're looking at it from from judge go all being the perpetrator has she made so there's no fair trial but the prosecution have they bungled the investigation

[00:33:38] it can't be prosecuted with the defense have they so much confusion in chaos with the leak that they have essentially you know maybe maybe harm their client or maybe actually set him up for an automatic appeal that will benefit him but in a way that's kind of I think a lot of people would find sketchy and unfair.

[00:33:56] That's a question to begin ask a lot like what are the big implications.

[00:34:01] And I kind of feel like that's a reasonable question that there's been a lot of chaos.

[00:34:06] I don't think that's good do I feel like any side is botched it or kind of made it so that they can never win or that things can't go decently from here on at this state I don't feel that maybe that's overly optimistic or naive but with judge go all I mean with judge go and the defense both of them sort of got a clean bill of health to a certain angle.

[00:34:31] They didn't extend from the Indian Supreme Court the Indian is some Supreme Court stepped in and said what the defense did did not merit them being thrown off they should be put back on.

[00:34:41] So if they're saying that then they're kind of getting to buy in from the top court in the land so like there you go same with judge go they're saying she was right to act decisively.

[00:34:56] She didn't have the context that we did and we feel she reached for the wrong button to push and so we're undoing that but she was correct take take this seriously and basically take some action so they're not saying you know we find that she's completely biased and kicking them off and having a statement ready to kick them off and wanting to have cameras there didn't really seem to care about any of that they just were saying like.

[00:35:23] Just undo it and then move on so when it comes to the defense and the judge I don't know I think the Indian Supreme Court's decision is something that I look at as like if they don't feel that either side was so.

[00:35:37] Toxic or disastrous that they should have been kicked off then I mean I don't know why I should necessarily feel that way and then for the prosecution a lot of the recent legal wranglings so far.

[00:35:51] Have not really had to do with Nick McClelland's actions although things could go that way depending on how things play out regarding him seeing information between western and Baldwin that may play a part in rich and out defense like I guess we'll have just I think we'll have to see what happens with that.

[00:36:07] But I feel like there have been definitely mistakes outlined by law enforcement and you know and what not with this investigation but I think one thing people don't really realize is that this sort of a lot of mistakes that happen.

[00:36:20] In every investigation and it's the defense is job to hammer those and try to sway a jury with them and it's the prosecutions job to kind of keep going so nothing I've seen is made me be like oh this is unwinnable on on either side well said.

[00:36:35] What do you think I agree with you what you said was very well said yeah so I share your views on this and I'm confident that Richard Allen can still receive the fair trial.

[00:36:49] I can't I don't think everyone I the my biggest concern with him having a fair trial at this point because again like judge go from the view of the Indian Supreme Court she acted on his behalf she felt his lawyers were incompetence so she wasn't doing it to like mess him up.

[00:37:05] But to me what would mess him up is the intense pretrial media coverage and that being said there are a lot of people and we talk to them who don't know anything about this case in Indiana.

[00:37:20] That's not the impression people get when they're part of the true crime community and they're talking and thinking about this constantly and they're meeting other people who share their interests but there's that's a bubble it's very much a bubble it's not everybody in Indiana.

[00:37:33] You might be hard pressed to get somebody who's never ever heard of the case at all but I don't think you'd be that hard.

[00:37:39] I don't think you'd be as hard pressed as you think to get somebody who really doesn't know much about it maybe maybe they've heard Delphine murders but maybe they know that two girls are murdered but I don't they might not know anything else because we've definitely talked to people like that as well as people who just actually never heard of it.

[00:37:55] Yeah people generally once you get out of the true crime bubble there's a lot of people who just for whatever reason don't pay much attention.

[00:38:03] It's really depressing and dark and some people just don't really want to be thinking about that constantly and I think that's understandable.

[00:38:11] It's not like they're ignorant or stupid for not knowing about it. It's just that that's not the sort of thing they tend to gravitate towards.

[00:38:17] Yeah it's it's a silly comparison but there's a lot of people who might follow their city sports team or something like that but you wouldn't have any trouble finding people who are just generally aware of how the team is doing.

[00:38:33] People who have no idea how the team is doing.

[00:38:36] People who know every detail of the payroll and who's going to be traded for who.

[00:38:41] We talk a lot I think in the media it gets talked a lot about the fact that we all get into political echo chambers when we're only via social media and via the internet.

[00:38:51] We're only hearing opinions that we agree with and it's the algorithm sort of cultivate us to hear more of what we like and not necessarily what we don't like

[00:39:01] and so that kind of makes people more extreme but the same can be said for just interests.

[00:39:06] So if you like true crime, you know Google's and Facebook are giving you ads for other podcasts and other shows and watch this read this.

[00:39:14] But that can also be true for people who are not into true crime or just into other things they're not necessarily seeing that end.

[00:39:22] So my biggest concern would be that he gets a jury that would be problematic because they are self appointed experts on the case.

[00:39:30] I think the more I think about it and the more I just talk to people the less I'm super concerned about that as long as everybody does their jobs during for a year and you know ensures that the jury is fair and impartial.

[00:39:45] Before we go why don't we quickly answer one more question we often get which is what's happening with the Kagan Klein case.

[00:39:54] Yes of course he played guilty and was sentenced but that's not the end of a case in our criminal justice system.

[00:40:01] Typically there are appeals even in situations where somebody has put guilty.

[00:40:05] Yes and Kagan Klein was actually sentenced to 43 years that certainly seems to some like an unusually long sentence.

[00:40:16] And so he is appealing that he's trying to argue that his sentence is unduly harsh for what he did and his attorney filed a brief and a couple of most salient arguments in that were the sins was too harsh.

[00:40:35] You may remember that a big topic of discussion in the Kagan Klein sentencing procedure was which of these charges count as separate criminal episodes and which can be grouped into the same criminal episode.

[00:40:56] Shoplifting is good example right if I am shoplifting and let's say there's no let's say I'm under whatever dollar amount.

[00:41:03] It takes to make you know a difference either way but if I take three boxes of cereal are they gonna charge me for each box of cereal if it's one time thing or now here's where it becomes complicated what if I go back three times that day in separate shopping incidents and steal the same box of cereal from that store.

[00:41:24] What if on you steals a box of cereal today six months from now she gets hungry again goes back to the store of steals and other box a year later she goes and steals a third box I think we all agree on you is guilty of three different criminal episodes yes thanks guys but if on you steals three boxes of cereal.

[00:41:49] On the same occasion is that three separate episodes or is that one episode that's important because the higher the number of criminal episodes you have higher the overall sense can be.

[00:42:02] That's that's true there's also a lot of discussion about concurrent versus consecutive sentences that's about whether or not you're serving time for different charges at the same time so concurrent consecutive it's like late end to end and you end up.

[00:42:19] So you're serving more time so.

[00:42:22] The begins attorney argued that the judge separated these charges into too many criminal episodes they should be separated into fewer criminal episodes so that Kagan would get a smaller sense and the defense attorney further argued that the judge when a judge hands down a sentence he's allowed a certain amount of discreet.

[00:42:52] In order to make the sentence a little bit more towards the harsh side or a little bit more towards the lenient side and it's written into law that he can consider certain things to be mitigating factors certain things to be aggravating factors and if something is an aggravating factor that makes it worse so the sentence can be longer and if somebody is a mitigating factor that's something that makes it better so the sentence can actually be a bit shorter.

[00:43:21] And Kagan's defense attorney argued that some of the things that the judge considered is aggravating factors were not allowed to be considered as aggravating factors by statute so actually earlier this week the state of Indiana actually responded to those arguments and a pretty well done brief it actually goes into a great amount of detail it really goes into the week.

[00:43:51] The judge was a judge who was involved with the judge, and he was the judge who agreed on some of these criminal charges that Kagan pled guilty to and it makes the argument that no the judge actually was well within his discretion to group them into the criminal episodes that he did.

[00:44:09] So they're arguing this doesn't need to change sentence does not need to have years knocked off and then in terms of aggravating versus mitigating factors they argue that the things that the defense attorney says judge Timothy Spar considers aggravating factors inappropriately he actually according to a transcript of his remarks he didn't really consider those as aggravating factors.

[00:44:36] So he just he cited them and he wasn't saying this is why this is an aggravating factor yes, and I think that's a point we may have mentioned yeah discussed the defense attorney's brief earlier you kind of have to yeah I mean it's understandable why the defense attorneys going for this I think you have to try.

[00:44:55] And they're doing their jobs their job is to advocate for King Klein but that doesn't you know that doesn't necessarily mean that it's going to be terribly compelling argument at the end of the day I think judge Spar seem to consider this very very thoughtfully I thought that the Miami County prosecutors office considered a lot of this very thoughtfully I feel like.

[00:45:17] Thank you for Courtney Alwain did an excellent job putting together this case against him in a way that it was very devastating to kick in Klein and I think that if that this holds then maybe other prosecutors offices in Indiana that want to get serious about

[00:45:37] incorrigible consistently incorrigible sexual sexual offenders who are targeting kids online should look to this case as a way to put people away for a long time because when there's something like that and rehabilitation doesn't necessarily seem in order then this is a this is a way of removing them from society so they're not harming children.

[00:46:00] I didn't really go into much detail here and as to how this brief argues about grouping the charges into particular criminal episodes that detail isn't the brief itself is I say I found it be pretty well done one reason I didn't go into it is because some of those details are not particularly pleasant to read about or discuss but we would certainly make that brief available in our Facebook group.

[00:46:30] And it's okay if you don't want to read it because it doesn't include some details about child sexual abuse materials that are not pleasant reading no but it's I think it's important that we we note that what Kagan was charged with and what he played guilty to or are incredibly serious incredibly serious crimes and sometimes when you read about sexual crimes against children you come away think like why did this guy gets so little time in prison for this like this is

[00:47:00] so much more serious than like a drug offense where no one gets hurt but sometimes you feel like you're reading about like non violent drug offenses where no one died and they're going away to prison for longer and it seems sort of bizarre but I think in this case certainly certainly I'll never forget that day in the courtroom and when it was actually pretty much a full day and beyond in the courtroom when Kagan Klein was sentenced

[00:47:26] prosecutors Courtney Allwine and Jennifer Kiefer presented an array of witnesses who went into horrifying detail about the nature of Kagan Klein's offenses.

[00:47:41] The nature of the things he played guilty to and I don't imagine that anyone who spent all those hours in the courtroom that day

[00:47:50] and heard all of those awful awful awful details I don't think anyone would have qualms about him being sentenced to prison for 43 years.

[00:48:01] No, I just also I mean one thing that came up with Kagan in particular and this is I'm very much I believe in rehabilitation I want to see people who have done wrong

[00:48:12] and have been convicted of crimes rehabilitated in many cases we've had on people who were once inmates at prisons who have you know they're not bad people they made mistakes and now they're living their lives and I think that's wonderful but when someone

[00:48:28] when someone doesn't really show remorse and in fact continues to engage with other people in a way that I think could be described as predatory even though it was with adults rather than children

[00:48:42] It's hard to see room for rehabilitation if the person doesn't seem to care about changing.

[00:48:50] They actually go into this in this brief they talk about how it different times Kagan has described certain events as a wake up call that's made him change his behavior but his behavior never really seemed to change and certainly even after he was incarcerated and was waiting for the disposition of these charges.

[00:49:09] He continued to have sexually explicit conversations with women on the outside whom he would manipulate into doing things for his gratification doesn't show somebody who's had a wake up call and I'm going to say this I mean on some of life I feel very sorry for Kagan I feel sorry for the child he was was who was raised in an abusive physically abusive household where his father Tony Klein was you know beating

[00:49:38] his mother beating his step siblings his half siblings and I just what a what a horrifying dysfunctional situation you know even if one is not receiving the abuse the physical abuse directly that is that's not an appropriate.

[00:49:54] That is a horrifying situation for just a child to witness but Kagan when he was doing this was an adult he made these choices he chose to victimize children

[00:50:05] and some of their stories that came out during this whole process were so gutting to hear about what what he did with them and how he manipulated and harmed them

[00:50:19] and those children that he did this to the catfished and then manipulated into giving him sexually explicit photos oftentimes when they're at a very vulnerable state in their lives.

[00:50:32] That's going to stay with them and I hope that they find healing and except that there the victims in the situation this what happened was his fault not theirs but you know he has to he has to live with that and that that those are choices he made as an adult and so at the end of the day

[00:50:47] that coupled with the lack of remorse and the kind of continued appalling behavior behind the scenes it just I think there's there's limits in certain situations when something seems so compulsive to I think the amount of you know

[00:51:05] like I really believe that people have to want to be rehabilitated.

[00:51:10] That's well said I think it's a good place to and thank you all for listening.

[00:51:15] Thanks so much for listening to the murder sheet if you have a tip concerning one of the cases we cover please email us at murder sheet at gmail.com

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[00:51:59] special thanks to Kevin Tyler Greenley who composed the music for the murder sheet and who you can find on the web at kevon tg.com

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