IN - Abby & Libby - The Delphi Murders - Richard Allen Arrested - #169

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zh0r4 said:
That is kind of awesome tbh. I would not appreciate being put in that situation if I was a clerk-I would interpret the orders as “stop doing your job.” It makes zero sense. I’ve never heard of a judge telling a clerk to remove something from the docket. From what I can tell via research, Hennessy is correct that the clerk is part of the executive branch (which I was unaware of until recently). JMO

Per his Motion to Reconsider:

1. On October 26, 2023, the court issued the following order: "Clerk of the Carroll Circuit Court ordered [sic] to remove Attorneys Baldwin and Rozzi as attorneys of record in this cause."

2. The County Clerk is an elected position duly elected by the people of the county. She or he is a member of the executive branch of government, not the judicial branch.

3. Part of the clerk's responsibilities is to maintain a complete and accurate record of court filings.

4. No judge has the authority to oversee the clerk or order the clerk to alter the record of
court filings.

5. A judge may order sealings of filings only if she complies with Access to Court Records Rules which Judge Gull has not.

6. On October 19, 2023, Judge Gull obtained a coerced and involuntary oral motion of Mr. Baldwin. That withdrawal is a nullity and invalid as not in compliance with Rules 3.8 and 7.0(B) of the Indiana Rules of Trial Procedure. Mr. Baldwin has never filed a written motion to withdraw and will not do so. By operation of trial rules he remains counsel of record.

7. On that same date the court obtained in the same manner an oral promise from Attorney Rozzi to file a motion to withdraw which he has not done and will not do.

8. The due process clauses of the State and Federal constitutions apply to all citizens, not just the Accused. The fundamental notion of due process is notice and the opportunity to be heard.

9. There have been no valid motions to withdraw by appointed counsel. There has been no order of disqualification. There is no legitimate basis for disqualification. See Motion for Recusal and to Disqualify previously filed and incorporated herein by reference.

10. Upon the filing of the Motion for Recusal and to Disqualify the court loses the authority and jurisdiction to make rulings on other motions or issue orders other a hearing and ruling on the request for recusal and disqualification. Lewis v. State 233 N.E.2d 770 (Ind. 1968).

11. The court's order to remove appointed counsel leaves the Accused without representation, interferes with the attorney client relationship, was done outside the presence of the Accused and prejudices his substantial right to the effective representation of counsel.
Click to expand...
9. See Motion for Recusal <snip> previously filed and incorporated herein by reference.

Did I miss something? Has a Motion for Recusal been filed (or docketed)?
 
@MistyWaters The clerk may have run out of time but all the other entries were done in a timely fashion that day. Even RA's new atty's names were entered.

@zh0r4
This is from the Supreme Court opinion you posted. We've had some discussion as to the success of appeals; so many of the ones I've read fail due to objections not being lodged in the trial court.
This part is just crazy MOO:
DEFENSE: That’s correct, Your Honor. He does want to – he wants to have sentencing somewhere else, but he’s not in a position to do that. So, I told him this was going forward today, and he said he didn’t want to be present.
Click to expand...

The Court of Appeals found Williams did not lodge a specific objection to the court’s procedure, thereby waiving the issue for appellate review.
Click to expand...
 
zh0r4 said:
9. See Motion for Recusal <snip> previously filed and incorporated herein by reference.

Did I miss something? Has a Motion for Recusal been filed (or docketed)?
Click to expand...
I think it's part of the motion to disqualify?

10/26/2023Notice to Court Filed
Verified Notice of Continuing Representation
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Motion Filed
Motion to Disqualify
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Praecipe for Transcript Filed
Praecipe for Transcript
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Motion for Continuance Filed
Motion for Continuance
Filed By:
Allen, Richard M.
File Stamp:
10/26/2023
 
FrostedGlass said:
I think it's part of the motion to disqualify?

10/26/2023Notice to Court Filed
Verified Notice of Continuing Representation
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Motion Filed
Motion to Disqualify
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Praecipe for Transcript Filed
Praecipe for Transcript
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Motion for Continuance Filed
Motion for Continuance
Filed By:
Allen, Richard M.
File Stamp:
10/26/2023
Click to expand...
Maybe? The entire quote @ point 9 “See Motion for Recusal and to Disqualify previously filed and incorporated herein by reference.”
I wonder if the title would say both on the motion? Let me see if I can find anything researching.
 
FrostedGlass said:
I think it's part of the motion to disqualify?

10/26/2023Notice to Court Filed
Verified Notice of Continuing Representation
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Motion Filed
Motion to Disqualify
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Praecipe for Transcript Filed
Praecipe for Transcript
Filed By:
Allen, Richard M.
File Stamp:
10/25/2023
10/26/2023Motion for Continuance Filed
Motion for Continuance
Filed By:
Allen, Richard M.
File Stamp:
10/26/2023
Click to expand...
Ok this is quite dense but it seems recusal is more voluntary and is time restricted, the J agrees peacefully to exit. Disqualifying is more severe and permanent (not voluntary?). It becomes confusing because state laws can differ. But they are used interchangeably sometimes? Also there was some change that added party bias (3) in the 1970s. According to link (4) they are different, but it is Texas.

Idk if this even matters FTR, I was more curious if I had missed a Motion to read.

(1) Rule 2.11: Disqualification
www.americanbar.org

Rule 2.11: Disqualification

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances:
www.americanbar.org www.americanbar.org

(2) Recusal: Analysis of Case Law Under 28 U.S.C. ss 455 & 144

Recusal: Analysis of Case Law Under 28 U.S.C. ss 455 & 144 | Office of Justice Programs

www.ojp.gov www.ojp.gov

(3) Appellate Review of Judicial Disqualification Decisions in the Federal Courts

(4) Understanding Judicial Recusal and Disqualification in Texas

Understanding Judicial Recusal and Disqualification in Texas | Reynaldo Garza, III - Brownsville Texas Attorney at Law

If you question the impartiality of a judge, read here about judicial recusal and disqualification to see if that may be a consideration for your case!
www.rggarzalaw.com www.rggarzalaw.com
 
FrostedGlass said:
@MistyWaters The clerk may have run out of time but all the other entries were done in a timely fashion that day. Even RA's new atty's names were entered.
Click to expand...

Just a guess, the highest priority was to replace the ex-Ds name from the online system which prevents the filing of more motions online by either of them over the weekend.

The lowest priority was to remove the motions already filed from online records since it’s been indicated that will take place.

I’ve posted the Mycase* disclaimer a couple of times. It’s not intended to be the official court record. Slow mycase admin work is not significant to the outcome of this case as it simply declares itself to be a ‘public service’. IMO.

*opps
 
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MistyWaters said:
Just a guess, the highest priority was to replace the ex-Ds name from the online system which prevents the filing of more motions online by either of them over the weekend.

The lowest priority was to remove the motions already filed from online records since it’s been indicated that will take place.

I’ve posted the Myspace disclaimer a couple of times. It’s not intended to be the official court record. Slow myspace admin work is not significant to the outcome of this case as it simply declares itself to be a ‘public service’. IMO.
Click to expand...
(I think you mean mycase? Though the mental image of the courts using Myspace to broadcast their business is AMAZING.)
 
zh0r4 said:
“Subject to considerations such as conflicts of interest,[5] scheduling, counsel's authorization to practice law in the jurisdiction, and counsel's willingness to represent the defendant (whether pro bono or for a fee),[6] criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous deprivation of first choice counsel is automatic reversal.“

Assistance of Counsel Clause - Wikipedia

en.m.wikipedia.org en.m.wikipedia.org
The bold automatic reversal, means conviction reversal, and cites United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) “a United States Supreme Court ruling that the erroneous deprivation of a defendant's attorney of choice entitles him to a reversal of his conviction under the Sixth Amendment to the United States Constitution.”

United States v. Gonzalez-Lopez - Wikipedia

en.m.wikipedia.org en.m.wikipedia.org
Click to expand...
[sbm]

Agree. Potential structural error. Consider Sarah Boone as an example, on her 7th court-appointed attorney? And, not because the judge feels like indulging her, but because the judge is protecting the trial process. Indiana SC though recently turned what would normally be automatic reversal structural error into invited-error and upheld a conviction in at lease one case (Durden v State of Indiana). But, why would Gull take the chance that she will not be reversed under these facts which are different from Durden? Facts are critical and always matter, and I think they are stacked against her right now.

If RA still wants his attorneys on the case, they need to be heard first (due process). It's disturbing that Gull allowed cameras in the courtroom for that one day, a previously unscheduled hearing for which she allegedly had a prepared statement ready to go and took the time to read it to them in chambers. An arguable "I already made up my mind here. If you want to be heard, you'll be heard on national TV and in the end this is what I will read to the public regardless." There are some troubling questions with the way this has been handled and I do not think it's over. Imo, these families stand to suffer just as much as RA. This is a mess.

jmo

www.wthr.com

Cameras will be allowed in court for Richard Allen hearing

Judge Frances Gull wrote she permitted cameras in court partially to protect Richard Allen's right to due process.
www.wthr.com www.wthr.com


no-attorney-can-satisfy-her-lawyer-is-absolutely-fed-up-with-murder-defendant-client-who-allegedly-killed-her-boyfriend-by-trapping-him-in-suitcase
 
zh0r4 said:
Ok this is quite dense but it seems recusal is more voluntary and is time restricted, the J agrees peacefully to exit. Disqualifying is more severe and permanent (not voluntary?). It becomes confusing because state laws can differ. But they are used interchangeably sometimes? Also there was some change that added party bias (3) in the 1970s. According to link (4) they are different, but it is Texas.

Idk if this even matters FTR, I was more curious if I had missed a Motion to read.

(1) Rule 2.11: Disqualification
www.americanbar.org

Rule 2.11: Disqualification

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances:
www.americanbar.org www.americanbar.org

(2) Recusal: Analysis of Case Law Under 28 U.S.C. ss 455 & 144

Recusal: Analysis of Case Law Under 28 U.S.C. ss 455 & 144 | Office of Justice Programs

www.ojp.gov www.ojp.gov

(3) Appellate Review of Judicial Disqualification Decisions in the Federal Courts

(4) Understanding Judicial Recusal and Disqualification in Texas

Understanding Judicial Recusal and Disqualification in Texas | Reynaldo Garza, III - Brownsville Texas Attorney at Law

If you question the impartiality of a judge, read here about judicial recusal and disqualification to see if that may be a consideration for your case!
www.rggarzalaw.com www.rggarzalaw.com
Click to expand...

Hennessy’s Motion to Consider mentions a “Motion for Recusal and to Disqualify” which appears to be sealed. Just my opinion, the ability to successfully argue the flight of the ex-D is impossible as it’s based on too much unknown information.

ETA You might recall the ex-D were chastised for referring to rulings from another state rather than Indiana (can’t remember which one) and then did so a 2nd time so Texas probably isn’t a help.

<modsnip: not an approved source>
 
Last edited by a moderator:
Not sure if we are allowed to discuss here, so delete if not okay...

Changing the subject for a moment...the alleged leaked photo of the clothing in the water...is this legit or a hoax? Seems weird to me that the alleged shoe shown in the photo appears pretty clean...unless shoes were removed prior to crossing the river, I would expect a victim shoe to be covered in mud, no?

Also, the texts allegedly from DE that surfaced online early on...where it was unclear whether they were legit or a hoax...some stuff in them seems to fit with what is in the Franks Memo, but the position of the hands on one victim does not seem to match. Anyone have thoughts on the consistencies an discrepancies between these two?

Finally, in the Franks Memo, one para says the shoe and phone (underneath the shoe) were found under the left lower back of the victim, but then a different para says they were under the legs. Not that it matters much, but I was just pondering why the killer might have done either. Any thoughts?

JMO
 
FWIW you can't qualify to appeal a lower court's decision to the Appellate until all available remedies have been exhausted.

Which means - for the removal of counsel matter(s), Defense would prove to the higher (appellate) court they have exhausted all avenues for reconsideration, recusal, etc. at the lower court. Establish that the only relief is an Appeal the lower court's decision(s).

IMO this explains the Rozzi/Baldwin-Hennessey flurry of filings under Gull's court attempt. They wanted paper trail of exhausting their remedies at the lower court.

IMO this also explains Gull answering/ordering those filings were made in error with "you withdrew and the Court accepted your withdrawal on the 19th" - no backsies.

Normal (not speedy) Appeals Process - in my state - which is not IN:
Noticing a (normal) Appeal is a quick one-pager. After Noticing, the Appellant has a great deal of time (months and months) to "perfect" - or write their well-researched Appeal citing existing laws.

Speedy Process:
Here, Old Defense needs a speedy Appellate process; they would not file an normal Notice of Appeal. Rather, they'd follow the Apellate's Emergency Relief Appeal process. All the facts and legal arguments need to be "perfected" and included in that brief the moment it's filed.

For docket hunters - Just FYI: This is what happens in my state (which is not IN). The higher (Appeals) Courts issue decisions on a decision timeline and in my state, these Courts keep public dockets on the cases they're hearing via the same public docket record system as the lower courts. To find Notices of Appeal (and then the perfection of that Appeal with paper arguments, and then potential hearing, then Appeal Decision) ... you'd have to know the specific Appeals Court that this particular RA case falls under. In my state, any Notice of Appeal would show up in Original (here Gull's) Court's docket for the RA case as well.

One would think Gull had already thought through the Appellate process, BUT she might not have anticipated accusations of coercion and the "backsies".

Just shows ya ... One man's coercion is another woman's graceful out.

All MOO.
 
CGBSpender said:
Not sure if we are allowed to discuss here, so delete if not okay...

Changing the subject for a moment...the alleged leaked photo of the clothing in the water...is this legit or a hoax? Seems weird to me that the alleged shoe shown in the photo appears pretty clean...unless shoes were removed prior to crossing the river, I would expect a victim shoe to be covered in mud, no?

Also, the texts allegedly from DE that surfaced online early on...where it was unclear whether they were legit or a hoax...some stuff in them seems to fit with what is in the Franks Memo, but the position of the hands on one victim does not seem to match. Anyone have thoughts on the consistencies an discrepancies between these two?

Finally, in the Franks Memo, one para says the shoe and phone (underneath the shoe) were found under the left lower back of the victim, but then a different para says they were under the legs. Not that it matters much, but I was just pondering why the killer might have done either. Any thoughts?

JMO
Click to expand...
I think the D Memo was full of misinformation and I believe the State was going to challenge that in Court hearing that was scheduled for that afternoon. They had witnesses lined up.

JMO
 
FWIW, I find it interesting that

- The docket suggests Gull's decided on the "y'all quit on the 19th before a hearing - and I agreed" theory.

- By the 14th, humble podcasters MS had obtained a "reliable independent professional legal opinion" that told them that Gull would likely decide to remove the D counsel. (And they were right.) (BTW, lawyers are REAL gossips. IMO.)

And

- I'd like to know when Gull started reaching out for replacement D counsel.

- I'd like to know which member of the P or LE leaks to MW's source.

MOO
 
CGBSpender said:
Not sure if we are allowed to discuss here, so delete if not okay...

Changing the subject for a moment...the alleged leaked photo of the clothing in the water...is this legit or a hoax? Seems weird to me that the alleged shoe shown in the photo appears pretty clean...unless shoes were removed prior to crossing the river, I would expect a victim shoe to be covered in mud, no?

Also, the texts allegedly from DE that surfaced online early on...where it was unclear whether they were legit or a hoax...some stuff in them seems to fit with what is in the Franks Memo, but the position of the hands on one victim does not seem to match. Anyone have thoughts on the consistencies an discrepancies between these two?

Finally, in the Franks Memo, one para says the shoe and phone (underneath the shoe) were found under the left lower back of the victim, but then a different para says they were under the legs. Not that it matters much, but I was just pondering why the killer might have done either. Any thoughts?

JMO
Click to expand...

WAG here:
Killer didn't care about the phone ... killer did care about the staging and the visual.
 
Emma Peel said:
WAG here:
Killer didn't care about the phone ... killer did care about the staging and the visual.
Click to expand...
I guess it just seems to me like the killer(s) thought through the staging and visual, and that things were placed certain places to support their sick fantasy...assuming the other items not used in the staging / visual were found in the river...I guess I'm just wondering why those two items were placed underneath a victim...as opposed to ending up discarded with the other items not used in the staging/visual.

JMO
 
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