The Delphi Murders: Richard Allen Goes to the Indiana Supreme Court: Attorney General Todd Rokita and Judge Frances Gull Respond

[00:00:00] Content Warning this episode contains discussion of the murder of two girls as well as a suicide.

[00:00:07] If you or someone you know is struggling with suicidal thoughts or ideation, please contact the National Hotline at 988.

[00:00:16] So we're recording on November 27th, 2023.

[00:00:22] And that, of course, is a date we've been anticipating for a while because as we all know, earlier the former defense team of Richard Allen with their own attorneys filed a couple of rits in the Indiana Supreme Court.

[00:00:39] We're importantly, they filed one writ which said we want Brad Rosie and Andrew Baldwin to come back on the case as Richard Allen's defense attorneys.

[00:00:49] We want Judge Gull to be removed as the judge in the case.

[00:00:54] And finally, we want a trial to be granted within 70 days.

[00:00:59] The significance of the November 27th date is that was the date by which Judge Gull had a deadline to respond to these arguments.

[00:01:11] And so we have her response today.

[00:01:14] And in addition to that, the Attorney General's office has also filed a response to what the defense has put out there.

[00:01:24] So we're going to discuss all of that today.

[00:01:27] And before we do right at the top of the episode, I want to stress that both of these filings obviously come essentially from the state's point of view or the prosecution's point of view or Judge Gull's point of view if you will.

[00:01:43] And so that means the arguments we're going to be discussing today will be from that point of view.

[00:01:50] And just keep in mind that's only one part of it all.

[00:01:56] Earlier when we covered the original filings, we presented the defense's point of view.

[00:02:02] And now we're presenting the prosecution's point of view.

[00:02:06] So just keep that in mind. This is only going to be one side of things.

[00:02:10] My name is Ania Kane. I'm a journalist.

[00:02:15] And I'm Kevin Greenlee. I'm an attorney.

[00:02:18] And this is The Murder Sheet.

[00:02:20] The criminal crime podcast focused on original reporting, interviews and deep dives into murder cases.

[00:02:26] We're The Murder Sheet.

[00:02:28] And this is The Delphi Murders.

[00:02:31] Richard Allen goes to the Indiana Supreme Court.

[00:02:34] Attorney General Todd Rakita and Judge Francis Gull respond.

[00:03:22] So today was, as Kevin mentioned at the top, November 27th, the deadline for Judge Gull's response.

[00:03:30] Let's be very clear here. So Judge Francis Gull had until today to respond to one of the rits of mandamus.

[00:03:38] There are two. They're both different.

[00:03:41] The first writ of mandamus is all about the record keeping in this case,

[00:03:46] whether or not Judge Gull was properly keeping records.

[00:03:49] So we've talked a bit about that in separate episodes.

[00:03:52] This episode is for the second writ of mandamus.

[00:03:56] That deals with essentially one, kick Judge Gull off the case.

[00:04:03] Two, bring back the old defense, namely Andrew Baldwin and Bradley Rosie.

[00:04:09] And three, do a speedy trial.

[00:04:13] Those are what this writ is about.

[00:04:17] So in case you're wondering, well, what about the record keeping?

[00:04:20] That's not what today's about.

[00:04:22] That's another writ. Totally separate matter.

[00:04:28] The first of the briefs that came out today came from Indiana Attorney General Theodore Rakita

[00:04:35] and his Chief Counsel of Appeals, Angela Sanchez.

[00:04:40] So Rakita has come up in this case before.

[00:04:43] I think a lot of us were surprised when Rakita didn't actually represent Gull in this matter

[00:04:50] or have someone from his office represent her.

[00:04:52] That's what we all expected, but they did not.

[00:04:57] And we've talked with other attorneys behind the scenes about that.

[00:05:01] And the general feeling is that that was likely due to the fact that the attorney general's office

[00:05:07] represented the Department of Correction in this case.

[00:05:12] And there would just be potentially the view that it looks improper, that there's a conflict of interest.

[00:05:20] So is that the sense you were getting from people we talked to behind the scenes, Kevin?

[00:05:24] Yeah, that was definitely the sense I was getting.

[00:05:26] Yeah, I think some people portrayed it as like, you know, Rakita's writing go off.

[00:05:29] He thinks she's wrong, so he's not going to defend her.

[00:05:32] And I understand that interpretation, but we kind of found out that there may have been a more boring explanation.

[00:05:39] That was what more people told us.

[00:05:41] So that's sort of what we ended up thinking.

[00:05:44] And obviously, if you read this brief, it's very, very forceful.

[00:05:48] He's clearly, his office is clearly not writing her off.

[00:05:52] No.

[00:05:53] Yes, if there was any doubt though, if people were saying, well, maybe there's a conflict of interest,

[00:05:57] but you know, isn't it saying something?

[00:05:59] Well, Rakita's now saying something and it's very much defending Gull

[00:06:04] and saying that she should not be removed from the case

[00:06:07] and that these attorneys should have been disqualified

[00:06:11] and will go through the reasoning presented here.

[00:06:15] Yeah, and I want to start out.

[00:06:16] There's a number of sections in here I've highlighted that I feel is worth reading and discussing.

[00:06:23] And the first one is it's kind of important to know in my mind how different people see things.

[00:06:31] And so I think it's interesting to see why does the attorney general feel that Rosie and Baldwin were removed from the case?

[00:06:41] What does he feel were judge Gull's reasons to do so?

[00:06:45] And I would like to read that list now.

[00:06:49] In proper comments to the public, after stating they were not talking about the case, Baldwin and Rosie issued a press release

[00:06:57] that was potentially violative of the ethics rules.

[00:07:01] Conflict of interest.

[00:07:03] Rosie filed a tort claim on Allen's behalf against the DOC.

[00:07:09] Protective order violation.

[00:07:11] Baldwin negligently released discovery to Brandon Woodhouse, who disseminated it to the public.

[00:07:17] Baldwin did not alert the court or the state to the release.

[00:07:22] Filing motions with inaccuracies and falsehoods.

[00:07:26] The pleadings regarding safekeeping Allen and the DOC contained proven false information.

[00:07:32] Protective order violation.

[00:07:35] Baldwin was the source of more leaked discovery, which spawned a criminal investigation and may have resulted in a suicide.

[00:07:44] I think that last sentence in particular is pretty brutal.

[00:07:48] That is very brutal.

[00:07:49] Yes.

[00:07:50] So we're seeing this outside perspective that siding with Judge Gull and explaining what they feel are the various reasons that these attorneys were removed.

[00:08:03] So that's the firing, that's the opening shot I suppose.

[00:08:07] Yes.

[00:08:08] Basically you've lied to the court, you didn't keep your word.

[00:08:11] Can we just go into that?

[00:08:13] Because I mean, why is lying like, why is there such a big deal about that?

[00:08:17] I mean, I know.

[00:08:18] But for people who are saying, well, you know, what's the problem with lying to the court if you're an attorney?

[00:08:26] If you're an attorney and you're an officer of the court, your word is supposed to mean something, for one thing.

[00:08:32] And also let's say you file something with false information and that comes out and the judge is aware of it.

[00:08:41] Perhaps the next time you file something, it's accurate information.

[00:08:44] Perhaps the judge is going to discount it because of what you've done.

[00:08:47] Thus undermining your defense of your client, because boy, you cried wolf syndrome.

[00:08:52] Another question around this is, to me in this situation, to be fair to the old defense team, there's stuff that I feel was stretched potentially.

[00:09:05] But I don't know if it's like an outright lie or somebody made a mistake.

[00:09:09] How do they, I mean, I'd be more curious to learn more about on the prosecution side of this whole thing.

[00:09:15] Like what exactly they are saying?

[00:09:17] This is an outright lie, like this specific thing.

[00:09:20] There's a lot of debate about that, including in these filings that we're going to be going through.

[00:09:26] Perhaps at some point it might be worth the time to sit down.

[00:09:32] Take a copy of this motion to transport order and go through it point by point alongside what was subsequently revealed at the June 15th hearing, which covered those allegations.

[00:09:44] We were at that hearing and there were some things that I felt that Nick McLean, the prosecutor in this case, was able to pretty solidly push back against or even outright debunk.

[00:09:56] But again, calling it an outright lie when we know that sometimes defense attorneys do push the envelope as far as these things.

[00:10:04] Maybe they're maybe they're stringing things together carelessly.

[00:10:07] Maybe they're stretching the truth.

[00:10:09] But to say like I wouldn't want a list of lies, I suppose, because otherwise I feel like there's some gray area there.

[00:10:19] That's certainly fair.

[00:10:21] Maybe let's go through it point by point at some point.

[00:10:25] Another example potentially lying to the court would be they the judge goal says that you guys told me you don't want to try this in the press.

[00:10:34] And then the next thing I know you're issuing a pretty detailed press release.

[00:10:38] Yeah, that's.

[00:10:40] And another instance of potential lying to the court would be they said they were withdrawing from the case.

[00:10:45] Well, yeah, that to me is pretty.

[00:10:47] And with that I'm shocked that they did that because that seems so clear cut.

[00:10:51] And now they've kind of re retconned that as like a strategy, but the strategy was to lie and say we're going to do this.

[00:11:02] And now they claim we had no intention of that.

[00:11:06] So it's not like we we're going to do this.

[00:11:09] We changed our minds.

[00:11:10] We're going to we're going to circle back.

[00:11:12] And another question I have, which do we want to set a precedent where we're basically rewarding a lawyer for lying for creating a situation where if a judge puts you in a tight spot, you can lie and say you're going to withdraw when you're not.

[00:11:27] And then a couple of days later, so guess what?

[00:11:30] I'm taking it back.

[00:11:31] And I'm not sure that's good for public policy.

[00:11:33] I'm not sure that's good for people being able to trust the things lawyers say.

[00:11:38] Yes.

[00:11:39] So that's a concern of mine.

[00:11:41] Yeah, you just you don't want the lawyers to look bad and all this.

[00:11:44] Well, I mean, it's a fair thing.

[00:11:46] You don't want people to just be able to like, you know, pull out the like tell a lie, uno card and prevail because that then that sort of breaks down the fundamental trust within the system.

[00:11:59] We've talked about a lot of situations where prosecutors and defense attorneys have treated each other collegially and they're part of the same system.

[00:12:06] So even though they're opponents, there should be a level of trust there nonetheless if things are working correctly.

[00:12:13] But yeah, unfortunately, if either side is breaching that trust, then the systems, you know, it becomes lopsided.

[00:12:23] It becomes a problem.

[00:12:24] Then we get more into some of the arguments that the Attorney General's office makes and the first group of arguments is more procedural.

[00:12:38] And I know a lot of people don't enjoy procedural arguments.

[00:12:42] I think we've all been in a situation where you're like trying to play a board game or something and some kid comes in and says, well, you've got to do it by the rules.

[00:12:50] You're not doing it exactly right.

[00:12:52] And people find that frustrated.

[00:12:53] That kid's name, Kevin Greenley.

[00:12:55] But the fact of the matter is the legal system is based on rules and there's a reason for that and the rules are there to be followed.

[00:13:05] And so the first set of arguments is you didn't follow the rules.

[00:13:09] This writ of mandamus, that's an extraordinary step to take.

[00:13:14] And you can't just wake up in the morning and say, I'm going to file a writ of mandamus.

[00:13:19] You have to first do certain things with the trial court.

[00:13:23] You have to go through certain procedures and the writ has to only be filed if certain conditions are met.

[00:13:32] And the argument here is those conditions have not been met.

[00:13:36] They say, for instance, that original actions, this is an original action and they are, they cannot be used as a substitute for appeals.

[00:13:47] So go to the appeals court first, then go to the Supreme Court.

[00:13:50] Is that essentially you need to hit that level first before you bump up to the biggest level of all, which is in the state, the Indiana Supreme Court?

[00:13:58] Yes.

[00:14:01] Okay.

[00:14:02] So basically you're not following the rules.

[00:14:06] Why do you why do we think they didn't do that?

[00:14:10] I think that's an excellent question. I don't know.

[00:14:12] I wonder if there was a strategic reason or if they thought that the Indiana Supreme Court would just be the flashiest thing.

[00:14:18] I don't know.

[00:14:19] But yeah, you would expect this to go through an appeals court first.

[00:14:23] But again, maybe there's some strategic thing that's eluding us.

[00:14:26] I'm going to read another quick excerpt here.

[00:14:33] This qualification of counsel can be required or can be at the discretion of the trial court.

[00:14:39] The extraordinary remedy of a writ is not available where the matter is within the discretion of the trial court.

[00:14:47] An action for mandate cannot be employed to adjudicate and establish a right or to define and impose a duty.

[00:14:57] So what they're saying there is these rits, not only do you have to jump through certain procedural hoops and do things in a certain order.

[00:15:05] They're saying that rits can only be issued in these cases if the court has a definite duty to act, which it is not acting upon.

[00:15:17] And they're saying whether or not a trial attorney is removed happens at the discretion of a judge.

[00:15:24] And what falls within a judge's discretion cannot be mandated by a writ.

[00:15:29] Does that make sense?

[00:15:30] I think so.

[00:15:31] I know that when we spoke with Shay Hughes, aka Hoosier Public Defender, he's definitely in favor of certainly the first writ and I believe certainly elements of the second.

[00:15:41] But he told us that rits and endemis are not looked favorably upon by courts, by higher courts because they're almost seen as like the absolute most extreme last measure that we should take.

[00:15:58] So it reserved for an extreme situation.

[00:16:02] So that would indicate that what Rakita is saying here, what the Attorney General staff is saying here is that they didn't follow the rules and do this properly and now they're pulling the safety lever even though there's not really a reason to.

[00:16:19] Is that it?

[00:16:20] Is that my dumb person summary?

[00:16:23] That's good.

[00:16:24] I'm not a lawyer so I don't know.

[00:16:27] Well, it's interesting.

[00:16:28] So this is a lot again, a lot of procedural stuff.

[00:16:31] It's not really getting at the heart of the matter.

[00:16:34] So why don't we get more into the heart of the matter?

[00:16:37] Because of course they also say well even if all this procedural stuff was followed there still isn't a case here for a writ.

[00:16:47] We know that the argument on the other side is that Richard Allen has a sixth amendment right to have Baldwin and Rosie represent him basically.

[00:16:58] And in this brief they argued that the right to choose counsel or to continue representation of your existing counsel is not absolute.

[00:17:08] And I'm going to read another quick segment here.

[00:17:13] The right to choose counsel is not absolute.

[00:17:16] While the right to select and be represented by one's preferred attorney is comprehended by the sixth amendment,

[00:17:22] the essential aim of the amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.

[00:17:36] So that means that I have a right to a turn and attorney.

[00:17:42] It doesn't mean that I get whatever attorney I want.

[00:17:47] I have a right to an effective attorney.

[00:17:51] And if the court determines that the attorney I've selected is not effective, then the court has the right to change counsel.

[00:18:03] That's what they're arguing.

[00:18:05] And my understanding and correct me if I'm wrong, Kevin, but this can differ somewhat based on private counsel versus public counsel.

[00:18:13] If you have private counsel, you're paying for the attorney or they're deciding to represent you pro bono, then it's harder to remove said attorney because you're paying for it.

[00:18:24] Yes.

[00:18:25] And the taxpayer when the Indiana tax paying public is paying for it, it becomes much less safeguarded that you can have this specific attorney.

[00:18:39] Yes.

[00:18:40] Okay.

[00:18:41] That is true.

[00:18:42] Discrepancy based on income that makes me uncomfortable to be honest, but that is how it's seemingly enthrined here.

[00:18:51] This is probably a ridiculous example, but let's say I have cancer.

[00:18:59] Oh my gosh, this is getting dark.

[00:19:02] And I have a doctor who believes the way to treat cancer is if I pay him $10,000 and he'll give me a certain type of flower pedal to Chihuahua.

[00:19:14] I cannot expect my insurance company to cover that because the insurance company would look at that and say, well, Kevin wants this doctor.

[00:19:22] He has a right to be treated, but we're not going to, we don't feel that this would be effective treatment of the underlying condition.

[00:19:30] Right.

[00:19:31] That he might be inclined to deny that claim.

[00:19:34] Now, if on the other hand I was rolling in money and decided, well, I want to treat my cancer by paying this man $10,000 to chew on flower pedals.

[00:19:45] Yeah, sure.

[00:19:46] I'll do that.

[00:19:47] Yeah, you can, no one's going to.

[00:19:48] Not even you would stop me.

[00:19:50] Well, that's what you think.

[00:19:52] That makes sense.

[00:19:53] You have more freedom in that situation.

[00:19:56] I'm going to read a little bit from the next section here.

[00:20:05] Councils conduct or personal circumstance may justify removal.

[00:20:10] Gross incompetence or physical incapacity of council that cannot be cured by a citation for contempt may justify the court's removal of an attorney even over the defendant's objection.

[00:20:24] They even cite a case there.

[00:20:27] So they're making the point that what happened with her removing these attorneys is not unprecedented.

[00:20:36] If you find that attorneys are grossly negligent or grossly incompetent, the judge in previous cases has indeed removed attorneys.

[00:20:46] Okay.

[00:20:49] So they're citing, I mean, I will say they're citing a lot of cases in this though we have not reviewed all these citations.

[00:20:56] So as with anything under the law, I imagine there's probably different interpretations of some of this, but certainly a lot of cases crammed into this document.

[00:21:09] Certainly more cases than we have seen cited in a lot of documents in this case.

[00:21:14] Yeah, I would say so.

[00:21:16] Though varied interests may necessitate overriding and defendants preference disqualification is an extreme remedy that should only be used when a court deems it reasonably necessary to ensure the integrity of the fact finding process.

[00:21:32] The fairness or appearance of a fairness of trial, the orderly or efficient administration of justice or public trust or confidence in the criminal justice system.

[00:21:42] And they cite the rainy case there.

[00:21:45] And the implicit argument there would be that what happened in this case rises to that, that allowing Baldwin and Rosie to continue on the case would disrupt the orderly or efficient administration of justice.

[00:22:03] I'm sure the appellate team for the defense, the old defense rather, would argue that this didn't rise that level of extreme situation.

[00:22:18] I'm going to read a longer excerpt now.

[00:22:21] One thing we've heard discussed a lot in this case is that there wasn't a proper record that there wasn't, in short, a public hearing at which Rosie and Baldwin were disqualified or removed from the case.

[00:22:36] So this happened behind closed doors.

[00:22:41] Let's hear the Attorney General's office's take on that.

[00:22:48] The lack of record prevents review of counsel's disqualification.

[00:22:52] Defense counsel's withdrawal truncated the proceedings and the present record prohibits complete review of whether the trial court's concerns justify substitution of counsel.

[00:23:03] In chambers prior to the October 19th hearing, the court listed reasons it felt counsel should be disqualified that it intended to address in the hearing.

[00:23:12] The prosecutor was prepared to present evidence from the leak investigation, but this hearing did not occur because defense counsel withdrew rather than challenge the factual allegations at that time.

[00:23:24] At the October 31st hearing where Baldwin and Rosie attempted to appear for Allen and have their own counsel, no additional evidence was offered or arguments made to rebut the court's allegations.

[00:23:38] So we've been hearing that it's a huge issue that there wasn't a proper record made, but they're saying that the reason in their view there wasn't a proper record is because Baldwin and Rosie chose to have this happen in private.

[00:23:58] That they had an opportunity for some of these things to be addressed publicly and chose not to take it, chose not to put these things on the record.

[00:24:07] Right. And the, I suppose the transcript of the October 19th in chambers meeting speaks to some of these issues. I think we found out that Rosie had asked for the in chambers meeting. Is that correct?

[00:24:21] So what Rakita is saying is, you know, it's not Judge Gull's fault that you basically quit in the chambers rather than going out and getting a shellacking on TV, I suppose.

[00:24:37] I guess the argument would be the old joke I've referred to before is someone kills their parents and then asks for mercy because they're an orphan.

[00:24:47] Right. You created this situation. No one should feel bad for you. Okay. So, yeah.

[00:24:55] Didn't they go through some of the things that were discussed at that closed door meeting such as they've, the court had concerns about counsel's candor?

[00:25:05] You know, Baldwin didn't even tell the court about a defense outline of discovery information leaking until months after it happened.

[00:25:15] I still want to know what happened with that. I know we, I mean, we had heard of the Woodhouse leak a long time, I think before it was being referenced in this setting.

[00:25:25] But it was surprising to me in the transcript that Baldwin indicated that he hadn't even told Rosie about it. So I'd be very curious to know like when did those discussions happen with Rosie, with McCliland, with the judge.

[00:25:41] What's the timeline there?

[00:25:43] Because it appears that Baldwin not only didn't tell the court about it, not only didn't tell McCliland about it, he didn't tell his own partner about it.

[00:25:51] And what, what weirds me is, I mean, what weirds me out, I suppose, is that Baldwin is himself admitting that in that transcript. He's not saying, no, that's not what happened.

[00:26:01] I don't know, I don't know. I wish I knew what happened with that because that's shocking.

[00:26:23] It is shocking. There's a section that was basically reviews from their perspective, the things that they feel the judge was concerned about that warranted the removal of the council. I don't know if we need to repeat those since we know.

[00:26:38] No, yeah, we discussed those earlier.

[00:26:40] But there is a point here that I think is worth noting.

[00:26:46] The record is also inadequate for full consideration of Alan's preferences.

[00:26:51] The record contains expressions of Alan's desire to retain Baldwin and Rosie after being informed of the leak, but the record does not show what Alan knew or understood regarding the leak.

[00:27:02] The court's other concerns about council's competence, how these matters impacted his ability to obtain a fair trial or the alternatives available to him.

[00:27:12] Taken as true, the existing assertions of Alan's preferences are insufficient to determine that he is making an informed decision.

[00:27:23] I think that's something we've discussed.

[00:27:26] Yes.

[00:27:27] That Alan's letter doesn't really make clear how much he really understands about the extent of the leak or if he understands these other matters at all.

[00:27:37] Yeah, that really concerns me because he references specifically.

[00:27:41] I understand that images of discovery were leaked and that's certainly a big part of that.

[00:27:47] So he's grappling with that issue.

[00:27:49] But what he's not addressing in the letter and what it's not clear if he knows about is the defense strategy, the fact that that was leaking and that Westerman and Baldwin were seemingly talking about it and it was getting out through the leak.

[00:28:04] That's not discussed and I don't understand why that wouldn't be referenced and it makes me that would be a concern that he's not aware of the full picture, but he's still making these assertions or decisions.

[00:28:19] You know, it's possible that he is aware and he just sort of did shorthand to say, well, I know about the leak of the images, but yeah, it's concerning.

[00:28:29] So like if I'm kind of trying to express my thoughts on that in the form of a very stupid metaphor or analogy or whatever you want to call it, it almost strikes me as like if a teenager has a massive rager at his house while his parents are away and then he calls, you know, they get busted by the cops and he calls to tell them,

[00:28:48] hey, I had this party our house is trashed.

[00:28:51] But he fails to mention that as a result of that party, the house caught on fire and was severely damaged structurally.

[00:28:58] So it's like you're telling half of it, but maybe not maybe not another part of it that's also important, if not more important.

[00:29:09] So yeah, that concerns me.

[00:29:14] So the final thing they were the defense team was asking for was we want Supreme Court to grant Richard Allen's request for a speedy trial.

[00:29:26] There's a mechanism in Indiana where a defendant basically can file something and a trial has to happen within 70 days.

[00:29:37] I'm simplifying a bit, but that's basically it.

[00:29:40] And they're saying we want you to grant this.

[00:29:44] The Attorney General's office is saying, well, you need to follow the mechanism and you're asking the Supreme Court to grant a trial court motion and that motion hasn't even presented to the trial court.

[00:29:57] Okay, so they're saying that you need to start several rungs down the ladder before you can jump to the top of the ladder there.

[00:30:04] Yes, you need Richard Allen to actually turn in this filing.

[00:30:10] You know, they mentioned that Richard Allen had signed a request for a speedy trial back in August, but they hadn't filed it.

[00:30:18] So they're asking Supreme Court to basically act on this unfiled motion and that's really not the way things work.

[00:30:30] Why would the people who wrote the second rate of mandamus even mention that to create a sense of urgency strategically?

[00:30:40] Maybe to create a sense of urgency strategically or I think there's certainly some perhaps posturing like we're ready to go right now.

[00:30:52] Yeah, not very likely honestly.

[00:30:58] A lot of this just seems like posturing at the end of the day.

[00:31:02] I mean, it's just a lot of what's been going on in this whole sideshow.

[00:31:05] It's just, I don't know.

[00:31:07] I don't really understand some of it because that's not how anything works.

[00:31:14] Why file it that way?

[00:31:17] There is one more thing that I neglected to mention.

[00:31:19] This, of course, is that there was a request for Judge Goal to be removed from the case.

[00:31:26] And again, this is something they addressed procedurally and then in terms of the merits and procedurally they say, well, this request was made by Brad Rosie at a time when Brad Rosie was no longer representing Richard Allen.

[00:31:43] And they note that the defense cites no authority.

[00:31:47] The trial court must entertain a motion by an attorney who is not the party's current attorney.

[00:31:53] It's like you couldn't sweep in and say, I want to speedy driver Richard Allen.

[00:31:58] Yes.

[00:31:59] Because you don't represent him.

[00:32:00] You don't have standing.

[00:32:01] No.

[00:32:02] Well.

[00:32:04] I can't go into the Murdoch case and say, I want Murdoch to plead guilty and here's my motion.

[00:32:11] You need to actually represent the client.

[00:32:15] And then in terms of the merits, you need to if you want a judge to be removed, you have to provide some sort of reason.

[00:32:23] You have to show that they are biased.

[00:32:26] Okay.

[00:32:27] So like what would that look like?

[00:32:29] The judge sends them like an email saying, here's why I think you guys suck.

[00:32:35] I mean honestly, what would that look like?

[00:32:37] Well, I'm going to quote you something from here.

[00:32:40] All right.

[00:32:42] Allen only points to the judge's rulings in this case to argue the judge is biased.

[00:32:48] This is not sufficient.

[00:32:50] The mere assertion that certain adverse rulings by a judge constitute bias and prejudice does not establish the requisite showing of personal bias or prejudice.

[00:33:00] So in other words, just because a judge rules against you, that's not enough to stand up and say this judge is biased.

[00:33:09] Because every ruling a judge makes is going to be for someone or against someone.

[00:33:14] Okay.

[00:33:15] And just because some of them happen to go against you, that in and of itself is not enough.

[00:33:20] Because while it could be biased, it could also be that your motions are bad and the judge doesn't agree with you, right?

[00:33:26] Yeah, it was just a matter of judgments and stuff going against you and rulings going against you.

[00:33:33] There's an appeal process.

[00:33:35] You don't have to immediately say, oh, you ruled against me here?

[00:33:38] You should be off the case.

[00:33:40] Why would they do this?

[00:33:41] That's why then it just, I mean, if the goal, I look at things strategically, I'm not really looking at this point like it's true or false.

[00:33:50] It's just more of like from a strategic standpoint of maximizing your chances of success in this situation.

[00:33:57] It seems like there have been some errors made here or maybe not errors, but it seems like there are some things that are suboptimal for this appellate team, especially in this rate of mandamus.

[00:34:08] In this specific one.

[00:34:10] And it just makes me question, why do things that way?

[00:34:14] Because it doesn't really maximize your chance for success.

[00:34:20] It seems like a lot of the times throughout the history of this case, it seems like there have been many occasions where the attorneys associated with the defense have in terms of strategy not really thought more than one step ahead.

[00:34:35] Yeah, it really seems like a lot of this is incredibly improvisational and just let's okay.

[00:34:42] Here's the next thing and not thinking like what would make sense for a few weeks from now, a few months from now for for attaining the ultimate goal that we have here.

[00:34:55] But it's just surprising.

[00:34:57] It's just surprising because you want to read strategy into things and sometimes I just don't think it exists.

[00:35:06] Well, let's move on to Judge Gole's brief that was also filed this afternoon.

[00:35:14] And of course, when I say Judge Gole's brief, she didn't actually write this brief.

[00:35:19] Her attorney's team did.

[00:35:22] Matthew Guttwine.

[00:35:24] And so that's important to note, but obviously she was their client.

[00:35:29] So this represents Judge Gole's beliefs and their thoughts.

[00:35:34] They're speaking on behalf of her.

[00:35:36] Yeah, sometimes it's kind of funny sometimes when you read legal motions, they always refer to the motions as if they were filed by the defendant.

[00:35:46] So you hear like, well, Richard Allen maintained that this ruling in the court, blah, blah, blah.

[00:35:51] And obviously Richard Allen is not sitting there with his tweet coat maintaining this or that is Richard Allen's attorneys.

[00:35:58] But they're representing him there for him.

[00:36:01] So they have to use him as a, I guess all these people are using it.

[00:36:07] It almost sounds like people are using each other as ventriloquy dummies, but it's really more reflecting that they're acting on his interests in this situation.

[00:36:17] So some of this is going to be similar to what we've heard and discussed in the Attorney General's brief.

[00:36:25] But I'd like to start at a similar place where we discuss a little bit about how things seem to Judge Gole and how that thing seemed to her team.

[00:36:38] The record supports that attorneys Baldwin and Rosie were providing ineffective assistance of counsel.

[00:36:45] Relators counsel want failed on multiple occasions to take reasonable steps to safeguard confidential case materials.

[00:36:53] Two, made extra judicial statements that had a material likelihood of prejudicing the case.

[00:37:00] Three, provided false information to the court before removing relators counsel.

[00:37:06] Respondent afforded relator with notice and opportunity to be heard through written submissions as well as argument in chambers and on the record in open court.

[00:37:16] So again, they're saying there was good reason for these councils to be removed.

[00:37:22] And they're also adding by the way you had notice.

[00:37:26] Right.

[00:37:27] I mean, I can understand the argument that like clear notice doesn't necessarily seem to have been given well ahead of time.

[00:37:34] Although there were obviously discussions of them being disqualified.

[00:37:38] The formality of this seems in question, but essentially what I'm hearing her say is if they if they wanted something or if they wanted to fight, they had an opportunity to.

[00:37:51] They could have had the hearing.

[00:37:55] She would have disqualified them and then they could have appealed that.

[00:37:59] And they didn't for whatever reason.

[00:38:03] No, they did not.

[00:38:06] They instead told her that they were both withdrawing, which is not what happened.

[00:38:11] Or then they went back and said, no, we're just lying.

[00:38:13] Let us back in.

[00:38:14] The brief starts in a similar place as the Attorney General's brief begins by talking about procedural matters and precedent.

[00:38:25] I'd like to read a quick saying here.

[00:38:28] This court has never issued a writ to reinstate counsel, whereas here the trial court removed counsel based on the court's reasonable findings that counsel had engaged in multiple acts of gross negligence, compromising the accused constitutional right to competent assistant of counsel.

[00:38:47] That's an interesting sentence because it really packs in a lot of information because, of course, an argument is that Richard Allen's constitutional rights were being violated.

[00:38:59] But even in this procedural section, Judge Goal is saying that what actually his right to an effective counsel was violated by the way Baldwin and Rosie were conducting the defense.

[00:39:11] So they already did that and to keep them on would have been to violate his rights because they'd proven themselves to be incompetent in effective counsel by nature of this leak and other issues that were going on prior to this.

[00:39:27] Exactly.

[00:39:28] And there is another line in this brief from Judge Goal that really jumped out at me.

[00:39:35] And I think it might jump out to our audience and to you as well.

[00:39:40] I know what this is going.

[00:39:43] We later relies for the most part on cases from outside Indiana.

[00:39:48] Oh, man.

[00:39:53] Yeah.

[00:39:54] We know that Judge Goal throughout this process throughout the entire time the Allen case was before her.

[00:40:01] She frequently complained about Rosie and Baldwin citing.

[00:40:06] Illinois out of North Carolina, but they kept doing it.

[00:40:10] That's what I don't that's what I'm saying the improvisational because it would be like here when I do when you do something and the audience booze.

[00:40:19] Maybe you do something different, but their audience, their true audience, not the internet people, not not us, not the media.

[00:40:27] Their true audience was an audience of one Judge Goal.

[00:40:31] And she'd say stuff like that.

[00:40:33] Why are you citing all this out of state law, not federal law, but just out of state stuff?

[00:40:39] And they'd be all like, and then they'd keep doing it.

[00:40:42] And it was like, they're not listening.

[00:40:44] That's crazy to me.

[00:40:45] That always fascinated me because there was something like, oh, well, why is like, is there just nothing in Indiana that backs this up in which case maybe just don't do it.

[00:40:59] It's bizarre.

[00:41:00] The focus should have been on Judge Goal.

[00:41:02] Well, yeah, but they had the, you know, razzmatazz to bring to all the YouTubers.

[00:41:08] It's like on a personal note for whatever reason, I really don't like chocolate.

[00:41:13] And so it'd be Anya wants to buy me some Valentine's Day gifts and she buys me lots of candy chocolates.

[00:41:20] And meanwhile, she's telling people, oh, look, I'm buying Kevin chocolate doesn't this mean I'm great?

[00:41:26] But she's forgetting.

[00:41:28] That you ask for no chocolates.

[00:41:30] No, it's even weirder than that because it's like, it's just not, it's not effective lawyering.

[00:41:37] It's not just that Judge Goal is being mean.

[00:41:42] I think it's it's fair to say in these situations that the thing that's going to be most relevant is Indiana law because we in fact are in Indiana.

[00:41:52] And so you would typically, I would imagine typically see filings citing state law or federal law.

[00:42:01] Yes.

[00:42:02] Not here's how they do it over in Cali.

[00:42:05] And on point that this section concludes with a Relator identifies no case from this court or the United States Supreme Court that affords him a clear right to an extraordinary writ for the relief he seeks.

[00:42:19] So they're saying there's no federal case.

[00:42:22] There's no state case that supports what you're saying.

[00:42:24] Why do they why were I mean this this is a minor thing within the appellate process within this whole mess.

[00:42:32] But yeah, I will that haunts me because I just don't that goes to the lack of strategy that goes to the kind of like let's just do whatever comes to mind.

[00:42:42] And that concerned me at the time and that concern has maybe grown into some level of bemusement but it's not really left me because it just seemed always like you want to be doing things to maximize your chances of success for your client.

[00:42:58] And when you're doing stuff like that, it's just sort of like own goals.

[00:43:02] Yeah, it's odd.

[00:43:03] It's just you're I don't know.

[00:43:05] I don't understand it.

[00:43:08] Here's how judge goal summarizes matters at the end of this particular section.

[00:43:16] Relator asked this court to use an original action to rule for the first time in Indiana that the sixth amendment prohibits a trial court from removing counsel whom the trial court has reasonably found to have been grossly negligent.

[00:43:33] Okay.

[00:43:34] So there's a there's no precedent for this.

[00:43:37] And really do you want there to be a precedent for the Supreme Court to be asked to step in if a trial court judge says, oh, these attorneys are negligent.

[00:43:49] Does the Supreme Court of Indiana want a lot of people sending them cases to review determinations like that?

[00:43:56] I mean just to be devil's advocate here.

[00:43:58] Do we is there a benefit to that?

[00:44:02] Is this really a big problem?

[00:44:04] Number one in number two.

[00:44:06] Why?

[00:44:08] Well, I'll be blunt.

[00:44:10] Typically Supreme Courts don't do things to increase their own caseload.

[00:44:14] Yeah, they're looking for things like there's a lot of controversy here.

[00:44:18] Let's settle it.

[00:44:19] Let's settle this or that put out the fires.

[00:44:21] They're not saying, Hey everybody send us more cases.

[00:44:25] Yeah.

[00:44:26] Okay.

[00:44:27] Well, yeah that which is again is surprising that they went to the Supreme Court and said an appeals court.

[00:44:33] Right?

[00:44:34] Yeah.

[00:44:35] I would imagine an appeals court you might have had an easier argument of like, Hey, they messed this up.

[00:44:39] Okay, send it back and do it over guys.

[00:44:41] All right.

[00:44:42] That makes sense.

[00:44:43] That's a good strategy unless there's something I'm missing here strategically or that that wouldn't have worked out but that's a good strategy.

[00:44:50] But you know, Supreme Court sounds fancier.

[00:44:55] Next they move on to whether or not Richard Allen, Sixth Amendment rights to counsel were violated.

[00:45:04] I'm going to read some excerpts here.

[00:45:06] I'll be jumping around just a little bit.

[00:45:08] A criminal defendant, Sixth Amendment right to effective assistance of counsel outweighs his limited right to select counsel.

[00:45:17] Is this court has explained the right to counsel in a criminal proceeding does not mean the defendant has an absolute right to be represented by counsel of his choosing.

[00:45:26] The appointment of proper councils with a discretion of the trial court and will be reviewed only for abuse of that discretion.

[00:45:33] The qualified right to choose one's own counsel must be placed against the backdrop of judicial discretion.

[00:45:40] Traditionally courts enjoy broad discretion to determine who shall practice before them and to monitor the conduct of those who do.

[00:45:49] The Sixth Amendment right to choice of counsel merely informs judicial discretion.

[00:45:53] It does not displace it.

[00:45:55] The trial court is granted considerable discretion to remove counsel so that the trial court has the tools to preserve an accused Sixth Amendment right to competent and effective assistant of counsel.

[00:46:08] So again, this is a similar point as what was in the other brief that what the Sixth Amendment really guarantees is competent effective counsel.

[00:46:19] And that that is more important than counsel of your choice.

[00:46:23] So the defense in this side is arguing that it guarantees him representation of his choice.

[00:46:32] His rights were violated.

[00:46:33] His Sixth Amendment rights were violated because they were removed.

[00:46:36] That's those the attorneys he said he wants.

[00:46:39] And so it's a violation and what the prosecution is saying is if the attorneys that he wants are incompetent, then that violates his rights.

[00:46:50] And that's a more severe issue.

[00:46:52] So he needs to be they need to be replaced with competent counsel and then things can move forward.

[00:46:57] He safeguarded his rights.

[00:46:58] Right.

[00:46:59] And the argument they are making is that it is up to the trial court judge to safeguard that because the trial court judge is the one in the trenches.

[00:47:07] She's the one watching and observing these things.

[00:47:11] Okay.

[00:47:13] Does that make sense?

[00:47:14] Yeah, I think so.

[00:47:15] I think I understand both arguments.

[00:47:17] There's another nuance they add a little bit further down.

[00:47:25] Moreover, the trial court need not delay taking remedial action until counsels incompetent representation causes the entire trial proceedings to be constitutionally defective.

[00:47:37] So that's what they're saying there is that the judge doesn't the judge sees a problem and sees that it's growing and getting worse.

[00:47:49] She doesn't have to wait for it to become a complete disaster before taking action.

[00:47:54] If she believes counsel is acting negligently and that negligence is likely to continue, she doesn't have to wait for them to make a huge, huge error.

[00:48:03] She can just go ahead and remove them.

[00:48:05] So if like a state trooper sees someone driving really erratically, he doesn't have to wait until they crash into a brick wall to pull them over?

[00:48:12] Yes.

[00:48:13] Okay.

[00:48:14] Or if someone is burning trash right by a pile of wood that's right by a house, you don't have to wait for the wood to actually catch fire.

[00:48:25] You don't actually have to wait for the house to catch fire.

[00:48:28] You can say, you know, maybe that's not safe.

[00:48:30] Don't do it.

[00:48:31] Okay.

[00:48:32] So that's interesting.

[00:48:34] I kind of, yeah, where is the line?

[00:48:37] That was something that I was thinking of, like if you see someone you're like, okay, I don't really love that they're doing this.

[00:48:44] Where's the line where they're like, this is becoming constitutionally unsound.

[00:48:48] But yeah, I guess that is up to the judge's discretion.

[00:48:53] I guess that's up to the judge's discretion.

[00:48:55] And the argument would be maybe you agree with the judge on this, maybe you don't.

[00:49:00] But is the determination reasonable?

[00:49:03] And they repeatedly list the reasons why she felt they were negligent and warranted removal.

[00:49:12] And so the question is, is this reason enough?

[00:49:16] Could a reasonable person look at this and say this is enough that they've have to go?

[00:49:23] And they're arguing in the brief that yes.

[00:49:26] Okay.

[00:49:27] But they are leaving room here.

[00:49:28] It's not like all judges necessarily have to do the same thing.

[00:49:32] It's more of that there's a range of reasonability that can be applied here.

[00:49:38] If a judge says, oh, this particular attorney is wearing a purple tie and I don't like purple, this attorney's off the case.

[00:49:48] No reasonable person would.

[00:49:51] Yeah, because purple is the best color.

[00:49:53] That's right.

[00:49:58] And then again, we have a listing of what happened, the reasons why making the point that even Rosie understood that Mitch Westerman would regularly visit Baldwin's office and that Baldwin would share information with him.

[00:50:14] So it's just trying to go through this and Baldwin emailing work product to Brandon Woodhouse, the extra judicial statements.

[00:50:22] And the whole thing with the Westerman thing kind of ties in Rosie too, because I think there's a fair argument to make that Baldwin's problem.

[00:50:29] I think what the judge is saying here is that, well, Rosie was in the know about this and seemingly didn't stop it.

[00:50:37] And also they highlight that in the judge's mind, Baldwin and Rosie actually provided false information to the court in that motion to transport Richard Allen.

[00:50:50] And it's important to note that motion was written by Brad Rosie.

[00:50:54] Yes, it was.

[00:50:56] And also Rosie was the one that filed a notice of a tort claim which raises potentially conflict of interest issues.

[00:51:06] The central premise of that safekeeping filing was that Allen was being treated significantly worse than other inmates within Westville.

[00:51:14] Is that right?

[00:51:15] Yes.

[00:51:16] The hearing sort of revealed that that was the very least in question.

[00:51:21] This brief actually quotes a line from Judge Gole's July 19th order in which he indicates that the evidence presented at the hearing did not support what was put in the motion, which is a very nice and polite way of saying you guys lied.

[00:51:38] Right. Yeah, that's, yeah, that's interesting.

[00:51:43] And so as a result of all this, it indicates Gole became gravely concerned with Richard Allen's right to have competent non-negligent representations.

[00:51:55] Okay.

[00:51:56] I might read again a bit of a summary.

[00:52:00] The professional norms in Indiana are violated when counsel fails to safeguard confidential case materials, provides false information to the court and makes extrajudicial statements that are likely to prejudice the case.

[00:52:16] Again, we just keep on having it hammered. This is what they did. And this is not what's done in Indiana. It's not professional. It was negligent.

[00:52:25] It was incompetent, if you will.

[00:52:27] Okay.

[00:52:30] Then there is a lengthy section saying they said they didn't have notice. Guess what? I believe they did have notice.

[00:52:38] I'm going to read from that. On October 11th, 2023, we later wrote the record confirms that responded provided relator with ample notice the trial court was considering disqualifying Baldwin and Rosie before October 19th, 2023.

[00:52:58] On October 11th, 2023, we later wrote a letter to respond that requesting that Baldwin and Rosie continue to represent him and acknowledging the prosecutor was seeking Baldwin and Rosie's disqualifications.

[00:53:11] On October 12, 2023, Rosie wrote a letter to respond arguing why he and Baldwin should not be disqualified.

[00:53:19] On the morning of October 19, 2023, an attorney representing Baldwin filed a memorandum regarding possible disqualification and sanctions.

[00:53:28] We later had adequate notice and opportunity to argue against respondent's disqualification of Baldwin and Rosie.

[00:53:35] Baldwin and Rosie also had the opportunity to proceed with the scheduled court hearing on October 19, 2023, but chose to withdraw instead.

[00:53:44] On the October 31st, 2023 hearing Baldwin and Rosie further argued against their disqualification after filing new appearances and the trial court afforded them an opportunity to be heard on the record including via Baldwin's counsel.

[00:53:59] The trial court afforded relator adequate process.

[00:54:03] I suppose ultimately the Indiana Supreme Court will determine whether that's enough process. I know you and I have raised concerns about that.

[00:54:11] Yes.

[00:54:12] And I do feel them.

[00:54:14] I think it seems unofficial to have things like, oh well, they knew about it because them knowing about it means that it's not an ambush, but them knowing about it doesn't mean that there's been a proper process followed.

[00:54:28] I don't know what the process is so I'm not saying that I'm definitely right here.

[00:54:32] I'm saying that it makes me uncomfortable and I suppose that will be ameliorated by whatever the Indiana Supreme Court feels is prudent, but yeah.

[00:54:42] At the very least they clearly knew the disqualification was on the table.

[00:54:45] Oh, I mean, yeah, that's not up for debate anymore.

[00:54:48] But the question is, was there a process that was fought?

[00:54:51] You would think that something that's as extreme as attorneys being disqualified would have a very sacrosanct process in place of X communication essentially, but that doesn't seem to be what happened here.

[00:55:05] Maybe that doesn't matter.

[00:55:07] What they're arguing is there was enough.

[00:55:10] So I suppose we'll see.

[00:55:12] Then Gull gets to the request for her to be disqualified.

[00:55:16] She makes the argument we heard before that these guys no longer represent Allen.

[00:55:21] So why should we pay attention to their motion to have me disqualified?

[00:55:28] If his current counsel want to make such a motion, maybe we can address that then.

[00:55:36] Right.

[00:55:37] Does that take us through the end?

[00:55:40] The only thing left is the speedy trial date, but again.

[00:55:47] Yeah, that just.

[00:55:49] Yeah, that's basically it.

[00:55:51] So what's your big takeaways if any?

[00:55:55] It seems like a very, once again, citation rich filing.

[00:56:03] Some pushback I suppose would be.

[00:56:06] I don't know.

[00:56:08] I guess I'm not completely convinced by the due process element of this.

[00:56:12] That being said, a lot of the points again point to a lack of strategy on the part of the appellate team here in my view.

[00:56:22] Seems like again there's things where it's pointed out and you're like, oh yeah, that is kind of a gaping hole in what they're saying.

[00:56:30] When you look at the house and the first time like we're on Zillow, it looks great.

[00:56:34] And then you show up and you know this is mice activity and termites and stuff and you're like, okay.

[00:56:39] And that sort of feels like maybe that's why I view this second mandamus is so much weaker than the first.

[00:56:46] First really seems to stick to a lot of specifics and, you know, principled arguments and this mandamus has more of the effect of like let's.

[00:56:58] Throw our big asks in a bucket and try to splat it at the wall and see if it sticks.

[00:57:05] Yeah, I would agree with that.

[00:57:07] At this point, I'm hoping that the Supreme Court will rule relatively quickly so this process can get moving.

[00:57:16] And I hope the people are able to accept it whatever the court rules.

[00:57:22] We can guess what they were ruled, but obviously we don't know already.

[00:57:27] I'm seeing online people who have a more conspiratorial frame in mind are saying, oh look, the Attorney General doesn't support the defense.

[00:57:38] Therefore, the Attorney General is corrupt and there's a lot of people who seem to have the belief that if particular things don't get ruled in a particular way that it indicates corruption.

[00:57:50] And that's not the case.

[00:57:52] We can hear it with you today.

[00:57:54] I have no foreknowledge. You have no foreknowledge of how the Supreme Court will rule.

[00:57:59] We can make educated guesses, but they're just educated guesses.

[00:58:02] But I can say that the Supreme Court is not corrupt and you and I will accept their ruling and I hope other people will as well.

[00:58:12] Even if we disagree with a particular ruling, that doesn't mean that the whole institution or the people in it are corrupt.

[00:58:18] Given the inflamed and ridiculous rhetoric that has become so prevalent in this case, thanks to a small number of bad actors, I think that's very much worth stating.

[00:58:25] As it is worth stating that in this matter, in these kind of like highly specific legal filings and whatnot, it is very much possible to disagree with statements or outcomes and think it's wrong.

[00:58:41] And not to be accusing those who you feel are incorrect of being like part of an odentist cult that's destroying Indiana.

[00:58:48] I think there's ways to have these conversations and when people turn to conspiracy theories to explain things that they don't like, they're actually damaging their own side to an extent because it makes it impossible to have like informed debates with people because they just jump to well everything is a conspiracy.

[00:59:05] Like, we can actually have a lot more interesting conversations if we're looking at this from the lens of like perhaps I disagree with this here's why legally speaking.

[00:59:15] And we'll continue to cover both sides of this and try to keep it within the realm of reality rather than the scary odentist reality that all these people live in where everybody who is disagreeing with them is a crypto odentist.

[00:59:32] Thank you so much for listening.

[00:59:35] Thanks so much for listening to the murder sheet.

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