Abby & Libby - The Delphi Murders - Richard Allen Arrested - #195

[tlcya]

Looking at the search warrant return just now and I see something listed as "paper wrapped wooden weave box containing 2 "Audiovox" device...

Any ideas what those are? I googled Audiovox and it isn't clear to me what this could be.

they make lots of devices for various things, including vehicle tracking/GPS capability between your car and phone/other device.

When the connection was active, I was able to log in to the Web site and the smartphone app to see information about my car.

Audiovox Car Connection review: Track your car, and your kids' driving behavior

Audiovox's plug-in device lets you see where your kids take the family car and monitor their driving behavior.

www.cnet.com

 

[Megnut]

This is the crux of my opinion. As spelled out in the link, quoted from the link, and bolded by me....

"If the probative value of evidence is substantially outweighed by the dangers of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence” then this evidence might be excluded."

probative value

www.law.cornell.edu

I wish this could be pinned on the top of every page of every thread nearing trial!

It's truly the judge's duty, to preserve a fair trial for a defendant, to rule based on the law what does and doesn't come before the jury. Bedrock.

JMO

 

[statt#1]

She didn't rule they had no evidence. She ruled against the evidence on Rule 403 grounds. Here is her language:


Note the language "confusion of the issues and its potential to mislead the jury." This is the language of Rule 403:

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

www.law.cornell.edu

Also notice that the rule is made to exclude relevant evidence.

Yes, my most recent post prior to this one to clarify my opinion on the matter and what I opined to be the reason for the decision. Thanks!

"If the probative value of evidence is substantially outweighed by the dangers of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence” then this evidence might be excluded."

probative value​

www.law.cornell.edu

 

[everlearning]

I don't believe RA can appeal based on ineffective counsel as that was brought up during the SCOIN Oral Arguments in January by one of the SCOIN Judges to RA's Defense Attorney Leeman. He said it was a waived issue or would be at approx the 1:06 min mark during a YouTube posting of the actual videoed and audio recorded session.

I cannot link it here because what I listened to and saw it from is an unapproved WS source that has some conversation before the recording is played, but there is a complete audio and video recording of the entire Oral Argument session out there.

MOO

EBM: Added clarification

Thank you! I was wondering about this recently.

 

[Sillybilly]

She didn't rule they had no evidence. She ruled against the evidence on Rule 403 grounds. Here is her language:


Note the language "confusion of the issues and its potential to mislead the jury." This is the language of Rule 403:

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

www.law.cornell.edu

Also notice that the rule is made to exclude relevant evidence.

I'm not seeing Rule 403 or relevant evidence referenced in her ruling, but she specifically referenced "admissible evidence" and "The case law is quite clear that the nexus must not be based on speculation, conjecture, rumors, or hearsay, but rather on admissible evidence".

 

[AugustWest]

I'm not seeing Rule 403 or relevant evidence referenced in her ruling, but she specifically referenced "admissible evidence" and "The case law is quite clear that the nexus must not be based on speculation, conjecture, rumors, or hearsay, but rather on admissible evidence".

The language of her ruling is Rule 403. She is restating the rule. The reason it is inadmissible evidence is because she feels the relevant evidence (and its probative value, as all relevant evidence is probative) is outweighed by the chance that the jury would be misled or that they would confuse the issues raised by the evidence.

That is her opinion, but to state there is zero evidence is a misstatement.

ETA: Rule 403 language

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

www.law.cornell.edu

 

[tlcya]

So - perhaps zero allowable evidence is a more accurate description.

the end result is the same. moo

 

[Seattle1]

Are RA lawyers in on the conspiracy as that would explain why they have done such a poor job so far?

IMO

IMO, the defense introduced each conspiracy/SODDI for the single purpose of planting reasonable doubt in the mind of at least one juror.

This is not about the pursuit of justice, prosecuting the "real killer," or anything else but to give false hope to their client, and hope for a mistrial. Clearly, there's no chance for an acquittal here!

But as of today, the defense has failed to produce admissible evidence demonstrating a nexus (i.e, the legal threshold for a third party defense).

To be clear, the defense first introduced their theory of 'Odinists' responsible for the murders in September 2023 but a year later, still could not produce credible evidence to link 'Odinists' to the crime.

Accordingly, the Court ruled this week that it will not permit the evidence submitted by the defense in support of their arguments regarding third-party perpetrators in the trial as the probative value of such evidence is greatly outweighed by confusion of the issues and its potential to mislead the jury.

However, in all fairness to RA, the Court will allow evidence to support an offer of proof at the trial if one is made by defense Counsel. What that means is that during the trial the defense will still have a chance to try to convince Gull that a sufficient link exists between Odinism and the alternate suspects to present that information to a jury. But first, they will have to make that case directly to Gull while the jury is asked to step out of the courtroom.

MOO

ETA: IMO, the only reason for the defense to even attempt to resubmit Odinists during the trial, especially knowing it will be rejected by the Court, would be to get it on record to preserve the issue for the Court of Appeals.

Preserve the Issue...

 

[AugustWest]

So - perhaps zero allowable evidence is a more accurate description.

the end result is the same. moo

Motions in limine are "preliminary" motions, so she actually hasn't excluded the evidence yet. That's why she is allowing the defense to make an offer of proof at the time of trial. Of course, then she will deny that, and it will then become excluded. The legal distinction is important, but for the purposes of this thread and what we can and can't discuss, you are essentially correct.

motion in limine

www.law.cornell.edu

 

[ClearAhead]

The language of her ruling is Rule 403. She is restating the rule. The reason it is inadmissible evidence is because she feels the relevant evidence (and its probative value, as all relevant evidence is probative) is outweighed by the chance that the jury would be misled or that they would confuse the issues raised by the evidence.

That is her opinion, but to state there is zero evidence is a misstatement.

ETA: Rule 403 language

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

www.law.cornell.edu

Well if the D cannot defend their client’s innocence and he is convicted, then Judge Gull isn’t standing in the way of an appeal. No grounds to prove she is biased.

But as the SODDI are not the defendants in RA’s upcoming trial, nothing has changed with this ruling. The fact remains none of the investigators testifying for the defence could place any of the D’s third party POIs at the crime scene at the time of the murders.

 

[AugustWest]

Well if the D cannot defend their client’s innocence and he is convicted, then Judge Gull isn’t standing in the way of an appeal. No grounds to prove she is biased.

But as the SODDI are not the defendants in RA’s upcoming trial, nothing has changed with this ruling. The fact remains none of the investigators testifying for the defence could place any of the D’s third party POIs at the crime scene at the time of the murders.

I didn't say anything about bias, anything about guilt or innocence, anything about appeal. None of that. I'm not sure why you quoted me.

 

[Seattle1]

I think they are heavily influenced by the recent Karen Read strategy and the Barry Morphew dismissal in 2022

The former strategy we have discussed. The later approach was to attempt to overwhelm the court and prosecution with misleading and sprawling motions.

I think Scott Reisch is correct that they over litigated it whereas in the Morphew case the defence was much more skilled in bamboozling the court about discovery violations and supposed alternate suspects.

MOO

Exactly! But unlike the Morphew defense team, RA's defense failed to get Judge Gull removed from this case. JMO

 

[ClearAhead]

I didn't say anything about bias, anything about guilt or innocence, anything about appeal. None of that. I'm not sure why you quoted me.

No reason other than adding my thoughts to the topic of discussion.

 

[steeltowngirl]

Looking at the search warrant return just now and I see something listed as "paper wrapped wooden weave box containing 2 "Audiovox" device...

Any ideas what those are? I googled Audiovox and it isn't clear to me what this could be.

Portable DVD player?

VOXX Electronics

www.voxxelectronics.com

 

[tlcya]

I am trying to figure out if there would be any potential benefit for the defense team to have something they could offer as proof during hearing and elect not to do so. To me it would seem logical if one has something that can sway the judge in favor of granting one's motion in limine, one would use it.

This leads me to believe that the DT has no such evidence that would allow their other evidence to be considered admissible at trial.

 

[AugustWest]

I am trying to figure out if there would be any potential benefit for the defense team to have something they could offer as proof during hearing and elect not to do so. To me it would seem logical if one has something that can sway the judge in favor of granting one's motion in limine, one would use it.

This leads me to believe that the DT has no such evidence that would allow their other evidence to be considered admissible at trial.

It was the prosecution's motion in limine, not the defense's. There may or may not be a clue there

 

[tlcya]

It was the prosecution's motion in limine, not the defense's. There may or may not be a clue there

I misspoke and I follow you, but my question remains the same. DT wanted that stuff in state did not. Is there any advantage to the DT not playing all their available cards to see that they got in what they wanted? Is there any advantage to not play those cards until trial?

I am experienced in elder law, not criminal, so my knowledge of that topic is limited to what I learn following cases. Thanks for being willing to answer our questions in this case.

 

[Salah11]

So what’s the defenses next step realistically here?

 

[AugustWest]

I misspoke and I follow you, but my question remains the same. DT wanted that stuff in state did not. Is there any advantage to the DT not playing all their available cards to see that they got in what they wanted? Is there any advantage to not play those cards until trial?

I am experienced in elder law, not criminal, so my knowledge of that topic is limited to what I learn following cases. Thanks for being willing to answer our questions in this case.

One would be to make sure you have all offers of proof on the record for appeal. Another would be that offers of proof are made outside the presence of a jury, so you limit exposure to prejudicial information given to them.

ETA: I don't want to go too deeply into motions in limine, procedure and strategy, but here is a good read on that subject

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1825&context=klj

 

[Seattle1]

Morally right does matter. It might not get the defense team disbarred, but it matters.
It is not OK for anyone, in any profession, in my opinion, to purposely manufacture false and misleading information. Would you want your stock broker to type up a document filled with falsehoods touting some stock as being super great so you’ll buy it? Your banker? Your accountant? Your car repairman, teacher, doctor, dentist? These people would go to jail for doing that, so why is it OK for defense lawyers? Society depends on all of believing that people are being upfront and honest with each other.
Ironic that the profession charged with finding truth, allows the truth to be played with so loosely. Just because you can, doesn’t mean you should.
The defense had a choice. They chose to lie and mislead and it totals up to zero. Nothing for RA. In the wake they accused innocent people, defamed them, caused needless suffering for the victim’s families, lots more.
They could have vigorously defended RA without resorting to this. This fiasco is entirely on them and they should not be applauded for it.

After seeing more of what I refer to as 'defense strategy by false and misleading information or alternate facts,' I recently learned attorneys are actually given what is called "litigation privilege" (credit @AugustWest from another thread discussion).

What Is Litigation Privilege?​

While the precise extent of litigation privilege may be indeterminate, a number of cases lay a foundation establishing the privilege's scope. Litigation privilege is an absolute privilege yielding complete immunity from defamation allegations, and therefore the classification of communications that may be protected by litigation privilege is necessarily narrow. Litigation privilege generally only extends to defamatory communications involving litigants or other participants in a trial authorized by law. 53 C.J.S Libel & Slander §72 at 132 (1987). The defamatory communications must be made during or prior to a judicial proceeding and have some connection or logical relation to that proceeding. Id. Litigation privilege extends to out-of-court communications between opposing counsel, between attorneys and their clients, and between attorneys representing different plaintiffs in lawsuits against the same defendant. However, as we shall see in the discussion of Edelman, the privilege does not extend to persons without an interest in the lawsuit unless the communication furthers a recognized public interest.

This broad scope of attorney litigation privilege is memorialized in the Restatement (Second) of Torts, which states that:

An attorney at law is absolutely privileged to publish false and defamatory matter of another concerning communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. §586 at 247 (1997).

Litigation privilege is in accord with the public interest of granting citizens the utmost freedom to the courts of justice in their efforts to attain settlement. Id. at Comment a, 247.

More on 'Use of Litigation Privilege' at the link below.

Boundaries of Litigation Privilege