IN - Abby & Libby - The Delphi Murders - Richard Allen Arrested - #171

[CGBSpender]

BBM- Imo talking to a trusted friend isn’t considered talking to the public or media. Imo it seems pretty clear from that wording that the gag order is specifically about media and widespread dissemination not a swearing to total confidentiality.

Breaching client confidentiality in the legal world is a BIG no no...and gives rise to many a malpractice claim...which in turn creates a conflict of interest between the client and attorney. The attorney client privilege even survives death. Many a lawyer knows where clients have buried the bodies and can't say or do anything about it. (See: Client Confidentiality: The Buried Bodies Case – NALA)

I don't see how you can talk "strategy" meaningfully without knowing details of a case...details that require client confidentiality to be observed.

JMO

 

[everlearning]

@Ward Thisperer Thank you for the explanation

 

[mrjitty]

A big no no if MW didn't sign a Confidentiality Agreement or NDA since he wasn't even employed by AB.

EBM: To add still a huge no no because of the Gag Order.

MOO

Right - this would seem to be negligent in my opinion, if they did not take reasonable and prudent steps around the disclosure. e.g. obviously the defence team can brief consultants and experts on parts of the case - but this will be done with the correct documentation and arrangements.

 

[AugustWest]

snipped & BBM from my post:

Counsel are reminded that they are required to conform to the Indiana Rules of Court, Rules of Professional Conduct, specifically Rule 3.6 Trial Publicity in its entirety, and Rule 3.8 Special Responsibilities of a Prosecutor in its entirety.

So not according to Rules of Professional Conduct, which is even worse IMO. These guys have practiced law for a combined 50+ years.

Rule 1.6. Confidentiality of Information (thanks @steeltowngirl)

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

(c) In the event of a lawyer's physical or mental disability or the appointment of a guardian or conservator of an attorney's client files, disclosure of a client's names and files is authorized to the extent necessary to carry out the duties of the person managing the lawyer's files.

As the rule (Rule 1.6) above mentions, a client can be informed and consent to a disclosure of trial strategy and information regarding the defense of the client. Take, for instance, when an attorney consults with a physician about medical information.

Rule 3.6 of MRPC states: (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. The plain language of the rule demonstrates it applies to communication with media and the public. It is not referencing disclosures to persons involved in a client's representation (i.e. support staff such as legal assistants, secretaries, etc...)

See: https://www.americanbar.org/groups/...rofessional_conduct/rule_3_6_trial_publicity/

 

[mrjitty]

I don't really see how splitting hairs over whether MW is a member of the public or an insider helps the defence - though they are clearly trying to have it both ways.

If MW was not a member of the team working on the case but just an outsider then no confidential details should have been disclosed to him, and precautions should have been taken so that no casual visitors could gain access.

If he was in fact an ad hoc consultant on strategy, even if unpaid, then he should have been signed non disclosure agreements

IMO the 'consultant' angle is worse for the defence because that means an actual team member intentionally disclosed the materials. Rozzi and Baldwon could be seen as vicariously responsible for that IMO.

They seem to be trying to have a bob each way

 

[mrjitty]

As the rule (Rule 1.6) above mentions, a client can be informed and consent to a disclosure of trial strategy and information regarding the defense of the client. Take, for instance, when an attorney consults with a physician about medical information.

Rule 3.6 of MRPC states: (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. The plain language of the rule demonstrates it applies to communication with media and the public. It is not referencing disclosures to persons involved in a client's representation (i.e. support staff such as legal assistants, secretaries, etc...)

See: https://www.americanbar.org/groups/...rofessional_conduct/rule_3_6_trial_publicity/

This is the problem for the defence IMO

They can only legitimately make this disclosure if MW is part of the team working the case - i.e some kind of strategy consultant. This is why Rozzi admitted that.

But then you have the issue that a team member intentionally leaked the info

The fact that MW was not a formal consultant but just some mate, and presumably without adequate documentation in place speaks immediately to negligence IMO

Like divulging key case material to a mate pretty much screams negligence to me. I would never have dreamed of giving any client confidential info to a friend!

 

[AugustWest]

I don't really see how splitting hairs over whether MW is a member of the public or an insider helps the defence - though they are clearly trying to have it both ways.

If MW was not a member of the team working on the case but just an outsider then no confidential details should have been disclosed to him, and precautions should have been taken so that no casual visitors could gain access.

If he was in fact an ad hoc consultant on strategy, even if unpaid, then he should have been signed non disclosure agreements

IMO the 'consultant' angle is worse for the defence because that means an actual team member intentionally disclosed the materials. Rozzi and Baldwon could be seen as vicariously responsible for that IMO.

They seem to be trying to have a bob each way

By listing and explaining the meaning of an attorney's rules of professional conduct, I am not making any factual determinations as to what is occurring behind the scenes. I don't know MW's work relation to AB, I don't know if NDA's are applicable, and I don't know if RA has given consent to any disclosures. I am simply stating the rules allow for each of these scenarios. IMO

 

[mrjitty]

“Counsel for the State of Indiana and the Defendant, as well as their professional staff and other personnel, Law Enforcement Officials, Court Personnel, Coroner, and all family members are prohibited from commenting on this case to the public and to the media….”

Yet, that’s what it says.
I don’t think it’s really open for interpretation.

He's either a member of the public, or a team member.

If the former, then Baldwin intentionally breached the order, so that is why I think they said he was some kind of consultant on strategy.

Let's imagine the leak was by Baldwin's paralegal. I think so long as Baldwin had done the usual diligence in hiring and contract etc, then you could make the better argument that it was just unfortunate and he can't really be blamed.

IMO that argument is much more difficult when he decides to tell people who don't work for him or are not contracted on the case. Like we only have Baldwin's claim that MW was good on strategy. Sounds like total nonsense to me.

 

[mrjitty]

By listing and explaining the meaning of an attorney's rules of professional conduct, I am not making any factual determinations as to what is occurring behind the scenes. I don't know MW's work relation to AB, I don't know if NDA's are applicable, and I don't know if RA has given consent to any disclosures. I am simply stating the rules allow for each of these scenarios. IMO

Sure - i was not replying to you.

 

[CGBSpender]

I keep thinking...if this were just someone that stole some photographs that would probably come out at trial...maybe the damage could be contained. Here though...you have AB also allegedly discussing "strategy" with a non-lawyer, non-employee, friend (MW) at times about the case.

The real question I think is...what else does MW know as a result of what AB allegedly told him about the case...and if MW were to disclose what he knows to others (assuming he has not already)...would that prejudice RA's ability to receive a fair trial?

I have to wonder if this is a bit of a catch 22 situation for JG. If the "gross negligence" she referred to is something like... RA's attorney told MW something that violated attorney client confidentiality...and that something if it got out...would absolutely prejudice a jury pool...then JG can't risk making public the specifics of why she disqualified the attorney...otherwise it's game over, a guaranteed appeal and possibly an eventual vacated judgement due to RA's inability to receive a fair trial.

JMO

 

[AugustWest]

This is the problem for the defence IMO

They can only legitimately make this disclosure if MW is part of the team working the case - i.e some kind of strategy consultant. This is why Rozzi admitted that.

But then you have the issue that a team member intentionally leaked the info

The fact that MW was not a formal consultant but just some mate, and presumably without adequate documentation in place speaks immediately to negligence IMO

Like divulging key case material to a mate pretty much screams negligence to me. I would never have dreamed of giving any client confidential info to a friend!

This assumes facts we don't have knowledge of. We don't know what documentation AB has with MW, we don't know if AB "divulged key case material," and again, clients can consent to confidential information being disclosed. IMO

 

[mrjitty]

I actually don't believe MW was in the conference room without authorisation, I think they allowed him in there and actively discussed the case with him.

Maybe he copied the photos without authorisation, or maybe not.

 

[mrjitty]

This assumes facts we don't have knowledge of. We don't know what documentation AB has with MW, we don't know if AB "divulged key case material," and again, clients can consent to confidential information being disclosed. IMO

Right but again, reading between the lines, if he had the right structure in place, that would have been in the filing. Instead this was a guy who was just dropping by and stole everything while Baldwin was on the phone, but also was a guy Baldwin discussed strategy with? That doesn't make sense to me.

 

[FrostedGlass]

From the latest episode of MS, which was an interview with The Prosecutors, Brett and Alice, the one thing that jumped out at me the most was when Alice said she suspects there was NOT any recording of the in-chambers hearing, which clearly BR was aware of because he was there, and that's EXACTLY why he requested the recording/transcript. By requesting it, there would be no way for the judge to hide the fact that there is no recording, and since RA was not present in the chambers, there will be nothing on record to prove what exactly went down that day, either for the docket, or to show RA. That would be a huge problem if true.

Maybe someone here knows...if there really isn't any kind of record for that in-chambers meeting, is it possible that the judge and all attorneys present can testify to what happened, to make it part of the record?

I can't answer your question but we may not need one.
Volume 2, pg 8 in the link below

CERTIFICATE OF REPORTER
I, Jodie L. Williams, an official reporter for the Allen Superior Court, Allen
County, Indiana, do hereby certify that I transcribed from electronic reporting
equipment all of the proceedings had at Status Hearing held on October 19, 2023, in said cause.
I further certify that the above and foregoing transcript is a full, true, and
complete copy of said proceedings.

WITNESS my hand and seal this day of November, 2023.
Jodie L. Williams, Reporter
Allen Superior Court

Record of Proceedings Volume 2.pdf

drive.google.com

 

[CGBSpender]

I actually don't believe MW was in the conference room without authorisation, I think they allowed him in there and actively discussed the case with him.

Maybe he copied the photos without authorisation, or maybe not.

I'm concerned about this very thing in light of how all of this is shaking out. A big part of discussing case "strategy" is knowing what the warts or problems are with a case so to speak. From a public perspective we know the former D is hammering hard on trying to get a search warrant invalidated, and certain evidence tossed. So it begs the question...if discussing strategy...was MW made privy to why certain evidence is problem for RA...and just how big of a problem it is? This is the in kind of information that if it gets out...would prejudice a jury...and is important to keep confidential for a client.

JMO

 

[TL4S]

I can't answer your question but we may not need one.
Volume 2, pg 8 in the link below

CERTIFICATE OF REPORTER
I, Jodie L. Williams, an official reporter for the Allen Superior Court, Allen
County, Indiana, do hereby certify that I transcribed from electronic reporting
equipment all of the proceedings had at Status Hearing held on October 19, 2023, in said cause.
I further certify that the above and foregoing transcript is a full, true, and
complete copy of said proceedings.

WITNESS my hand and seal this day of November, 2023.
Jodie L. Williams, Reporter
Allen Superior Court

Record of Proceedings Volume 2.pdf

drive.google.com

So, I guess my question would be, was this person reporting on the in-chambers meeting, or the courtroom portion of the 19th, when JG announced before the public that RA's attorneys had withdrawn?

 

[AugustWest]

Sure - i was not replying to you.

We're good, I just wasn't clear on that and didn't want to imply I was talking in more than generalities, and I wanted to address that.

 

[Ward Thisperer]

Amicus Curiae rec'd in SC case 2, what does the Notice of Defect Issued mean?

11/08/2023	Received Document Receive Date: 11/06/23 Appearance by Indiana Public Defender Council (Bernice Corley & Joel Schumm), Motion to Appear as Amicus Curiae & Brief (certificate of service does not specify a method of service. PostmarkDate: 11/06/2023
11/08/2023	Notice of Defect Issued Appearance, Motion to Appear as Amicus Curiae & Brief of IPDC Party: Indiana Public Defender Council Serve: Wieneke, Cara Schaefer Serve: Rokita, Theodore Edward Serve: Leeman, Mark Kelly Serve: Sanchez, Angela Serve: Corley, Bernice Angenett Nickole Serve: Schumm, Joel M. Issue Date: 11/08/2023
11/08/2023	Document Transmitted

 

[AugustWest]

Amicus Curiae rec'd in SC case 2, what does the Notice of Defect Issued mean?

11/08/2023	Received Document Receive Date: 11/06/23 Appearance by Indiana Public Defender Council (Bernice Corley & Joel Schumm), Motion to Appear as Amicus Curiae & Brief (certificate of service does not specify a method of service. PostmarkDate: 11/06/2023
11/08/2023	Notice of Defect Issued Appearance, Motion to Appear as Amicus Curiae & Brief of IPDC Party: Indiana Public Defender Council Serve: Wieneke, Cara Schaefer Serve: Rokita, Theodore Edward Serve: Leeman, Mark Kelly Serve: Sanchez, Angela Serve: Corley, Bernice Angenett Nickole Serve: Schumm, Joel M. Issue Date: 11/08/2023
11/08/2023	Document Transmitted

@Ward Thisperer

This means that something was procedurally wrong with the filing and needs to be cured in order for the appellate court to accept it. IMO

See: My Appeal Brief is “Defective?”: Common Defects and What It May Mean to Your Case - Dixon & Moseley, P.C.

 

[Ward Thisperer]

@Ward Thisperer

This means that something was procedurally wrong with the filing and needs to be cured in order for the appellate court to accept it. IMO

See: My Appeal Brief is “Defective?”: Common Defects and What It May Mean to Your Case - Dixon & Moseley, P.C.

Thank you for the clarification!