Right.
I think Vern has taken one for the team and revealed the shell game here.
The arraignment is a proceeding in open court. It wasn't secret. RA was represented at it by a public defender. Of course! Things that happen every day in America.
He saw private counsel the night before. Counsel was aware of arraignment the next day. Nothing prevented counsel from turning up and entering an appearance. It is not the job of the prosecutor to tell counsel to turn up. It is not the job of the court to get Gibson to turn up.
RA was represented at the hearing. Gibson still did not file into the case.
Where is the affidavit from Gibson complaining that he was prevented from appearing on the 28th?
As Vern points out, even if Gibson really was RAs counsel - for both the arraignment and the safekeeping, how is it the fault of the state they he decided not to present front and centre?
Remember that for any of this to matter, the D needs the lack of counsel at the safekeeper to be a critical issue. So how was the Judge to know this? But should there have been a public defender?
IMO Gibson is likely a red herring. The idea that the state and court would intentionally conspire to have the accused not represented in a hearing is wild to me - something that could obviously lead to the collapse of the case.
There does remain, IMO, the question of whether a public defender ought to have represented RA for the safekeeper - but i do not know if you actually have to have a defended hearing for these.
The real giveaway, IMO, is that they waited nearly 2 years to file this.
FYI: in the U.S.,
private or sealed arraignments are arranged for high-risk defendants under certain circumstances. It's true that arraignments are typically public proceedings, courts may hold them privately or under seal when specific concerns justify limiting public access.
Ostensibly, for RA's own safety, RA was held under an alias in Carroll Cty Jail after his arrest; RA was then transferred to White County after his arraignment and before the safekeeping order transferred him to solitary in Westville.
The Article linked below confirms on October 28th, the day of the arraignment, the public learned of an arrest and an AM arraignment had occurred in the Delphi case of an unidentified person.
Arrest made in Delphi murders of Libby German and Abby Williams, sources say
DELPHI — An arrest has been made in the investigation into the 2017 murders of Abigail Williams and Liberty German, sources tell WRTV.
The name of the arrestee has not been confirmed, but sources say the individual appeared in court Friday morning.
Judge Diener recused himself from the RA case within days of RA's arraignment. Media reports indicate he feared for his family's safety due to the RA case. Article linked below.
Judge worried for family's safety after sealing court docs in Delphi murders recused from case
DELPHI, Ind. — Carroll County Judge Benjamin Diener has recused himself from the
Delphi murders case.
In his order, Diener said he "has determined that the particular circumstances within the underlying case warrant recusal and dictate that a special judge be appointed in this case."
It is not clear what the circumstances are that the judge referenced, but in previous emails and court documents – he has cited safety concerns and that he and his staff have been overwhelmed by the public attention and requests for information.
The article below states that Gibson, known to the State to be RA's counsel at the time, was not notified of the private RA arraignment proceedings.
Allen was arrested on October 26, 2022 and was booked into Carroll County Jail under a false name.
According to court documents, Allen's wife hired an attorney after he was arrested. Allen's attorney was not present when he was charged with murder. Allen was then transferred to the White County Jail without a safekeeping order.
The defense argues that the transfer was wrong and Allen's right to legal representation was breached. They said his attorney wasn't notified about the proceedings.
IMO, There's
zero evidence that RA had a public arraignment.
JMHO ... to speculate that a criminal attorney takes $5K one day and ops out of the arraignment the next day is quite a leap. The suggestion/speculation that Gibson chose not to attend the private arraignment is - oddly - supported by ... a deeper read of ... a credit card receipt exhibit?
IMO, the receipt exhibit seems mistaken for a legal billing of some sort. It is, in fact a Visa credit card receipt to Allen from Gibson for a $5K payment made 10/27. This Visa credit card receipt ... is neither a retainer agreement nor a legal service invoice; it's just a credit card receipt. Note there's even a credit card authorization code on it, and the last 4 digits of the credit card. The receipt supports Kathy Allen's affidavit; where she states this is the receipt for the $5K payment she paid on 10/27 to Gibson to retain his services.
the Exhibit 1A receipt here:
ALSO,
sbm - Kathy Affidavit exhibit to MTCE here:
Finally, the germain issue in the #1 Safekeeping argument in the MTCE focuses not on the arraignment, but the Court's exparte decision on the SAFEKEEPING procedure. Exparte here meaning a secret decision and order by the Court on the State's motion for RA's safekeeping that was never noticed or responded to by RA; Gibson also was never noticed. Note that the actual motion header (#1 below) does not mention the arraignment.
(Source #1 of MTCE):
sbm - #1 Motion header regarding Safekeeping from the MTCE
2025_MTCE.pdf
1. In violation of the Sixth and Fourteenth Amendments, Mr. Allen was deprived
of counsel at the safekeeping “proceeding” of November 3, 2022; that
“proceeding” was a critical stage at which Mr. Allen was entitled to be
represented by counsel; and, under United States v. Cronic, 466 U.S. 648 (1984),
and its progeny, the Court must presume Mr. Allen was prejudiced by being
unrepresented during that proceeding.
The arraignment and safekeeping hearing occurred within the week of Diener's recusal. Did Diener's personal concerns warrant abandoning RA's rights to due process?
It's my opinion also that the D did not object to safekeeping immediately ... and that they could have/should have - JMHO. The D did raise this issue within a few months of RA's incarceration at Westville. That being said, and IMO, the D's failure to raise this issue more timely is not a factor in the Diener Court's errors/violations of RA's due process the week before he recused.
The D is arguing those Diener Court safekeeping error(s) are a poison tree therefore everything that enfolded as a result of that safekeeping decision ... is fruit of the poison tree.
JMHO
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