IN - Abby & Libby - The Delphi Murders - Richard Allen Arrested - #170

[Jurisprudence]

Sorry, either brain and fingers aren’t cooperating this am. I’ll try again.

A Constitutional Right of indigents is a fair trial. That right should take precedence over his choice of counsel IMO.

A constitutional right to counsel and a fair trial exists for all Americans, not just those who are indigent. His right to choose his own counsel is being usurped by a judge who is supposed to be the neutral party here. <modsnip: No link to support this allegation>

jmo

 

[mrjitty]

My thoughts on this so far

1. It's clear that the grounds to remove BR and especially BA exist. The question is whether Gull followed proper process, not whether the decision was substantively correct. So if the lawyers appeal their removal, it will have to be because of procedural defect

2. Process is important, but IMO the problem for the bumbling duo, is that even if they win on the procedural point, I can't see a higher court reinstating them precisely because of their outrageous conduct.

3. I think it's important they do appeal it, but i suspect any victory for them would be pyrrhic i.e. a dressing down for Gull, but not a reinstatement. Somehow they allowed some goon extended access to their case files. How does that even happen.

4. IMO Gull was correct to rule that can't return even pro-bono. It would be absurd that RA had both court appointed lawyers and pro-bono lawyers. So one set had to go. To me it makes no sense that disqualified lawyers can then return pro-bono. To clever by half.

5. Gull has pushed the trial back so far, because she knows this all will be litigated now and take up more time pre-trial. IMO we don't need to panic that RA will then be able to get any conviction overturned, because these issues will be settled now

6. There is, IMO a risk of this trial collapsing. This is why Judge Gull should now recuse as well. Fresh Judge, fresh start. You can't have this perception of bias hanging over the trial, even if not actual bias.

 

[Angela_Beckett]

This circus is unfair to the girls' families and to their memory. They deserve justice, and RA deserves to face the consequences of his evil actions.
justice still seems very, very far away, and it’s not fair really. I hate this mess

 

[mrjitty]

A constitutional right to counsel and a fair trial exists for all Americans, not just those who are indigent. His right to choose his own counsel is being usurped by a judge who is supposed to be the neutral party here. <modsnip: No link to support this allegation>

jmo

IMO it is quite a specific question as to whether disqualified lawyers can return pro bono.

Let's say they'd been RAs paid lawyers from the start, and the same gross negligence occurred. Gull could obviously boot them off the case IMO.

 

[Emma Peel]

IMO it is quite a specific question as to whether disqualified lawyers can return pro bono.

Let's say they'd been RAs paid lawyers from the start, and the same gross negligence occurred. Gull could obviously boot them off the case IMO.

IMO, I don't think that is the case.

It's tough for the Court to boot private counsel. Court sanctions would be engaged first, IMO.

You make great points and I've also been wondering that ... given these are career criminal attnys, specializing in private criminal representation ... B & R were "zealous" as usual, pushing boundaries they'd always pushed for other clients ... without thinking of the Court's ability to toss them out at the next valid opportunity (b/c they were NOT in this situation private counsel; the Court hired them the Court can more easily fire them).

(oops.)

 

[photographer4]

I am really confused about the sentiments from so many people suggesting that an innocent man sits in prison for 2 years while awaiting trial.
Yes, I realize he is in prison and not jail. I do understand that it isn't typical for someone to be housed in that manner.

My question is this:
Is this outrage about his housing more than anything else ? I really want to understand.

Would people feel better if he sat in jail?
What if he was in jail and that put him in more physical danger? He would not have access to the psychiatric help that he currently has available to him now. There are other reasons that have been presented for his location.

Anyway, is this the core of the outrage, or do people truly believe him to be innocent? Because I don't think it's crazy for 2 years to be the wait time for getting to trial. Am I wrong about that?

Also, since I am asking, for those who are upset about another year passing, what about the family and the sympathy for almost 7 years of living without their children? The wait continues for them as well.


JMO

I'm mad that a man who has YET to be found guilty at all will now continue to rot in prison for another year. If YOU were RA - AND you were 100% innocent, would YOU be ok with hearing JG say, "I'm sorry this has happened" (https://www.washingtonpost.com/nati...80be80c-781b-11ee-97dd-7a173b1bd730_story.html) as she sets your new trial date a full YEAR down the road when you have already waited a FULL year?

I don't care where he is housed - he could be on house arrest for all I care, or in a hospital. The fact is, his freedom has been taken from him for a year, and he must now wait another YEAR before he possibly has his day in court? That is not even almost a speedy trial. That's ridiculous and we SHOULD be outraged - especially if the state fails to prove their case against him.

I see NO reason why this trial needed to be set for a year from now vs 6 months from now (which would still be an outrage, but an understandable one). And I believe at this point, Justice Gull is covering her own legal behind more than she is looking out for RA or his rights.

 

[Emma Peel]

To all who enjoy Halloween ---- have a Happy one!

 

[AugustWest]

I just read the 6th and am having trouble understand which part of the representation clauses would disagree with someone explaining to a defendant that when the judge rules his lawyers have acted with gross negligence, it would not be in his favor to want to continue with them and instead continue with newly appointed council? Is that not making sure a defendant has strong council?

@sunshineray I'll take a crack at answering your question!

The portion of the 6th at the heart of this is the "...to have the assistance of counsel for his defense" portion of the amendment, which we shorthand call the "Assistance of Counsel Clause."

The wording of the amendment in and of itself is really not that informative of the requirements of this clause. It doesn't specifically state what this actually means. Therefore, we have to look at what the courts have said in the past as it pertains to what exactly this is.

There is a long line of caselaw on the 6th: Powell v. Alabama, Gideon v. Wainwright, Brewer v. Williams, among many others. These all deal with the 6th, and through the long line of this caselaw has developed a test that judges use to determine whether the requirements of the Amendment have been met. I normally wouldn't link a wiki article, but this one is actually well enough done: Assistance of Counsel Clause - Wikipedia. It spells out what this test requires:
The assistance of counsel clause includes five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se. In order to satisfy the rules propogated by the courts' decisions, all five of these have to be met.

As you can see, several prongs of the test are now at issue: (1) Allen wants his old counsel, so we have a problem with the first element; (2) Judge Gull feels the old counsel is "grossly incompetent," so (a) does this cause counsel to no longer be conflict free; and (b) would allowing them to continue be considered (in)effective assistance; and (3) tangentially, does Gull have the power to appoint counsel without Allen's consent.

What you are asking, to me, most closely follows (2)(a) and (2)(b) above. As far as the answer to these questions, I think Wheat v. United States, 486 U.S. 153 (1988) best covers what constitutes conflict free counsel. I think questions regarding effective assistance are best answered in Strickland v. Washington, 466 U.S. 668 (1984). I'm not a Supreme Court justice, so those guys are your best bet to find the probable answer. Sounds like a cop out by me. Don't care! Those guys are smart!

Here's Wheat: Wheat v. United States, 486 U.S. 153 (1988)

Here's Strickland: Strickland v. Washington, 466 U.S. 668 (1984)

Hope this helps!

 

[Jurisprudence]

The Sixth Amendment gives the accused in criminal cases the right to hire attorneys of their choice. Turner, 594 F.3d at 948, citing Wheat, 486 U.S. at 159, 108 S.Ct. 1692. The right has been regarded as “the root meaning of the constitutional guarantee” in the Sixth Amendment. Gonzalez–Lopez, 548 U.S. at 147–48, 126 S.Ct. 2557, citing *749 Wheat, 486 U.S. at 159, 108 S.Ct. 1692. Even so, a defendant's choice of counsel may be overridden and counsel may be disqualified where an actual conflict of interest or a serious potential for conflict exists. Wheat, 486 U.S. at 163–64, 108 S.Ct. 1692 (affirming refusal to accept defendant's waiver of attorney's “serious potential” for conflict of interest); accord, Turner, 594 F.3d at 952. A conflict that amounts to a breach of the code of professional ethics “obviously qualifies” as an actual conflict of interest of the sort that allows the trial court to disqualify counsel regardless of a defendant's offer to waive. Turner, 594 F.3d at 952.

United States v. Turner, 651 F.3d 743, 748–49 (7th Cir. 2011)

JMO

I still stand by the comment that the original post was incorrect. I'm not sure who wrote up the above but imo it's not on point and/or not being interpreted correctly. There's no conflict in this case. The case cited does not stand for the proposition that an ethical violation (of which there is none on the part of B or R anyway) would be tantamount to a conflict of interest warranting a court to take it upon itself to remove the accused's choice of counsel in the face of his protest that it not.

jmo

The other lawyers filed it no?

#882
The attorneys who filed that are not RA's attorneys and they are not the attorneys for either BR or AB.

jmo

 

[justtrish]

That's an interesting argument. But even if true, that seems like a conflict that Allen could very easily waive. He's been informed of the leak and the potential consequences. He signed an affidavit saying he wanted to continue on with Baldwin & Rozzi anyway.

This is what's puzzling to me. He WANTS this circus? That is concerning. I'd think if I were really innocent, I'd want the best possible representation, not someone that is going to write up a story so ridiculous and then oops it's released, when it should have been kept quiet.. then the photo just oops get released. Again, if I was innocent, I'd be horrified by all of that. This is the death of 2 little girls and it's just turned into a joke. I think I'd say yes give me new lawyers these 2 have done damage to this case. So maybe he likes the circus and thinks this helps him? I have to wonder if he's guilty, then this circus likely "helps" him.

 

[mrjitty]

IMO, I don't think that is the case.

It's tough for the Court to boot private counsel. Court sanctions would be engaged first, IMO.

You make great points and I've also been wondering that ... given these are career criminal attnys, specializing in private criminal representation ... B & R were "zealous" as usual, pushing boundaries they'd always pushed for other clients ... without thinking of the Court's ability to toss them out at the next valid opportunity (b/c they were NOT in this situation private counsel; the Court hired them the Court can more easily fire them).

(oops.)

Admittedly I am no expert in US procedure!

But to my mind, when a Judge sees such a shocking breach of the protected discovery, she is going to boot counsel to protect the trial. At the end of the day, she doesn't know Baldwin's personal life, or what his relationship with his friend is, or the real circumstances of the breach, or when Rozzi knew what.

I'm imagining the following at my old firm - say I had invited a mate to friday night drinks, and while drinking, he slipped out and ransacked my office for confidential info relating to the most high profile trial in the country and leaked it?

1. I would have likely been fired
2. I would have faced disciplinary proceedings by the law society disciplinary tribunal
3. The firm could well be booted from the case - but certainly i would have been booted off the trial team

If the partner leading the trial had done this - much much worse IMO!

Now replay the scenario in a smaller firm, where a mate is allowed to access the office and case files on an extended basis? Oh dear!

Maybe the truth is this was a one in a million breach of trust where Baldwin was duped, but there is every possibility this is not someone who should be near a courtroom IMO.

 

[MistyWaters]

My thoughts on this so far

1. It's clear that the grounds to remove BR and especially BA exist. The question is whether Gull followed proper process, not whether the decision was substantively correct. So if the lawyers appeal their removal, it will have to be because of procedural defect

2. Process is important, but IMO the problem for the bumbling duo, is that even if they win on the procedural point, I can't see a higher court reinstating them precisely because of their outrageous conduct.

3. I think it's important they do appeal it, but i suspect any victory for them would be pyrrhic i.e. a dressing down for Gull, but not a reinstatement. Somehow they allowed some goon extended access to their case files. How does that even happen.

4. IMO Gull was correct to rule that can't return even pro-bono. It would be absurd that RA had both court appointed lawyers and pro-bono lawyers. So one set had to go. To me it makes no sense that disqualified lawyers can then return pro-bono. To clever by half.

5. Gull has pushed the trial back so far, because she knows this all will be litigated now and take up more time pre-trial. IMO we don't need to panic that RA will then be able to get any conviction overturned, because these issues will be settled now

6. There is, IMO a risk of this trial collapsing. This is why Judge Gull should now recuse as well. Fresh Judge, fresh start. You can't have this perception of bias hanging over the trial, even if not actual bias.

Who do you think the Judge has the perception of bias towards? She appointed new attorneys for RA and cleared his crew up by stating she couldn’t allow the ex-D to represent him so he can have a fair trial. I suppose the ex-D could say she’s biased towards them but order in the court is her responsibility, plus we’ve probably seen the last of them. I can’t think she’s shown any bias towards the P, they’ve stayed away from the drama.

Whether the Judge stays or goes doesn’t matter to me. I just hope for no future unnecessary delays.
JMO

 

[mrjitty]

Who do you think the Judge has the perception of bias towards? She appointed new attorneys for RA and cleared his crew up by stating she couldn’t allow the ex-D to represent him so he can have a fair trial. I suppose the ex-D could say she’s biased towards them but order in the court is her responsibility, plus we’ve probably seen the last of them. I can’t think she’s shown any bias towards the P, they’ve stayed away from the drama.

Whether the Judge stays or goes doesn’t matter to me. I just hope for no future unnecessary delays.
JMO

I think there is a risk of public perception that the Judge is biased against the defence . Indeed it seems there are plenty of Attorneys who think the Judge has made a right hash of this - so it is a valid view!

 

[Jurisprudence]

A conflict of interest would be something like Baldwin representing Allen even though he had previously represented Kegan Kline or one of the alleged Odinists. Then he would have potentially conflicting duties to different clients.

I can't really see how that applies in this case. Unless the judge somehow argues that their previous representation of Allen as court-appointed counsel somehow conflicts them out from representing him as private counsel. But I don't see why it would, and she didn't say anything like that when she disqualified them today.

Agree. It does not.

 

[MistyWaters]

This is what's puzzling to me. He WANTS this circus? That is concerning. I'd think if I were really innocent, I'd want the best possible representation, not someone that is going to write up a story so ridiculous and then oops it's released, when it should have been kept quiet.. then the photo just oops get released. Again, if I was innocent, I'd be horrified by all of that. This is the death of 2 little girls and it's just turned into a joke. I think I'd say yes give me new lawyers these 2 have done damage to this case. So maybe he likes the circus and thinks this helps him? I have to wonder if he's guilty, then this circus likely "helps" him.

Yes I fully agree he’s more apt to participate in this circus if he’s guilty.

Several reasons why it’s advantageous - It puts his trial further off into the future (out of sight out of mind), meanwhile he’s perceived as innocent yet locked up causing some public sympathy, and he continues to receive privileges he wouldn’t have if he was convicted and thrown in with the general population. (One example - did he get another laptop capable of outside communication after he smashed it, I don’t know but that was mentioned to be a privilege inmates don’t have.) So why not? JMO

 

[O.Incandenza]

My thoughts on this so far

1. It's clear that the grounds to remove BR and especially BA exist. The question is whether Gull followed proper process, not whether the decision was substantively correct. So if the lawyers appeal their removal, it will have to be because of procedural defect

2. Process is important, but IMO the problem for the bumbling duo, is that even if they win on the procedural point, I can't see a higher court reinstating them precisely because of their outrageous conduct.

3. I think it's important they do appeal it, but i suspect any victory for them would be pyrrhic i.e. a dressing down for Gull, but not a reinstatement. Somehow they allowed some goon extended access to their case files. How does that even happen.

4. IMO Gull was correct to rule that can't return even pro-bono. It would be absurd that RA had both court appointed lawyers and pro-bono lawyers. So one set had to go. To me it makes no sense that disqualified lawyers can then return pro-bono. To clever by half.

5. Gull has pushed the trial back so far, because she knows this all will be litigated now and take up more time pre-trial. IMO we don't need to panic that RA will then be able to get any conviction overturned, because these issues will be settled now

6. There is, IMO a risk of this trial collapsing. This is why Judge Gull should now recuse as well. Fresh Judge, fresh start. You can't have this perception of bias hanging over the trial, even if not actual bias.

I'll disagree with one thing here. What exactly are the grounds for removing Rozzi? None of the leaks originated from his office. He's not part of Baldwin's firm. They're not partners. Their offices are hours apart. They're just court appointed co-counsel.

Maybe it exists, but it's not readily apparent to me. Which is why the rest of your points are so important. If grounds really exist for removing Rozzi as counsel and barring him from representing Allen pro bono, they need to be documented extensively on the record in a hearing with due process. According to the US Supreme Court, denial of counsel of choice is by itself grounds for a new trial regardless of how effectively his new court-appointed attorneys represent him. So going forward without resolving this issue really jeopardizes any eventual verdict that is reached.

Also, just to clarify point #4, if Baldwin & Rozzi were allowed to represent Allen pro bono, then the court appointed attorneys would be dismissed since he would now have private counsel. There wouldn't be two teams of lawyers representing him.

 

[MistyWaters]

I think there is a risk of public perception that the Judge is biased against the defence . Indeed it seems there are plenty of Attorneys who think the Judge has made a right hash of this - so it is a valid view!

Yes it appears any bias is being viewed by their counterparts as if D&B have been somehow wronged. But I think one of 2 things will happen that will settle it - the ex-D will take it to a higher court, hoping to have the Judge recused in retaliation; or they just go quietly away, nothing more is said because B&D want to avoid the public shaming of the reasons they were dismissed and by the time the trial occurs this current kerfuffle will only be a distant memory.

JMO

 

[photographer4]

I really appreciate your response. It gives me things to mull over.

I suppose for me, I go back to the place that we all started from. That place would be the bridge. RA was there. That is a fact. He described the clothing that he wore that day. Those clothes match the man that walked across the bridge on Libby's video. He said he saw the teenage girls who also saw him walking quickly towards the bridge. They have evidence showing their last photo was taken just before 1:30 PM. RA was walking toward the bridge as they were departing. Another woman spotted him standing on the bridge in the place that he himself confirmed that he stood on.

I know that all of the above is circumstancial evidence. But there is more. I assume there is a lot we don't know.

I agree with you and others that feel like the lack of transparency is problematic and wrong. I don't think that the work that was done early on was perfect, or even really professional.

But I see absolutely no reason for RA to be arrested and charged after 6 years if there is no evidence. Why would they pick a man like RA with no cause? The case was not handled well initially, but I don't believe that the LE is evil or intentionally setting an innocent man.

Let's not forget, he admitted several times that he killed the girls.
JMO

But the mere fact of RA having been at the bridge and in an outfit that matches what BG was on video wearing means very little aside, he was there. This does not prove that he even spoke to the kids. At all. It proves only that RA was at the bridge, was seen by others, at the bridge. Where he said he was. Does this warrant him being in prison for yet another year? I think not. If there is more, and there better be a whole lot more if the State wants a conviction here, then where is it? What have they got? Funny, we're not told because of a gag order. There isn't even justification for the order at this point - who is it serving? Clearly not in RA's best interest when other possible theories and suspects are so clearly in view! Why have police not released the full video of BG and his interaction with the kids? Secrecy and back room deals is how Karla Homolka got her Canadian Sweetheart Deal -- no thanks. If he did it, if he was a part of it, then he should go down for it with anyone else involved. But so far, a year in, no one else arrested!

 

[Emma Peel]

Admittedly I am no expert in US procedure!

But to my mind, when a Judge sees such a shocking breach of the protected discovery, she is going to boot counsel to protect the trial. At the end of the day, she doesn't know Baldwin's personal life, or what his relationship with his friend is, or the real circumstances of the breach, or when Rozzi knew what.

I'm imagining the following at my old firm - say I had invited a mate to friday night drinks, and while drinking, he slipped out and ransacked my office for confidential info relating to the most high profile trial in the country and leaked it?

1. I would have likely been fired
2. I would have faced disciplinary proceedings by the law society disciplinary tribunal
3. The firm could well be booted from the case - but certainly i would have been booted off the trial team

If the partner leading the trial had done this - much much worse IMO!

Now replay the scenario in a smaller firm, where a mate is allowed to access the office and case files on an extended basis? Oh dear!

Maybe the truth is this was a one in a million breach of trust where Baldwin was duped, but there is every possibility this is not someone who should be near a courtroom IMO.

Thank you for taking time to share this well-thought out example!

 

[photographer4]

No not necessarily however is could be a factor.

However I think we should move along with the latest events……D&B are now off the case, formally disqualified. IMO no higher court is going to order that RA’s attorneys be reinstated to represent him probono.

I agree with you here. Its unlikely that a higher court will reinstate them. But what they've done here is quite smart - they've gone on public record as having concerns about the judge, and they're setting RA up for a very good appeal if not outright mistrial.