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

[girlhasnoname]

<snip>

bbm

“In a shocking turn, Rozzi recently filed a motion calling on Judge Gull to be recused from the Delphi case after suddenly backpedaling on the previous story of his impending withdrawal from the case and instead stating he did not want to withdraw from the case and instead wished for Gull to be thrown off the murder trial.

Now, however, that very motion is being stricken from the records. In an order issued by Gull on Friday, the judge said that Rozzi was withdrawn from the Delphi case on Oct. 19 and therefore was no longer the legal counsel of record for Richard Allen. The clerk was then ordered to remove Rozzi’s filing calling for the removal of Gull from the recordbooks and note that it was filed in error since Rozzi is no longer considered legally a part of the case due to being removed prior to him filing the motion on Oct. 25.

David Hennessy, an attorney representing Rozzi and Baldwin, recently argued against Gull and claimed she “strong-armed Attorneys Rozzi and Baldwin” into offering oral withdrawals from the case and contends Gull doesn’t have the authority to direct the clerk to strip Baldwin and Rozzi’s names from the court docket without a filed Notice of Withdrawal or a valid written motion.

<snip>

In the soon-to-be-filed motion, Hennessey calls on the court to reconsider the “erroneous order to the Clerk of the Carroll County and the removal of appointed counsel without the opportunity to be heard.”

“No judge has the authority to oversee the clerk or order the clerk to alter the record of court filings,” Hennessy wrote in the filing.

<snip>

“There have been no valid motions to withdraw by appointed counsel,” Hennessy argues in the motion. “There has been no order of disqualification. There is no legitimate basis for disqualification.”

Hennessy’s motion also contends that the judge “loses the authority and jurisdiction to make rulings on other court motions or issue orders other (than) a hearing” upon the filing of the Motion for Recusal and To Disqualify — the motion filed on behalf of Rozzi just days ago which Gull ordered stricken from the record.”

How convenient. How can she claim she never did this? JMO

Source:

MSN

The Clerk does not have

Right. Hennessy does seem to say that they did offer withdrawals. They were just strong armed into it. In which they were off the case and needed to appeal to a higher court for relief as they have eventually done.

I think they don’t get out of that bind unless SCOIN recuses Gull and orders a new hearing with a new Judge. Then they still need to win that hearing?

R&B won't be back representing RA under these circumstances. I think Judge G did the right thing in disqualifying them.

Will public outcry and perception of potential misconduct force Judge G to recuse herself, possibly, for the sake of the of the case's integrity and the chance of potentially causing an appellate issue down the road? Perhaps, and I'm ok with that if it serves the best interest of Abby & Libby and a fair trial.

MOO

 

[girlhasnoname]

[sbm] Agree. They had to do this. If not it would fail. Not sure if this is even a rule of law in England where the OP said last thread he practices law, but this case is in the U.S. This is from another Indiana case that makes these requirements very clear:

"Assuming arguendo that the trial court did not conduct a Franks hearing on Haynes' motion to suppress evidence and the record was properly corrected to reflect that fact, Haynes would nevertheless not have been entitled to a hearing. Franks requires a "substantial preliminary showing" that the challenged affidavit contains false statements before an evidentiary hearing should be granted. Justice Blackmun, writing for the majority, explained this requirement as follows:

"To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons …

…Allegations of negligence or innocent mistake are insufficient.

[Still, even] …if these requirements are met,.. if … there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required."

Haynes v. State, 411 N.E.2d 659

In other words, if it’s harmless no hearing. If it makes a difference, hearing is required. In all events B&R were required in the memo to flesh out the facts to meet these standards. To not do so means no hearing. I don’t understand why an attorney doing the job correctly instead of negligently is such a point of contention in this case.

jmo

I have never seen a Memorandum in support of a Frank Hearing crafted in this fashion by ANY LAWYER ever. The 136 page document included and blatantly exploited the CS of Abby & Libby and so much more. How does that support the motion to suppress the SW?

It was a sensationalized, overstated, non-confirmed, speculative piece of garbage to influence the public's opinion. It backfired in a spectacular fashion, and rightly so. It also points to the depths of over sensationalizing and skirting the line of lying and misrepresentation by this non Dynamic Duo, so the leaking of CS photo leaks and leaks of confidential depositions doesn't surprise me one bit.

Ironic how not the entirety of their depositions by the parties weren't referenced, just the cherry-picked sentences they needed to include for dramatic purposes and the exploitive crime scene pages were highly offensive and had no business in that memorandum for a FM.

I think that's exactly why they filed it under the cover of darkness at 2:04 am and then magically, the reporters and podcasters and other SM parasites grabbed it and ran with it. (Tipped off by B&R IMO) They knew it would be placed under seal as it rightly should have been. Dirty doesn't win cases, it hurts the entire process. Look where we are today!

JMO

 

[Betty P]

Motion for discovery deadline
View attachment 462101
State’s response
View attachment 462103

10/28/22: 08C01-2210-MR-00000 - State v. Richard Allen- 2 Counts of Murder - Google Drive

drive.google.com

EDIT: It is possible that the State did turn over these interviews by the time they responded but they never said that the D is lying that the State indicated that they couldn’t be located.

How interesting though that if the state did turn those over by 10/10, that coincides with NM’s request to take them B&R off the case.

So, it appears the state has been turning over evidence according to schedule.
IIRC, among other things, B&R were removed from the case because of their unethical behavior, for public release sensitive evidence prior to trial, including crime scene photos of the deceased girls. JMO, the judge could no longer trust them.

 

[Ward Thisperer]

That establishes the low bar of PC IMO, because he puts himself at the scene, dressed like bridge guy etc.

RSBM No this does not establish probable cause in any imagination. Maybe if one of the witnesses identified him. Being dressed in hiking clothes on a hiking trail isn’t reasonable expectation to find evidence of a double murder in your home. Especially when they didn’t bother to actually record an interview until 5 yrs later and in that interview he says he left the trails before the murders (also didn’t bother to include in the SWA)

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.

So even if it does establish deliberate falsehood and thus meet threshold for Franks, they should have saved it for trial?? Why?

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.

There was no discovery deadline at this time. The deadline was only set after it was requested by the defense in early October in order to force the P to hand over what they wanted. That is just 3 months before trial they didn’t have the things they were requesting. The defense was trying to complete depositions and have a Franks, they have a right to the evidence and it’s simply ridiculous to state that because they didn’t ask for a deadline they weren’t obliged to any discovery.

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.

Someone else confessing and having guilt knowledge and not having a substantiated alibi would qualify as material evidence that would need to be disclosed when establishing probable cause for an unrelated individual. The specifics of the situation should be debated at a Franks.

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.

Why do you continue to insist on the distinction between arrest and SWA without linking anything to back up your reasoning when multiple responses including an attorney have pointed out that it isn’t true?

 

[Ward Thisperer]

Right. Hennessy does seem to say that they did offer withdrawals. They were just strong armed into it. In which they were off the case and needed to appeal to a higher court for relief as they have eventually done.

I think they don’t get out of that bind unless SCOIN recuses Gull and orders a new hearing with a new Judge. Then they still need to win that hearing?

No, Rozzi did not offer his withdrawal. He affirms as such in his pro bono appearance filing.

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.

 

[mrjitty]

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.

We don’t know what he said in chambers. That is what we are waiting to find out. But I do note that the defences own argument has been that they were coerced to withdraw. Whether what was said amounts to an oral motion to withdraw in each case we don’t know.

Personally I find it hard to reconcile Rozzi and Hennessy but that is where the transcript would be nice.

 

[mrjitty]

RSBM No this does not establish probable cause in any imagination. Maybe if one of the witnesses identified him. Being dressed in hiking clothes on a hiking trail isn’t reasonable expectation to find evidence of a double murder in your home. Especially when they didn’t bother to actually record an interview until 5 yrs later and in that interview he says he left the trails before the murders (also didn’t bother to include in the SWA)

So even if it does establish deliberate falsehood and thus meet threshold for Franks, they should have saved it for trial?? Why?

There was no discovery deadline at this time. The deadline was only set after it was requested by the defense in early October in order to force the P to hand over what they wanted. That is just 3 months before trial they didn’t have the things they were requesting. The defense was trying to complete depositions and have a Franks, they have a right to the evidence and it’s simply ridiculous to state that because they didn’t ask for a deadline they weren’t obliged to any discovery.

Someone else confessing and having guilt knowledge and not having a substantiated alibi would qualify as material evidence that would need to be disclosed when establishing probable cause for an unrelated individual. The specifics of the situation should be debated at a Franks.

Why do you continue to insist on the distinction between arrest and SWA without linking anything to back up your reasoning when multiple responses including an attorney have pointed out that it isn’t true?

Let me ask you a question

Why do you think the defence hasn’t argued the AA is invalid because the Odinists weren’t in there?

 

[Jurisprudence]

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.

Yes. Apparently so. Scremin is a former SWAT/narcotics detective.

Defense team chosen in Delphi murders case; judge issues decorum order for next hearing

ALLEN COUNTY, Ind. — Two attorneys have been appointed to defend Richard Allen on two counts of murder in the killings of Abby Williams and Libby German outside of Delphi in 2017. On Friday, the Ca…

fox59.com

Attorney | Robert Scremin Law Office | Fort Wayne

Looking for a criminal defense attorney? Contact Robert Scremin for a free legal consultation. With years of experience, he can provide expert advice and representation for your case.

www.robertscreminlaw.com

 

[Jurisprudence]

...In which they were off the case and needed to appeal to a higher court for relief as they have eventually done.

[sbm]

This is incorrect information.

jmo

 

[LaurelTedytamer]

Justice for Abby and Libby but RA needs a fair trial.

I am hoping after SCOIN rules, whatever their decisions are, the case can then proceed in a fair and open way following their decisions.

Then instead of arguing over trial procedure us Websleuths can simply discuss evidence and innocence or guilt.

I can not remember any other cases that seem to have taken detours from even before evidence to trial procedure.

This media circus … heartbreaking what Abby’s and Libby’s families are going through.

 

[CGBSpender]

Raise you hand if alleged problematic behavior by a Clerk’s office in this case is not news to you…

JMO

 

[MistyWaters]

Raise you hand if alleged problematic behavior by a Clerk’s office in this case is not news to you…

JMO

One thing I notice about this case that seems weird to me is that everything seems to be held against the judge, as if she‘s a one-person-show responsible for aspects of the case. For example, as if it’s on her shoulders where RA is held rather than the DOC, that she‘s personally responsible for scrutinizing all motions, then recording it both the CCS and the online mycase log, plus recording the minutes of meetings. Given the typical court schedule of judges that is not feasible any more than requiring a surgeon to serve as a one-person operating team, it’s as if it’s a totally foreign concept for various people each with specific responsibilities to work together as a team without somebody being the boss.

JMO (my unverified opinion, for what it’s worth)

 

[Jurisprudence]

... Will public outcry and perception of potential misconduct force Judge G to recuse herself, possibly, for the sake of the of the case's integrity and the chance of potentially causing an appellate issue down the road? Perhaps, and I'm ok with that if it serves the best interest of Abby & Libby and a fair trial.

MOO

[sbm]

I don't think so. According to all accounts, even those by the attorneys who filed the first original action (see CW discuss this on DD linked last thread), JG is a well respected and well known judge. She was just re-elected a few years ago for another 6-year term. I don't see her succumbing to outside pressure.

jmo

 

[Ward Thisperer]

We don’t know what he said in chambers. That is what we are waiting to find out. But I do note that the defences own argument has been that they were coerced to withdraw. Whether what was said amounts to an oral motion to withdraw in each case we don’t know.

Personally I find it hard to reconcile Rozzi and Hennessy but that is where the transcript would be nice.

Not even Gull said he orally withdrew in chambers, she just assumed he would submit one in writing, and then kept referring to him as having withdrawal. No withdrawal of Rozzi is on the record.
What did Hennessy say that made you think he agrees Rozzi withdrew?
Gull on 10/19:

Hennessy on 10/27:

Let me ask you a question

Why do you think the defence hasn’t argued the AA is invalid because the Odinists weren’t in there?

Because they are challenging the SWA, which came before the AA. If they win the Franks they are able to suppress the fruits of the search. The PCA has the ballistic “evidence” to support it. They have a better chance at getting the SWA thrown out than getting the PCA thrown out because the ballistics is carrying the weight of PC in the PCA, and weighs against the D argument of the other suspects being more compelling. If they challenge the PCA and lose they’d still have to contend with the ballistics.

I personally don’t buy the ballistics as reliable at all. I still haven’t seen a single case where an individual gun being identified by tool markings on an unspent casing was used at all let alone weighed heavily as evidence, and have read quite a bit about why ballistics in general are subjective and lack quality evidence supporting their accuracy.

Now that I have answered the question posted to me, are you willing to substantiate your assurance that potentially exculpatory evidence such as another suspect’s alleged confession, guilt knowledge, and lack of alibi would not be relevant to a SWA but only to an AA? Any sort of citations on this would help provide clarity.

 

[Ravenmoon]

I have an unverified question, because I don't have legal expertise in any way.

I have NEVER heard LE say that any person (before RA was arrested) was a suspect in this case. I have heard a couple of individuals deemed possible POI.

If NONE of the previous POIs ever made it to Suspect status, is the evidence that some people see as such, exculpatory?

 

[Ravenmoon]

Personally, I wish that all of the attention wasn't on the defense that is no longer even active on the case .

There is so much focus on them, that the 2 girls are rarely discussed.

I have a deep appreciation for the attorneys that frequent the page. Your participation is valuable to us. BUT, at the end of the day, it is the normal everyday people like us, that will eventually weigh the evidence and decide RA's fate.


JMO

 

[Willow Knight]

I've long said I believed RA was tipped in and then they dug into the material and found his original contact with the CO.

JMO

I agree. "Something" made LE turn around and go back to RA. IMO.

I would think LE had every known person that was on the bridge that day on their wall. Something of interest to LE was made available regarding RA. And a light bulb went off, he was on the bridge!

Guess I just posted what you did.

 

[M. Kay]

I have a deep appreciation for the attorneys that frequent the page. Your participation is valuable to us. BUT, at the end of the day, it is the normal everyday people like us, that will eventually weigh the evidence and decide RA's fate.

I've been intending to post similarly, in that I read frequent attorneys' posts, counting on them to monitor legality. I identify, too, as one who weighs evidence hypothetically here; yet real life jury experience frustrated. Whew,"People think differently."

 

[StarryStarryNight]

I agree. "Something" made LE turn around and go back to RA. IMO.

I would think LE had every known person that was on the bridge that day on their wall. Something of interest to LE was made available regarding RA. And a light bulb went off, he was on the bridge!

Guess I just posted what you did.

I’ve always thought the “we went back through old tips and look what we found” explanation was kinda weak.
First, I remember numerous times over the years LE said they were going back looking over early tips and re-interviewing people. Did they really do that all those times? I doubt it.
According to the CO’s notes from RA’s 2017 interview, the only thing he gleaned important from RA was that there were three teen girls on the trails that needed to be identified and interviewed. That was his recommended follow-up. RA’s interview and info sounded pretty routine. In the CO’s defense, LE knew almost nothing at the time of the crime. They didn’t know yet about Libby’s video that proved a man was on the bridge and what he was wearing.
So in 2017, LE wasn’t impressed enough and didn’t feel the need to talk to RA again. In 2022, LE going back through the files, pulls this same boring, info-bereft interview and calls the guy in to talk. Was that the plan? Were they in the middle of re-interviewing everybody on the bridge that day, no matter how blah the report was, when RA jumped out to them?
In my opinion, there is no way that LE stumbled upon this one file and thought “this one we need to talk to right now”. It was too much of a nothing file. They either were in the process re-interviewing people on the bridge or LE did get information from someone linking RA to the crime.

 

[TL4S]

I’ve always thought the “we went back through old tips and look what we found” explanation was kinda weak.
First, I remember numerous times over the years LE said they were going back looking over early tips and re-interviewing people. Did they really do that all those times? I doubt it.
According to the CO’s notes from RA’s 2017 interview, the only thing he gleaned important from RA was that there were three teen girls on the trails that needed to be identified and interviewed. That was his recommended follow-up. RA’s interview and info sounded pretty routine. In the CO’s defense, LE knew almost nothing at the time of the crime. They didn’t know yet about Libby’s video that proved a man was on the bridge and what he was wearing.
So in 2017, LE wasn’t impressed enough and didn’t feel the need to talk to RA again. In 2022, LE going back through the files, pulls this same boring, info-bereft interview and calls the guy in to talk. Was that the plan? Were they in the middle of re-interviewing everybody on the bridge that day, no matter how blah the report was, when RA jumped out to them?
In my opinion, there is no way that LE stumbled upon this one file and thought “this one we need to talk to right now”. It was too much of a nothing file. They either were in the process re-interviewing people on the bridge or LE did get information from someone linking RA to the crime.

I agree. Since we now know it was filed with the incorrect name, it seems that mistake might not have been found by chance, with the sudden assumption the name was incorrect, but because a name was inputted into the database and this is what came up, and then the mislabel was figured out. Jmo.