IN - Abby & Libby - The Delphi Murders - Richard Allen Arrested - #172

[MistyWaters]

It seems to me there are several upcoming hurdles that will impact the future of this case, especially as it pertains the relevance of the Frank’s motion.

I doubt the Odinist theory involving a ritual sacrifice of Libby and Abby because a parent was involved in an interracial relationship is going to be near enough reason for RA to be found not guilty at trial, whether he truly is or not. So it seems to me this is an appropriate time for the Frank’s motion to be abandoned regardless if one supports it or not. Otherwise if that’s the best the Defense can come up with, the evil Odin stuff is more than likely to result in a conviction! IMOnly

Hurdles - Only if the answers to below are all YES will the FM ever jump the last hoop.
Will the ex-D be reinstated?
IF not, will the new D will bring forward the old Frank’s motion?
IF it stands, will the Judge allow a Frank’s motion hearing?
Will the D prevail in a Frank’s hearing, invaliding the SW and what was found?

 

[Sillybilly]

ADMIN NOTE (at random):

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Verified professionals do not have to provide links to what they state as fact. In all other respects, they are held to the same TOS as regular members.

 

[O.Incandenza]

I've been pretty clear to tag everything as my opinion. But also we are talking legal analysis of an affidavit, so it is pretty clearly only our opinion. There is no fact here. We don't know how Judge Gull will rule. But I suspect the defence has not raised nearly enough to succeed.



I'll restate my view so that it is hopefully a bit clearer. Then respond to the above.

Probable cause in the affidavit largely hangs on the tip interview with the officer which meshes with the 3 juvenile girls. To that we can add that RAs own interview content, e.g but now claiming a different time. That establishes the low bar of PC IMO, because he puts himself at the scene, dressed like bridge guy etc. Now of course you can argue about whether the tip was poorly recorded, whether the witnesses are too erratic etc etc but those are trial issues.

Then we have Ligget's potential falsehood/misrepresentation. If the allegations are correct, then it is indeed a bad look. However I do not lightly accept this. IMO if it were clearly so, they'd have laid it out in black and white and not had a 130 page FM. But even if it is so, it is IMO, not enough. e.g had the witness only seen a muddy man and not a bloody man - that is still highly suspicious. These differences in testimony are really a trial issue.

But I do agree if Ligget misstated it is not great, because whomever drafted the SWA had the source documents to go from precisely to ensure these mistakes don't happen. I'd never have dreamed of drafting in the witness statement from memory!

Now as fas as the 'exculpatory evidence' and the SWA goes

First it is not clear to me how the prosecution can be withholding anything before the discovery deadline had past. This all happened months before the deadline. I am well aware from previous trials i've followed that sometimes there are 'dark arts' where stuff is slow walked or attempts made to conceal. The defence alleges such attempts were underway but this is not proven. Perhaps you can explain how there was a discovery violation here when the deadline was not yet past? To my mind, they were not yet obliged to discover the material even if they were playing games.

Second, to my mind the previous suspects are simply not relevant to the fact in issue. The fact in issue is did Ligget lie about the witness ID stuff in the Affidavit. All the odinism stuff and crime scene analysis does not prove one way or other whether he lied about those narrow points.

Third, were the prior suspects "exculpatory'? In my view, the exculpatory content must go directly to the probable cause in the search warrant. e.g a witness who said he met RA that day at 2pm for a coffee. The Odinist theory claims that law enforcement didn't investigate these other guys to find the evidence against them. But in my view it does not actually introduce any material evidence that they are involved.

Alternate suspects would much more clearly go to the arrest affidavit. e.g DNA of an unknown suspect on the victims. Again, we'll have to have a hearing about whether any of this will even be admissible as a trial theory.

All in all, I don't believe the defence seriously contends Odinism was relevant to the SWA PC. If they had the goods, they would have drafted a hard core document setting out the lies clearly for the judge and citing the authorities. It would collapse the case!

* Please take all of the above as my highly overvalued opinion *

I think you're conflating a couple of things, which is understandable because the Franks Memo doesn't explicitly lay out the relevant standards.

The purported reason the Odinism investigation is included in the Franks memo is because they're using it to demonstrate that Liggett's misstatements and omissions in the PCA were intentional or reckless. That's required to get a Franks hearing. They're saying that the pattern of the investigation shows that LE, including Liggett, were intentionally and recklessly ignoring other suspects and exculpatory information about Allen.

So it's not so much that the Odinism investigation needed to be included in the PCA, but that the way that the Odinism investigation was treated by LE shows that the misstatements and omissions in the PCA were intentional/reckless.

Now, the amount of information included in the Franks Memo about the Odinism investigation is extreme. And it makes it seem like they were using it as a vehicle to get their theory of the case out to the public. But there was a (tenuous) link to the actual Franks standard.

 

[Cyber sleuth]

No, Rozzi did not offer his withdrawal. He affirms as such in his pro bono appearance filing.
View attachment 462261
There is no statement of withdrawal from Rozzi on the record. He apparently indicated in the in-chambers meeting that he would file a written motion but did not do so.

So he lied? To a judge? In front of witnesses.

 

[Ward Thisperer]

So he lied? To a judge? In front of witnesses.

Or he changed his mind after being able to consult with an attorney and being able to consider the legal standing of the coercive ultimatum presented by JG.

Hennessy also argued that an oral moral motion to withdraw is not a valid motion per Indiana Rules of Trial Procedure.
Edit- linking the procedure. He actually said Rule 3.8 in the Motion to Reconsider but it’s clear he meant 3.1(H) since 3.8 doesn’t exist. Maybe he was dictating

Indiana Rules of Trial Procedure

Rule 3.1 (H) Withdrawal of Representation. An attorney representing a party may file a motion to withdraw representation of the party upon a showing that the attorney has sent written notice of intent to withdraw to the party at least ten (10) days before filing a motion to withdraw representation, and either:

(1) the terms and conditions of the attorney’s agreement with the party regarding the scope of the representation have been satisfied, or

(2) withdrawal is required by Professional Conduct Rule 1.16(a), or is otherwise permitted by Professional Conduct Rule 1.16(b).

An attorney filing a motion to withdraw from representation shall certify the last known address and telephone number of the party, subject to the confidentiality provisions of Sections (A)(8) and (D) above, and shall attach to the motion a copy of the notice of intent to withdraw that was sent to the party.

A motion for withdrawal of representation shall be granted by the court unless the court specifically finds that withdrawal is not reasonable or consistent with the efficient administration of justice.

Rule 7 (B) Motions and other papers. Unless made during a hearing or trial, or otherwise ordered by the court, an application to the court for an order shall be made by written motion. The motion shall state the grounds therefor and the relief or order sought. The requirement of notice is satisfied by service of the motion.

So it's not so much that the Odinism investigation needed to be included in the PCA, but that the way that the Odinism investigation was treated by LE shows that the misstatements and omissions in the PCA were intentional/reckless.

SBM - well said!

 

[girlhasnoname]

No, Rozzi did not offer his withdrawal. He affirms as such in his pro bono appearance filing.
View attachment 462261
There is no statement of withdrawal from Rozzi on the record. He apparently indicated in the in-chambers meeting that he would file a written motion but did not do so.

No that is not factually correct. When Judge G did speak on the record in open court directly after the in-chambers hearings she said the attorneys for Defendant RA have withdrawn. She said she would be appointing new counsel for the Defendant Allen and said she asked R&B to return Discovery back to the State.

Just because they changed their mind and said AFTERWARDS they only withdrew because they were strong armed by Judge G in chambers is almost comical if not for the damage they have done to this case and for the further pain and confusion to all of the families involved, most importantly for the true victims of this hideous crime, Abby & Libby.

Two lawyers with a combined 50+ years of experience would never have allowed a judge to 'strong arm' or force them to withdraw if they had clean hands with nothing to hide. They did not want their actions of GROSS MISCONDUCT being read into the record in open court. Why? They are ones that demanded media coverage in hearings.

Why not allow there to be a record made and respond to it in open court? They had an attorney (Hennessy) file a memo on AB's behalf. There were LE officials there who I believe were going to testify to the inaccuracy (see also lies) told in regards to the leaks of CS photos and Depositions.

MOO

 

[girlhasnoname]

Good post, Jurisprudence, to which I would add,
that a Franks Motion + Hearing is one of the
instruments which act to ensure LE know they may
be found out and the process started to hold them
to account for any falsehood in any affidavit made
to a court... but now, with the newD, an apparent
friend of JudgeG, an apparent lawyer on a type of
legal 'probation' for an unspecified legal transgression,
(and do I have this right, is newD also an ex-cop?),
that Frank's Motion seems to have evaporated in
the wind... doesn't say much for process of
accountability in Indiana's justice system, does it.

RBBM

A lot of attorney's have had their own legal transgressions, AB's attorney Hennessy has one for a DUI. Where has it been said that the new D is a friend of Judge G or is on 'legal probation'? They may have been appointed from Allen County verses CC, but that doesn't mean they're 'friends'. Perhaps there wasn't a public defender in CC who was qualified to take RA's case on, it is of tremendous magnitude and media attention.

I haven't seen this and would like to read about it. Thanks

MOO

 

[zh0r4]

No that is not factually correct. When Judge G did speak on the record in open court directly after the in-chambers hearings she said the attorneys for Defendant RA have withdrawn. She said she would be appointing new counsel for the Defendant Allen and said she asked R&B to return Discovery back to the State.

Just because they changed their mind and said AFTERWARDS they only withdrew because they were strong armed by Judge G in chambers is almost comical if not for the damage they have done to this case and for the further pain and confusion to all of the families involved, most importantly for the true victims of this hideous crime, Abby & Libby.

Two lawyers with a combined 50+ years of experience would never have allowed a judge to 'strong arm' or force them to withdraw if they had clean hands with nothing to hide. They did not want their actions of GROSS MISCONDUCT being read into the record in open court. Why? They are ones that demanded media coverage in hearings.

Why not allow there to be a record made and respond to it in open court? They had an attorney (Hennessy) file a memo on AB's behalf. There were LE officials there who I believe were going to testify to the inaccuracy (see also lies) told in regards to the leaks of CS photos and Depositions.

MOO

Without the transcripts there is no proof of what they or JG said. Only the word of JG who violated constitutional due process/DQ’d the D attorneys without a hearing. So to say that is factually incorrect is not true because hearsay is not fact. This is why the transcripts are such a big deal, which she will answer for Nov 27. Until then no one knows.

JMO

 

[girlhasnoname]

Without the transcripts there is no proof of what they or JG said. Only the word of JG who violated constitutional due process/DQ’d the D attorneys without a hearing. So to say that is factually incorrect is not true because hearsay is not fact. This is why the transcripts are such a big deal, which she will answer for Nov 27. Until then no one knows.

JMO

Well, Judge G said that into the record in open court with media present. I'd doubt she would jeopardize her career over a lie like that.

You're absolutely right, there are transcripts and I for one will be grateful to understand once and for all what really transpired.

moo

 

[CGBSpender]

RBBM

A lot of attorney's have had their own legal transgressions, AB's attorney Hennessy has one for a DUI. Where has it been said that the new D is a friend of Judge G or is on 'legal probation'? They may have been appointed from Allen County verses CC, but that doesn't mean they're 'friends'. Perhaps there wasn't a public defender in CC who was qualified to take RA's case on, it is of tremendous magnitude and media attention.

I haven't seen this and would like to read about it. Thanks

MOO

Friends don’t let friends appoint them to take cases like this at court appointed rates. Perhaps it is part of his penance for whatever he did lol?

Aside from the former D, I doubt there are many experienced criminal D’s in the area that would be lining up to take over this case. There is plenty of other work out there, I suspect most don’t want or need the stress.

JMO

 

[sunshineray]

I think you're conflating a couple of things, which is understandable because the Franks Memo doesn't explicitly lay out the relevant standards.

The purported reason the Odinism investigation is included in the Franks memo is because they're using it to demonstrate that Liggett's misstatements and omissions in the PCA were intentional or reckless. That's required to get a Franks hearing. They're saying that the pattern of the investigation shows that LE, including Liggett, were intentionally and recklessly ignoring other suspects and exculpatory information about Allen.

So it's not so much that the Odinism investigation needed to be included in the PCA, but that the way that the Odinism investigation was treated by LE shows that the misstatements and omissions in the PCA were intentional/reckless.

Now, the amount of information included in the Franks Memo about the Odinism investigation is extreme. And it makes it seem like they were using it as a vehicle to get their theory of the case out to the public. But there was a (tenuous) link to the actual Franks standard.

Snipped and BBM
"...the way that the Odinism investigation was treated by LE..."

As far as I can see from the information made available, LE investigated the 5 men mentioned in FM and LE in charge of investigating decided they found no valid connection to the murders. How else are they supposed to proceed/treat an investigation?

 

[StarryStarryNight]

I think you're conflating a couple of things, which is understandable because the Franks Memo doesn't explicitly lay out the relevant standards.

The purported reason the Odinism investigation is included in the Franks memo is because they're using it to demonstrate that Liggett's misstatements and omissions in the PCA were intentional or reckless. That's required to get a Franks hearing. They're saying that the pattern of the investigation shows that LE, including Liggett, were intentionally and recklessly ignoring other suspects and exculpatory information about Allen.

So it's not so much that the Odinism investigation needed to be included in the PCA, but that the way that the Odinism investigation was treated by LE shows that the misstatements and omissions in the PCA were intentional/reckless.

Now, the amount of information included in the Franks Memo about the Odinism investigation is extreme. And it makes it seem like they were using it as a vehicle to get their theory of the case out to the public. But there was a (tenuous) link to the actual Franks standard.

I disagree with this.
In my opinion if it takes you over 100 pages to demonstrate misstatements and omissions that were intentional and reckless, you are really grasping at straws.

 

[Cyber sleuth]

Without the transcripts there is no proof of what they or JG said. Only the word of JG who violated constitutional due process/DQ’d the D attorneys without a hearing. So to say that is factually incorrect is not true because hearsay is not fact. This is why the transcripts are such a big deal, which she will answer for Nov 27. Until then no one knows.

JMO

2023 10 25 Allen Motion To Disqualify Judge | PDF

How about a sworn statement, signed by BR that states that both parties withdrew in chambers?
They elected to sidestep the due process of a formal DQ by withdrawing.
I am not an attorney nor play one on tv. But this is ridiculous- they withdrew, the judge stated in court they withdrew and all signed statements have supported this.
While I am looking forward to seeing the in chambers transcript for context. I do not expect them to prove the judge lied.
I suspect we will see that old D didn’t want to face the music and then later figured out a back-door way to save face/play victim.
But I have been wrong before.

 

[O.Incandenza]

Snipped and BBM
"...the way that the Odinism investigation was treated by LE..."

As far as I can see from the information made available, LE investigated the 5 men mentioned in FM and LE in charge of investigating decided they found no valid connection to the murders. How else are they supposed to proceed/treat an investigation?

I wasn't critiquing LE's investigation, I was explaining why the defense's criticisms of LE's investigation had a tenuous connection to the Franks hearing standard.

 

[sunshineray]

2023 10 25 Allen Motion To Disqualify Judge | PDF

How about a sworn statement, signed by BR that states that both parties withdrew in chambers?
They elected to sidestep the due process of a formal DQ by withdrawing.
I am not an attorney nor play one on tv. But this is ridiculous- they withdrew, the judge stated in court they withdrew and all signed statements have supported this.
While I am looking forward to seeing the in chambers transcript for context. I do not expect them to prove the judge lied.
I suspect we will see that old D didn’t want to face the music and then later figured out a back-door way to save face/play victim.
But I have been wrong before.

Didn't BR actually say (paraphrasing) that he agreed in chambers but knew he didn't mean it? So basically saying, IMO, yeah I just lied to the judge in chambers, I didn't really withdraw. Isn't that what he admitted in his filing?

 

[sunshineray]

I wasn't critiquing LE's investigation, I was explaining why the defense's criticisms of LE's investigation had a tenuous connection to the Franks hearing standard.

Ok thanks and my apology. I see I misunderstood. Yes I'd agree with you, it's an extremely tenuous connection, IMO.

 

[MistyWaters]

Didn't BR actually say (paraphrasing) that he agreed in chambers but knew he didn't mean it? So basically saying, IMO, yeah I just lied to the judge in chambers, I didn't really withdraw. Isn't that what he admitted in his filing?

I don’t think we know for sure because R also claimed he withdrew to avoid a public shaming as the judge planned to read her prepared statement in open court. So it’s as if he intentionally circumvented the accusations of gross negligence from becoming public by verbally withdrawing on Oct 19th, and then later showing up at the Oct 31st hearing claiming he’d charged his mind.

I’m also looking forward to the chambers transcript getting released, but by R not hanging around for the Oct 19th status hearing nor questioning why RA was sent back to prison, it seems to me he effectively acknowledged he was off the case. IMO

 

[Cyber sleuth]

Didn't BR actually say (paraphrasing) that he agreed in chambers but knew he didn't mean it? So basically saying, IMO, yeah I just lied to the judge in chambers, I didn't really withdraw. Isn't that what he admitted in his filing?

He stated in writing they withdrew under coercion by the judge. “Hobson choice”. Which I admit I have used with my kids sometimes but wouldn’t think would be effective with such experienced attorneys.
They chose to withdraw instead of requiring a disqualification with due process.

 

[Jurisprudence]

The purported reason the Odinism investigation is included in the Franks memo is because they're using it to demonstrate that Liggett's misstatements and omissions in the PCA were intentional or reckless. That's required to get a Franks hearing. They're saying that the pattern of the investigation shows that LE, including Liggett, were intentionally and recklessly ignoring other suspects and exculpatory information about Allen.

[sbm] Agree. Well said.

So it's not so much that the Odinism investigation needed to be included in the PCA, but that the way that the Odinism investigation was treated by LE shows that the misstatements and omissions in the PCA were intentional/reckless.

Agree. Things are getting lost in the Odinism hang up. jmo

Now, the amount of information included in the Franks Memo about the Odinism investigation is extreme. And it makes it seem like they were using it as a vehicle to get their theory of the case out to the public. But there was a (tenuous) link to the actual Franks standard.

I don't think it was necessarily extreme but I do think it was a lot more than they needed. And, I do believe it was intentional so they could get their theory out which is why they made the document public. From their position they have a pca out there with a lot of information from only one side and suddenly the case is gagged. They have requests for hearings ignored. They have had (from Franks) motions to compel largely ignored, and they have had a request to move their client to another facility denied. It was clearly a divisive tactic as we can see from this fallout. But, it was also very smart imo. All of us know a lot more now than we ever might have known including Cara Weienke and her co-counsel Leeman who learned things they (like us) might have never known that needed to be brought to the immediate attention of their state's highest court.

I recognize that the amount of detail they included upset a great many people and people are entitled to feel whatever way they want about it. I personally would not have included so much. But as you (and I and some others) have already said, a lot of that material that was so shocking to some was in fact necessary to meet the requirements for a successful motion.

Fantastic post. Thank you.

jmo

 

[MistyWaters]

Rule 3.1 (H) Withdrawal of Representation. An attorney representing a party may file a motion to withdraw representation of the party upon a showing that the attorney has sent written notice of intent to withdraw to the party at least ten (10) days before filing a motion to withdraw representation, and either:

(1) the terms and conditions of the attorney’s agreement with the party regarding the scope of the representation have been satisfied, or

(2) withdrawal is required by Professional Conduct Rule 1.16(a), or is otherwise permitted by Professional Conduct Rule 1.16(b).

An attorney filing a motion to withdraw from representation shall certify the last known address and telephone number of the party, subject to the confidentiality provisions of Sections (A)(8) and (D) above, and shall attach to the motion a copy of the notice of intent to withdraw that was sent to the party.

A motion for withdrawal of representation shall be granted by the court unless the court specifically finds that withdrawal is not reasonable or consistent with the efficient administration of justice.

Rule 7 (B) Motions and other papers. Unless made during a hearing or trial, or otherwise ordered by the court, an application to the court for an order shall be made by written motion. The motion shall state the grounds therefor and the relief or order sought. The requirement of notice is satisfied by service of the motion.

This appears to describe the process for attorneys who volunatarily choose to withdraw their representation. I think we’d all agree the matter of attorneys committing gross negligence in the opinion of the Judge and withdrawing under the threat of being disqualified during a public hearing is unique. It’s also the reason it’s appropriate for the SC to rule on the matter, establishing a future Indiana precedent. It’s impossible to predict the outcome, especially as we don’t know what’s contained in the transcript.

JMO