IN - Abby & Libby - The Delphi Murders - Richard Allen Arrested - #170

[Emma Peel]

It is not going to shock me if B&R opt to file. I would. I would want the entire world looking at this Judge and how she runs her courtroom. I would absolutely file even if just to ensure that RA has the best chance at appeal or acquittal down the road! JG needs to be off this case. TODAY.

b/c this case is high profile ... the appeal has a high chance of being taken up by the higher court.

But that shouldn't be the deciding factor for the Old D to take up an appeal.

The decision to appeal the lower Court's decision should be based on the facts and legal arguments you made in the lower court ... and your confidence that the lower Court's decision did not get it right.

Moo

 

[Ravenmoon]

Very RSBM
In my mind, jail for 2 years for someone who is ‘presumed innocent’ and hasn’t faced trial is bad enough, nevermind actually being in a maximum security prison.

I hope and pray that the truth ~whatever the truth is~ comes to light. That will be the only chance for true justice for Abby & Libby. Convicting an innocent in order to close a case would only serve to tack on to the tragedy.

Moo

I am really confused about the sentiments from so many people suggesting that an innocent man sits in prison for 2 years while awaiting trial.
Yes, I realize he is in prison and not jail. I do understand that it isn't typical for someone to be housed in that manner.

My question is this:
Is this outrage about his housing more than anything else ? I really want to understand.

Would people feel better if he sat in jail?
What if he was in jail and that put him in more physical danger? He would not have access to the psychiatric help that he currently has available to him now. There are other reasons that have been presented for his location.

Anyway, is this the core of the outrage, or do people truly believe him to be innocent? Because I don't think it's crazy for 2 years to be the wait time for getting to trial. Am I wrong about that?

Also, since I am asking, for those who are upset about another year passing, what about the family and the sympathy for almost 7 years of living without their children? The wait continues for them as well.


JMO

 

[abams]

The Sixth Amendment gives the accused in criminal cases the right to hire attorneys of their choice. Turner, 594 F.3d at 948, citing Wheat, 486 U.S. at 159, 108 S.Ct. 1692. The right has been regarded as “the root meaning of the constitutional guarantee” in the Sixth Amendment. Gonzalez–Lopez, 548 U.S. at 147–48, 126 S.Ct. 2557, citing *749 Wheat, 486 U.S. at 159, 108 S.Ct. 1692. Even so, a defendant's choice of counsel may be overridden and counsel may be disqualified where an actual conflict of interest or a serious potential for conflict exists. Wheat, 486 U.S. at 163–64, 108 S.Ct. 1692 (affirming refusal to accept defendant's waiver of attorney's “serious potential” for conflict of interest); accord, Turner, 594 F.3d at 952. A conflict that amounts to a breach of the code of professional ethics “obviously qualifies” as an actual conflict of interest of the sort that allows the trial court to disqualify counsel regardless of a defendant's offer to waive. Turner, 594 F.3d at 952.

United States v. Turner, 651 F.3d 743, 748–49 (7th Cir. 2011)

JMO

To be clear this quote from a case is in the context of an attorney disqualified because of a conflict of interest, as apparently they were representing a defendant's co-conspirators simultaneously. Not analogous at all to the current situation.

 

[CGBSpender]

What's the alleged conflict of interest here? Not even Judge Gull has said anything about a conflict of interest.

@AugustWest & @O.Incandenza - I could be mistaken, but it sounded like there were several issues discussed on the record in chambers on Aug 19th (I assume it was on the record, since the former D's have requested copies of the transcripts it would appear). We are not privy to the text of that transcript at this time so we can only speculate. That said, it would appear there are some serious allegations concerning failure to maintain client confidentiality which is kind of a big deal in the legal world...and gives rise to many a malpractice lawsuit. The existence of a potential malpractice claim by the client against his own lawyers is where the conflict of interest would exist.

JMO

 

[MistyWaters]

Fox59 and a thorough summary of when everything started to go sideways. Ironic to note the tender feelings of the ex-D considering they’ve accused literally everyone associated with this case of criminal wrongdoing, illegal acts and/or conspiracy against their client.

Trial for Delphi murder suspect Richard Allen pushed back to October 2024

CARROLL COUNTY, Ind. – An evidence leak, legal filings and the removal of the original court-appointed defense team spelled another delay in the Delphi murder case. Attorneys for Richard Allen file…

fox59.com

“….Chaos has engulfed the case since September, when Baldwin and Rozzi filed a motion seeking a Franks hearing to challenge the search warrant. Such a hearing can be requested when the defendant believes investigators included a false statement—knowingly, intentionally or with reckless disregard for the truth—in order to justify and obtain a search warrant.

They accused Tony Liggett, the current Carroll County sheriff, of misleading the judge and withholding certain information to get the warrant approved.

Their memorandum in support of the Franks hearing also outlined an alternative murder theory—that the girls were killed in “ritualistic” fashion by adherents of a white supremacist cult called “Odinism.”

Prosecutor Nick McLeland called the theory “fanciful defense for social media to devour.” He described the defense team’s 136-page memorandum as “colorful, dramatic and highly unprofessional.”

The filing touched off a flurry of legal maneuvering, with the defense alleging misconduct on the part of investigators….”

 

[O.Incandenza]

Wouldn’t the conflict to D&B be that RA couldn’t be assured of a fair trial if they represented him?

A conflict of interest would be something like Baldwin representing Allen even though he had previously represented Kegan Kline or one of the alleged Odinists. Then he would have potentially conflicting duties to different clients.

I can't really see how that applies in this case. Unless the judge somehow argues that their previous representation of Allen as court-appointed counsel somehow conflicts them out from representing him as private counsel. But I don't see why it would, and she didn't say anything like that when she disqualified them today.

 

[Emma Peel]

She doesn't have to voice it publically, just to the SC when asked about it all.

To my thinking, this would be an introduction of new facts, which is not permitted in a higher court review of a lower court decision.

Which is another reason I think that Baldwin is clear; Gull couldn't bring any receipts suggesting Baldwin is directly responsible for the leak.

IIRC, Gull asserts this was the 2nd careless leak from Baldwin's office, and she found that to be unethical/grossly negligent.

moo.

 

[CGBSpender]

To be clear this quote from a case is in the context of an attorney disqualified because of a conflict of interest, as apparently they were representing a defendant's co-conspirators simultaneously. Not analogous at all to the current situation.

You really think RA's former D's don't have a conflict of interest problem?

JMO

 

[MistyWaters]

A conflict of interest would be something like Baldwin representing Allen even though he had previously represented Kegan Kline or one of the alleged Odinists. Then he would have potentially conflicting duties to different clients.

I can't really see how that applies in this case. Unless the judge somehow argues that their previous representation of Allen as court-appointed counsel somehow conflicts them out from representing him as private counsel. But I don't see why it would, and she didn't say anything like that when she disqualified them today.

No, I hadn’t noticed that she gave a reason for the disqualification either.

But I’d expect a conflict of interest arises when attorneys offer to defend someone probono even if they’re aware of doing so isn’t in the defendant’s best interest.

 

[CGBSpender]

A conflict of interest would be something like Baldwin representing Allen even though he had previously represented Kegan Kline or one of the alleged Odinists. Then he would have potentially conflicting duties to different clients.

I can't really see how that applies in this case. Unless the judge somehow argues that their previous representation of Allen as court-appointed counsel somehow conflicts them out from representing him as private counsel. But I don't see why it would, and she didn't say anything like that when she disqualified them today.

A client having a potential malpractice claim against their own lawyer is a conflict of interest. Based on what we have heard about the allegations thus far...I think there is chance that RA may have a potential malpractice claim.

JMO

 

[O.Incandenza]

@AugustWest & @O.Incandenza - I could be mistaken, but it sounded like there were several issues discussed on the record in chambers on Aug 19th (I assume it was on the record, since the former D's have requested copies of the transcripts it would appear). We are not privy to the text of that transcript at this time so we can only speculate. That said, it would appear there are some serious allegations concerning failure to maintain client confidentiality which is kind of a big deal in the legal world...and gives rise to many a malpractice lawsuit. The existence of a potential malpractice claim by the client against his own lawyers is where the conflict of interest would exist.

JMO

That's an interesting argument. But even if true, that seems like a conflict that Allen could very easily waive. He's been informed of the leak and the potential consequences. He signed an affidavit saying he wanted to continue on with Baldwin & Rozzi anyway.

 

[abams]

You really don't think RA's former D's don't have a conflict of interest problem?

JMO

No. Edit: and it hasn't even been alleged by any party. The judge is not there to keep their insurance premiums low.

 

[Emma Peel]

Sorry, either brain and fingers aren’t cooperating this am. I’ll try again.

A Constitutional Right of indigents is a fair trial. That right should take precedence over his choice of counsel IMO.

He's no longer using indigent services as counsel if he's got private counsel.
So ... now we must look at examples and custom created via case law re: private counsel (rather than public counsel).IMO

 

[CGBSpender]

That's an interesting argument. But even if true, that seems like a conflict that Allen could very easily waive. He's been informed of the leak and the potential consequences. He signed an affidavit saying he wanted to continue on with Baldwin & Rozzi anyway.

Yes, but this is also a client that B&R are arguing needs to be moved from Westville because he is not mentally sound, is noncommunicative, and cannot participate in his own defense. This is not an individual that one would expect is competent to sign legal documents on their own behalf and/or make decisions about a conflict-of-interest waiver.

Hypothetically, a lawyer might be inclined to take actions that are not in the best interest of the client, but might improve their potential to defend the malpractice claim if representation continues.

I do kind of wonder if this conflict-of-interest problem isn't in whole or in part the reason a seemingly rushed 100+ page Franks memo was filed and publicly published (which included some information which appeared irrelevant to a Frank's motion). What better way to mitigate a confidential client information leak than to just put all of the information out there to the public and try to spin it in the best possible light to the client? I really wonder if the alleged leak(s) were not an issue...would that Frank's memo have still been filed when it was, and would it have looked any different?

JMO

 

[MistyWaters]

He's no longer using indigent services as counsel if he's got private counsel.
So ... now we must look at examples and custom created via case law re: private counsel (rather than public counsel).

Well iirc RA once again recently confirmed he was indigent so that doesn’t give the court the right to toss him out into the cold (figuratively) especially since the court claims his pro bono attorneys previously committed gross negligence when they were being paid to defend him.

Somebody’s got to look out for him or perhaps D&G are going to have to backtrack on allegations of mental issues. But then there’s the five confessions. JMO

 

[O.Incandenza]

Yes, but this is also a client that B&R are arguing needs to be moved from Westville because he is not mentally sound, is noncommunicative, and cannot participate in his own defense. This is not an individual that one would expect is competent to sign legal documents on their own behalf and/or make decisions about a conflict-of-interest waiver.

Hypothetically, a lawyer might be inclined to take actions that are not in the best interest of the client, but might improve their potential to defend the malpractice claim if representation continues.

I do kind of wonder if this conflict-of-interest problem isn't in whole or in part the reason a seemingly rushed 100+ page Franks memo was filed and publicly published (which included some information which appeared irrelevant to a Frank's motion). What better way to mitigate a confidential client information leak than to just put all of the information out there to the public and try to spin it in the best possible light to the client? I really wonder if the alleged leak(s) were not an issue...would that Frank's memo have still been filed when it was, and would it have looked any different?

JMO

If he's not competent to make decisions regarding his own representation that's a whole separate issue and the whole trial would have to be put on hold. But until there's an actual finding that he's not competent, you can't overrule his decisions on that basis. That would be an incredible catch-22. "You're not competent enough to decide who represents you in court. But you're definitely competent enough to be tried for murder." That's Kafka-esque.

 

[AugustWest]

Wouldn’t the conflict to D&B be that RA couldn’t be assured of a fair trial if they represented him due to their prior gross negligence in representation of him?

I mean, it could be, but where is the finding of conflict, much less gross negligence?

ETA: these issues would be much less concerning if there were a semblance of proper "due process" in procedure.

 

[MistyWaters]

If he's not competent to make decisions regarding his own representation that's a whole separate issue and the whole trial would have to be put on hold. But until there's an actual finding that he's not competent, you can't overrule his decisions on that basis. That would be an incredible catch-22. "You're not competent enough to decide who represents you in court. But you're definitely competent enough to be tried for murder." That's Kafka-esque.

It was the D who first introduced the competency issues and I doubt that was an oversight. The trial has been too far off in the future, and still is, to deal with that issue but considering the extent the D put it on record, IMO there is a strong chance the D was intending to use it if needed.

JMO

 

[CGBSpender]

If he's not competent to make decisions regarding his own representation that's a whole separate issue and the whole trial would have to be put on hold. But until there's an actual finding that he's not competent, you can't overrule his decisions on that basis. That would be an incredible catch-22. "You're not competent enough to decide who represents you in court. But you're definitely competent enough to be tried for murder." That's Kafka-esque.

I see your point. I guess it comes down to this...can RA (regardless of what he may think) receive fair continued representation from his former D, knowing that D may have liability exposure to RA for their prior actions/inactions? I tend to be a conservative individual, and so if I'm the judge...I don't think you take that chance when the defendant is being charged with Felony Murder...there is too much at stake.

JMO

 

[Emma Peel]

Wouldn’t the conflict to D&B be that RA couldn’t be assured of a fair trial if they represented him due to their prior gross negligence in representation of him?

RA's right to engage private defense counsel of his choice (not paid by state) is (basically) a sacred right ... and here, RA's (sacred) right is in direct conflict with the Court's opinion on RA's chosen private counsel.

I'd offer that the Court is the one with the conflict. (Remedy being, she can recuse.)