The Delphi Murders: Richard Allen Goes to the Indiana Supreme Court: Oral Arguments

[00:00:00] Content Warning. This episode includes discussion of the murder of two children. Well, today is a big day in the Delphi Murders case. This is January 18th. This is a Thursday. And we have just come from the Supreme Court of Indiana hearing in the Richard Allen case. So

[00:00:22] today we're going to unpack everything we heard, all the arguments from the different sides, and then discuss our analysis and what we think of the whole thing. My name is Anya Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney.

[00:00:38] And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases. We're The Murder Sheet. And this is The Delphi Murders. Richard Allen goes to the Indiana Supreme Court. Oral Arguments.

[00:01:41] So we all know what this hearing is about, what the dispute is about. Basically, of course, Judge Gull removed the original defense attorneys Bradley Rosie and Andrew Baldwin from the case

[00:01:56] back in October. And so what the case boils down to is, was that proper? Did she exceed her authority? Should a judge be allowed to get in between a person and his attorney? So- And is that what happened here? Is that what happened here?

[00:02:17] So the hearing was at the Supreme Court of Indiana today. And I think the first thing worth pointing out is the very obvious point that this is a very different type of court and environment than what we've been used to in the past. Yeah, I love this environment.

[00:02:39] Number one, in the past when we've gone to hearings related to the case of Richard Allen, they've basically been the center stage of whichever courthouse they're happening in. Carroll County, of course, it'd be dominated by here's the Richard Allen case, here's the hearing.

[00:02:58] And there was one hearing in Allen County, which again, it seemed like this was the most important thing going on in the building. But this was different today because the Supreme Court of Indiana doesn't have its own building. It has a portion of the Indiana

[00:03:17] State House. Which is beautiful. Beautiful building, it's a very large building. It's huge. And there was an awful lot of things going on at the State House today that had nothing to do with the Richard Allen case. So it wasn't the dominant thing.

[00:03:33] There was a protest for Palestine going on during the hearing. There was, there were families with small children running in and out looking, what's that? Why are all these news people over there and then kind of hurrying their kids away?

[00:03:46] It was State House Day, whatever the devil that means. There were lobbyists, there were some sort of organization devoted to doing something in regards to mental health that were throwing some sort of event where they were trying, I guess just smooths with legislatures and stuff.

[00:04:06] And so I didn't do it, but I think if I wanted to, I could have stolen a few donuts. But you were a good fellow. You didn't steal the lobbyist's donuts. And yeah, it was kind of, it was just interesting because we're so used to it being so,

[00:04:20] that it's being such a hyper fixation on Delphi that it's a good reminder that there's other cases, there's other things going on and that while this is a very important case and deserves attention, sometimes I think people can kind of

[00:04:32] take into it some of this bias of like, I care a lot about this, therefore it's the only thing that's going on in the world. We've seen that even like with, why hasn't there been a ruling yet? Or why didn't the prosecutor do this?

[00:04:43] Why hasn't the defense attorney done this? It's like a lot, they have other cases. Everybody does and certainly the Indiana Supreme Court does. And yeah, today was a big day, oral arguments for a writ of mandamus that asks for three things.

[00:05:04] For the original defense attorneys, Andrew Baldwin and Bradley Rosie to be reinstated to the case. For Judge Francis Gull to be recused and removed from the case and for the trials that then happen in 70 days. Right. And so before we get into the gist of the oral arguments,

[00:05:29] just so you're all clear about where we were and what we were seeing, we did get a press pass unlike other earlier court hearings. Yes, which was nice and better organized than anything else that happens. The staff here at the Indiana Supreme Court was incredible.

[00:05:47] They did such a good job. It was very organized, it ran very well, it was streamed. Basically everything you could want in one of these things. There should always be media passes and press passes because it's ridiculous that there isn't.

[00:06:03] It's very, it's frankly felt, it made me realize how unfriendly to the press a lot of the things in the Delphi case have been so far. And I'm not saying the press is the end all be all, but again,

[00:06:15] it doesn't help things to have it be so willy nilly frankly and having people show up at like 5 a.m. and have to wait around when that's not necessary. Yes, this worked very, very smoothly. But we got one press pass.

[00:06:28] So I went in the courtroom and got to hear the oral arguments in person. Anya was just outside the courtroom watching them the way, I'm guessing most of you watch them if you did watch them, she watched them through the live internet feed.

[00:06:45] Yeah, they had a monitor out in the hallway just outside the courtroom. And at first I was in a little box. I mean, it was like, it was like a little like, I guess, phone booth situation. I was kind of hanging out there for a while.

[00:06:57] Then I kind of wanted to be in the mix. So I was at the monitor, but I also had my headphones on so I could listen to it more clearly off my phone. So that's how I listened. So because I mean every outlet got one.

[00:07:11] So I felt that should go to Kevin because he's an attorney and I thought he could have a better read on the situation than I could. I think he did a great job. So I think we made the right call.

[00:07:24] One more thing before we get into the oral arguments, let's talk about some of the people there who were not attorneys. Superintendent of the State Police, Doug Carter was there. He was there. Jerry Holman of the State Police was also there.

[00:07:39] I believe I saw Dave Vito of the State Police as well. Becky Patty, Mike Patty. Yep. Prosecutor Nick McLean. Yep. Andy Baldwin and Brad Rosie. This case revolves around their conduct and how that conduct should be judged.

[00:07:58] They were not arguing the case, but they obviously have a pretty big interest in how it turns out. Absolutely. They both were there. Yeah. And that makes sense. It's important, the outcome of this is important for the case going forward.

[00:08:11] So to see a lot of these different stakeholders, whether it's the old defense team, whether it's the family of the victims, whether it's law enforcement, makes sense to see different people there showing up and seeing what's going on. So the first speaker before the court was Mark Lemith.

[00:08:31] He was arguing for Richard Allen's side. So he's the one that says what happened was improper. Baldwin and Rosie should come back. Judge Gull should be tossed off the case and there should be a trial in 70 days. Yes. And so he's making that case.

[00:08:51] And I think this started during Lemith's session or time, but certainly continued into later sessions. The judges, the justices of the Indiana Supreme Court were pretty feisty with their questions. I think that's not necessarily so surprising to people who have watched oral arguments before,

[00:09:11] but I myself was a little bit like, I mean, if you saw me out in the hallway and my eyes were bugging out and I was writing things and had a very awkward smile on my face, it was because I

[00:09:21] felt uncomfortable because they went hard at these guys. These justices came prepared and that's to be expected. It's obviously a very important job. If they just showed up, hey, whoa, who's Richard Allen? That would not be a good sign. They pushed everybody. They pushed everybody.

[00:09:40] They were pushing people around. They were pushing people's buttons. In other words, they weren't just being harsh to Richard Allen's side. No. They also mean critical to the other side. They were really harsh on everybody and I think that's good because it's an important

[00:09:51] case with an important outcome. So you have to press both sides and really make sure that you're coming to the right conclusions. But they started off that with Lehman. What were some of the moments in Lehman's presentation that stuck out to you as highlights?

[00:10:07] One thing that came up was the question of whether a judge can ever do this. What Lehman seemed to be contending was that the judge didn't do this right, but even if she did it still wouldn't be right because you can't do this.

[00:10:23] And I think the justices wanted him to unpack that more. Are you saying under no circumstances can a judge ever remove somebody? So they were kind of digging into that with him and what does that look like?

[00:10:36] And he's noting, well, it should be like the examples you give would be for conflict of interest, not negligence. Is it difference in what that means? He was a court's judge goal, said she removed the attorneys or suggested that they withdraw because of negligence.

[00:10:56] And the closest thing they could come to that to discuss was conflict of interest. And later on, it's acknowledged that nobody could find a case that's exactly like this. Nobody was able to do that. It's such a bizarre set of circumstances.

[00:11:11] And with one thing that stood out to me, the Woodhouse League got indirectly referenced by Chief Justice Loretta Rush and she indicated that a lot of questionable things have gone on in terms of Allen's defense, original defense attorneys, I think indicating that

[00:11:27] at least for her there's concerns about their conduct. In this case, although we'll get to this, but she also had concerns about what the judge was doing. Another question I thought that came up from the judges during this portion of the arguments

[00:11:41] that was interesting was they said, what if we end up agreeing with judge goal? And we believe that these attorneys are incompetent. Are we still required to put them back on? Is Richard Allen's right to counsel of his choice in your mind?

[00:12:04] Is it so absolute that we are required to put on and let him continue with what we would regard as ineffective counsel? An interesting question to consider. And then there was a follow-up discussion that they returned to frequently,

[00:12:27] which is what if we feel that these attorneys are grossly negligent and are going to mess up and there's a trial Richard Allen is convicted? Would he then be able to file a claim saying, oh it wasn't fair, I had ineffective counsel?

[00:12:48] They really could not get a straight answer from Lehman on that, I felt. And they kept going back to it. And of course in a situation like this an attorney does not want to concede anything.

[00:12:56] You don't want to be like, yeah we'll waive it because then that could be harming your client down the line. I imagine if you're speaking too loosely about that, that's something we talked about with George Hicks the other day.

[00:13:09] You don't want to just say whatever you think the justice is going to hear, that's going to mess up your, that's bad, that's bad lawyering. So he's kind of not answering that and they're pushing him.

[00:13:20] Because they're pointing out very sharply and definitely they're pointing out this doesn't seem fair that a defendant would be allowed to say, oh the judge thinks this person is incompetent.

[00:13:34] I want to keep them anyway and then if he loses the trial still be able to say, well it's not fair because this guy was incompetent. Yeah look at all the examples of him being incompetent and they still had him be

[00:13:44] on it's like because you asked for him. You can't cry over that. You know you can't come crying if you want. You know that's what they're saying. Can he come crying at the end of this?

[00:13:52] Yeah should he have the right to say, oh I need to have these attorneys and then if you have these attorneys and there's a problem for him can he say, well I shouldn't have had these attorneys and they suggested that in a situation like this perhaps. Wave it.

[00:14:08] Yeah make the person, make the defendant wave the right to later on say my counsel was ineffective. It's like a kid who really wants a toy and like throws a fit in the store for it and then they take it home and they don't want the toy anymore.

[00:14:24] It's like you have to commit to this if you really wanted that badly. I think that's what they're getting at. Lehman was really dodging that. I think he came back around in the rebuttal though and indicated that that would be okay.

[00:14:34] So I think he definitely, I think he did close that loop but that was a lot of back and forth about that. And yeah they asked him a lot of tough questions. His approach just stylistically seemed more emotional in terms of kind of like the

[00:14:54] aggrieved tone, these are the lawyers he wants, these are the lawyers that will do a great job with him. They had such an effective strategy. One thing that I thought was very weak that he said amid some strong points that

[00:15:07] I'm going to highlight in a minute was that this whole thing about the 70 day trial thing to me is just such an obvious like they, I mean he didn't ask for that. They had paperwork and ready to go and they never filed it.

[00:15:19] That is to me just a strategy to light a fire under the Supreme Court and this is why we're doing this. We have to go to the Supreme Court because his rights are being currently violated. It makes it more urgent. I think that's just a ruse.

[00:15:30] I think I don't, I think if they come back on I don't think it's going to happen in 70 days unless they're brought back pro bono. Because then they'll essentially have to. I don't think that we're going to see that.

[00:15:41] I just think that's basically something that they, that's theater in my opinion. I mean maybe I'm wrong but I don't really see that. Points that I thought he really did well on were essentially that if you are looking at this

[00:15:55] from the perspective of like how do we determine if Judge Gull did or did not do the right thing? That's very difficult to do because the record is not there. And he was asked a tough question about that. Yes.

[00:16:09] At one point one of the justices said well wouldn't the record have been better if they hadn't agreed to withdraw because Judge Gull had indicated she was prepared to hold a hearing. So are you basically complaining that there isn't a record because in fact

[00:16:26] your guys chose not to make a record? And the answer that Lehman gave was actually he thinks that that hearing had been held that day. It would have been worse. It would have been worse because it would have put Judge Gull's opinion in the public record,

[00:16:41] not only her opinion of counsel but her opinion of counsel's strategy and that could have been very, very harmful. Right. So I thought Lehman for the most part maybe a few stumbles generally was very much

[00:16:54] thinking on his feet coming back with good answers citing for a variety of different things. I thought he did a very good job in my opinion. That's just my opinion. I'm not a lawyer. I'm not a fancy lawyer like some people here but I definitely thought generally

[00:17:10] I mean I can't imagine that anybody does an oral argument and doesn't have a few hiccups verbally or like kind of maybe a moment where they're kind of caught off guard. I think it more matters of how you kind of come back from it and I thought one

[00:17:22] particular standout for Lehman was he did a very good job in the rebuttal in my opinion kind of clarifying some things. And we're talking more about that later. Yeah, let's have more about that later. I'm just saying overall I thought he did a good job.

[00:17:32] Some other points that I thought were are worth repeating. He said that in the chambers meeting between the judge and the and two defense attorneys when she was talking about some of the things they did that she found to

[00:17:53] indicate they were grossly negligent he says nothing she cites actually had anything to do with trial strategy or action and that the leak of the crime scene photos did not really affect or impact trial strategy.

[00:18:14] Can you answer my question about that because I was kind of confused on that point and maybe I'm just not really used to legal language but couldn't it be argued that like a crime scene photo inherently involves trial strategy if they're arguing well elements of the crime

[00:18:30] scene are clearly Odinist in nature and that's their strategy and that is or is not reflected in crime scene photos? That that's certainly so I didn't really get that that just seemed like well that's that's not a big deal.

[00:18:43] Okay, that's certainly an argument you can make you could also make the argument that putting out crime scene photos would potentially inflame a jury right or inflame the public which I think is true.

[00:18:57] Yeah, I guess some things it's like a little bit of hand waving and I kind of I understand that and also I think fundamentally this comes down more to what the law is and what's what's less

[00:19:09] damaging for Richard Allen kind of is at the center of what this is going to come down to so it's not like a major point for me but it's just kind of like I don't I don't know.

[00:19:18] I think when you talk about things that do or don't directly affect trial and trial strategy maybe they're talking about things like not being prepared showing up not making motions you should

[00:19:32] have made not preparing a witness or like having a witness and then not knowing what questions to ask them during cross examination those are things if had they happened would obviously impact the trial and he's saying nothing that actually did happen in this case directly impacts

[00:19:52] the trial. He's not saying it's good that the pictures were leaked he's just saying I don't believe it impacts. I think you can make an argument that they just from the inflammation

[00:20:00] alone it impacts the trial but I think but I think in terms of one thing he also noted was like is negligence a standard here or like what is incompetence is are we even reaching a

[00:20:12] threshold there what and what does that look like and if we don't have a record to really draw from how can we say. So there's again you're probably sensing there's a lot here about not only whether what was what happened the results rose to the level of like

[00:20:31] forcing the removal of the attorneys but also is there even a reason to do that under under certain circumstances and what are those and if it's if we're not seeing those should that ever

[00:20:43] happen so you know one thing I would just encourage listeners is like all this stuff can be confusing it's confusing to us too it's one of those things like nuance is important you can really

[00:20:54] not like the fact that the leak happened and still think that ultimately to be more conservative it would be better for Richard Allen's rights if he's saying he really wants attorneys for them to come back pro bono there's like different nuanced takes or or

[00:21:09] perhaps well I think they should have been removed but it wasn't done the right way so perhaps there needs to be a hearing to determine that not everything too much in this case by mostly

[00:21:19] inflamed by bad actors in new media positions frankly becomes like a stupid sports game of like one team versus another I think if you actually care about justice having kind

[00:21:31] of an open mind and having a bit of a nuance take on these things is probably a better place than to be just agreeing with the people you like constantly I think that's I think so I guess what I'm saying

[00:21:43] is there's there's elements in this where I think everybody should be concerned whether or not you think that the old defense lawyers are doing a good job whatever you think about the leak because if this ends up in a situation where there's you know structural error we'll talk

[00:22:00] about that in a minute it's just a second then that's not good for anybody structural error is basically really really big error it's really bad error and in fact near the end of the first

[00:22:18] portion of his argument Lehman said that if you take away a man's chosen counsel if you take away the attorneys he trusts and relies on that he believes would do the best job of advocating

[00:22:35] his case if you take that away from him and he loses the trial you've committed an error so grave that it basically renders the trial he has with the other attorneys mood and it's basically just a

[00:22:51] practice or a show trial because a later court would inevitably say this error involving taking away the choice of attorneys was so serious we need to have a do-over and Lehman says no one wants

[00:23:05] a do-over let's just get it right the first time that's his argument right the do a do-over it would be devastating for families for the entire system for the prosecutor's office for I mean

[00:23:15] just it's it would just be it was it would be bad there may be an appeal a successful appeal no matter what at this point I don't know but it's what he's saying is like this locks us into that

[00:23:26] essentially in his view and you know the way the justices were questioning him around that indicated to me at least that they took that very seriously they weren't dismissable do we have to have an appeal because they were even asking questions like well would he wave

[00:23:40] appeal around in competent counsel if we brought them back so that tells me that link okay they're trying to they're trying to understand what the options are one thing Loretta Rush kept saying

[00:23:50] was how do we get this case back on track she wants things back on track she wants things proceeding smoothly and so I got the sense that for her this is not just about you know

[00:24:05] this specific issue but it's about what is best for the case in the long term and of course they're also thinking about macro issues like how will our ruling affect our case load and

[00:24:16] other criminal cases and you know just if a similar situation pops up in the future shall we move on to the presentation given by Matt Gutwein who represented Judge Frank Gull with the more things you wanted to say about Mr.

[00:24:35] Lehman's initial presentation I thought that covered it so let's do Gutwein okay as I mentioned Matt Gutwein represented Judge Fran Gull and he started by trying to make three points he said what Judge Fran Gull did was a use of her discretion

[00:25:06] he said if Richard Allen believes that she did something incorrectly he had other remedies he could use other than going to the Supreme Court that he could have filed appeals in lower courts and finally his third point is by removing attorneys Rosie and Baldwin

[00:25:28] Judge Gull did not abuse her discretion yes and a lot of Gutwein's arguments seem to focus on process is this the right way to handle this disagreement it is going to the Supreme Court

[00:25:41] the appropriate venue and he was trying to play to the justices a bit by saying this isn't the way it usually works and if you start letting people file these sorts of motions

[00:25:54] this early on in the game you guys are going to be flooded with emotions have fun with that and I'm really worried about you guys having to work one of the justices was like well thanks

[00:26:03] for your concern about our workload but you know let's just hear it out one thing that we've heard from attorneys is that writ of mandamus that that sort of strategy here is often frowned

[00:26:12] upon that doesn't mean it's not going to work it just means that that kind of speaks the process issues here where he's saying even if like we're not even taking into consideration whether there's

[00:26:22] any merit but this isn't the way they handle things this is like if we if I have a fight with my neighbor we don't go out and do a duel you know we go to we maybe go to small claims court

[00:26:34] and so what he's saying is that this shouldn't even basically be a contender based on those issues alone about Richard Allen's claims not rising to the level and that he didn't go through the approved steps and that there were other options that could have happened at a trial

[00:26:51] court level or with an appeals court that should have been done first before this I also thought a justice pretty early on in Gutwein's argument made a very good point he said that judge goal indicated that she removed the defense councils because they were ineffective

[00:27:17] but is it possible that things are being conflated and that she really removed them because they were in subordinate in other words they were flouting her orders and her point of view there was a gag order that she believed they weren't respecting didn't believe they were respecting

[00:27:34] the protective order around discovery materials so even if we grant what they did was in subordinate does that make them ineffective council and is and I think what what's important with that is

[00:27:47] I think with ineffective council there's perhaps a path to removal or at least in more people's view this path to removal with incompetent council with conflict of interest there's a path to removal

[00:27:59] but is I don't like the way these guys are lawyering maybe I think it's the dumbest thing I've ever seen I think it's an embarrassment but your opinion doesn't really matter there and certainly not to remove somebody so what they're what they're raising there with the justice is

[00:28:17] raising there is like and I think even said I could understand not being happy with them but does that rise to level of and then therefore they should be kicked off because that should be something that's reserved for obviously specific instances where that can be backed up

[00:28:34] with the law and they said judges have very limited rights to tell people who their attorneys can be it's almost like imagine that you have a friend you're very close to and they choose a spouse

[00:28:49] that you think isn't good enough for them that's basically your friend's decision you don't have the right to step in and say no your spouse should be somebody else or if you do you might get

[00:29:00] some blowback right and again it's it's not really one thing I think that's important is I think the outcome of this is not really going to be people are going to read it obviously however

[00:29:11] they want to read it people are going to read it as an indictment of either the old defense attorneys or a vindication of them or an indictment of gull or a vindication of gull

[00:29:18] I don't think the justices really care about the legal egos here I think the justices care about how do we get this case back on track how do we protect Richard Allen's rights and

[00:29:28] safeguard the entire case so what it's going to be is not necessarily if the if the if if gull comes back if gull stays on I don't think this is necessarily them saying wow this was the best

[00:29:43] way to handle this situation great job I also don't think that if the old defense attorneys come back on it's necessarily saying wow this hooteness theory that's artwork love that for you guys

[00:29:54] great job you know and you know that leak yeah no big deal I think I think they're they're being handled they're being handed a a a whirlwind in a bottle and they're just trying to friggin

[00:30:09] open it up without destroying the whole house you know they're they're just trying they're just trying to figure this out and do the least harmful thing at this point because the amount of egg on

[00:30:21] on people's faces in this whole mess is um staggering yeah or like you know this is like a fight in the house of omelets it's it's a friggin it's a mess the only buddy the only person who's

[00:30:33] not directly implicated at this point is nick mcleland and I just think the whole thing has just been and I guess the new defense attorneys in fairness they haven't they've done one thing they did one

[00:30:43] filing but I mean so far just the fact that this is devolved into this like stupid death battle between the the judge and the old defense team and that things have been derailed to this

[00:30:54] point is like a fight in the house of omelet it's like a fight in the house of omelets and on the face I don't know what that means but I'm just I guess I'm just like this is like I mean I mean

[00:31:03] I just my heart goes out to these families watching this I mean this is supposed to be a process where things move along methodically and things are things are not happening that are unprecedented bizarre occurrences that throw everything and then that just happens on a

[00:31:20] weekly basis in del fide seems so I just feel bad for them this isn't really how the process is supposed to be working the fact they were the in the supreme court right now indicates that it

[00:31:29] wasn't working and something happened that was wrong or something happened that was questionable enough to raise concerns and I just it's a mess that's just my opinion but I think it is a mess

[00:31:42] the justice is returned to the point more than once about how gutwein seemed very concerned with the procedural questions of whether or not this was should have been brought to the supreme

[00:31:52] court it should have been brought to other courts first and they're like well we're hearing it now so why don't we just not even worry about the procedural stuff and discuss it on the merits

[00:32:01] he says oh no we should talk about the procedural stuff and I think the way to think about that is attorneys don't want to give up any argument that might help them win and if he can win on

[00:32:14] the procedural argument then why even worry about other areas of argument it'd be like if I told Anja I really really want a new car because I think it would be easier for me to go to the grocery store

[00:32:31] and she says Kevin the grocery stores right across the street you can just walk to the grocery store it's well it also be easier for me to go to trial which is like so it's like

[00:32:41] if the first argument works about the grocery store I'm done but if I need another argument I have one in the bank yeah but it makes sense to try the first one because it's like kind of easy or

[00:32:51] like you know I or if for some reason I have to present my reasons for buying a car to Anja and perhaps her sisters maybe Anja is persuaded by the grocery store argument maybe one of her

[00:33:07] sisters is persuaded by another argument but if they both agree well Kevin should give the new car that's all the counts it's a weird matriarchal family structure in this situation I guess

[00:33:17] the council of sisters yeah it can't council it makes sense in terms of how you you know how I mean a lot of the arguments with Lehman and with Gute wine were like that where you're like okay the

[00:33:30] the general public might see this and be like this guy's being real stubborn but there's a reason and there's a legal reason and there's also a strategic reason of not wanting

[00:33:39] to give ground so it's not necessarily like I mean like you kind of almost are like wait yeah that makes sense with the justice is saying why don't you agree and it's like they're not going to be

[00:33:48] like oh gosh yeah wow I don't know what to say to that you're right polls collar since we have since we actually is I mentioned in the beginning of the episode we watched this

[00:34:00] separately we weren't together we haven't really had a chance to go through all of our notes together there was one moment in Gute wine's argument which struck me is a little bit humorous because

[00:34:13] it's like he called himself just in time uh-oh this was when I'm curious if this jumped out at you as well this was the argument they were making were they were suggesting the justices were

[00:34:25] suggesting you know why wasn't their hearing why wasn't there more notice of this and he was trying to argue back well obviously even though there wasn't a formal notice of a hearing they were aware of

[00:34:40] what was going on they saw the tea leaves they knew what Judge Gull was saying that she was considering taking them off and surely they realized that because they're highly competent lawyers uh in other contexts because of course one of the arguments is that they're not good enough

[00:35:00] attorneys to be able to represent Richard Allen right so they're highly competent for this argument but in other arguments maybe you know yeah they're the bubblers so he caught himself there did you

[00:35:10] did you I picked that up I guess I saw it more of like maybe I don't know trying to be nice to them like and like their experience they're seasoned but they badly bungled this but I think

[00:35:21] I like your interpretation of whoops can't can't compliment him too much um yeah I think for me Gutewein did a good job uh in terms of like being he was he seemed more you know more down to earth

[00:35:35] like more down to earth maybe a little bit more clinical a little bit cooler headed than Lehman who was more passionate that was just different styles there's not really one that's good or bad I think it comes down to personal preference but he was more legal procedural

[00:35:50] things like that you know the other guys going on more about the injustice of the matter um I would say though one one thing I talked about areas where I felt Lehman kind of had a hiccup I felt

[00:36:00] Gutewein big hiccup for me was I think I know what you're gonna say oh you know what I'm gonna say wheat wheat he loves wheat and I don't mean bread what are we talking about here there's a

[00:36:14] court case uh the wheat case which he believes completely supports and validates his position and so he he mentioned it a lot and a couple of times I believe it was Justice Rush who said

[00:36:27] I don't read this case quite the way you do but he still kept on talking I don't want wheat do you have any rye barley quinoa wheat he couldn't he couldn't get off of wheat

[00:36:39] and that made it look like I mean I'm not that made it look like then oh you don't have another case to support you you're just obsessed with wheat so I think that was where he had had a hiccup

[00:36:50] and she also indicated listen I get what you're saying about wheat I don't necessarily agree with your reading on that I think you're reading it too strictly and and but you know and so what do

[00:37:01] you have to say to that I what I have to say that is wheat so there was too much wheat and I think they got a lutein allergy or something I don't know I don't really know what's in wheat I'm not a

[00:37:12] nutritionist ignore me but I think they really were very much there was too much wheat and I think the judge the justices noticed that and they even called it out so that was to me the area where he seemed to kind of show more weakness in that

[00:37:32] another thing that came to my mind is anyone who's been in law school knows the horror of being asked hypothetical questions that could potentially make your position seem weaker and one of the

[00:37:45] justices asked Gutwein a hypo that I frankly think he largely tried to dodge which is what if the situation was reversed what if the prosecution would have prosecuted nick mcleland what if his office was somehow implicated in the leak of crime scene photos would a judge

[00:38:11] have the right then to disqualify those prosecutors right right what yeah you know what's good for the goose is good for the gander if you can disqualify defense attorneys for doing acts shouldn't you also be able to disqualify prosecutors for doing acts I thought he kind of

[00:38:31] ducked he said yeah we don't need a rule doesn't need to be a hardened fast rule yeah I I thought he did too although just bouncing off of that I remember at one point

[00:38:42] Lehman was talking about oh the prosecution has leaked stuff too essentially he was putting out an accusation there and that is not something that we've seen any evidence for and so I was

[00:38:55] surprised that he said that did you did you get what he was trying to do with that like I'm trying to make sure I didn't misunderstand him I don't recall Lehman saying that I remember some justices saying there there have been allegations of them I thought Lehman brought

[00:39:09] maybe the briefs that's I thought Lehman brought that up I thought he was basically saying well like you know it's been done before when when I'm not aware of any leak like this happening from

[00:39:21] the prosecution side or I'll go in for I'm not aware of any I'm not aware of any leak like this happening period in the case and I mean people can conflate things like keg incline you know

[00:39:35] us getting those documents but first of all that was a glitch and second of all that's a different case in this people people sometimes just get on the internet and just say things and I'm like

[00:39:47] is that where they're getting their information from on that I don't know because if there was another leak where like I would think they would be like including that in in in more detail and

[00:39:59] giving a context about what the heck they're talking about I just that baffled me that they included that no I want to go back to the hypo the hypo as you called it and they're in their little

[00:40:10] lawyer slang can you tell our audience about because this always made me laugh you talked about you were the subject of the the law professors attention and kept on getting what did they get

[00:40:23] you to agree with oh yeah yeah I know what audio wants me to talk about here so when you're in law school you start off by by arguing up you read cases you tell the instructor what you

[00:40:39] think it means and then in front of your class the the law professor will ask questions which eventually run the risk of getting you to concede ridiculous points and this is what might potentially happen in oral arguments if you're not wary because

[00:40:57] justices and law professors love doing this sort of thing it was a question the case he was talking with me about again in front of like 50 or 60 people involved self-defense and he got me to suggest that maybe if you were on the dog sled being pursued by

[00:41:27] government you would certainly if you had other heavy things on the sled with you let's say I had like some ricks of gold or something like that that belonged to someone else if I threw them off

[00:41:44] the sled so I could go faster we wouldn't really consider that daft if they belong to someone else because I have a right to protect my life and I believe he got me to say that if you

[00:41:55] had babies on the sled with you it would be self-defense to throw them off the sled which obviously I don't believe it is ridiculous but this is the sort of thing these professors and

[00:42:07] justices can do that's so evil it just sounds like awful and you just go into class and get embarrassed for like an hour or I don't know how long law school classes are oh man I just

[00:42:22] always thought that was funny it sounds like my personal nightmare um yeah just unrelenting questioning on both sides here which again is appropriate but you know some of the questions took on a level of sass and and feisiness but again not surprising it's an important issue

[00:42:40] they're really going to push hard they're pushing both of these men around and uh you know that was very much um I felt like some of the questions against goot wine took on a

[00:42:51] more point of quality though and norm not basically what you had was what we heard from chief justice loretta rush is that she's concerned about structural error she cited that and with and

[00:43:05] indicated a number of times like I get what you're saying but I I'm what I'm having trouble with is x with with goot wine and and so I I felt like you had you certainly had similar statements when it came to leman

[00:43:26] but it seemed like there were some really no I mean what I mean my ears perked up when she started saying structural error and like yeah you know like that's that's like a red alert because

[00:43:37] that's obviously what they don't want and then we would be remiss if we didn't mention that there was another attorney arguing today this was angela sanchez who was a representative of uh indiana's attorney general todd rickheda she argued from the same side as math matt goot wine

[00:43:58] so it was I think essentially to let the justices know what side the state of indiana was taking all this so miss sanchez was kind of representing the state and representing todd rickheda's office

[00:44:13] they didn't really go as far as goot wine in my opinion but they were just sort of there to say we generally agree with him maybe we have some concerns but we generally agree with him that

[00:44:21] was kind of what they were speaking to you but she didn't really have a lot of time in there yes and so when uh mr leman spoke initially each I guess 30 minutes he spoke for I believe

[00:44:34] 23 minutes and saved seven minutes for a rebuttal and then he came back at the end of the hour to give his seven minute rebuttal which was very powerful very well done yeah he did a really good

[00:44:49] job with our rebuttal he seemed less shaky not that he'd been shaky in the first part but he was you know there was points where we're stumbling more I felt like the rebuttal was very much his

[00:44:57] opportunity to kind of really bring it back reiterate his points in a forceful way maybe clarify some things for the justices that they'd been asking and I thought he did a very good job there

[00:45:08] really some uh the other attorneys said oh we're not really sure what Richard Allen wants and all of this and in his rebuttal he said no we know exactly what Richard Allen yeah he's written

[00:45:19] this letters about it and he was very very forceful and persuasive I think it was very persuasive the the skeptic in me is is like well if if I mean but this is but this actually to

[00:45:29] me is actually a point for the defense the skeptic in me is like well does he really know I mean he got Rosie's side of the story how much did he really tell him or did he shade it in a way like has he had

[00:45:38] has he had the clarity in the time to really process and kind of get some different opinions but the way you deal with that is you have a hearing where you can hear all that so

[00:45:48] I think that still ends up being somewhat of a point for the defense because it's like if he's not really sure and he's getting kind of sold a bill of goods by Baldwin and Rosie then the way to

[00:45:57] get around that is to like have things more on the record you know and it's not to be like oh well just hear some new guys so I mean that's just my opinion during the rebuttal he was asked by a justice

[00:46:11] uh a pretty interesting question they said are you do you basically just want Baldwin and Rosie to be reinstated does it matter to you if they're reinstated as public defenders or if they're reinstated pro bono and what that means is if they're reinstated as public defenders that means

[00:46:33] the state would pay their fees and if they're reinstated as pro bono it means they would work for free and they said does it matter to you as long as they're reinstated does it matter if

[00:46:45] it's pro bono or public defender and uh Lehman said well pro bono would be more of a half measure and after all this to put them back on the case and make them work for free would almost seem like

[00:46:58] a punishment. Well it would be a pretty punishing punishing ordeal I imagine because it would be opportunity costs along with not getting paid so um he also made the point you know Gutewine

[00:47:14] talked a lot about wheat uh Lehman said wheat isn't even about this wheat is about conflict of interest it's not about ineffective counsel. One thing that struck me about the pro bono thing though is that one thing we've consistently heard from attorneys who are both former prosecutors

[00:47:30] and former defense attorneys who have nothing to do with the case but I just you know know about this stuff is that it is much easier to remove people for being you know public defenders. A sticking

[00:47:41] point is pro bono a lot of people who we talked to and say hey what do you think of this situation that's going on in Delphi they'd be like ooh well I could kind of see I could see them kicking

[00:47:49] I could see kicking them off as public defenders but I don't know if you can do that pro bono and that's that's something that it just interested me that was that was one of the last questions

[00:48:00] that the justice is asked about because again that's been a sticking point that you can get rid of them as public defenders but can you get rid of them if they're his counsel of choice

[00:48:12] and he's and they're doing it for free and I mean that's what he wants right because then it's they're retained I mean they're not retained in the sense that they're getting paid but they're

[00:48:26] retained otherwise can we talk about the different options of what could happen quickly and then talk about what we think is going to happen or at least what we you know think may happen

[00:48:37] I'd love to hear you predict what you think could happen I'm not going to do that oh why you're no fun there's a variety of options I'm not going to talk what I think is most likely

[00:48:48] I'm going to talk about what just one of the options and perhaps what I'm getting the sense would is this is the is the consensus from legal minds that we consult with okay

[00:49:03] for the for the sake of this discussion let's leave out the question of whether or not they are going to grant a speedy trial yeah because that's just that's a side that's the important things

[00:49:17] judge go defense attorneys go come back okay so the one option is the judge decides to bring back the defense attorneys it has them be public defenders being paid for by the state and kicks

[00:49:34] judge go off they could have the defense attorneys come back pro bono meaning no one pays them and judge goal is kicked off they could keep the defense attorneys off the case and keep judge

[00:49:47] goal on the case they could keep judge goal on the case and keep the defense attorneys on the case and say what you need to do now is bring the defense attorneys back and have a really in depth

[00:50:01] hearing on all this and create a record yeah could they just wildcard it and like they're they're looking at everything from a thousand foot view so that just us tiny humans on the bottom

[00:50:13] have emotions but they don't and like make up with each other you're you're all back on they they could but I think if they did it would be a bad idea I think there would need to be

[00:50:26] some kind of of hearing to establish whether or not these men were ineffective counsel right is that basically all the options because they didn't really get into the merits of whether or not rosie and bald when actually were ineffective basically they focused more on

[00:50:48] the process was it handled correctly and even if we assume they were ineffective or negligent does it rise to the level they can be taken off even before a try that's what I said like when

[00:50:59] this is less a referendum on what rosie and bald one did it's more of a referendum on what judge goal did but but generally it's ultimately what the law says and and what they feel is going

[00:51:10] to be the most destructive or least destructive path forward for rich dallas writes ultimately it's gonna rise and fall with that so I that's why I encourage people don't see it as like necessarily like oh my god they think these guys are greater they think she

[00:51:23] sucks or they think she's great and they suck it's really it's more complicated than that it's more cerebral and I've said this before and I apologize for repeating myself but we also need to keep in

[00:51:36] mind that all of us care really deeply about the delphi case and so we're looking at this as what is best for this case and you may have the feeling that maybe they should come back

[00:51:52] and that's best for the case or you may have the feeling that they need to go and that would be what's best for the case but what the justices need to consider is how would this affect other cases

[00:52:04] going forward because if they remove these attorneys and keep them removed that would be a precedent which would allow other judges to remove attorneys for perhaps other reasons it's like when you're dealing with a child and you give the child a little bit of a concession

[00:52:24] and they use that to prior bigger and bigger concession out of you and if you establish a precedent that well yeah you can remove lawyers for reasons other than conflict of interest maybe it's going to get easier and easier to remove lawyers yeah on the other hand

[00:52:39] maybe it'll be easy to remove judges yes on the other hand you could argue that maybe this would affect other cases because it would make it more difficult to remove lawyers and that may embolden bad behavior so they have to look at how is this going to affect

[00:52:54] every case in Indiana why you and I and by you I mean all of us listening we tend to just look at how is it going to affect alpha based on what we've heard from other legal folks who are

[00:53:08] not affiliated with the case in any way we just check in with and get their thoughts on stuff I think that the old defense team is going to successfully come back I that's the thing a lot

[00:53:18] of people have said that they felt that that is them ultimately the most conservative approach because it's not about saying okay the leak is okay or everything they did did is great it's about

[00:53:28] what is what will be the least likely to end in a complete mess of an appeal down the road and that's going to be something that the justices might care about because they're again they're looking at it in more of a forward thinking case-centric way than about like

[00:53:43] any one side so I thought that that analysis that was provided to us by multiple different attorneys was sound and makes sense to me as a lay person I'm not saying that they're right

[00:53:55] but I think that at the end of the day that it's gone this far that they've heard the oral arguments the questions they asked I can see that happening do I think they'll come back

[00:54:04] as public defenders possibly do I think they absolutely will the fact that they were asking about the pro bono thing at the end at least leaves the possibility in my mind that they'll be back

[00:54:16] but maybe not on the terms that they see best but that that remains to be seen ultimately that will depend on whether the the attorney the the justices think it was okay for them to

[00:54:26] be removed in the first place or if the problem was that they were moved as pro bono I guess and if we that's where we close the book on oral arguments today there was

[00:54:39] incredibly yet another development in the Richard Allen case today and that is the fact that there were some potential amended charges filed previously Richard Allen had been charged with two counts of essentially felony murder this of course is causing a death during the commission of a felony

[00:55:03] now felony murder is not written out that way it's not called felony murder in Indiana it's all murder it's just a different you know it's a different subsection of murder here just to

[00:55:12] be clear but it's essentially meets the definition of felony murder as it's known in other states so now uh proscequitimate cleland wants to amend the charges to the two existing charges of felony murder he wants to add two additional charges of murder meaning that Richard Allen intentionally

[00:55:34] killed the two girls and then he also wants to add two charges of kidnapping kidnapping was the underlying felony we refer to in the original charges a lot of people over time

[00:55:46] including us have wondered why aren't there more charges why was it just felony murder and so now we're because you know it's like is that all they can prove but this to me indicates that they feel

[00:55:57] strongly that they can prove all of it the murder and the kidnapping separately so it's a show of force on the cleland's part in my opinion I don't necessarily think it means they have new

[00:56:11] bombshell evidence but at the very least it means that conversations are happening in the background where they feel like we can go for this now so it's it's interesting not really getting new information on the case but we're at least seeing where the prosecutor seems to think that

[00:56:27] they because before all they have to do is prove that he kidnapped them from the bridge what happens after that doesn't really matter all you have to do is prove that

[00:56:38] he kidnapped them as a result they died but now they're saying no we can we can prove that he murdered them so it's an interesting development indeed there was also a pre-trial hearing in the

[00:56:51] ongoing case of Mitch Westerman today this is the man who was charged with making copies of crime scene photos he discovered in Andy Baldwin's conference room and then sharing them with others who subsequently shared them with still others and others and others we were not able to

[00:57:12] attend that hearing because it was taking place just before the supreme court hearing and the travel distance wasn't didn't work out for us to attend both nope but we'll keep you apprised and all these on that case and all the different associated cases and topics with this

[00:57:30] going forward thank you so much for listening we really appreciate it and hopefully this discussion added some insight context maybe made you think some different things about the case in its recent development so we hope you enjoyed it thank you so much thanks so much for

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