[00:00.000 --> 00:29.960] Content Warning. This episode includes discussion of murder, including the murder of children. What we are recording on February 8th, 2024, there have been some interesting developments in the case of Richard Allen. There's the Supreme Court of the state of Indiana has issued their opinion from the oral arguments that were heard last month. There's also been a filing in the case, and we will discuss those.
[00:30.000 --> 00:54.640] With you today, my name is Anya Kane. I'm a journalist, and I'm Kevin Greenley. I'm an attorney, and this is the murder sheet. We're a true crime podcast focused on original reported interviews and deep dives into murder cases. Where the murder sheet, and this is the Delphi murders. Richard Allen goes to the Indiana Supreme Court opinion day.
[01:30.000 --> 01:49.000] The big news of the day is that the Indiana Supreme Court has issued their opinion in the case, but there has been another
[01:49.000 --> 01:58.640] development that I want to just take a couple of minutes here to discuss at the beginning of the program. One thing, when we do this program, sometimes
[01:58.640 --> 02:24.640] there are very strange coincidences, and there was one of those today, where really today we released our second interview with Michael Osbrooke. And then later today, a filing was released where it was revealed that he has now filed into the Richard Allen case to represent attorneys Baldwin Rosie. And so, no matter how that appears, I got to say that was a total coincidence.
[02:24.640 --> 02:47.640] Yeah, sometimes things like that happen, and we look like we have our finger on the pulse more than we do, but we don't want to take credit for that. That was just a very weird coincidence. We had that episode slated for that day for a while, and just it happened to be the same day that Michael Osbrooke became even more relevant, not as a commentator in Delphi, but as an act of participant in the case.
[02:47.640 --> 03:15.640] So he filed into the case, and he was addressing the issue of the contempt, the alleged contempt committed by attorneys Rosie and Baldwin in this case, and he's essentially arguing this wasn't contempt. And he has reasons for that, including he argues that contempt needs to be willful. No one is saying, for instance, that Andy Baldwin deliberately email confidential information to Brandon Woodhouse. I don't think anyone believes that.
[03:15.640 --> 03:26.640] Or no one's saying that. Yes. So he's making arguments of that nature, and they're very interesting arguments that certainly deserve your attention.
[03:26.640 --> 03:33.640] By the luck of the draw, he made his motion on the same day this opinion came out in the Richard Allen case.
[03:33.640 --> 03:43.640] So I think a lot of people, including us, frankly, are going to spend more time discussing the opinion than analyzing and discussing.
[03:43.640 --> 03:47.640] Mr. Osbrooke's work, but it is worth your time.
[03:47.640 --> 04:07.640] And I would also say that if you're really super interested in getting his thoughts on all of this, including contempt and the case as a whole, we actually did an interview with him back in, I believe, December, where we discussed all of this in some detail with him.
[04:08.640 --> 04:12.640] And Anya is going to include a link to that in the show notes.
[04:12.640 --> 04:28.640] And I would definitely check it out, because it kind of gives you a sense of where Michael Osbrooke stood then, and some of his opinions on this case, and it could give a good indication of the type of representation that Rosie and Baldwin will have going into this.
[04:29.640 --> 04:42.640] And as of today, which is, of course, February 8th, 2024, there's been no continuance issued by Judge Gall for the Fort Wayne hearing on February 12th, Monday.
[04:42.640 --> 04:45.640] So we don't really know what's happening with that.
[04:45.640 --> 04:56.640] The longer it goes on with that one, the more we wonder if we are going to all have to be going up to Fort Wayne on Monday, but I guess it's possible that a continuance will come down.
[04:57.640 --> 05:03.640] Although it indicated that Rosie and Baldwin, Rosie said, like, I don't have a lawyer yet, so at this point, he does.
[05:03.640 --> 05:07.640] So I wondered if this indicates that they think that there's going to be a hearing.
[05:07.640 --> 05:11.640] David Hennessy also entered the case to represent attorney's Rosie and Baldwin.
[05:11.640 --> 05:12.640] Oh, he's back.
[05:12.640 --> 05:13.640] Wow.
[05:13.640 --> 05:14.640] So it's going to be interesting.
[05:14.640 --> 05:21.640] Obviously, it's pretty surreal to have defense attorneys coming in with their own attorneys, the whole, but that's where we are.
[05:22.640 --> 05:29.640] So let's get to this opinion that was released today by the Indiana Supreme Court.
[05:29.640 --> 05:43.640] It's a bit of an unusual case because we just got the opinion today, but we already knew the decision because they actually released their decision the very day of the oral arguments.
[05:44.640 --> 05:51.640] That indicated to me that they really wanted to take very decisive, quick action in dealing with this case.
[05:51.640 --> 06:02.640] And so they wanted the practical matter of saying, here's what needs to happen to go down before they necessarily got into all the legal aspects of their choice.
[06:02.640 --> 06:12.640] So I thought that meant that they think it's important and they wanted to, they felt that the biggest thing was that the old defense attorneys had to come back.
[06:13.640 --> 06:15.640] So they wanted to make sure that they came back quickly.
[06:15.640 --> 06:16.640] Yes.
[06:16.640 --> 06:24.640] But of course, the opinion is still very important because that explains why they decided the way they did.
[06:24.640 --> 06:38.640] And that's also important for other attorneys representing other clients in the state because it gives everybody a framework, what is and is not appropriate in these sorts of situations, at least is determined by this court.
[06:38.640 --> 06:43.640] There were three main aspects of the rate of mandamus that was taken up here.
[06:43.640 --> 06:46.640] One, bring the old defense back.
[06:46.640 --> 06:49.640] Two, remove judge go from the case.
[06:49.640 --> 06:52.640] Three, 70 day speedy trial.
[06:52.640 --> 06:54.640] Nobody liked speedy trial.
[06:54.640 --> 06:58.640] That was universally no from all the justices.
[06:58.640 --> 07:01.640] Actually, nobody wanted to kick judge go off the case.
[07:01.640 --> 07:03.640] That was a universal no from all the justices.
[07:03.640 --> 07:07.640] It was split around bringing the defense attorneys back.
[07:07.640 --> 07:12.640] The majority went to bringing them back.
[07:12.640 --> 07:13.640] Yeah.
[07:13.640 --> 07:17.640] There was one dissent which we will get to in a moment.
[07:17.640 --> 07:20.640] I think all of us have been wondering who dissented.
[07:20.640 --> 07:22.640] Why did he dissent?
[07:22.640 --> 07:23.640] I guessed it right.
[07:23.640 --> 07:24.640] I'm not trying to brag.
[07:24.640 --> 07:28.640] But like when we saw the questions, I was kind of like, this guy is definitely against it.
[07:28.640 --> 07:31.640] And I had a feeling it went to bringing them back.
[07:31.640 --> 07:33.640] But I was like, pretty sure.
[07:33.640 --> 07:36.640] I'm like, if anyone's dissenting, it's slaughter for sure.
[07:36.640 --> 07:41.640] Just the nature of the questions and the way he was kind of going at Mark Lehman.
[07:41.640 --> 07:42.640] I was like, yeah.
[07:42.640 --> 07:44.640] We're getting more into that in a moment.
[07:44.640 --> 07:52.640] So let's go through point by point the issues that the court raises in its opinion.
[07:52.640 --> 08:02.640] Now, one argument the state made in response to this filing was essentially what Alan and his team shouldn't even have filed this at all.
[08:02.640 --> 08:09.640] There were other things they could have done instead, instead of just rushing to the Supreme Court.
[08:09.640 --> 08:13.640] It was wrong of them to do something so drastic.
[08:13.640 --> 08:16.640] And this court says, no.
[08:16.640 --> 08:22.640] In fact, I'm going to say exactly what it says in a bullet point here.
[08:22.640 --> 08:30.640] Alan's request to reinstate his original court appointed counsel presents extraordinary circumstances, warranting relief.
[08:30.640 --> 08:34.640] So therefore, it was worth ringing here.
[08:34.640 --> 08:48.640] And they go into some detail about that in which they discuss we do have the right to review issues of attorney disqualification through an original action like this.
[08:48.640 --> 08:57.640] And their argument is because it is extraordinary circumstance and the consequences are pretty significant.
[08:57.640 --> 09:02.640] Again, I'm going to read from this opinion.
[09:02.640 --> 09:09.640] For starters, disqualifying Alan's counsel delayed his trial by at least nine months.
[09:09.640 --> 09:15.640] And the trial court has already concluded that Alan's pre-trial confinement presents extraordinary challenges.
[09:15.640 --> 09:23.640] So they're saying there that not only does this affect Richard Alan's rights, he's going to be confined longer,
[09:23.640 --> 09:30.640] but it's also a burden on the state or whoever is in charge of his confinement.
[09:30.640 --> 09:31.640] Right.
[09:31.640 --> 09:42.640] Now, the Supreme Court notes that it's in no position to actually look into his prison conditions and whether or not the defense is correct on that or that they're, you know.
[09:42.640 --> 09:49.640] But basically they're saying that even if there's no issues with his imprisonment, adding extra time to that is a problem.
[09:49.640 --> 09:53.640] Again, I'm going to read a few lines here that I found jump out at me.
[09:53.640 --> 09:59.640] I'm quoting now, this disqualification had the following results.
[09:59.640 --> 10:06.640] So not only would Alan's trial be delayed for at least many months if his original attorneys were not reinstated.
[10:06.640 --> 10:18.640] If Alan were convicted, correcting the disqualification by vacating his conviction and ordering a second trial would produce years of further delay and an enormous waste of time and resources.
[10:18.640 --> 10:27.640] That would not serve anyone's interest, not Alan's, the state's, the victim's families, the courts, nor the public's.
[10:27.640 --> 10:32.640] So again, what they're saying here is yes, the stakes here are very, very high.
[10:32.640 --> 10:44.640] And if we didn't act and there was an appeal later, there would be an enormous cost, there would be a cost to Alan, there would be a cost to the victim's family, there would be a cost to the state.
[10:44.640 --> 10:48.640] So all of this in our minds justifies us stepping in.
[10:48.640 --> 10:53.640] Seems like there's not, I mean, it seems like there's going to be an appeal anyway, so I don't know.
[10:53.640 --> 11:01.640] At this point, like I, I mean, I think it was important for them to step in here because they felt like rights were being violated.
[11:01.640 --> 11:05.640] But the idea like, now we're going to avoid an appeal seems a little bit sunny to me.
[11:05.640 --> 11:06.640] I don't know.
[11:06.640 --> 11:07.640] There's definitely going to be an appeal.
[11:07.640 --> 11:08.640] Yes.
[11:09.640 --> 11:14.640] In a, in a high profile case like this, if there's a conviction, it's always going to be an appeal.
[11:14.640 --> 11:18.640] So I don't really get their reasoning about we got to avoid an appeal guys.
[11:18.640 --> 11:24.640] So you're saying they're, they're considering more theoretical things and looking at things from a practical point.
[11:24.640 --> 11:25.640] No, yes.
[11:25.640 --> 11:26.640] That is what I'm saying.
[11:26.640 --> 11:36.640] Well, I would certainly suggest that what we've seen happen since the oral arguments on January 18th, we seem to validate your concerns.
[11:36.640 --> 11:39.640] Because they've been new motions for a recusal.
[11:39.640 --> 11:44.640] Judge Gull has scheduled hearings without consulting the defense attorney.
[11:44.640 --> 11:49.640] She hasn't granted what everybody seems to believe is a reasonable motion for a continuance.
[11:49.640 --> 11:51.640] So it seems like the trouble is continuing.
[11:51.640 --> 11:56.640] I only care about this trial going smoothly.
[11:56.640 --> 11:58.640] Richard Allen's rights being protected.
[11:58.640 --> 12:03.640] The, the family's feeling like they had their day in court and just things running as they should.
[12:04.640 --> 12:09.640] And so that's what I tend to base a lot of my opinions at this point on.
[12:09.640 --> 12:16.640] You know, not, not, you know, we're not doing this stupid partisanship thing that, you know, like every other creator does of like,
[12:16.640 --> 12:17.640] well, this is my team.
[12:17.640 --> 12:19.640] I'm going to wear the defense team jacket.
[12:19.640 --> 12:27.640] No, we're, it's about what, how does, how does the, how do things proceed smoothly going forward after all this, all this chaos.
[12:27.640 --> 12:28.640] And that, that is an opinion.
[12:28.640 --> 12:32.640] It's, I feel like it's an informed opinion, but you don't have to agree with me.
[12:33.640 --> 12:37.640] To get back to the opinion, they also respond to the issue.
[12:37.640 --> 12:40.640] The state said, well, they could have filed.
[12:40.640 --> 12:44.640] Other appeals before rushing to the Supreme Court.
[12:44.640 --> 12:50.640] And in the opinion, it points out that that would actually have been pretty difficult because judge goal.
[12:50.640 --> 12:58.640] When she removed them from the case, she also struck all their filings from the case and didn't allow them to make new filings in the case.
[12:58.640 --> 13:06.640] So how exactly are these defense attorneys supposed to file for appeals if they can't even file into the case?
[13:06.640 --> 13:10.640] I, I, I think that's a pretty compelling point.
[13:10.640 --> 13:11.640] What do you think?
[13:11.640 --> 13:12.640] Yeah, I mean, that makes sense.
[13:12.640 --> 13:18.640] You know, if you're, if you're locked out of the house, then you can't access the house's telephone.
[13:18.640 --> 13:21.640] So, you know, it would be difficult to make a call.
[13:22.640 --> 13:36.640] To move on to the next bullet point, the court says court appointed counsel may be disqualified only is the last resort after considering the prejudice to the defendant.
[13:36.640 --> 13:40.640] Now, this gets into the concept of structural error.
[13:40.640 --> 13:44.640] I was wondering, can you explain that?
[13:44.640 --> 13:50.640] What they're saying is, if you incorrectly remove the counsel here, it's structural error.
[13:50.640 --> 13:51.640] What does that mean?
[13:51.640 --> 13:53.640] And why is it such a problem?
[13:53.640 --> 13:57.640] Basically, structural error is like really, really serious error.
[13:57.640 --> 13:58.640] Okay.
[13:58.640 --> 13:59.640] Wow.
[13:59.640 --> 14:00.640] Very basic.
[14:00.640 --> 14:04.640] For instance, let's say someone breaks a window at your house.
[14:04.640 --> 14:07.640] So your house now isn't, it has a mistake.
[14:07.640 --> 14:08.640] It's an error.
[14:08.640 --> 14:10.640] There's something wrong with the house.
[14:10.640 --> 14:13.640] You're still able to live in the house.
[14:13.640 --> 14:15.640] You don't have to burn the house down.
[14:15.640 --> 14:17.640] You don't have to tear the house down.
[14:17.640 --> 14:19.640] You don't have to build a new house.
[14:19.640 --> 14:24.640] Obviously, ideally, it would be great if you didn't have a broken window.
[14:24.640 --> 14:30.640] But if for some reason you can't buy new glass, I don't have any cardboard to put up over the broken window.
[14:30.640 --> 14:32.640] Maybe you avoid that room.
[14:32.640 --> 14:37.640] Your life in the house goes on basically pretty much is normal.
[14:37.640 --> 14:48.640] Now, let's contrast that and say that some architect or whoever comes over and does a study of your house and said there is a structural problem with this house.
[14:48.640 --> 14:49.640] It is unsafe.
[14:49.640 --> 14:51.640] It is going to collapse.
[14:51.640 --> 14:54.640] That means you have to get out of the house.
[14:54.640 --> 14:57.640] There's no way to save the house.
[14:57.640 --> 15:01.640] You can't order a new piece of glass to fix the problem.
[15:01.640 --> 15:05.640] The only problem is to tear down the house and build a new house.
[15:05.640 --> 15:08.640] So that's a very simplistic way of putting it.
[15:08.640 --> 15:14.640] But basically when there's a structural error, it means the error is so great.
[15:14.640 --> 15:15.640] You have to start over.
[15:15.640 --> 15:18.640] Well, intensive purposes.
[15:18.640 --> 15:22.640] So they want to avoid that understandably.
[15:22.640 --> 15:25.640] That's not good.
[15:25.640 --> 15:30.640] The Supreme Court does not want this case to be in a situation where there's structural errors.
[15:30.640 --> 15:34.640] So I think what they're arguing here is that that could happen.
[15:34.640 --> 15:41.640] And they're also noting things like Alan is not asking for his choice of counsel.
[15:42.640 --> 15:48.640] He's asking for continuity of counsel that people he was with earlier continue on because
[15:48.640 --> 15:52.640] he feels like they've been doing a good job and that he wants them to stay.
[15:52.640 --> 15:56.640] He's saying that they're saying that the court shows these defenders.
[15:56.640 --> 15:59.640] So Judge Gull appointed Rosie and Baldwin.
[15:59.640 --> 16:00.640] Yes.
[16:00.640 --> 16:02.640] People may not realize that, but that is true.
[16:02.640 --> 16:03.640] She appointed them.
[16:03.640 --> 16:09.640] And what they're saying is that it's a kind of her choice and he just wants the continuity.
[16:09.640 --> 16:14.640] I think they were trying to note that they're not really feeling that the choice arguments
[16:14.640 --> 16:16.640] are as compelling.
[16:16.640 --> 16:24.040] And that came up a lot because it was a question of does somebody who has public defenders get
[16:24.040 --> 16:27.640] the right to the choice of counsel?
[16:27.640 --> 16:29.640] And that's a complicated question.
[16:29.640 --> 16:32.640] It's a very complicated question.
[16:32.640 --> 16:38.640] This whole issue of when counsel can be disqualified and taken off the case.
[16:38.640 --> 16:41.640] Well, they're saying basically.
[16:41.640 --> 16:42.640] Well, let's read it.
[16:42.640 --> 16:44.640] Not until the last resort.
[16:44.640 --> 16:45.640] Yeah.
[16:45.640 --> 16:46.640] I read exactly what it says.
[16:46.640 --> 16:48.640] This is from the opinion.
[16:48.640 --> 16:50.640] The bottom line is this.
[16:50.640 --> 16:58.640] A trial court cannot disqualify court appointed counsel over the objection of both the defendant
[16:58.640 --> 17:06.640] and appointed counsel unless a disqualification is a last resort and B disqualification is necessary
[17:06.640 --> 17:11.640] to protect the defendant's constitutional rights, to ensure the proceedings are conducted fairly
[17:11.640 --> 17:17.640] and within our profession's ethical standards, or to ensure the orderly and efficient administration
[17:17.640 --> 17:23.640] of justice and see those interests outweigh the prejudice to the defendant.
[17:23.640 --> 17:28.640] They're saying you can only get rid of attorneys like Rosie and Baldwin if it's an absolute last
[17:28.640 --> 17:33.640] resort and why do they feel this was not the last resort?
[17:33.640 --> 17:40.640] One big problem was that the special judge, of course, Gull's record did not speak to
[17:40.640 --> 17:42.640] it being the last resort.
[17:42.640 --> 17:45.640] And then kind of things proceeded from there.
[17:45.640 --> 17:52.640] And in fact, the only reason in the record for disqualifying Rosie and Baldwin is because
[17:52.640 --> 18:00.640] Gull indicated that she did not believe they could assist Allen with his defense effectively.
[18:00.640 --> 18:08.640] But the justices who write this opinion, I'll tell you what they say exactly.
[18:08.640 --> 18:13.640] There is no suggestion that Baldwin and Rosie are out of their depths.
[18:13.640 --> 18:19.640] Baldwin has over 30 years of experience representing thousands of clients around the state,
[18:19.640 --> 18:26.640] including clients charged with murder, rape, robbery, burglary, and other violent offenses.
[18:26.640 --> 18:31.640] And he has tried more than 125 jury trials.
[18:31.640 --> 18:37.640] Rosie has over 20 years of the same experience, including three murder trials and a previous
[18:37.640 --> 18:42.640] certification to handle death penalty cases.
[18:42.640 --> 18:48.640] So they're saying when Judge Gull is indicating she doesn't believe they're able to assist
[18:48.640 --> 18:54.640] him effectively, they're saying, well look, these guys are really qualified.
[18:54.640 --> 18:57.640] Look at it, what they've done in the past.
[18:57.640 --> 18:59.640] These aren't neophytes.
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[20:12.640 --> 20:18.640] And they also argue that even though the state and the judge have argued that the leak harmed
[20:18.640 --> 20:21.640] Allen's defense, they didn't really get into how exactly.
[20:21.640 --> 20:25.640] How do you show harm in a situation like that?
[20:25.640 --> 20:28.640] That seems like it would be difficult to do.
[20:28.640 --> 20:30.640] It could be difficult to do.
[20:30.640 --> 20:31.640] It can be difficult.
[20:31.640 --> 20:36.640] What are you going to go out and pull people in the streets and say, what do you think about
[20:36.640 --> 20:37.640] this?
[20:37.640 --> 20:44.640] I mean, the argument is that the leak hurt Allen's defense.
[20:45.640 --> 20:51.640] Also, the disclosure of defense strategy to a third party raises questions about
[20:51.640 --> 20:54.640] confidentiality.
[20:54.640 --> 20:58.640] Details about defense strategy were all over Reddit in the Internet.
[20:58.640 --> 21:04.640] Disclosure of these pictures could inflame public opinion against Allen.
[21:04.640 --> 21:12.640] And perhaps all this information is out there shows you could argue it shows a lack of care,
[21:12.640 --> 21:16.640] which could be a sign of greater problems in the future.
[21:16.640 --> 21:23.640] But a lot of that harm I'm asserting here that could happen is theoretical.
[21:23.640 --> 21:32.640] And it would be difficult to prove that, oh, these pictures inflame public opinion against
[21:32.640 --> 21:39.640] Richard Allen by this percentage or this disclosure of trial strategy did this much damage.
[21:39.640 --> 21:41.640] These things are hard to quote.
[21:42.640 --> 21:48.640] I mean, there's also maybe a more background element to it is I think from what I've seen
[21:48.640 --> 21:55.640] from people's commentary around the case, the leak undermined people faith in Rosie and Baldwin
[21:55.640 --> 21:58.640] as attorneys as far as their performance went.
[21:58.640 --> 22:01.640] And when you're saying, well, this is good.
[22:01.640 --> 22:02.640] This is a good professional job.
[22:02.640 --> 22:08.640] I think that benefits Richard Allen more than like, what is this going on here?
[22:08.640 --> 22:10.640] Why is stuff coming out in this way?
[22:10.640 --> 22:20.640] And they assert that their judge goal did not make any showings or findings indicating
[22:20.640 --> 22:27.640] that she really weighed all of the harm it would do to Richard Allen and his interests
[22:27.640 --> 22:30.640] by removing them.
[22:30.640 --> 22:33.640] And here's a question for you.
[22:33.640 --> 22:39.640] When you read this, when you read the opinions, do you think that
[22:40.640 --> 22:52.640] had goal held a hearing and got things on the record in that way that their removal would
[22:52.640 --> 23:02.640] have stood up to this kind of scrutiny scrutiny or or would have been as easy to overturn?
[23:02.640 --> 23:04.640] I guess that's my question.
[23:04.640 --> 23:08.640] Would things have been different had she held the hearing or she held the hearing?
[23:08.640 --> 23:11.640] It still didn't quite reach that threshold.
[23:11.640 --> 23:13.640] It's not clear to me.
[23:13.640 --> 23:15.640] I thought it would get I mean, honestly, I thought I was going to read these opinions and it would
[23:15.640 --> 23:19.640] be clear to me like, oh, this could never happen versus you did it wrong.
[23:19.640 --> 23:23.640] But they almost seem to be kind of side stepping that a little bit.
[23:23.640 --> 23:26.640] Yeah, it's not entirely clear to me.
[23:26.640 --> 23:33.640] I will say that I think if there was a hearing in which there was vigorous presentations by both
[23:33.640 --> 23:39.640] sides, I think a lot of these issues would have been hashed out and flashed out in the
[23:39.640 --> 23:40.640] record.
[23:40.640 --> 23:43.640] And certainly Richard Allen would have known, you know, would have definitively known what
[23:43.640 --> 23:45.640] was going on, which would have been good.
[23:45.640 --> 23:48.640] Because certainly the defense attorneys could have made some of these points that the Supreme
[23:48.640 --> 23:50.640] Court has made.
[23:50.640 --> 23:56.640] The state in the former prosecutor Nick McClellan could have made responses to it and the judge
[23:56.640 --> 24:03.640] could have made findings that at the very least the court, the Supreme Court could say,
[24:03.640 --> 24:07.640] oh, these findings she makes are based on solid information.
[24:07.640 --> 24:09.640] Look at here, here and here.
[24:09.640 --> 24:16.640] So I think if she had had a formal hearing, at the very least it would have been more difficult
[24:16.640 --> 24:18.640] for this to be overturned.
[24:18.640 --> 24:19.640] It still may have been.
[24:19.640 --> 24:25.640] They may have still ultimately found Mark Lehman's assertion that you shouldn't kick off defense
[24:25.640 --> 24:27.640] attorneys for gross negligence compelling.
[24:27.640 --> 24:29.640] Like that's just not an appropriate situation.
[24:29.640 --> 24:33.640] You can feel like they're complete bunglers and you shouldn't do it, right?
[24:33.640 --> 24:36.640] Like, you know, just that's not the appropriate response.
[24:36.640 --> 24:44.640] And I mean, we look at the concluding line of this portion of the opinion.
[24:44.640 --> 24:49.640] Because the record does not reflect the qualification was the last resort that was necessary after
[24:49.640 --> 24:54.640] balancing the trial court's concerns because the prejudice to Allen, Baldwin and Rosie must
[24:54.640 --> 24:56.640] be reinstated.
[24:56.640 --> 25:03.640] So maybe if the record was more extensive things could have been different, we will never know.
[25:03.640 --> 25:06.640] How many angels can dance on the head of a pen?
[25:06.640 --> 25:08.640] Do you want to talk about speedy trial?
[25:08.640 --> 25:09.640] Okay.
[25:09.640 --> 25:11.640] Speedy trial is a big no.
[25:11.640 --> 25:15.640] This section is called, Allen's remaining requests present no extraordinary circumstances
[25:15.640 --> 25:16.640] weren't relief.
[25:16.640 --> 25:18.640] Essentially, you never asked for it.
[25:18.640 --> 25:22.640] You never asked for 70 days in the trial court.
[25:22.640 --> 25:30.640] You never filed it unless the trial court has refused to rule properly.
[25:30.640 --> 25:32.640] There's nothing we can do.
[25:32.640 --> 25:33.640] There's nothing we can do.
[25:33.640 --> 25:34.640] It's out of here.
[25:34.640 --> 25:39.640] And you can do this if you want, like, you know, with the trial court and, you know, see what
[25:39.640 --> 25:40.640] happens.
[25:40.640 --> 25:43.640] So that, I mean, no, that's not unexpected.
[25:43.640 --> 25:44.640] That was, you know.
[25:44.640 --> 25:48.640] And then the final thing they rule on is whether or not judge goals should be disqualified.
[25:48.640 --> 25:51.640] And you were talking to me a little bit about this before we started recording.
[25:51.640 --> 25:52.640] Yeah.
[25:52.640 --> 25:54.640] I just found this part interesting.
[25:54.640 --> 25:55.640] Tell us.
[25:55.640 --> 25:59.640] First of all, they begin with the presumption that the trial judge is unbiased.
[25:59.640 --> 26:07.240] While the decision by judge goal to rent, you know, to find the other, you know, the attorneys
[26:07.240 --> 26:12.640] grossly negligent, you know, is certainly a big, a big deal.
[26:12.640 --> 26:17.640] And the court notes that they're saying that nothing in the record suggests the special
[26:17.640 --> 26:20.640] judges decision emerged from bias or prejudice against Allen.
[26:20.640 --> 26:21.640] Just the opposite.
[26:21.640 --> 26:26.640] The special judge explained she disqualified counsel because she was trying to protect Allen's
[26:26.640 --> 26:29.640] rights to the effective assistance of counsel.
[26:29.640 --> 26:31.640] And we don't minimize her concern.
[26:31.640 --> 26:36.640] She faced a significant dilemma given her conclusion that defense counsel were no longer effective.
[26:36.640 --> 26:42.640] If she left counsel in place and Allen was convicted, the conviction might have been vacated through
[26:42.640 --> 26:46.640] post-conviction proceedings based on ineffective assistance of counsel.
[26:46.640 --> 26:51.640] Or if she disqualified counsel and Allen was convicted, then the conviction might have been
[26:51.640 --> 26:56.640] vacated because she infringed on Allen's rights to the continuity or choice of counsel.
[26:56.640 --> 26:58.640] She was in a tough spot either way.
[26:58.640 --> 27:03.640] Though we've determined the record does not support her disqualification decision, we reached
[27:03.640 --> 27:06.640] that conclusion with the benefit of weeks to consider the issue.
[27:06.640 --> 27:11.640] Through a briefing and oral argument from excellent appellate attorneys, the benefit of five justices
[27:11.640 --> 27:15.640] and their staffs pouring over the record authorities and arguments.
[27:15.640 --> 27:18.640] The special judge did not have those luxuries.
[27:18.640 --> 27:22.640] Nor does Allen point to anything suggesting the special judge is biased against Baldwin
[27:22.640 --> 27:23.640] and Rosie.
[27:23.640 --> 27:27.640] Of course, she said their mistakes reflected gross negligence and she was concerning their
[27:27.640 --> 27:28.640] representation was ineffective.
[27:28.640 --> 27:33.640] But judicial remarks during the course of a trial that are critical or disapproving of or even
[27:33.640 --> 27:40.640] hostile to the parties or their cases ordinarily do not support bias or partiality challenge.
[27:40.640 --> 27:46.640] That is unless they reveal an opinion that derives from an extrajudicial source or reveal
[27:46.640 --> 27:51.640] such a high degree of favoritism or antagonism as to make fair judgment impossible.
[27:51.640 --> 27:54.640] Talk about that.
[27:54.640 --> 28:01.640] To me, this reads like the Indiana Supreme Court has actually inoculated the case against some
[28:01.640 --> 28:07.640] of what I've expressed concerned about in this very episode.
[28:07.640 --> 28:13.640] Essentially, they're very strongly saying that she's not biased.
[28:13.640 --> 28:20.640] They're not seeing that and that essentially if she wants to tell the defense attorneys their
[28:20.640 --> 28:25.640] utter clowns and should go back to the circus, that's fine as long as she's doing it on a
[28:25.640 --> 28:27.640] from a legal basis.
[28:27.640 --> 28:31.640] If she's saying that because she meets them outside and sees them doing something silly,
[28:31.640 --> 28:32.640] then that's a problem.
[28:32.640 --> 28:38.640] But if it would have to reach a very intense level for it to be concerning to the Indiana
[28:38.640 --> 28:41.640] Supreme Court, that is what that's what I'm seeing here.
[28:41.640 --> 28:45.640] Again, I'm going to read a couple of quick lines here.
[28:45.640 --> 28:49.640] Judge Gold was right to try to get the situation under control quickly and decisively.
[28:49.640 --> 28:55.640] Her efforts did not reflect any bias or prejudice and Alan doesn't identify anything she has done
[28:55.640 --> 28:58.640] that demonstrates she is not impartial.
[28:58.640 --> 29:06.640] A fair takeaway from this opinion is that as of January 18th, when this oral argument was
[29:06.640 --> 29:12.640] made, Judge Gold had not done anything that warranted her being removed from the case and
[29:12.640 --> 29:17.640] the defense attorneys had not done anything that warranted their removal from the case because
[29:17.640 --> 29:21.640] there were other steps that could have been taken.
[29:21.640 --> 29:22.640] Is that your takeaway?
[29:22.640 --> 29:32.640] Yes, and I thought it was interesting that while her decision to remove them was completely
[29:32.640 --> 29:34.640] thrown out, that's not the acceptable thing.
[29:34.640 --> 29:36.640] This was not the last resort.
[29:36.640 --> 29:42.640] They took steps in the opinion to vindicate her to a certain extent.
[29:42.640 --> 29:43.640] Let me read this portion.
[29:43.640 --> 29:48.640] I thought this had some fun, colorful language.
[29:48.640 --> 29:53.640] Though she mistakenly hit Defense Council's eject button instead of the case's lockdown
[29:53.640 --> 29:58.640] button, she was right to try to get the situation under control quickly and decisively.
[29:58.640 --> 30:00.640] Yeah.
[30:00.640 --> 30:07.640] So that's interesting because it's saying you hit the wrong button but you were correct to
[30:07.640 --> 30:13.640] reach for a button because things were out of control.
[30:13.640 --> 30:20.640] So this likely is going to make it harder for the defense to argue that she is biased or unfair
[30:20.640 --> 30:23.640] based on anything she did before January 18th.
[30:23.640 --> 30:26.640] I hear what you're saying there because the question is what happens next?
[30:26.640 --> 30:30.640] And I agree that we need to pay very close attention to what happens next.
[30:30.640 --> 30:34.640] But also I feel like the language here indicates that it would take an awful lot.
[30:34.640 --> 30:35.640] Yes.
[30:35.640 --> 30:41.640] And that goes beyond frankly not ordering a continuance when they want it or not giving them
[30:41.640 --> 30:42.640] hearings when they want it.
[30:42.640 --> 30:49.640] It seems like it would take an awful lot to render her in the eyes of a higher court truly
[30:49.640 --> 30:50.640] biased.
[30:50.640 --> 30:55.640] It would take her like coming in and being completely unprofessional.
[30:55.640 --> 31:00.640] Like, I mean, they even indicated like if you were just kind of like calling out one party
[31:00.640 --> 31:08.640] and being really hostile to them based on what they're doing, that's essentially okay.
[31:08.640 --> 31:13.640] And that's a bit surprising to me because I think maybe non-legal people might think
[31:13.640 --> 31:18.640] like, oh, if I come in and I'm the judge and Kevin is the defense attorney and I'm like,
[31:18.640 --> 31:21.640] you sir suck, you know, because your filing was terribly written.
[31:21.640 --> 31:23.640] You'd think that that would be maybe that's not okay.
[31:23.640 --> 31:24.640] Maybe that's too extreme.
[31:24.640 --> 31:30.640] But like you'd think that it would be a more sensitive you'd really think because I think
[31:30.640 --> 31:35.640] we have the image of judges as more, you know, very much impartial down the middle.
[31:36.640 --> 31:39.640] But, but this is saying that you can get pretty feisty.
[31:39.640 --> 31:46.640] That's what I'm, I mean, and it seems like I guess I understand the Indiana Supreme Court's
[31:46.640 --> 31:51.640] position more now than I did prior because as I said in this episode, like, it is kind
[31:51.640 --> 31:53.640] of crazy that everybody's back.
[31:53.640 --> 31:58.640] But when they explain it like this, I see this is basically them saying like, we're, we're
[31:58.640 --> 32:05.280] typing the slate clean tabula rasa, like, just get, get over yourselves and work together
[32:05.280 --> 32:07.400] and deal with it.
[32:07.400 --> 32:12.880] And this, some of this language, it indicates to me that they are attempting to inoculate
[32:12.880 --> 32:18.720] it down the road from appeals around some of the matters that we've raised concerns about.
[32:18.720 --> 32:22.760] So I understand where they're coming from there.
[32:22.760 --> 32:27.680] I Loretta Rush, the, the Chief Justice very much said, we want to get this case back
[32:27.680 --> 32:35.160] on track and maybe, maybe there's disagreements about whether this does that, but I think there,
[32:35.160 --> 32:40.000] I at least understand that that is what they're trying to do here.
[32:40.000 --> 32:41.000] What do you think?
[32:41.000 --> 32:42.640] What's your opinion on it?
[32:42.640 --> 32:47.840] What's your opinion on the opinion, my opinion on the opinion, inception of opinions.
[32:47.840 --> 32:57.160] It's a very interesting opinion and I'm especially struck by how there are things in here that
[32:57.160 --> 33:01.400] I think the defense is going to love, there's things in here that the state is going to
[33:01.400 --> 33:04.800] love, there's things that both sides are going to hate.
[33:04.800 --> 33:07.080] So it's probably a good opinion.
[33:07.080 --> 33:10.280] It's sort of like our show, right?
[33:10.280 --> 33:15.360] There's something for everybody to hate and get mad about.
[33:15.360 --> 33:18.040] Let's, let's conclude by talking about the dissent.
[33:18.040 --> 33:19.040] Yeah.
[33:19.040 --> 33:24.120] So we had slaughter, we had justice slaughter is such a great name.
[33:24.120 --> 33:25.120] I'm sorry.
[33:25.120 --> 33:26.120] I'm not trying to be silly.
[33:26.120 --> 33:31.400] Justice Rush, Massa and Gough were all in the majority.
[33:31.400 --> 33:38.200] Slaughter concurred with the two elements that the other two rejected and then descended
[33:38.200 --> 33:41.520] for not kicking the attorneys off.
[33:41.520 --> 33:47.920] And his objection seemed to largely revolve around procedural issues.
[33:47.920 --> 33:53.280] In other words, he wasn't sure that it was right for the Supreme Court to hear this case
[33:53.280 --> 33:55.400] at this time.
[33:55.400 --> 33:58.400] I'm going to quote from this from his dissent.
[33:58.400 --> 34:04.580] While the trial court's actions raised a potential constitutional problem under current
[34:04.580 --> 34:07.360] law, it is far from clear.
[34:07.360 --> 34:09.800] She exceeded her authority.
[34:09.800 --> 34:15.480] The court's opinion tacitly admits as much to justify its award of relief.
[34:15.480 --> 34:21.640] The court must fashion a new rule against which to adjust the trial court's actions below.
[34:21.640 --> 34:26.120] And then having announced his new rule, the court proceeds to find the trial judge breached
[34:26.120 --> 34:27.520] it.
[34:27.520 --> 34:31.560] So it's basically saying you broke a rule that didn't exist at the time you broke it,
[34:31.560 --> 34:32.560] right?
[34:32.560 --> 34:36.120] Yeah, he's accusing the court of making up a rule and he's saying, well, maybe it's a
[34:36.120 --> 34:40.440] good rule, but it didn't exist when judge goal made these decisions.
[34:40.440 --> 34:42.280] So why should we be holding her this rule?
[34:42.280 --> 34:43.280] It didn't exist.
[34:43.280 --> 34:44.280] Yeah.
[34:44.280 --> 34:48.840] He said, my beef, rather, is with our after the fact application of this newly minted rule
[34:48.840 --> 34:53.280] to award mandamus relief against judge Gull, who did not have the benefit of our rule when
[34:53.280 --> 34:55.240] she acted.
[34:55.240 --> 34:59.200] That is predominantly what he is basing his decision off of.
[34:59.200 --> 35:03.440] So he's not so much saying that the final result is incorrect.
[35:03.440 --> 35:07.880] He's saying the way we got to that final result is in his mind, incorrect.
[35:07.880 --> 35:11.960] He also notes that he does believe that the traditional appellate remedy would have been
[35:11.960 --> 35:15.240] better.
[35:15.240 --> 35:23.600] Just bring it as an ordinary appeal and go for it lawyers always find things to disagree
[35:23.600 --> 35:24.600] about.
[35:24.600 --> 35:30.360] And so it's always fascinating that even some of the most learned attorneys in the state
[35:30.360 --> 35:38.320] who reach the level of the Supreme Court can disagree over what laws and such mean attorneys
[35:38.320 --> 35:39.680] love to argue.
[35:39.680 --> 35:40.680] Yes.
[35:40.680 --> 35:43.680] That's so be journalist.
[35:43.680 --> 35:44.680] Interesting.
[35:44.680 --> 35:47.400] As you said, mixed bag for everybody.
[35:47.400 --> 35:52.000] That's not terribly surprising to be honest, given that the rulings themselves reflected
[35:52.000 --> 35:54.240] that of keeping everybody on.
[35:54.240 --> 35:56.640] That's a mixed bag for everyone.
[35:56.640 --> 36:01.200] No one is no one is thoroughly trounced there, but I also don't think anybody got what they
[36:01.200 --> 36:02.200] wanted.
[36:02.200 --> 36:03.200] Yeah.
[36:03.200 --> 36:06.760] I think attorneys Baldwin and Rosie are probably be very happy about like the portions of the
[36:06.760 --> 36:09.360] opinion where it says they have many years of experience.
[36:09.360 --> 36:10.600] These guys know what they're doing.
[36:10.600 --> 36:11.600] Judge Gold was wrong.
[36:11.600 --> 36:12.600] They didn't say that.
[36:12.600 --> 36:15.080] They said these guys are not out of their depth.
[36:15.080 --> 36:19.560] And I'm sure Judge Gold likes the part where it says she's not biased and she was right
[36:19.560 --> 36:21.960] to try to take control of the trial.
[36:21.960 --> 36:24.920] So everybody's right.
[36:24.920 --> 36:26.360] And everybody's wrong.
[36:26.360 --> 36:27.360] Yeah.
[36:27.360 --> 36:29.440] I mean, I don't know.
[36:29.440 --> 36:38.880] I can, as I said before, my biggest thing is that I worry about the structural soundness
[36:38.880 --> 36:41.040] of the case.
[36:41.040 --> 36:44.080] Is it being served well by the various parties?
[36:44.080 --> 36:51.920] I feel like a lot of this legal drama has really distracted from things like Richard Allen
[36:51.920 --> 36:58.080] and the two victims and the facts of the case.
[36:58.080 --> 37:03.040] And that that's sort of not really where you want to be in my opinion.
[37:03.040 --> 37:10.520] But this does give some insight into how things might proceed.
[37:10.520 --> 37:18.560] And I almost read some of this as the Supreme Court saying to go like you can go forward
[37:18.560 --> 37:28.360] but don't like you have to like she's almost been given a blank slate here and being very
[37:28.360 --> 37:32.560] objective seems like the way to go forward as far as being.
[37:32.560 --> 37:35.640] As far as keeping the integrity of the case.
[37:35.640 --> 37:43.760] And with the defense attorneys, I do think it gives them somewhat of a carte blanche to
[37:43.760 --> 37:49.600] kind of keep doing what they were doing, which was obviously ticking off the judge.
[37:49.600 --> 37:54.720] So I don't really know where we go from here.
[37:54.720 --> 37:58.480] I don't even know if we're going to have a pretrial hearing on Monday.
[37:58.480 --> 37:59.640] Yeah.
[37:59.640 --> 38:02.880] I will be curious to see if we actually have that hearing at first.
[38:02.880 --> 38:05.160] I thought we weren't going to, but I don't know.
[38:05.160 --> 38:09.840] The longer it goes on them, the more time goes on, the more I think we will be heading
[38:09.840 --> 38:12.280] up to Fort Wayne.
[38:12.280 --> 38:19.560] Well, as we are recording, it is 12.06 PM on February 8th.
[38:19.560 --> 38:23.680] And I just checked my case and as of the moment, the continuance has not been granted.
[38:23.680 --> 38:28.920] So we will see maybe it would be in Fort Wayne, maybe we won't, but regardless, we will strive
[38:28.920 --> 38:33.800] to keep you all informed of any pertinent updates in this case.
[38:33.800 --> 38:35.160] Thank you so much for listening.
[38:35.160 --> 38:36.160] Thanks.
[38:36.160 --> 38:38.520] Much for listening to the murder sheet.
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