Fuld transskription af Mega Edition: The Supreme Court And It's Decision About Richard Allen's Lawyers (10/11/26)

a short order, with this opinion to follow. Here, 34 00:01:58.159 --> 00:02:01.299 we explain our reasons for those three decisions. In short, 35 00:02:01.359 --> 00:02:05.480 we reinstated Baldwin and Rossi as Allen's court-appointed counsel because 36 00:02:05.519 --> 00:02:08.740 the trial court did not find that their disqualification was 37 00:02:08.819 --> 00:02:12.219 a necessary last resort after weighing the prejudice to Allen. 38 00:02:12.909 --> 00:02:16.330 We denied Allen's request for trial within 70 days because 39 00:02:16.370 --> 00:02:18.610 he did not make that request in the trial court. 40 00:02:19.090 --> 00:02:21.750 And we denied Allen's request to replace a special judge 41 00:02:22.069 --> 00:02:25.610 because he did not overcome our presumption of impartiality by 42 00:02:25.750 --> 00:02:29.530 identifying facts showing clearly that the special judge is biased 43 00:02:29.770 --> 00:02:34.590 or prejudiced. Facts and Procedural History In February 2017, two 44 00:02:34.889 --> 00:02:40.449 teenage girls, Abigail Williams and Liberty German, were killed in Delphi, Indiana. 45 00:02:41.120 --> 00:02:45.039 Five years later, in October 2022, Allen was arrested and 46 00:02:45.080 --> 00:02:48.840 charged with murdering them. The trial court judge transferred Allen 47 00:02:49.060 --> 00:02:52.120 to the Department of Corrections for his safety. While he 48 00:02:52.159 --> 00:02:56.360 awaits trial and then recused himself. A special judge was 49 00:02:56.379 --> 00:02:59.629 then appointed, and because Allen couldn't afford an attorney, the 50 00:02:59.650 --> 00:03:03.229 judge appointed Baldwin and Rossi to represent him at public's expense. 51 00:03:03.810 --> 00:03:06.550 But a year later, the special judge lost faith in 52 00:03:06.629 --> 00:03:10.219 their ability to assist Allen with his defense effectively, so 53 00:03:10.250 --> 00:03:15.419 she ultimately disqualified them as counsel. A leak of confidential 54 00:03:15.460 --> 00:03:20.840 case materials, including crime scene photos, triggered the disqualification. Baldwin 55 00:03:20.860 --> 00:03:24.879 and Rossi represent that in August 2023, one of Baldwin's 56 00:03:24.919 --> 00:03:29.259 friends and former employees, Mitchell Westerman, visited Baldwin's office secretly, 57 00:03:29.699 --> 00:03:34.039 copied discovery materials, including crime scene photos, and distributed them 58 00:03:34.080 --> 00:03:37.800 to others. After discovering the leak, Baldwin and Rossi notified 59 00:03:37.819 --> 00:03:41.650 the special judge and the prosecutor on October 6th. They 60 00:03:41.710 --> 00:03:45.189 also explained that after Westerman told Baldwin on October 9th 61 00:03:45.469 --> 00:03:48.310 what he had done, Baldwin and Rossi relayed the information 62 00:03:48.330 --> 00:03:51.810 to the prosecutor the next day. Two days later, The 63 00:03:51.849 --> 00:03:55.860 prosecutor emailed defense counsel and the special judge informing them 64 00:03:55.919 --> 00:03:59.400 that the individual to whom Westerman allegedly provided the materials 65 00:03:59.759 --> 00:04:03.460 committed suicide hours after refusing to answer questions from an 66 00:04:03.560 --> 00:04:08.050 Indiana State Police detective investigating the leak. The special judge 67 00:04:08.370 --> 00:04:11.389 responded to the email by expressing that she was deeply 68 00:04:11.430 --> 00:04:15.830 concerned that Mr. Allen's defense is being compromised by all 69 00:04:15.870 --> 00:04:20.839 these recent events. R Volume 1 at 223 She then 70 00:04:20.860 --> 00:04:24.009 directed defense counsel to stop working on the case until 71 00:04:24.050 --> 00:04:27.170 the judge could discuss the recent developments with the parties 72 00:04:27.430 --> 00:04:30.750 during an October 19th hearing. In the meantime, Allen wrote 73 00:04:30.769 --> 00:04:33.649 a letter to the special judge informing her that he 74 00:04:33.689 --> 00:04:36.209 had discussed the leak with Rozzi and the impact it 75 00:04:36.240 --> 00:04:39.220 could have on his defense, but he wanted Baldwin and 76 00:04:39.279 --> 00:04:43.399 Rozzi to continue representing him. Counsel for both sides met 77 00:04:43.420 --> 00:04:46.240 with the special judge in her chambers just before the 78 00:04:46.319 --> 00:04:50.310 October 19th hearing to discuss the court's expectations for the hearing. 79 00:04:50.930 --> 00:04:54.449 During that meeting, the special judge informed Baldwin and Rossi 80 00:04:54.730 --> 00:04:58.889 that they had demonstrated gross negligence and incompetence and conveyed 81 00:04:59.230 --> 00:05:03.529 she had grave concerns about their representation of Allen. Supplemental 82 00:05:03.850 --> 00:05:07.230 report at 15. In support, the special judge said the 83 00:05:07.269 --> 00:05:12.389 attorneys failed to safeguard confidential case materials, including crime scene photos, 84 00:05:12.930 --> 00:05:17.430 emailed confidential work product to an unauthorized person and failed 85 00:05:17.879 --> 00:05:22.079 to timely report the leak. made extrajudicial statements about the case, 86 00:05:22.439 --> 00:05:26.709 and included inaccurate statements in various pleadings. Based on these concerns, 87 00:05:27.110 --> 00:05:30.649 the court informed counsel that she had decided to disqualify 88 00:05:30.730 --> 00:05:33.730 Baldwin and Rossi, but she offered to let them save 89 00:05:33.769 --> 00:05:36.360 face by withdrawing from the case so she wouldn't have 90 00:05:36.389 --> 00:05:38.660 to go into a public hearing a few minutes later 91 00:05:39.000 --> 00:05:41.899 and read a statement that she had prepared explaining why 92 00:05:42.000 --> 00:05:46.389 she believed counsel was grossly negligent and ineffective. Allen wasn't 93 00:05:46.430 --> 00:05:49.889 present for this discussion, but after briefly speaking with Baldwin 94 00:05:49.930 --> 00:05:52.350 and Rossi, he relayed through them his objection to the 95

00:05:52.389 --> 00:05:57.209 court's disqualification. Since the court presented Baldwin and Rossi what 96 00:05:57.250 --> 00:06:00.370 seemed like a Hobson's choice, withdraw or be disqualified in 97 00:06:00.430 --> 00:06:04.269 a publicly humiliating fashion, they conveyed they would withdraw over 98 00:06:04.360 --> 00:06:08.699 Allen's objection to the court's disqualification decision. The special judge 99 00:06:08.759 --> 00:06:12.339 accepted their withdrawals and conducted a brief public hearing without 100 00:06:12.379 --> 00:06:16.139 them where she stated merely that there was an unexpected 101 00:06:16.199 --> 00:06:19.839 turn of events and defense counsel had withdrawn from the case. 102 00:06:21.300 --> 00:06:25.189 Report Volume 2 at 6. But after having a few 103 00:06:25.230 --> 00:06:28.110 days to reconsider and discuss it further with Allen, defense 104 00:06:28.129 --> 00:06:31.550 counsel changed their minds and neither Baldwin nor Rozzi ever 105 00:06:31.610 --> 00:06:35.029 filed a written motion to withdraw as required by Trial 106 00:06:35.069 --> 00:06:39.180 Rule 3.1H. Instead, Rozzi refused. filed a verified notice of 107 00:06:39.220 --> 00:06:43.259 continuing representation, notifying the court that he, in fact, would 108 00:06:43.300 --> 00:06:46.759 not be moving to withdraw and would continue representing Allen, 109 00:06:47.100 --> 00:06:49.779 and he filed a motion to disqualify on Allen's behalf, 110 00:06:50.259 --> 00:06:53.920 arguing the special judge was biased and should recuse herself. 111 00:06:54.500 --> 00:06:57.720 The trial court struck both filings and ordered the clerk 112 00:06:57.759 --> 00:07:00.139 to remove them from the record because Rozzi was no 113 00:07:00.189 --> 00:07:03.670 longer counsel of record. She also appointed two new public 114 00:07:03.689 --> 00:07:07.439 defenders to represent Allen. Baldwin then filed a motion to 115 00:07:07.480 --> 00:07:10.879 reconsider after informing the court that he would not file 116 00:07:10.939 --> 00:07:13.699 a written motion to withdraw. He did not consider his 117 00:07:13.800 --> 00:07:17.959 oral withdrawal effective and he would continue representing Allen. And 118 00:07:18.000 --> 00:07:21.769 Baldwin and Rossi both entered new appearances as Allen's privately 119 00:07:21.829 --> 00:07:25.930 retained pro bono counsel. But after a hearing on October 31st, 120 00:07:26.250 --> 00:07:29.029 the court entered an order stating that the special judge 121 00:07:29.329 --> 00:07:33.329 previously found gross negligence by Baldwin and Rossi in their 122 00:07:33.370 --> 00:07:37.000 representation of the defendant. And nothing has changed in the 123 00:07:37.060 --> 00:07:40.620 intervening 12 days that removes the court's grave concerns about 124 00:07:40.639 --> 00:07:45.240 their representation. Report Volume 1 at 38. So over their 125 00:07:45.279 --> 00:07:49.269 strenuous objections, the court disqualified them from representing the

defendant 126 00:07:49.610 --> 00:07:53.410 and affirmed the appointment of new public defenders. The court 127 00:07:53.509 --> 00:07:56.110 also continued the January 8, 2024 trial date to October 15, 2024. 128 00:07:56.110 --> 00:07:58.089 On November 6, 2023, Allen petitioned this court for a 129 00:07:58.089 --> 00:08:32.259 writ of mandamus The Discussion As we explained below, we 130 00:08:32.320 --> 00:08:34.419 agree with Allen that he is entitled to have his 131 00:08:34.500 --> 00:08:38.559 original court-appointed attorneys reinstated. But we agree with the state 132 00:08:39.000 --> 00:08:41.580 and the special judge that Allen is not entitled to 133 00:08:41.659 --> 00:08:44.899 a writ ordering a trial to begin within 70 days 134 00:08:45.250 --> 00:08:49.529 or replacing the special judge. 1. Allen's request to reinstate 135 00:08:49.789 --> 00:08:55.879 his original court-appointed counsel presents extraordinary circumstances warranting relief. Allen 136 00:08:55.919 --> 00:08:59.419 argues the trial court exceeded its authority by disqualifying his 137 00:08:59.500 --> 00:09:05.350 original court-appointed counsel because disqualification was unwarranted and significantly prejudices 138 00:09:05.730 --> 00:09:08.909 both his defense and his opportunity for a speedy trial. 139 00:09:09.529 --> 00:09:12.509 The state and the special judge respond that this original 140 00:09:12.629 --> 00:09:16.769 action is not the proper procedural vehicle to evaluate Allen's claim, 141 00:09:17.169 --> 00:09:19.620 and even if it was, the special judge was within 142 00:09:19.649 --> 00:09:23.580 her authority to disqualify counsel because she was rightly concerned 143 00:09:23.600 --> 00:09:26.909 that that they were not fulfilling Allen's constitutional right to 144 00:09:26.970 --> 00:09:30.980 effective legal assistance. We agree with Allen. Our court has 145 00:09:31.039 --> 00:09:36.100 repeatedly reviewed attorney disqualification issues through the original actions, and 146 00:09:36.139 --> 00:09:39.519 we do so here because Allen's petition presents the sort 147 00:09:39.539 --> 00:09:43.120 of extraordinary circumstances for which there is not adequate appellate 148 00:09:43.179 --> 00:09:47.870 remedy that our original action rules require. A. We may 149 00:09:47.929 --> 00:09:51.970 review an attorney disqualification decision through an original action. This 150 00:09:52.029 --> 00:09:56.539 court has exclusive original jurisdiction to supervise the exercise of 151 00:09:56.600 --> 00:10:02.600 jurisdiction by all Indiana courts. Indiana's Constitution. Article 7, Section 4. 152 00:10:02.600 --> 00:10:07.009 Indiana Original Action Rule 1A. We exercise our supervisory authority 153 00:10:07.250 --> 00:10:11.409 through original actions for writs of mandamus or prohibition. Original 154 00:10:11.529 --> 00:10:16.120 Act R1B. Each writ is an extraordinary remedy, equitable in nature, 155 00:10:16.440 --> 00:10:26.490 and viewed with disfavor. State Example Relativity Commons v. Para, 987, NE2D, 1074, 1076, Indiana, 2013. 156 00:10:26.490 --> 00:10:30.210 A writ will not be issued unless the realtor can 157 00:10:30.250 --> 00:10:33.509 show a clear and obvious emergency where the failure of 158 00:10:33.549 --> 00:10:36.980 this court to act will result in substantial injustice. It 159 00:10:37.000 --> 00:10:39.860 will also be issued only when and where the trial 160 00:10:39.899 --> 00:10:43.139 court has an absolute duty to act or refrain from acting, 161 00:10:43.940 --> 00:10:47.059 and original actions may not be used as substitutes for appeal. 162 00:10:47.519 --> 00:10:51.100 One issue our court has repeatedly reviewed through original actions 163 00:10:51.379 --> 00:10:55.730 is whether to disqualify counsel. Example, Kurtz v. Delaware Circuit 164 00:10:55.769 --> 00:11:04.809 Court No. 5, M16, N.E. 2D, 658-661-62, Indianapolis, 2009. issuing 165 00:11:04.870 --> 00:11:08.490 a writ to disqualify a special prosecutor because the prosecutor's 166 00:11:08.529 --> 00:11:12.100 relationship with an attorney against whom the defendant had recently 167 00:11:12.129 --> 00:11:17.279 testified created an appearance of impropriety. State Example Jones v. Knox, 168 00:11:17.679 --> 00:11:20.460 Superior Court at 1-728-NE2D-133-134, Indiana 2000, declining to issue a 169 00:11:20.480 --> 00:11:30.610 writ to reinstate court-appointed counsel The trial court disqualified for 170 00:11:30.629 --> 00:11:34.429 their insulting and absolutely improper comments because the attorneys had 171 00:11:34.470 --> 00:11:38.220 affirmatively requested that they be allowed to withdraw. If the 172 00:11:38.269 --> 00:11:41.840 trial court denied their request for a continuance, quotations omitted, 173 00:11:42.960 --> 00:11:49.059 Myers v. Tippecanoe County, 432 N.E. 2D, 1377-1379, Indiana, 1982. 174 00:11:53.269 --> 00:11:55.970 declining to issue a writ requiring the trial court to 175 00:11:56.009 --> 00:11:59.980 withdraw its order, disqualifying the elected prosecutor, where the elected 176 00:12:00.019 --> 00:12:02.919 prosecutor was the defense attorney for the accused in two 177 00:12:02.980 --> 00:12:08.620 prior cases. State Example, Sendick v. Marion County, Superior Court, 178 00:12:08.879 --> 00:12:10.740 Room No. 2, 268 Indiana, 36, 373 NE2D 145, 147-48, Indiana, 1978, 179 00:12:10.740 --> 00:12:22.129 issuing a writ to remove private counsel from retained for 180 00:12:22.169 --> 00:12:25.629 a state agency in a violation of statute. All right, folks, 181 00:12:25.649 --> 00:12:27.629 we're going to wrap up that first episode right here. 182 00:12:27.950 --> 00:12:30.549 And in the next episode, talking about this topic, we're 183 00:12:30.580 --> 00:12:33.000 going to pick up where we left off. All of 184 00:12:33.019 --> 00:12:35.620 the information that goes with this episode can be found 185 00:12:36.019 --> 00:12:39.200 in the description box. What's up, everyone, and

welcome back 186 00:12:39.220 --> 00:12:42.240 to the program. In this episode, we're going to pick 187 00:12:42.299 --> 00:12:45.639 right back up where we left off with the Indiana 188 00:12:45.720 --> 00:12:50.840 Supreme Court and their opinion on removing Judge Gall and 189 00:12:50.860 --> 00:12:53.840 the other issues that have been brought up down in Delphi. 190 00:12:55.259 --> 00:12:59.059 As in those prior cases, reviewing the trial court's disqualification 191 00:12:59.080 --> 00:13:02.990 decision here is appropriate through an original action. That is 192 00:13:03.029 --> 00:13:07.009 because this case presents extraordinary circumstances where denying a writ 193 00:13:07.230 --> 00:13:11.190 will result in a substantial injustice, and Allen's petition is 194 00:13:11.250 --> 00:13:15.240 not a substitute for an adequate appellate remedy. We reach 195 00:13:15.279 --> 00:13:19.970 that conclusion for a few related reasons. For starters, disqualifying 196 00:13:20.049 --> 00:13:23.230 Allen's counsel delayed his trial by at least nine months, 197 00:13:23.769 --> 00:13:27.460 and the trial court has already concluded that Allen's pretrial 198 00:13:27.500 --> 00:13:32.580 confinement presents extraordinary challenges. Normally, criminal defendants who must be 199 00:13:32.620 --> 00:13:35.860 confined while they await trial are detained in the county jail, 200 00:13:36.179 --> 00:13:39.159 while other defendants who are awaiting trial or who have 201 00:13:39.259 --> 00:13:43.220 already been convicted and received shorter sentences. But here, for 202 00:13:43.299 --> 00:13:46.940 Allen's safety, the original judge transferred Allen to the Department 203 00:13:46.980 --> 00:13:51.259 of Corrections, which runs our state prisons, facilities that generally 204 00:13:51.299 --> 00:13:55.470 detain inmates only after they are convicted and serving longer 205 00:13:55.500 --> 00:13:59.909 sentences for more serious crimes. The special judge later reconsidered 206 00:14:00.250 --> 00:14:03.470 the original judge's transfer order, and she too found it 207 00:14:03.549 --> 00:14:07.779 reasonable and necessary to ensure the defendant's safety and to 208 00:14:07.820 --> 00:14:14.230 prevent serious bodily injury. Report Volume 1 at 26. Allen 209 00:14:14.269 --> 00:14:17.610 is being held at the Wabash Valley Correctional Facility, which 210 00:14:17.649 --> 00:14:20.750 is hours from Carroll County, where the charges were filed, 211 00:14:21.350 --> 00:14:24.889 and Allen County, where the special judge serves. Allen's original 212 00:14:24.950 --> 00:14:29.169 public defenders and his substitute public defenders have all challenged 213 00:14:29.210 --> 00:14:33.190 the conditions of his pretrial confinement, including as they relate 214 00:14:33.230 --> 00:14:36.009 to preparing his defense. We are in no position to 215 00:14:36.070 --> 00:14:39.470 evaluate the claims in those motions, and the special judge 216 00:14:39.490 --> 00:14:42.129 has concluded that at least some of Baldwin and Rossi's 217 00:14:42.169 --> 00:14:46.730 claims about the confinement conditions are wrong. But even assuming 218 00:14:46.889 --> 00:14:50.750 every aspect of Allen's pretrial confinement is proper, and again, 219 00:14:50.840 --> 00:14:53.440 we're in opposition to say one way or another at 220 00:14:53.480 --> 00:14:56.600 this point, extending it for at least nine months still 221 00:14:56.639 --> 00:15:01.440 presents extraordinary challenges for which there is no adequate appellate remedy. 222 00:15:02.320 --> 00:15:05.440 What's more, as we explain in greater detail below, we've 223 00:15:05.480 --> 00:15:09.000 concluded the trial court lacked the authority to remove counsel 224 00:15:09.179 --> 00:15:13.750 without one, considering other less drastic options, and two, weighing 225 00:15:13.789 --> 00:15:17.210 the prejudice to Allen. So not only would Allen's trial 226 00:15:17.250 --> 00:15:19.929 be delayed for at least many months if his original 227 00:15:20.149 --> 00:15:24.220 attorneys were not reinstated, if Allen were convicted, correcting the 228 00:15:24.259 --> 00:15:28.519 disqualification by vacating his conviction and ordering a second trial 229 00:15:28.759 --> 00:15:32.080 would produce years of further delay and an enormous waste 230 00:15:32.120 --> 00:15:36.600 of time and resources. That would not serve anyone's interests, 231 00:15:36.879 --> 00:15:40.379 not Allen's, the state's, the victim's family's, the courts, nor 232 00:15:40.419 --> 00:15:44.559 the publics. Of course, these concerns can generally be resolved 233 00:15:44.580 --> 00:15:52.519 through discretionary interlocutory appeals. See Indiana Appellate Rule 14b1c, including 234 00:15:52.570 --> 00:15:56.610 a basis for a discretionary interlocutory appeal that the appellant 235 00:15:56.629 --> 00:16:01.009 will suffer substantial expense, damage, or injury if the order 236 00:16:01.090 --> 00:16:04.769 is erroneous and the determination of the error is withheld 237 00:16:04.830 --> 00:16:08.580 until after judgment, or the order involves a substantial question 238 00:16:08.600 --> 00:16:12.320 of law the early determination of which will promote a 239 00:16:12.379 --> 00:16:16.240 more orderly disposition of the case. And both the state 240 00:16:16.340 --> 00:16:19.639 and the special judge argue that is the procedural route 241 00:16:19.860 --> 00:16:23.899 Allen should have pursued instead. But Allen effectively couldn't, which 242 00:16:23.960 --> 00:16:27.490 is another reason this matter is extraordinary. On top of 243 00:16:27.519 --> 00:16:32.009 disqualifying counsel, the special judge stuck their later filings because 244 00:16:32.169 --> 00:16:35.200 they were no longer counsel of record. without the ability 245 00:16:35.240 --> 00:16:38.539 to file a motion requesting the special judge to certify 246 00:16:38.580 --> 00:16:43.210 her order for interlocutory review, Allen's

attorneys couldn't pursue that avenue. 247 00:16:43.710 --> 00:16:46.710 To that point, the state and the special judge respond 248 00:16:46.750 --> 00:16:50.370 that Allen should have had either his new public defenders 249 00:16:50.529 --> 00:16:53.529 or the appellate attorneys he retained for his original action 250 00:16:53.909 --> 00:16:58.629 pursue an interlocutory appeal instead. But it isn't clear how 251 00:16:58.789 --> 00:17:02.659 either option was feasible. The newly appointed trial counsel had 252 00:17:02.720 --> 00:17:06.000 nothing to do with the disqualification proceedings and Allen wasn't 253 00:17:06.039 --> 00:17:08.720 present for them, so it is not obvious how Allen 254 00:17:09.059 --> 00:17:12.180 could work with his new trial attorneys to pursue an 255 00:17:12.279 --> 00:17:16.630 interlocutory appeal in the trial court. Maybe Allen's privately retained 256 00:17:16.710 --> 00:17:19.809 appellate attorneys could have done so, but it is unclear 257 00:17:19.970 --> 00:17:22.809 whether the trial judge would permit them to represent Allen 258 00:17:23.109 --> 00:17:27.019 in the trial court along with the new substitute court-appointed counsel. 259 00:17:27.569 --> 00:17:30.130 and it is unclear how it would work if substitute 260 00:17:30.190 --> 00:17:34.750 court-appointed trial counsel disagreed with a privately retained appellate counsel 261 00:17:35.089 --> 00:17:39.089 about whether to seek certification in the trial court. We 262 00:17:39.130 --> 00:17:42.880 simply don't expect Allen to untie that procedural knot, and 263 00:17:42.910 --> 00:17:45.519 he can cut through it with his original action instead. 264 00:17:46.339 --> 00:17:50.579 Our prior precedents pointed appellate counsel to the original action tool, 265 00:17:50.960 --> 00:17:53.440 and we decline to retire that tool for these sorts 266 00:17:53.480 --> 00:17:57.539 of situations now. Having concluded that Allen's petition is properly 267 00:17:57.579 --> 00:18:01.619 before us, we turn to its merits. B. Allen is 268 00:18:01.680 --> 00:18:06.829 entitled to the reinstatement of his original court-appointed counsel. 1. 269 00:18:06.829 --> 00:18:10.250 Court-appointed counsel may be disqualified only as a last resort 270 00:18:10.750 --> 00:18:14.410 after considering the prejudice of the defendant. The Sixth Amendment 271 00:18:14.450 --> 00:18:18.109 to the U.S. Constitution, applicable to Indiana through the Fourteenth 272 00:18:18.150 --> 00:18:22.740 Amendment's Due Process Clause, Gideon v. Wainwright, 372 U.S. 335, 273 00:18:22.740 --> 00:18:33.170 339 through 345, 83, Supreme Court 792, L.ED.2D 799, 1963, 274 00:18:33.170 --> 00:18:37.769 and Article 1, Section 13 of our Indiana Constitution guarantee 275 00:18:37.809 --> 00:18:40.390 criminal defendants the right to have an attorney assist them 276 00:18:40.650 --> 00:18:46.500 with their defense. U.S. Constitution, Amendment 6. In all criminal prosecutions, 277 00:18:46.680 --> 00:18:49.519 the accused shall enjoy the right to have the assistance 278 00:18:49.559 --> 00:18:54.869 of counsel for his defense. Indiana Constitution, Article 1, Section 13, 279 00:18:54.869 --> 00:18:57.950 and all criminal prosecutions, the accused shall have the right 280 00:18:58.210 --> 00:19:02.039 to be heard by himself and counsel. For defendants who 281 00:19:02.079 --> 00:19:05.039 cannot afford to hire an attorney or retain an attorney 282 00:19:05.079 --> 00:19:09.319 to represent them for free, that constitutional guarantee includes the 283 00:19:09.380 --> 00:19:14.930 right to choose which attorney will represent them. United States v. Gonzalez-Lopez, 548, U.S. 140, 144, 284 00:19:14.930 --> 00:19:27.720 126 Supreme Court, 2557 165 L.ED 2D. 409 2006 and the 285 00:19:27.799 --> 00:19:32.539 erroneous deprivation of his right constitutes structural error which unlike 286 00:19:32.680 --> 00:19:36.880 other errors entitles criminal defendants who are convicted to automatic 287 00:19:36.940 --> 00:19:41.240 reversal and the new trial idea 150 and 151 but 288 00:19:41.289 --> 00:19:44.190 the right of counsel of choice does not extend to 289 00:19:44.230 --> 00:19:47.470 criminal defendants who cannot afford an attorney and who can't 290 00:19:47.529 --> 00:19:52.089 find one to represent them for free idea for free. 291 00:19:53.230 --> 00:19:55.710 Allen can't afford an attorney, and he has asked us 292 00:19:55.759 --> 00:20:00.240 to reinstate Baldwin and Rossi as his court-appointed counsel. Consequently, 293 00:20:00.500 --> 00:20:03.359 he has no constitutional right to choose which attorneys will 294 00:20:03.420 --> 00:20:06.420 represent him, but he didn't choose Baldwin and Rossi. The 295 00:20:06.460 --> 00:20:09.920 trial court did. Allen just wants to continue with the attorneys, 296 00:20:10.269 --> 00:20:13.359 the trial court chose for him, he is insisting on 297 00:20:13.380 --> 00:20:17.599 the continuity of counsel rather than his choice of counsel. 298 00:20:18.380 --> 00:20:21.380 Courts around the country are divided over whether the Sixth 299 00:20:21.440 --> 00:20:27.130 Amendment guarantees criminal defendants the continuity of court-appointed counsel. Compare E.G. 300 00:20:27.230 --> 00:20:29.450 United States v. Parker 469 F. 3D 57 61 2nd Circuit 2006. 301 00:20:29.430 --> 00:20:33.509 There is no constitutional right to continuity of appointed counsel 302 00:20:39.069 --> 00:20:45.269 with E.G. State v. McKinley, 860 NW 2D, 874 880, 303 00:20:45.269 --> 00:20:50.380 Iowa 2015. Once established, the interest in maintaining a relationship 304 00:20:50.420 --> 00:20:53.839 of trust with counsel is of no less importance to 305 00:20:53.880 --> 00:20:57.700 an indigent client than to one with ample resources to 306 00:20:57.740 --> 00:21:01.690 hire counsel. Our court has been generally of the same 307 00:21:01.769 --> 00:21:04.430 view that a trial court is limited in its authority 308 00:21:04.670 -->

00:21:10.200 to remove a criminal defendant's court-appointed counsel. State example, Jones 309 00:21:10.200 --> 00:21:15.970 728 N.E.2D at 134. And even courts that have concluded 310 00:21:16.250 --> 00:21:18.710 there is no Sixth Amendment right to the continuity of 311 00:21:18.769 --> 00:21:22.849 court-appointed counsel have agreed with that much. For example, though 312 00:21:22.869 --> 00:21:26.349 the Colorado Supreme Court recently held there is no Sixth 313 00:21:26.390 --> 00:21:29.859 Amendment right to the continuity of court-appointed counsel, it still 314 00:21:29.900 --> 00:21:33.980 acknowledged that a defendant's interest in continued representation by a 315 00:21:34.019 --> 00:21:37.339 lawyer they have been working with is entitled to great weight. 316 00:21:38.049 --> 00:21:41.809 if they can demonstrate that prejudice would result from substitution 317 00:21:41.990 --> 00:21:50.319 with a different court-appointed attorney, People v. Rainey, 527, PDOT 3D, 387, 394, Colorado, 2023. 318 00:21:50.319 --> 00:21:54.019 The court concluded that interest flows from the due process 319 00:21:54.059 --> 00:21:58.140 guarantees in the 5th and 14th Amendments to the U.S. Constitution, 320 00:21:58.579 --> 00:22:01.519 rather than the 6th Amendment's right to counsel, ID at 321 00:22:01.519 --> 00:22:05.720 396 and 397. And while the U.S. Supreme Court has 322 00:22:05.759 --> 00:22:08.170 not yet addressed whether there is a Sixth Amendment right 323 00:22:08.410 --> 00:22:11.890 to the continuity of court-appointed counsel, it too is recognized 324 00:22:11.930 --> 00:22:15.490 that the rights to due process and counsel overlap. See 325 00:22:15.529 --> 00:22:19.279 Strickland v. Washington, 466 U.S. 468, 668-684-685-104 Supreme Court, 2052, ADL.ED, 2D-674-1984. 326 00:22:30.859 --> 00:22:34.460 The Constitution guarantees a fair trial through the due process clauses, 327 00:22:34.859 --> 00:22:37.420 but it defines the basic elements of a fair trial 328 00:22:37.750 --> 00:22:41.250 largely through several provisions of the Sixth Amendment, including the 329 00:22:41.289 --> 00:22:45.589 Council Clause. The Colorado Supreme Court also recognized that before 330 00:22:45.630 --> 00:22:50.220 disqualifying court-appointed counsel, the court must determine that any remedy 331 00:22:50.299 --> 00:22:53.700 short of disqualification would be ineffective. Rainey, 527, p. 3d at 395, 332 00:22:53.680 --> 00:23:01.309 quotations omitted. In other words, disqualifying court-appointed counsel is a 333 00:23:01.349 --> 00:23:05.140 drastic remedy that should only be a last resort. See 334 00:23:05.619 --> 00:23:13.480 Ellis 822 S.W.2D 602-605 Tennessee Court of Appeals 1991. Courts 335 00:23:13.500 --> 00:23:17.890 should therefore disqualify counsel with considerable reluctance and only when 336 00:23:17.990 --> 00:23:23.079 no other practical alternative exists. United States v. Gerhardt 576 F. 3D 337 00:23:23.029 --> 00:23:31.700 459-464 7th

Circuit, 2009. Thus, disqualification of defense counsel should 338 00:23:31.720 --> 00:23:34.329 be a measure of last resort, and the government bears 339 00:23:34.349 --> 00:23:39.369 the heavy burden of establishing that disqualification is justified. Quotations omitted. 340 00:23:40.029 --> 00:23:43.410 And this approach aligns with how we have treated other 341 00:23:43.450 --> 00:23:47.289 drastic litigation remedies that are in tension with parties' due 342 00:23:47.349 --> 00:23:51.930 process rights. See State v. Lyons, 211, N.E., 3D, 500, 506, Indiana, 2023. 343 00:23:56.500 --> 00:23:59.500 Courts exclude evidence only as a last resort because that 344 00:23:59.579 --> 00:24:05.660 remedy frustrates a trial's truth-seeking function. Canaan v. State 541 N.ED 345 00:24:06.000 --> 00:24:11.970 2D 894-908 Indiana 1989 The trial court has broad discretion 346 00:24:12.130 --> 00:24:15.650 in determining whether to declare a mistrial and ordinarily the 347 00:24:15.670 --> 00:24:19.230 prerogative to declare one will be exercised only as a 348 00:24:19.269 --> 00:24:21.839 last resort. Alright folks, we're going to wrap this one 349 00:24:21.890 --> 00:24:24.079 up here and in the next episode dealing with this 350 00:24:24.119 --> 00:24:26.519 topic we're going to pick up where we left off. 351 00:24:27.119 --> 00:24:29.609 All of the information that goes with this episode can 352 00:24:29.630 --> 00:24:33.009 be found in the description box. What's up everyone and 353 00:24:33.069 --> 00:24:36.269 welcome back to the program. In this episode, we're diving 354 00:24:36.309 --> 00:24:39.329 right back into the opinion that was passed by the 355 00:24:39.490 --> 00:24:44.390 Indiana Supreme Court in relation to Richard Allen. While the 356 00:24:44.430 --> 00:24:49.299 state defends the disqualification decision here, it appropriately acknowledges that 357 00:24:49.339 --> 00:24:54.259 a trial court's discretion to disqualify court-appointed counsel significantly limited 358 00:24:54.279 --> 00:24:58.130 the The state's brief accurately explains that while varied interests 359 00:24:58.190 --> 00:25:03.180 may necessitate overriding a defendant's preference, disqualification is an extreme 360 00:25:03.240 --> 00:25:05.859 remedy that should only be used when a court deems 361 00:25:05.940 --> 00:25:10.470 it reasonably necessary to ensure the integrity of the fact-finding process. 362 00:25:11.079 --> 00:25:14.700 or the fairness or appearance of fairness at trial, the 363 00:25:14.859 --> 00:25:18.859 orderly or efficient administration of justice or public trust or 364 00:25:19.000 --> 00:25:23.869 confidence in the criminal justice system. Attorney General's response at 15, 365 00:25:23.869 --> 00:25:29.269 quoting Rainey 527 P. 3D at 394. So whether as a 366 00:25:29.329 --> 00:25:32.269 product of a defendant's right to due process or the 367 00:25:32.309 --> 00:25:35.119 right to counsel, the bottom line is this. A trial 368 00:25:35.180 --> 00:25:39.599 court cannot disqualify court-appointed counsel over the objection of both 369 00:25:39.640 --> 00:25:44.009 the defendant and the appointed counsel unless a. disqualification is 370 00:25:44.049 --> 00:25:48.190 a last resort and b. disqualification is necessary to protect 371 00:25:48.230 --> 00:25:52.029 the defendant's constitutional rights to ensure that proceedings are conducted 372 00:25:52.089 --> 00:25:56.960 fairly and within our professional ethical standards or to ensure 373 00:25:57.000 --> 00:26:01.240 the orderly and efficient administration of justice and c. those 374 00:26:01.279 --> 00:26:05.019 interests outweigh the prejudice to the defendant. In a previous 375 00:26:05.079 --> 00:26:08.180 original action, we said a trial court is limited in 376 00:26:08.220 --> 00:26:12.140 its authority to remove a criminal defendant's court-appointed counsel. But 377 00:26:12.240 --> 00:26:15.400 we went on to say it was unnecessary to explicate 378 00:26:15.740 --> 00:26:21.750 the parameters of that authority. State example, Jones 728 and. 379 00:26:21.579 --> 00:26:25.619 E2D at 134. While an original action is not the 380 00:26:25.680 --> 00:26:29.319 appropriate vehicle through which to adjudicate or establish a right 381 00:26:29.579 --> 00:26:34.880 or to define and impose a duty, State v. Fidel v. Porter, 382 00:26:35.460 --> 00:26:43.140 Supreme Court, 475, N.E2D, 310, 312, Indiana, 1985. Here we 383 00:26:43.180 --> 00:26:46.259 do find it necessary to explain the parameters of the 384 00:26:46.319 --> 00:26:50.880 previously established limitations on the trial court's authority. The framework 385 00:26:50.940 --> 00:26:54.859 we describe here mirrors how our court has treated other 386 00:26:55.240 --> 00:26:59.079 drastic remedies that may conflict with parties' due process rights. 387 00:26:59.619 --> 00:27:03.859 And our concern is that disqualifying counsel introduced structural error, 388 00:27:04.279 --> 00:27:08.240 at least as it relates to disqualifying them as privately retained, 389 00:27:08.480 --> 00:27:13.559 pro bono counsel, represents further extraordinary circumstances that prompt us 390 00:27:13.579 --> 00:27:17.440 to exercise our jurisdiction now to preserve the integrity of 391 00:27:17.480 --> 00:27:22.849 the trial proceedings going forward. 2. Disqualification here was not 392 00:27:22.890 --> 00:27:26.380 a last resort. The special judge concluded Baldwin and Rossi 393 00:27:26.619 --> 00:27:29.880 made four mistakes that demonstrated they may be unable to 394 00:27:29.960 --> 00:27:33.700 assist Allen with his defense effectively. One, they failed to 395 00:27:33.740 --> 00:27:38.650 secure confidential case materials, including crime scene photos. Two, Baldwin 396 00:27:38.910 --> 00:27:43.289 misdirected an email, he says inadvertently, with confidential case materials 397 00:27:43.329 --> 00:27:46.569 to a non-party client. without timely reporting the mistake to 398

00:27:46.589 --> 00:27:50.329 the trial court or the prosecutor. Three, Baldwin and Rozzi 399 00:27:50.630 --> 00:27:54.319 made extrajudicial statements while the prosecutor's motion for a gag 400 00:27:54.380 --> 00:27:57.880 order was pending, which the special judge thought might prejudice 401 00:27:57.920 --> 00:28:01.920 the case. And four, statements in Baldwin and Rozzi's motion 402 00:28:02.180 --> 00:28:05.220 to reconsider a safekeeping order turned out to be wrong. 403 00:28:05.880 --> 00:28:09.000 Respondents brief at 12 through 15, but the record does 404 00:28:09.039 --> 00:28:12.700 not reflect the special judge disqualified counsel only as a 405 00:28:12.740 --> 00:28:17.539 last resort after balancing her effective assistance of counsel concerns 406 00:28:17.859 --> 00:28:22.880 against the prejudice to Allen that would result from substituting counsel. First, 407 00:28:22.920 --> 00:28:26.500 the record does not reflect the disqualifying counsel was a 408 00:28:26.519 --> 00:28:30.400 last resort. Each of the special judges for concerns could 409 00:28:30.440 --> 00:28:34.259 be addressed through a combination of procedural rules and court orders, 410 00:28:34.660 --> 00:28:37.980 including the gag order and protective order she entered. And 411 00:28:38.039 --> 00:28:42.180 trial courts maintain both statutory and inherent authority to compel 412 00:28:42.220 --> 00:28:45.789 compliance with their orders, and the procedural rules through contempt 413 00:28:45.809 --> 00:28:52.680 proceedings and sanctions that include fines and even jail. Reynolds v. Reynolds, 64, N.E3D, 829, 833, 835, Indianapolis, 2016, Nassar, 644, N.E2D, 93, 95, Indiana, 1994, 414 00:28:52.650 --> 00:29:14.339 McQueen v. State, 272 indiana 229 231 396 n.e.2d 903 415 00:29:14.339 --> 00:29:18.279 904 1979 recognizing that a fair trial judge can protect 416 00:29:18.319 --> 00:29:22.529 the court against insult and gross violations of decorum by 417 00:29:22.549 --> 00:29:27.009 the infliction of summary punishment by fine imprisonment or both 418 00:29:27.130 --> 00:29:30.130 via contempt citation indiana code section 34 47 2 and 419 00:29:30.130 --> 00:29:36.980 1 2 4 and 3 contempt statutes indeed The trial 420 00:29:37.039 --> 00:29:42.009 court's protective order invoked the court's contempt power. to enforce compliance. R. 421 00:29:42.069 --> 00:29:46.069 Volume 1 at 51. Ordering that parties cannot grant anyone 422 00:29:46.170 --> 00:29:49.599 access to discovery materials without the court's permission and without 423 00:29:49.630 --> 00:29:53.539 the person seeking access, first signing an agreement subjecting them 424 00:29:53.599 --> 00:29:56.720 to the court's contempt powers. There was no findings that 425 00:29:56.759 --> 00:30:01.220 these tools were inadequate to resolve the special judge's concerns. Second, 426 00:30:01.539 --> 00:30:04.980 the only basis for disqualifying counsel was the special judge's 427 00:30:05.000 --> 00:30:08.519 concern that they could not assist Allen with his defense effectively. 428 00:30:09.059 --> 00:30:12.059 Respondents brief at 10 through 15. To be sure, the 429 00:30:12.099 --> 00:30:16.099 Sixth Amendment right to effective counsel imposes a baseline requirement 430 00:30:16.279 --> 00:30:22.799 of competence on whatever lawyer is chosen or appointed. Gonzalez, Lopez, 548, U.S. 431 00:30:22.920 --> 00:30:26.200 at 148. But there is no suggestion that Baldwin and 432 00:30:26.259 --> 00:30:28.980 Rossi are out of their depth. Baldwin has over 30 433 00:30:28.980 --> 00:30:32.460 years of experience representing thousands of clients around the state, 434 00:30:32.799 --> 00:30:36.460 including clients charged with murder, rape, robbery, burglary, and other 435 00:30:36.500 --> 00:30:40.619 violent offenses, and he has tried more than 125 jury trials. 436 00:30:41.240 --> 00:30:45.049 Rossi has over 20 years of same experience, including three 437 00:30:45.069 --> 00:30:50.190 murder trials and previous certification to handle death penalty cases. Moreover, 438 00:30:50.549 --> 00:30:53.849 neither the state nor the special judge argue the counsel's 439 00:30:53.869 --> 00:30:57.680 extra judicial statements or the statements in the motion harmed 440 00:30:57.759 --> 00:31:01.680 Allen's defense. They do argue the disclosure of case materials 441 00:31:01.960 --> 00:31:05.759 undermines Allen's defense, but they don't explain how. And they 442 00:31:05.779 --> 00:31:09.039 don't argue these mistakes reflect that Baldwin and Rossi are 443 00:31:09.079 --> 00:31:13.519 incompetent to handle Allen's defense or explain why disqualification is 444 00:31:13.640 --> 00:31:19.029 necessary to protect Allen's right to the effective assistance of counsel. Notably, 445 00:31:19.369 --> 00:31:22.190 neither the state nor the special judge direct us to 446 00:31:22.410 --> 00:31:26.710 any case concluding that issues like these either in isolation 447 00:31:26.930 --> 00:31:32.009 or combination, rendered counsel constitutionally ineffective or were sufficient to 448 00:31:32.049 --> 00:31:36.440 warrant disqualification. Third, there is no showing that the special 449 00:31:36.500 --> 00:31:42.119 judge's concerns outweigh the substantial prejudice to Allen from substituting counsel. 450 00:31:42.539 --> 00:31:45.880 Baldwin and Rossi spent a year working with Allen, investigators, 451 00:31:46.240 --> 00:31:50.109 and experts developing Allen's defense, and Allen says he is 452 00:31:50.170 --> 00:31:53.150 ready to present it to a jury. The prejudice to 453 00:31:53.269 --> 00:31:57.150 Allen begins with the fact that information and momentum spillage 454 00:31:57.450 --> 00:32:00.769 is inevitable as one trial team hands a complicated case 455 00:32:00.809 --> 00:32:04.349 like this over to another. Add to that, Allen has 456 00:32:04.430 --> 00:32:06.039 already been in jail for about a year and a 457 00:32:06.079 --> 00:32:10.220 half now, and

substituting counsel requires a nine-month delay in 458 00:32:10.240 --> 00:32:14.160 the trial date with substitute counsel unsure whether they would 459 00:32:14.200 --> 00:32:17.380 even be ready by then. That is not surprising given 460 00:32:17.660 --> 00:32:21.529 that this is a complicated, high-stakes case. Further, it has 461 00:32:21.609 --> 00:32:25.240 already been seven years since the murders, and fact-finding only 462 00:32:25.279 --> 00:32:29.359 gets harder as time passes, memories fade, and evidence is lost. 463 00:32:30.019 --> 00:32:38.690 Matters of Peoples, 614 NE2D 555-557, Indianapolis, 1993. Our disciplinary 464 00:32:38.750 --> 00:32:42.150 rules recognize that with the passage of time, clients risk 465 00:32:42.190 --> 00:32:46.410 the loss of rights, witnesses, memories fade, and evidence may disappear. 466 00:32:47.009 --> 00:32:50.250 The record does not reveal any weighing of these concerns. 467 00:32:51.000 --> 00:32:54.559 Because the record does not reflect disqualification was a last 468 00:32:54.619 --> 00:32:58.279 resort that was necessary after balancing the trial court's concerns 469 00:32:58.619 --> 00:33:04.460 against the prejudice to Allen, Baldwin and Rossi must be reinstated. 2. 470 00:33:04.460 --> 00:33:10.490 Allen's remaining requests present no extraordinary circumstances warranting relief. Allen's 471 00:33:10.509 --> 00:33:13.250 second request is that we mandate that the trial court 472 00:33:13.309 --> 00:33:17.309 order Allen's trial to commence within 70 days. Allen and 473 00:33:17.349 --> 00:33:20.809 his attorneys... prepared and signed a speedy trial motion, but 474 00:33:20.829 --> 00:33:24.029 they never filed it with the trial court. Until a 475 00:33:24.069 --> 00:33:26.980 trial court has refused to rule properly, there is no 476 00:33:27.019 --> 00:33:33.619 basis for relief in this court. Original Act R. 3. A. 4 State, Exclusion, 477 00:33:33.900 --> 00:33:36.579 Wonderly v. Allen, Circuit Court 274, Indiana 572, 574 and 75, 412, N.E.2D 1209, 1211, 1980. 478 00:33:36.559 --> 00:33:49.089 We therefore deny Allen's request. to order that his trial 479 00:33:49.109 --> 00:33:53.109 begin within 70 days, although his attorney remained free to 480 00:33:53.150 --> 00:33:55.950 make such a request in the trial court if Allen wishes. 481 00:33:56.789 --> 00:33:59.619 Allen's third request is that we appoint a new special 482 00:33:59.680 --> 00:34:02.180 judge to avoid the appearance that the trial court is 483 00:34:02.220 --> 00:34:05.779 biased against the defense. But Allen has not stated facts 484 00:34:05.819 --> 00:34:10.500 showing clearly that the special judge's disqualification is required. We 485 00:34:10.559 --> 00:34:13.480 begin with the presumption that a trial judge is unbiased. 486 00:34:13.880 --> 00:34:20.949 Smith v. State, 770, N.E., 2D, 818, 823, Indiana, 2002. 487 00:34:20.949 --> 00:34:25.369 To overcome that presumption, the party seeking disqualification must

identify 488 00:34:25.449 --> 00:34:30.250 facts reflecting the judge's actual bias or prejudice. Our law 489 00:34:30.309 --> 00:34:34.929 is well-settled. that prejudice is not inferred from adverse judicial rulings, 490 00:34:35.690 --> 00:34:38.010 Zavodnik v. Harper, 17 N.E. 3D 259-269, Indiana 2014. And 491 00:34:38.050 --> 00:34:41.239 that is all Allen identifies here, the special judge's adverse 492 00:34:41.260 --> 00:34:52.059 ruling disqualifying counsel. No doubt that adverse ruling was significant, 493 00:34:52.380 --> 00:34:55.800 but nothing in the record suggests the special judge's decision 494 00:34:56.179 --> 00:35:00.059 emerged from bias or prejudice against Allen. Just the opposite. 495 00:35:00.340 --> 00:35:04.030 The special judge explained she disqualified counsel because she was 496 00:35:04.090 --> 00:35:07.289 trying to protect Allen's right to the effective assistance of counsel. 497 00:35:07.869 --> 00:35:10.849 And we don't minimize her concern. She faced a significant 498 00:35:10.889 --> 00:35:14.170 dilemma given her conclusion that the defense counsel were no 499 00:35:14.210 --> 00:35:17.239 longer effective. If she left counsel in place and Allen 500 00:35:17.280 --> 00:35:21.170 was convicted, the conviction might have been vacated through post-conviction 501 00:35:21.210 --> 00:35:25.070 proceedings based on ineffective assistance of counsel. Or if she 502 00:35:25.269 --> 00:35:28.849 disqualified counsel and Allen was convicted, then the conviction might 503 00:35:28.869 --> 00:35:32.269 have been vacated because she infringed on Allen's right to 504 00:35:32.289 --> 00:35:35.389 the continuity of choice of counsel. She was in a 505 00:35:35.429 --> 00:35:39.150 tough spot either way. Though we've determined the record does 506 00:35:39.210 --> 00:35:42.829 not support her disqualification decision, we reach that conclusion with 507 00:35:42.869 --> 00:35:46.599 the benefit of weeks to consider the issue. through briefing 508 00:35:46.719 --> 00:35:50.480 and oral argument from excellent appellate attorneys, and the benefit 509 00:35:50.519 --> 00:35:54.239 of five justices and their staffs pouring over the record, authorities, 510 00:35:54.300 --> 00:35:57.469 and arguments. The special judge did not have those luxuries. 511 00:35:58.150 --> 00:36:01.250 Nor does Allen point to anything suggesting that the special 512 00:36:01.289 --> 00:36:04.530 judge is biased against Baldwin and Rossi. Of course, she 513 00:36:04.570 --> 00:36:07.940 said their mistakes reflected gross negligence, and she was concerned 514 00:36:07.980 --> 00:36:13.000 that their representation was ineffective. Supplement R at 15. But 515 00:36:13.039 --> 00:36:16.039 judicial remarks during the course of a trial that are 516 00:36:16.059 --> 00:36:19.840 critical or disapproving or even hostile to the parties or 517 00:36:19.880 --> 00:36:24.800 their cases ordinarily do not support a bias or partiality challenge. 518 00:36:25.659

--> 00:36:27.199 Noble v. State, 725, NE2D, 842, 848, Indiana, 2000. That is, 519 00:36:27.230 --> 00:36:36.659 unless they reveal an opinion, that derives from an extrajudicial 520 00:36:36.719 --> 00:36:40.420 source or reveal such a high degree of favoritism or 521 00:36:40.639 --> 00:36:45.239 antagonism as to make fair judgment impossible. The special judge 522 00:36:45.500 --> 00:36:49.860 said counsel made mistakes that rendered their representation ineffective, but 523 00:36:49.900 --> 00:36:53.199 her statements were not based on any extrajudicial source or 524 00:36:53.260 --> 00:36:56.679 any experience outside the case. Instead, her statements were based 525 00:36:56.739 --> 00:37:00.800 entirely on her observations within this case. And while her 526 00:37:00.840 --> 00:37:04.650 conclusion that counsel was were constitutionally ineffective was too harsh, 527 00:37:05.170 --> 00:37:07.949 she wasn't wrong to be deeply concerned that sensitive case 528 00:37:07.989 --> 00:37:11.960 materials had leaked. Though she mistakenly hit defense counsel's eject 529 00:37:11.980 --> 00:37:14.960 button instead of the case's lockdown button, she was right 530 00:37:15.000 --> 00:37:18.360 to try to get the situation under control quickly and decisively. 531 00:37:18.840 --> 00:37:22.059 Her efforts did not reflect any bias or prejudice, and 532 00:37:22.260 --> 00:37:26.239 Allen doesn't identify anything she has done that demonstrates she 533 00:37:26.300 --> 00:37:30.480 isn't impartial. We therefore deny Allen's request to replace the 534 00:37:30.519 --> 00:37:35.269 special judge. Conclusion. Having granted Allen's request to reinstate his 535 00:37:35.309 --> 00:37:38.889 original court-appointed counsel and denied his remaining request through our 536 00:37:38.949 --> 00:37:44.230 January 18, 2024 order, this opinion terminates the original action 537 00:37:44.250 --> 00:37:48.429 proceedings in this court. Petitions for rehearing or motions to 538 00:37:48.469 --> 00:37:51.610 reconsider are not allowed. All right, folks, that's going to 539 00:37:51.659 --> 00:37:54.000 do it for this one. All the information that goes 540 00:37:54.079 --> 00:37:57.519 with this episode can be found in the description box. 541 00:37:58.059 --> 00:38:01.679 What's up, everyone, and welcome back to the program. In 542 00:38:01.699 --> 00:38:04.440 today's episode, we're going to dive back down to Indiana 543 00:38:04.840 --> 00:38:06.980 and we're going to get an update on what's going 544 00:38:07.119 --> 00:38:10.440 on in the Delphi murder case. And as you all know, 545 00:38:10.860 --> 00:38:14.889 the circus has certainly come to town. Whether it's leaked 546 00:38:14.989 --> 00:38:20.269 evidence or crazy theories about Odinites or lawyers trying to 547 00:38:20.309 --> 00:38:23.230 get the judge removed, we have seen it all down 548 00:38:23.269 --> 00:38:26.269 here in Delphi. And the madness doesn't seem to be 549 00:38:26.329 --> 00:38:31.090 abating anytime soon. Today's article is from Law and Crime 550 00:38:31.449 --> 00:38:35.159 and the headline accused Delphi killer says public will question 551 00:38:35.199 --> 00:38:38.929 the judge's impartiality if she's not replaced and his attorneys 552 00:38:39.300 --> 00:38:44.099 aren't reinstated. So this knucklehead Richard Allen, he wants the 553 00:38:44.179 --> 00:38:47.599 two attorneys who had the leaked evidence to be reinstated 554 00:38:47.880 --> 00:38:50.550 and put back on the case. Now, if he's willing 555 00:38:50.590 --> 00:38:53.329 to sign a waiver saying that he's not going to 556 00:38:53.449 --> 00:38:55.610 use that as the basis for an appeal later on 557 00:38:55.650 --> 00:38:57.710 down the road, I might be inclined to let him 558 00:38:57.750 --> 00:39:00.110 do it. If he wants to shoot himself in the foot, 559 00:39:00.369 --> 00:39:03.070 go for it. There's not a jury in the world, folks, 560 00:39:03.389 --> 00:39:05.760 that's going to listen to the nonsense that these people 561 00:39:05.820 --> 00:39:08.760 are pitching about Odinites and the rest of it when 562 00:39:08.780 --> 00:39:11.820 they have all this other evidence and believe one second 563 00:39:11.860 --> 00:39:13.969 of it. So if that's the kind of nonsense you 564 00:39:14.010 --> 00:39:16.889 want to use as far as your defense, I say 565 00:39:16.909 --> 00:39:20.599 let him do it. This article was authored by Jerry Lamb. 566 00:39:21.559 --> 00:39:25.780 Civil attorneys representing accused Delphi murderer Richard Allen have asked 567 00:39:25.809 --> 00:39:29.750 the Indiana Supreme Court to step in and replace presiding 568 00:39:29.769 --> 00:39:34.679 spokesman judge Fran Siegel, claiming that she violated Allen's constitutional 569 00:39:34.739 --> 00:39:39.630 rights when she extrajudiciously removed his defense attorneys from the case. 570 00:39:40.349 --> 00:39:43.750 In a writ of mandamus filed Monday, attorneys Mark K. 571 00:39:43.789 --> 00:39:48.789 Lehman and Kara Schaefer-Weineke requested that the state's highest court 572 00:39:49.050 --> 00:39:53.210 to formally reinstate Brad Rossi and Andrew Baldwin as Allen's 573 00:39:53.230 --> 00:39:58.789 defense attorneys, arguing that their removal violated his fundamental constitutional 574 00:39:58.869 --> 00:40:01.639 rights to counsel and a fair trial. You know that 575 00:40:01.699 --> 00:40:04.079 old saying, be careful what you wish for? I think 576 00:40:04.099 --> 00:40:06.980 that applies here. You better be real careful what you 577 00:40:07.019 --> 00:40:11.619 wish for, especially considering that these lawyers have been running 578 00:40:11.679 --> 00:40:15.349 at the yap about the judge, about the court system, etc., 579 00:40:16.280 --> 00:40:17.980 So they're going to be under a lot of scrutiny. 580 00:40:18.159 --> 00:40:20.739 So if they don't have their shit airtight, it's going 581 00:40:20.760 --> 00:40:23.460 to be a problem for Richard Allen. But

considering the 582 00:40:23.480 --> 00:40:27.559 fact that Richard Allen has already confessed from jail multiple times, 583 00:40:27.969 --> 00:40:30.489 does it really matter who his attorneys are at this point? 584 00:40:31.119 --> 00:40:34.650 I mean, obviously his constitutional rights have to be respected. 585 00:40:35.170 --> 00:40:38.130 But considering the evidence, I don't think that the greatest 586 00:40:38.170 --> 00:40:40.909 lawyer of all time would be able to get Richard 587 00:40:40.969 --> 00:40:44.889 Allen off. Now, if there is prosecutorial misconduct, That's a 588 00:40:44.909 --> 00:40:48.809 different story because that's basically a get out of jail 589 00:40:48.829 --> 00:40:51.869 free card for Richard Allen. And those are the claims 590 00:40:51.909 --> 00:40:54.989 that his legal team has made now for several months. 591 00:40:55.409 --> 00:40:59.539 Although the court has not found any sort of prosecutorial misconduct, 592 00:40:59.840 --> 00:41:02.199 it's been one of the center points for the defense. 593 00:41:02.719 --> 00:41:06.460 No Indiana court has ever tolerated a trial judge removing 594 00:41:06.500 --> 00:41:09.659 a lawyer from a case. Over the client's objection, based 595 00:41:09.719 --> 00:41:13.239 on the judge's subjective belief, the lawyer is negligent or 596 00:41:13.280 --> 00:41:17.059 even grossly negligent, the filing states, and courts across the 597 00:41:17.099 --> 00:41:22.110 country regularly issue extraordinary writs in criminal cases to reinstate 598 00:41:22.150 --> 00:41:25.369 defense attorneys who have been kicked off cases for conduct 599 00:41:25.409 --> 00:41:29.389 the trial court found upsetting or negligent. I mean, look, 600 00:41:29.409 --> 00:41:33.179 these pictures were leaked. Let's not forget about that. The 601 00:41:33.239 --> 00:41:36.559 pictures got out there. They didn't just magically roam out 602 00:41:36.599 --> 00:41:40.210 there on their own. They were taken from the lawyer's office. 603 00:41:40.710 --> 00:41:43.550 So if that's not negligence, I don't know what is. Now, 604 00:41:43.630 --> 00:41:47.539 is that enough to get him suspended from the trial? Probably, 605 00:41:47.579 --> 00:41:51.119 in my opinion, it should be. But there are rules 606 00:41:51.179 --> 00:41:53.980 and statutes and all kinds of stuff in Indiana that 607 00:41:54.099 --> 00:41:56.400 I'm probably not aware of. But if I was making 608 00:41:56.440 --> 00:41:59.099 the decision down here as the judge, I'd just make 609 00:41:59.139 --> 00:42:01.909 him sign a waiver, meaning Richard Allen. All right, you 610 00:42:01.929 --> 00:42:04.670 want to have these guys defend you? Great. Now you 611 00:42:04.690 --> 00:42:07.829 have to sign this waiver letting everybody know that no 612 00:42:07.869 --> 00:42:10.329 matter what happens at this trial, you're not going to 613 00:42:10.369 --> 00:42:14.380 cry that you didn't have proper legal representation and legal 614 00:42:14.420

--> 00:42:18.139 guidance throughout the process. Because you're signing this waiver here 615 00:42:18.480 --> 00:42:21.239 saying that you did. And then if Baldwin and Rozzy 616 00:42:21.280 --> 00:42:23.429 want to get up there and make fools of themselves, 617 00:42:23.659 --> 00:42:27.440 let them do it. Gull officially removed Rozzy and Baldwin 618 00:42:27.639 --> 00:42:31.000 from Allen's case during an October 31st hearing, despite the 619 00:42:31.039 --> 00:42:34.260 fact that both attorneys had agreed to remain on the 620 00:42:34.300 --> 00:42:37.659 case pro bono, or free of charge. I have great 621 00:42:37.679 --> 00:42:41.449 concerns with your representation, Gull said to Allen during the hearing. 622 00:42:42.090 --> 00:42:44.489 I cannot and will not allow them to represent you. 623 00:42:44.909 --> 00:42:47.409 I am sorry that this happened to you, Mr. Allen. 624 00:42:47.929 --> 00:42:51.670 The will they won't they, surrounding Rozzy and Baldwin's representation 625 00:42:51.690 --> 00:42:54.599 of Allen, began when Gull came out of the chambers 626 00:42:54.840 --> 00:42:57.539 at the start of an October 19th hearing and announced 627 00:42:57.579 --> 00:43:00.460 that both Rossi and Baldwin had withdrawn from the case 628 00:43:00.860 --> 00:43:04.420 in an unexpected turn of events. And they dispute that. 629 00:43:04.760 --> 00:43:07.380 They say that they never withdrew, that they were removed 630 00:43:07.400 --> 00:43:10.539 from this case. And that's the contention here, that they're 631 00:43:10.559 --> 00:43:14.820 saying that they were removed improperly from representing Richard Allen. 632 00:43:15.239 --> 00:43:18.119 During that hearing, the first to allow broadcast cameras to 633 00:43:18.159 --> 00:43:21.409 film the proceeding was Gull said that Baldwin had orally 634 00:43:21.469 --> 00:43:24.550 withdrawn from the case after sealed evidence was leaked from 635 00:43:24.590 --> 00:43:28.550 his office and provided to a true crime podcast. She 636 00:43:28.570 --> 00:43:32.090 then claimed that Rozzi was also withdrawing and planned to 637 00:43:32.139 --> 00:43:35.679 submit a written notification to the court. And they contend 638 00:43:35.719 --> 00:43:38.320 that none of that happened. They're saying that Judge Gull 639 00:43:38.599 --> 00:43:43.920 made all of that up. But Rozzi never submitted his resignation. Instead, 640 00:43:43.960 --> 00:43:46.579 he filed a series of motions seeking to have himself 641 00:43:46.639 --> 00:43:50.719 reinstated and as Allen's attorney, and to have Gull disqualified 642 00:43:50.960 --> 00:43:54.300 and replaced. In the motion to have Gull disqualified from 643 00:43:54.320 --> 00:43:58.320 the case, Rossi said Gull ambushed him and Baldwin with 644 00:43:58.409 --> 00:44:02.630 a planned Hobson's choice designed to coerce withdrawals. He also 645 00:44:02.690 --> 00:44:06.570 alleged that Gull coerced an oral request to withdraw from 646 00:44:07.030 --> 00:44:10.809 attorney Rossi and gave neither the opportunity to defend themselves 647 00:44:11.110 --> 00:44:14.530 from her accusations. So these are all very heavy charges, 648 00:44:15.010 --> 00:44:19.199 very heavy accusations. and certainly something that the Supreme Court 649 00:44:19.500 --> 00:44:21.219 is going to have to take a look at, like 650 00:44:21.260 --> 00:44:24.099 they're doing right now. And if they find some misconduct here, 651 00:44:24.179 --> 00:44:26.739 forget it. You want to talk about this thing getting upended? 652 00:44:28.139 --> 00:44:31.630 If they had not voluntarily withdrawn prior to the October 653 00:44:31.989 --> 00:44:35.389 19th hearing, Gull allegedly threatened to read a statement during 654 00:44:35.409 --> 00:44:39.230 the hearing designed to professionally embarrass Rossi and Baldwin by 655 00:44:39.289 --> 00:44:44.159 detailing their perceived gross negligence in representing Allen. The attorneys 656 00:44:44.179 --> 00:44:47.699 who filed the latest writ also noted they are seeking 657 00:44:47.739 --> 00:44:52.119 a release of the transcript from the behind-the-closed-doors meeting inside 658 00:44:52.139 --> 00:44:55.610 of Gould's chamber prior to the October 19th hearing. Ooh, 659 00:44:55.619 --> 00:44:58.090 that would be juicy. Let's get that. I'd love to 660 00:44:58.110 --> 00:45:01.050 see the court minutes on that one, folks. The alleged 661 00:45:01.070 --> 00:45:04.349 gross negligence at the crux of Gould's decision to remove 662 00:45:04.389 --> 00:45:08.239 the attorneys stem from, among other things, the attorneys issuing 663 00:45:08.300 --> 00:45:12.070 a press release on behalf of their client, accidentally emailing 664 00:45:12.110 --> 00:45:15.500 a discovery log to a third party, improper statements made 665 00:45:15.820 --> 00:45:18.579 in a motion file with the court, and a photograph 666 00:45:18.619 --> 00:45:22.000 of sealed evidence being leaked from Baldwin's office without the 667 00:45:22.039 --> 00:45:27.070 knowledge or consent of either attorney. And Baldwin claims that 668 00:45:27.130 --> 00:45:30.489 the former associate broke into the office and stole the evidence. 669 00:45:30.949 --> 00:45:32.909 I have my doubts about that, but we'll give him 670 00:45:32.949 --> 00:45:35.039 the benefit of the doubt and we'll say that that's 671 00:45:35.079 --> 00:45:38.420 what happened. Even if that's the case, you're still negligent 672 00:45:38.639 --> 00:45:41.480 for leaving this stuff out. You're still negligent for not 673 00:45:41.539 --> 00:45:45.659 having it secured. The latest petition to the Indiana Supreme 674 00:45:45.699 --> 00:45:49.070 Court was filed about a week after other civil attorneys 675 00:45:49.269 --> 00:45:52.630 representing Allen asked the high court to remove Gull for 676 00:45:52.730 --> 00:45:56.230 failing to allow public access to filings in the case. 677 00:45:57.369 --> 00:46:00.210 So Judge Gull is under heavy fire here. and I

678 00:46:00.269 --> 00:46:03.099 wonder if she's going to be able to come out unscathed. 679 00:46:04.179 --> 00:46:07.300 If there was ever a time when the openness mandated 680 00:46:07.380 --> 00:46:10.280 by the trial rules and access to court records rules 681 00:46:10.420 --> 00:46:13.250 was critical, it is the present case. One of the 682 00:46:13.289 --> 00:46:17.530 most high-profile cases this state has ever seen, the filing stated. 683 00:46:18.349 --> 00:46:21.070 For many Hoosiers, this is the first time they have 684 00:46:21.110 --> 00:46:24.449 followed the workings of a court in this state. Yet 685 00:46:24.469 --> 00:46:27.289 the trial rules and access to court record rules have 686 00:46:27.349 --> 00:46:30.829 been repeatedly violated, leaving the public and the media in 687 00:46:30.869 --> 00:46:33.650 the dark. And there's a lot to be said about that. 688 00:46:34.650 --> 00:46:37.280 All these cases with all these gag orders, all of 689 00:46:37.320 --> 00:46:42.159 these restrictions on transparency. Not very good, in my opinion. Now, 690 00:46:42.199 --> 00:46:44.780 of course, if you're protecting the integrity of the case, 691 00:46:45.059 --> 00:46:48.739 that's one thing. But when these gag orders are overly broad, 692 00:46:49.139 --> 00:46:52.119 that's a whole different ballgame. And what's crazy to me, too, 693 00:46:52.460 --> 00:46:54.960 is that there are so many of these gag orders 694 00:46:55.059 --> 00:46:58.929 out here on just about every case. Before, it wasn't 695 00:46:58.969 --> 00:47:01.550 something that was that prevalent, right? Well, now it seems 696 00:47:01.590 --> 00:47:05.230 like every single case that has one article published about 697 00:47:05.289 --> 00:47:07.869 it all of a sudden gets a gag order, which 698 00:47:07.929 --> 00:47:12.500 is absolutely ridiculous. Similar to their previous filings, the civil 699 00:47:12.559 --> 00:47:16.199 attorneys for Allen also requested that the court remove Gull 700 00:47:16.239 --> 00:47:19.320 from the case, arguing that going forward, the public will 701 00:47:19.360 --> 00:47:23.809 question the judge's impartiality. To restore the public's trust in 702 00:47:23.829 --> 00:47:27.869 the integrity of the judicial process, in this high-profile case, 703 00:47:28.130 --> 00:47:31.710 a new special judge should be appointed, the filing states. Well, 704 00:47:31.730 --> 00:47:34.329 you know what? Considering there's already going to be a 705 00:47:34.369 --> 00:47:38.690 gigantic delay, maybe they should think about starting new, just 706 00:47:38.710 --> 00:47:42.269 starting fresh with a new judge, new attorneys, and a 707 00:47:42.309 --> 00:47:45.570 new start. Because everything that we've seen down here leading 708 00:47:45.659 --> 00:47:49.960 up to this has been an absolute travesty. And these 709 00:47:50.019 --> 00:47:53.300 family members of Libby and Abby that are suffering through this, 710 00:47:53.880 --> 00:47:57.840 it's all gross. And they most certainly deserve a lot 711 00:47:57.860 --> 00:48:01.960 better than what they're getting. Allen is facing two counts 712 00:48:02.000 --> 00:48:05.380 of murder in the 2017 slayings of Abigail Williams and 713 00:48:05.639 --> 00:48:08.840 and Liberty, German, whose bodies were discovered in a wooded 714 00:48:08.940 --> 00:48:13.380 area just off the Delphi Historic Trail system. Williams and 715 00:48:13.400 --> 00:48:18.179 German vanish while walking the Manon High Bridge Trail near Delphi, Indiana, 716 00:48:18.650 --> 00:48:24.190 on February 13, 2017. The trail traverses an abandoned stretch 717 00:48:24.530 --> 00:48:27.510 of what was once the Manon Railroad and crosses an 718 00:48:27.550 --> 00:48:31.380 old trestle over a small river or creek. The girls 719 00:48:31.420 --> 00:48:34.159 were found dead the next day in an area near 720 00:48:34.199 --> 00:48:37.440 the trestle, and their deaths were determined to be homicides. 721 00:48:37.920 --> 00:48:40.320 And just when we thought we were getting close to justice, 722 00:48:40.909 --> 00:48:43.809 the whole entire shit show that we see here had 723 00:48:43.829 --> 00:48:46.550 to begin. So hopefully they get this all cleared up 724 00:48:46.949 --> 00:48:49.429 at the Supreme Court level, and we have a better 725 00:48:49.570 --> 00:48:52.289 idea of what our footing's going to be moving forward. 726 00:48:52.610 --> 00:48:55.219 Because as of right now, this is most certainly the 727 00:48:55.280 --> 00:48:58.920 biggest circus in town. All of the information that goes 728 00:48:58.980 --> 00:49:02.010 with this episode can be found... In the description box.