This interview was excellent, I listened to it like 3 times today lol. It sounded like they might be doing another episode with this guest discussing his work more generally which I’m looking forward to.
Link:
Murder Sheet: The Delphi Murders: Richard Allen Goes to the Indiana Supreme Court: A Conversation with Indiana University Maurer School of Law Federal Habeas Project Director Michael Ausbrook on Apple Podcasts
Some additional summary points because I found this so interesting
- He doesn't think that a crime was committed in regards to the leak. "Hennessy said he could have a defense ready in 20 minutes, I told him he was slow"
- He refers to the leak as a nothingburger as it didn't seem to impact RA's defense and doesn't think there was any duty to report to the court about the leak of the thumbdrive map to BW. He thinks it could have been seen as something so unimportant AB forgot to even notify BR.
- If JG thought the actions of B&R rose to the level of criminal contempt the process would have involved due process with a special judge
- He says that gross negligence is not a legal standard, if she thought they were being incompetent she could have appointed a lawyer to discuss the concerns with RA so he could make an informed decision
- He was involved with a case involving JG in 2021 where a PD representing a client in front of her got up at a sentencing hearing and didn't bother to make any argument or even prepare for the hearing with him. He says he raised this with with a couple of trial judges and they said they'd get a new PD in there and continue the hearing if needed, but JG didn't do anything. Here is the case opinion from the US 7th circuit court of appeals, they issued a write Habeas Corpus and remanded to sentencing:
Lewis v. Zatecky, 993 F.3d 994 | Casetext Search + Citator
- Regarding JG he says “never ascribe to malice what can adequately be explained by negligence or incompetence”
- He agrees the FM is “practically a work of art” but thinks the step by step description of the crime was probably a bit much. He says there was nothing in the FM that was unprofessional.
- “Does anyone seriously think that these lawyers would have been disqualified if there was no FM?” “the disclosures might have been an excuse”
- He says part of the bad optics for JG is not transferring RA despite lack of objection from the P
- He emphasizes the threshold is high for ineffective assistance of counsel especially when a client assents or consents to a lawyer’s strategy.
- “The counsel of choice problem is not going to go away” and refers to a trial without counsel of choice as a constitutional violation. He thinks that from a Habeas lawyer’s perspective “the only real resolution of this case that is going to be legally supportable is the judge is gone and the former lawyers are back” and believes there is a Habeas case if not, that RA can claim federally he is being held in violation of the constitution.
- He believes also relevant to potential habeas claim is “state interference with counsel” and uses wording from opinion of Chief Justice Rush to emphasize that the judge = the state
- He says that a writ of habeas would request “either release Mr Allen or give him back his counsel of choice”
- He believes that a WoM was appropriate in this situation and that an appeal wouldn’t have been adequate.
Guest is Michael Ausbrook
“The Law School’s
Habeas Litigation Practicum familiarizes students with the fundamentals of federal habeas corpus litigation as they work on real cases. (In the US legal system, writs of habeas corpus (Latin for “that you have the body”) are used to determine whether the state’s continued detention of a prisoner is lawful.) Students in the practicum study the basic statutes, rules, and case law that govern habeas litigation. They also conduct legal research, draft documents connected with filings, and investigate the facts of current or potential cases. When possible, students also visit clients in Indiana prisons.
Adjunct Professor
Michael Ausbrook, ’93, teaches the course. He is an attorney in private practice and former public defender in Marion County, Ind. and a recipient of the Gideon Award from the Indiana Public Defender Council.”
Habeas litigation
law.indiana.edu