Interesting
One gets the feeling that this was just some kind of administrative process that the defendant can challenge afterwards. The Judge notes he is unrepresented and makes the determination based on a bunch of stuff that may not have been relevant IMO. Be interesting to know how these applications typically work.
My feeling is still that the bigger issue for the defence is the harm and remedy. Rozzi and Baldwin were appointed in November, so it is not as if the opportunity to be heard on this matter was actually lost for more than some days. They just decided not to apply for months.
The matter was then heard and they lost on the merits, including being rebuked by the judge. Especially they decided not to file the psychosis stuff with any medical basis - presumably because they did not want to open that door.
Issues for me therefore are:
Even if Diener was incorrect to approve this without a hearing, or made a clearly incorrect decision, the remedy was to ask for a hearing which they didn't do.
No appeal court is going to relitigate the facts of the safekeeping hearing. And the psychosis stuff wasn't put to the Judge
The defense needs to argue they should get a new trial because Dieners unconstitutional process ultimately caused the defendant to falsely confess ... but it may be a hard road given it was their own decision to wait many months to challenge and not put psychosis on the table?
I do have some sympathy in terms of what happened here, but they may have shot themselves in the foot by never asking for the hearing until after he already confessed.
Maybe the better way of approaching the constitutionality of the confessions is simply on appeal, where this is one part of the matrix.
IMO, this motion asserts and argues the
(un)constitutionality of the safekeeping procedure used by the Diener court Nov 3 2022 as to pre-detainee RA.
The motion (note motion header/claim) doesn't litigate Indiana Statute. However Indiana Statute is referenced in the narrative/background b/c its referenced by Diener in his decision.
The Motion states the US 6th and 14th Amendments, specifically, were violated as to the constitutional right of representation. The motion itself is not concerned w/ IN statute as the 6th and 4th are superior to IN statute. The motion is concerned with the actual procedure in the Diener court and the subsequent Diener decision (unconstitutional).
See the motion below; red bolding asserts:
a) The motion asserts the trial Court (Diener) violated statues are Constitutional - the 6th and the 5th Amendments.
b) The motion asserts the RA safekeeping proceeding was a critical stage.
c) The motion references the Cronic Decision 1984 with regard to prejudice.
and then,
The motion specifically identifies the Constitutional violation committed by the Diener Court:
Allen was prejudiced by being unrepresented at (a critical stage) proceeding.
MOTION:
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.
Note: Michael Ausbrook and @IUHabeas on x (a habeas specialist) has publicly stated/explained in interviews and on his x acct that this MTCE motion is his work; he argues/believes that a safekeeping hearing for a pre-trial detainee RA was a critical stage ... very much the way a bail hearing is a critical stage ... and required RA's interests to be represented. Ausbrook has explained that this would be a Structural Error. A structural error requires no proof of harm to cause a mistrial/grant a new trial.
IMO, this MTCE 1st motion argues the fast lane to mistrial/new trial for RA - for violation of his US Constitutional rights of representation. (The narrative details are background establishing that RA was denied representation at a safekeeping procedure that also violated a number of other statutory procedural rules including the facts supporting the need for safekeeping.)
I don't think a decision for RA on this motion that finds structural error occurred would affect what's admissible in the new trial. (A structural error breaks the entire process - the remedy is to go back and begin again and do it right this time.)
It's up to RA's Appellate team, but - IMO - this argument could be made in the Appeal ... which we have a bit of a wait for still. (It's also the type of argument that could be made in Habeas Court.)
It will be interesting to see if the State will respond to this motion, ... arguing the constitutionality of RA's safekeeping procedure. And/or arguing that the Diener Court followed IN statute in spite of many statutory errors there that is pointed out in the motion narrative, and arguing the Defense had a remedy (to be heard after safekeeping began) and they used it in April, and their motion was heard and denied. In McLeland's interview w/ the TV station, he explained that another part of the AG's office handles appeals ... but ... this MTCE is part of the trial court. I'm guessing on this particular motion, the AG will assist.
JMHO
*****************************
the motion:
MTCE - Google Drive
the Constitutional Amendments in the motion:
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Con
gress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
JMHO
