A Conversation With Chief Public Defender Timothy Sledd about Discovery

[00:00:00] Content Warning, this episode contains discussion of the murder of two girls.

[00:00:06] We always appreciate getting questions from listeners, and recently we have been getting quite a few about Discovery.

[00:00:14] This, of course, is the process by which the prosecution in a criminal case shares or turns over materials to the defense.

[00:00:22] But how exactly does it work? Does the prosecution have to turn over everything? Or can it be a bit selective?

[00:00:29] And what happens when a defendant changes attorneys before a trial?

[00:00:33] To get answers to those questions and more, we turn to Timothy Sledd, the Chief Public Defender of Indiana's Lawrence County.

[00:00:42] In an earlier episode, Tim did a great job of walking us all through how the criminal justice system deals with mental illness.

[00:00:51] So we knew we could rely on him to explain the ins and outs of the Discovery process.

[00:00:57] Now, the questions around Discovery that we received mostly pertain to the case of Richard Allen, the defendant in the Delphi murder case.

[00:01:05] He stands accused of killing teenagers Liberty German and Abigail Williams.

[00:01:10] But these questions are quite relevant to most criminal cases, and therefore we feel our listeners may find this information useful going forward.

[00:01:19] My name is Ania Cain. I'm a journalist.

[00:01:22] And I'm Kevin Greenlee. I'm an attorney.

[00:01:24] And this is The Murder Sheet.

[00:01:26] We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases.

[00:01:32] We're The Murder Sheet and this is...

[00:01:35] A conversation with Chief Public Defender Timothy Sledd about Discovery.

[00:02:24] Okay, Tim, thank you so much for coming on the show today.

[00:02:27] We wanted to talk to you a little bit about Discovery issues.

[00:02:31] And I guess, can you tell us a bit about some of the discussion around Discovery in the Delphi case and how you're sort of perceiving that?

[00:02:40] Sure. Generally, so that the audience understands, Discovery is the sharing of evidence.

[00:02:48] Just on a basic level, that's what Discovery is.

[00:02:51] When an attorney represents an accused individual, just by way of the person being accused, we don't have the evidence that the state has.

[00:03:01] So there is a... In many jurisdictions, there's a local rule that expedites the sharing of information back and forth between the state and the defense.

[00:03:12] But there are also motions that can be filed through the trial rules that allow for one side or the other to ask the other side,

[00:03:21] hey, answer these questions or provide these documents and give us what you have.

[00:03:27] In the criminal realm, it's generally understood that the state needs to give the defendant everything they intend to use at trial.

[00:03:37] And that's something that in the Delphi case is going to be particularly interesting to see how that gets worked out.

[00:03:43] Because there's different ways that the evidence can be shared.

[00:03:46] It can be shared just in bulk, where you hear of terabytes of drives of every path the investigation may or may not have gone down,

[00:03:55] whether or not the prosecutor intends to use that at trial.

[00:03:58] Or it could be very more structured and tailored specifically for what is the evidence that the state intends to use at trial.

[00:04:07] The broader approach is usually the more prudent approach for a prosecutor to do that way they don't have to deal with these Brady challenges.

[00:04:18] And Brady versus Maryland is a federal case, and it's a federal case that says that the state cannot withhold exculpatory evidence.

[00:04:25] Evidence that may lend to somebody's innocence in a case.

[00:04:30] And so, in my experience, most prosecutors hand over everything, the good, the bad, the ugly, the toad with the full warts on it,

[00:04:38] and they let the defense lawyer make hay of what the defense lawyers need to make hay of.

[00:04:42] In a case such as Delphi where there's going to be such a volume of evidence,

[00:04:47] they could choose to be far more constrained in what they hand out.

[00:04:51] And one of the reasons they may be far more constrained in what they hand out is because there may be people that they zeroed in on

[00:04:58] or thought they were zeroing in on but are factually innocent, completely proven to be factually innocent,

[00:05:03] and they don't want that person to be fleshed out as a potential suspect.

[00:05:08] The mechanism of discovery is how do we get evidence from the state to the defense

[00:05:15] and then from the defense to the state in certain circumstances in such a way that we have a fair and timely trial.

[00:05:21] Where there's a problem with discovery, the defense has several tools it can use.

[00:05:28] First, the trial rules provide a method of resolving discovery disputes.

[00:05:33] There's a trial rule called 26 and it provides in the subparagraph F

[00:05:38] that there needs to be an informal attempt to resolve a discovery or dispute.

[00:05:44] Usually a letter in our office we send a letter and an email to the prosecutor saying,

[00:05:48] hey I read through the probable cause affidavit or I read through this statement that was given

[00:05:54] and it appears to me that there would be a body camera or a dash camera or there was a statement by another person,

[00:06:00] person C and we weren't provided that.

[00:06:02] Will you please provide us with that and we give you a deadline to do that?

[00:06:07] Then if that fails, the defense can ask the court to compel

[00:06:12] or the state could do this too but the party asks the court to compel the other party to produce the specific thing.

[00:06:19] Usually a hearing is held on that where the state can say you can compel me all day, it doesn't exist or it did exist,

[00:06:27] it's destroyed or we don't have it yet but we're looking into that and then after an order compelling is violated

[00:06:35] then the defense has the method of asking for sanctions to be imposed and the sanctions can be in the most serious of cases

[00:06:43] exclusion of the evidence or the negative inference of the evidence that isn't given.

[00:06:49] So there's strategy that can be used through a formal walking the discovery down that path

[00:06:57] to where sometimes you can get evidence excluded so the state can't talk about certain things that it may have

[00:07:04] or things it's heard or witnesses but the defense can also, if something doesn't exist that should have been preserved

[00:07:12] and provided to the defense then they can get what's called the negative inference from that.

[00:07:16] They can say if we had had, if we did get this, it would have shown that.

[00:07:23] Typically that's why prosecutors and I, from what I'm gathering looking from the outside in that in the Delphi case

[00:07:29] they're using more of a here's everything in bulk have fun figuring it out because we're having fun trying to figure it out

[00:07:36] and then finding things that aren't consistent with in there or I can't even imagine the filing cabinets

[00:07:43] and within the Microsoft software the folders and folders and folders and having to go through

[00:07:50] and digest all of those would be just enormous for both the defense and the prosecutor

[00:07:55] and you got to remember the prosecutor was not a special task force prosecutor.

[00:07:59] He's a local elected prosecutor who has to still prosecute his day to day possession cases dealing cases

[00:08:06] domestic violence cases throughout the pendency of the investigation probably was letting law enforcement do its work

[00:08:14] and now he's having to, I would imagine that were briefings but now he's having to sort of become the case.

[00:08:21] I'm curious is it considered bad form for a prosecutor just to turn over everything in bulk without being labeled

[00:08:28] as opposed to like starting it out in some sort of index.

[00:08:32] Not bad form at all and I think it kind of comes down to what's the relationship between the prosecutor and the defense lawyer.

[00:08:38] There is no obligation that anything that is handed over be handed over in a specific format or in the county that I practice in

[00:08:47] we have what we call a discovery portal and the prosecutor receives the discovery,

[00:08:55] receives the evidence from the law enforcement agency and does just a very brief organization,

[00:09:01] a very cursory organization. These are pleadings these are officer by their number videos

[00:09:06] and then they slide that entire folder except for confidential information that they may have work product

[00:09:13] you know prosecutor may have identifiers of that they don't want to hand out yet confidential informants things like that.

[00:09:19] They slide that entire folder into our portal we then grab it from there and so it's often not organized how I would want to be

[00:09:29] organized or have my staff organize it for me but it's also it's not the other where they've gone in and messed it up

[00:09:37] so that it would be harder for me to find it would really surprise me if a prosecutor did that kind of behavior because we're awful busy

[00:09:46] and the prosecutors are awful busy and I don't think there's a lot of a lot of anything to be gained by you know that kind of chicanery.

[00:09:55] I'm also curious you talked about how some things might not fall under discovery.

[00:10:00] You mentioned for instance if you know in theory if I call in and say Anya committed a crime because I'm mad at her and they investigate her

[00:10:09] and find out she's totally not involved that might not fall under discovery so how these sorts of determinations made as to what is discoverable and what isn't.

[00:10:18] Well the prosecutor is the first person that gets to make that decision and the problem that sometimes prosecutors get themselves in as they make that decision too sweepingly

[00:10:29] and then ultimately it's determined that well maybe that is Brady and then there's ag on the prosecutor's face where the prosecutor wasn't necessarily really intending for there to be a problem

[00:10:41] but they create the problem by saying we're just going to hold this back and you know in a complicated case where there's been years of investigation like Delphi

[00:10:51] I would imagine that there were many different roads that were gone down in the investigation and it's how far down those roads need to be shared with the defense in a specific defendant's case

[00:11:05] and you know it may be it may be as simple as a summary report one way that could be done is that the regarding the FBI's investigation there could be a summary report written up by the FBI that we looked into this this this this this this this this

[00:11:21] and none of those led to fertile ground and end right there then the defense can always ask back and say oh really you looked into this tell us more about that and they can then pull that out if need be

[00:11:36] or you can just give them everything including all the all the the doors in the veins that that leads into and and risk hay being made of any one of them because the defense has to just find a reasonable alternative hypothesis to the case than what the state has

[00:11:57] and hang on that as being doubt that's reasonable so in a complicated case I would imagine that the you could either do it in a like a summary report like if you didn't want to go down the path of for example in Delphi

[00:12:12] let's say cults you know let's say at some point in time there was an emphasis placed on the occult and trying to figure out what those are

[00:12:21] let's say they rule out occult a occult B and occult C but they don't rule out rule out occult D till much later you know a summary report on why those got excluded or that they did get excluded might suffice for discovery purposes because it's not evidence the prosecutors going to use a trial

[00:12:40] in fact to the contrary it's evidence they know they're not going to use a trial nor does that evidence speak to the guilt or innocence of some other accused individual but yet a notation of it would most likely need to be there so that if the defense wants to pull from that and

[00:12:58] they can learn more they can in more garden variety day to day investigations prosecutor most likely is just going to give up give over everything every witness statement even if it's wrong because a deposition can be taken of that witness to determine why they perceive something so

[00:13:15] in the case of you here have an investigation and you've got some sort of axe to grind on on you and you call in to the tip line and they they then investigate on you they're going to say you know we found out she had it at alibi and that the reporting

[00:13:34] had motivation to lie thanks Kevin thanks Kevin got in trouble for nothing we talked a bit about Brady can you can you go a little bit more into detail what's a Brady violation you know sort of things that involves yeah so a Brady

[00:13:48] violation I guess that let's start with the easiest Brady violation let's say somebody else confesses to a crime but the investigation holds that back they continue to do their investigation maybe they don't believe the

[00:14:02] confessor okay there's a lot of value judgments that investigators are making you know you have you have you know a hypothetical murder and it's a who done it type of murder and somebody confesses but the police don't believe that person they either

[00:14:21] don't they don't for some reason or another they don't attach a whole lot of value to that confession and they continue their investigation and they arrest somebody who becomes the defendant if they say well you know this person person a confess but we don't believe

[00:14:37] them and we're going to charge person be person be is walking up to trial Brady is a trial right the state doesn't have to disclose that unless a reasonably prudent person would believe that the it would attack a piece of evidence

[00:14:54] and so of course I believe they should have they should put that confession as soon as possible because it's clearly somebody else is out there it's a piece of ex gulpatory information and if person be has not confessed or their you know there is there's there's

[00:15:14] a circumstantial case that confession is highly relevant should should be shared if it's not that's a pretty violation and Brady violations are very severe in the sense that where it's determined that there's been a Brady violation most often there's a new trial that's granted

[00:15:30] and you start back at square one with that piece of information there are things that can make a what would seemingly be a Brady violation not Brady violation if in specifically in the circumstance of a false confession or a confession that's determined not to be reliable

[00:15:48] and the other the defendant that you have makes a reliable confession that you know has in dish of reliability that are far greater than and is met by other corroborating evidence they may throw out and not even submit in discovery that other confession however

[00:16:05] pro good prosecutors most likely will take a any confession it's put in inside of a case even if they find out to be reliable they will take that confession and they will have a report written on that or ask for a report to be written on that that says this confession was received we know it not to be reliable because of this

[00:16:23] provided to the defense let the defense track that down chase that down Brady violations are there there's still things that are addressed in Indiana we have the lions case L Y O N S case that just came down this year and it's on it was out of the county that I practice and

[00:16:41] and it what it was was the polygraph examiner made changes to the form that the defendant filled out before giving the polygraph exam and didn't know to didn't tell the defense or the state that that happened that piece of information is critical because the defendant thought he was walking into trial with one piece of evidence against him

[00:17:09] and in fact the it's a there's a completely different strategy that gets put in there if it's not a stipulated or if it is a stipulated polygraph exam so because the defendant was surprised on the eve of trial with that it was the judge heavily sanctioned the state excluded the evidence the supreme it went all the

[00:17:31] time the Supreme Court of Indiana this year and they found that that was a violation of the constitutional rights because of discovery. We talked a bit about the consequences of Brady violations when we were researching one of the figures in the Delphi case namely judge Francis

[00:17:49] presiding over it right now. We found one case where in Allen County the press characterized her as throwing out a murder case because of its discovery issues. Essentially a man had been murdered in a subway restaurant and they honed in on one person then it turned out another man had robbed said subway restaurant in an armed robbery like a month before

[00:18:12] the murder and I guess that was kept out of things and then recently there's actually been a rest of a third man who you know I guess even better evidence for so I don't know really getting away from just that specific case.

[00:18:26] When it comes to throwing out a case is effectively over discovery issues. Is that something that you've seen a lot of or when that happens how wrong do things have to go for that to happen.

[00:18:39] Not surprised that a subway case and judge gold struck your fancy murder sheet in your restaurant murder.

[00:18:47] So I have never seen the court throw out a case.

[00:18:54] And only one time in my professional career have I seen a judge dismiss a case where the state didn't move for it to be dismissed and that was because it had to happen as a matter of law because the person had their competency restored and they had been incarcerated

[00:19:11] and then inside of the mental health department longer than the maximum sentence for the crime for which they were charged.

[00:19:19] So just so just so that the audience is clear it strikes me as judges don't get to throw out cases in their entirety but for a couple different situations and those are very very rare and very hard.

[00:19:35] What they can do is they can exclude necessary evidence for the state to be able to proceed and cause the state to have to dismiss the charge.

[00:19:43] Now there are if you blow certain timelines like CR for criminal rule for or the fast and speedy then there are there are times where a case must be discharged and a judge would have to do that but very seldom have I have I experienced that occurring.

[00:20:01] And there are so many loopholes and methods through and around that those time frames now as a sanction for a Brady violation.

[00:20:10] I think more frequently what you would see is you would see the court saying state you know you should have done this you didn't do this therefore you can't use this and to the defense and other I'm going to allow the defense to instruct the jury that there's a negative inference that can be gained from this evidence not being preserved.

[00:20:30] Or given to them in time and then the state saying well we no longer believe we can make our case and having to dismiss most prosecutors don't give up murder cases for dismissal lightly they'd almost rather try it and lose then then let somebody just walk out the door without without the trial.

[00:20:52] But they have ethical rules they have to follow to and they have to be able to get past that bar of the directed verdict.

[00:21:00] If they don't have a piece of evidence that they need then they're there just left to ask for it to be dismissed but as a sanction to the state dismissing their case I've never seen that happen very well may have though.

[00:21:14] Yeah I may be misremembering certain details or the very least I know I know the case was it did not the trial did not occur and I don't know whether that was essentially her throwing it out.

[00:21:27] That's again how it was characterized in the press but it very well may have been her excluding specific important evidence and then the prosecution walking away in those days Alan County seemed to be having a lot of problems with the prosecutor's office doing discovery violations and Brady violations.

[00:21:44] It was like some sort of mandatory training that happened you know at some point around this time where it's like let's learn how to follow Brady.

[00:21:52] I'm curious a bit about timelines of discovery if in theory I'm representing Anya for some terrible crime she's committed.

[00:22:02] Obviously I can't go into court and like the night before get a truckload of discovery dumped on me.

[00:22:10] How long before a trial is the prosecution of the state expected to turn over a discovery materials.

[00:22:17] It's that's controlled by either the trial rules or local rules and so it's it can be different even among the 92 counties and I believe there's only 91 court jurisdictions even though we have 92 counties.

[00:22:29] So in the county that I practice in we have a local rule the appearance of a defense lawyer triggers discovery deadlines for the state of Indiana to produce documents and items of discovery evidence.

[00:22:43] So in the county that I practice in you would you would have a recourse if on the eve of trial you received a truckload of evidence because that would be well outside of even if you had filed for a fast and speedy it would be well outside of the deadlines of the local rule here.

[00:23:03] And so it would depend upon the community where the case is being charged if they have that local rule even if they don't have a local rule.

[00:23:09] If you as a competent defense lawyer filed a motion for discovery you now trigger the trial rules and the deadlines that are in trial rules.

[00:23:19] The state has a the responding party to a motion for discovery has a time frame in which to respond.

[00:23:25] It doesn't mean they have to complete discovery within that time but they have a they have a time frame to respond.

[00:23:32] Then the rule of 26 F where there's a discovery dispute between the parties you have to seek to you would have to seek to answer that informally or address that informally.

[00:23:45] You can do it by way of a letter and email you I guess you could have a conversation but if you're having a dispute regarding that is probably better to have it in writing.

[00:23:55] And you can put whatever deadline you want on that but then you file the motion to compel court will give usually 30 days after the an order to compel and then you have a hearing for for sanctions after that in some cases.

[00:24:10] And I guess the other way of looking at this is the judge is going to be the one that decides what's a reasonable time for evidence to have been exchanged in a you know a traffic stop possession of methamphetamine case.

[00:24:24] A judge is probably going to have a very short tolerance on the state for disclosing evidence.

[00:24:30] I mean it's it's traffic stop we probably have a body cam we probably have maybe a dash cam.

[00:24:35] You have the pictures that were taken of whatever was was gathered you have the request for the Indiana State Police Lab to do their analysis of the stuff and then there and then that's probably where you're going to stop with discovery for a while.

[00:24:53] Because that lab process has to happen and then the state has a duty to give you the lab results and so the turnaround time on evidence for that sort of case you would imagine a judge to have a hearing for that.

[00:25:05] And the judge is going to say a very short turnaround time except for the lab results.

[00:25:10] You may get the lab result if you file for a fast and speedy you may get the lab results on the night before trial but you asked for the fast and speedy.

[00:25:17] If you're nine months out and you're getting ready for trial you know you probably file a motion in lemony or something to cause the court to say hey state you're not going to be allowed to use this unless you get it done.

[00:25:28] And I know that the lab expedites its work based upon trial deadlines so you know a garden variety level six felony methamphetamine is not going to be processed unless there's a trial looming.

[00:25:45] Now on a case that there's more to it the judge may say no the state needs more time and as we're going to give the state more time to give you the evidence they have to have you know you can have a bond hearing

[00:25:58] a preliminary hearing to weigh probable cause if they don't have the evidence in there that their probable cause says that they do that it doesn't exist or you think that that needs to be reweight you can have a hearing on that.

[00:26:09] But the state maybe may say hey yeah we're waiting for forensics to come back or we need a you know we have to have a phone dump completed and analyzed.

[00:26:19] There's there's many different things that could go outside of what would be a normal you know 3060 90 completion of discovery but your garden variety case things get turned over pretty quickly.

[00:26:31] I was I was curious just from a practical standpoint you've been on the prosecution side even on the defense side how does one manage review organize and sort of really sort through a mountain of discovery in cases where there are a lot of discovery I guess on both sides.

[00:26:48] The state has the benefit of its investigators have been immersed in whatever investigation they've been in and the state has the benefit of relying upon their interpretations you know a detective comes in and has you know let's say a you know a terabyte drive of evidence.

[00:27:08] And can look at the prosecutor and say hey I think you need to charge this crime that I believe happened here and here's why and can summarize that and here's on this terror terabyte drive.

[00:27:19] You're going to see the evidence that supports that and the prosecutor can charge that case up without having digested all of that maybe not the best practice but if they have a good working relationship and years of experience together and there's an availability for them to rely up on each other then you know I've seen that happen and then they start to say.

[00:27:37] Okay how am I going to organize this in preparation for trial the defense is behind the defense is is late to the game probably in well in the public defender world is going to be not staffed the same way that prosecutors offices with you know full agency or many agencies that can digest and organize the material.

[00:28:02] So from a pragmatic standpoint I have an investigator and she's also she also doubles as my paralegal as well but when she pulls the discovery down she is processing through it.

[00:28:15] I'm often processing through it at the same time especially on the bigger cases you know we're we're digesting those things together and trying to organize the file and figure out what we do and what we don't have a good starting point is the probable cause affidavit to see what did the.

[00:28:31] The officer believe the evidence that they've acquired which is most beneficial to them says and then what questions does that raise for the lawyer and what is the where does the evidence show and where doesn't it show and what's missing.

[00:28:45] In the age of body cameras in most police citizen encounters you can you can get a pretty pretty quick shot of of the truth by by looking into that and in longer investigations or who done it investigations like burglaries or auto thefts or thefts or anything like that then you want to say how what's what is the what's the thread between the accused and the accusation but it can be in in a situation where.

[00:29:15] Say for example in the Delphi case where the defense is being handed just the volume of seven years of investigation probably step one would be to organize things into statements reports.

[00:29:29] Videos photographs and just get those things all organized into basic folders and then start to digest delegate and digest.

[00:29:39] In big cases in my office we have to use a team approach so there will be at least two two lawyers on every major case and we have team meetings with the paralegal and the two attorneys where we say this is how we're delegating the tasks and then put together.

[00:29:56] The path forward on those cases whether it be strategy or procedure.

[00:30:02] One thing I was curious about is in Delphi case we were interested to see the old defense team Andrew Baldwin and Brad Rosie when they're talking about the discovery at some point at least in their Frank's memorandum filing.

[00:30:16] They would be mentioning that you know they weren't getting some things from prosecution although there would be at times almost a subtle acknowledgement that they may have gotten them they may have just not found them yet.

[00:30:27] Is that the sort of like back and forth maybe you know can there be a bit of sniping between defense and prosecution over discovery like that where there's a lot to go through things are not clear would you.

[00:30:38] Is that a little bit unusual.

[00:30:40] It's it can be common for the defense and the prosecution not to agree on what discovery needs to happen and and not be happy with the time frame of discovery.

[00:30:55] And and so in a lot of that's guided by your judge.

[00:30:58] The judge will often sort of set the expectations on you know what's happening in the world of discovery.

[00:31:06] What is sort of abnormal about the situation that you reference though is that when you take a shot at another lawyer in court or in a court pleading you really want that to be able to be backed up because it's important that.

[00:31:24] Your professional integrity be able to fly and if if I say that I haven't received something that I have received.

[00:31:33] And I don't couch it in the language of well maybe I did receive it but I haven't looked me that's bad.

[00:31:38] I mean you need to you need to know what you have and you don't have and I understand I'm not sitting with seven years of investigative materials dumped in my lap.

[00:31:46] But if I'm going to if I'm going to really say that I'm going I'm going to be cautious not to be throwing this the prosecutor under the bus for that.

[00:31:56] Or if I'm throwing the prosecutor on the bus I better be sure it's not there because if they show it then you know it chips away at the integrity and the court's not going to view.

[00:32:05] The discovery complaints in the same light and I can think of a case in my practice and even recently where I claimed that I didn't receive something and I didn't have it in my file.

[00:32:21] I was sitting in court looking at my file and I didn't have it and the prosecutor spins his laptop around and points to a folder that shows that I did have it well.

[00:32:33] I did have it in the offices in my office's system.

[00:32:42] It hadn't been downloaded into my files and so it was ships passing in the night sort of thing and I ate a good amount of crow in apologizing to the state.

[00:32:52] But at the same time as the judge saw there was there was a delay in it was a delay in getting it with the other evidence that I had so but to that end.

[00:33:03] It was a lesson for me to be just take a deep breath make sure I know everything I really have or and I now send a message to my investigator we check the portal make sure nothing news been added.

[00:33:15] But all of this is to say that the system does not want trial by ambush.

[00:33:24] The trial rules the criminal procedure rules local rules relating to discovery all envision that everybody should know what the evidence is long before we get to the trial where we get to argue about what the evidence what evidence comes in and what the evidence means.

[00:33:45] That's large trials are are are meant to be a discussion or a dispute about what evidence gets to come before the finder of fact the jury or the judge and what does it even mean.

[00:33:59] There the Matlock moments which Matlock's what my parents and my grandparents watching most of our audience probably doesn't know that but the sort of surprising things in a trial.

[00:34:11] Aren't surprising because the evidence hadn't been shared back and forth it may have been because somebody didn't look at it or somebody didn't digest it right or an interpretation of it wasn't wasn't made in a particular way but you know nobody ever walks in through the doors right before closing argument and says I did it or that person's.

[00:34:35] I saw him do it or whatever I mean that that's that's not how it happens when the discovery rules are meant to be that way because at its core the purpose of the trials to get to the truth and over 200 and 25 years of of jurisprudence of court cases of procedure have sought to say this stuff is reliable in this stuff isn't reliable.

[00:35:01] So we'll allow this stuff to come in at a trial and will exclude this sort of stuff out of a trial so that we get to the cleaner picture of true and we also then have the burdens of proof and that's because again we're dealing with a governmental entity and citizens.

[00:35:18] Really well said and yeah we always tell our listeners that you know this stuff should be boring and not you know hopefully we can convey it in an interesting way but it's not.

[00:35:29] Not every law and order episode there's some massive twist you know and oh they got them to confess on the stand or oh they you know broke down and started screaming at the prosecutor revealing themselves to have like an anger issue.

[00:35:39] And it's like just gives people such a wrong idea because then they're they don't know what to make of it when there is no twist and it's just like a pretty you know wrote procedure but yeah it's important.

[00:35:52] Yeah and also to that end you know the strategy of the prosecutor in the defense never has to be shared often you pick up on it sometimes it's it's as obvious as.

[00:36:05] As it being daytime or nighttime outside but the sharing of a complete strategy or the forcing of the sharing of a complete strategy never has to happen so there is a little bit of suspense when you go into a jury trial as to what are they really going to hone in on.

[00:36:23] In the civil world you have trial rule 16 which requires the parties exchange final witnesses and exhibit lists stipulate to certain facts prior to the trial so they're you already know marked exhibits in the criminal realm we don't have that trial rule 16.

[00:36:43] But judges will often issue what's called a trial order where they will say you need to work together to stipulate to certain facts and and you can have it you do have a right to a final witness and exhibit list.

[00:36:56] You know so in our county the first discovery compliance that we get from the state of Indiana is is sort of a blanket statement it says all people listed in the probable cause affidavit all reports that may have been produced and it doesn't tell you anything.

[00:37:12] The state has to clean that up before we get close to trial so that I know actually who's coming who's going to show up or hoop and they can ultimately on the day of trial decide not to call somebody but they have to narrow it down.

[00:37:26] And then we're in a really weird situation with Delphi obviously because as of right now there was an original defense team Bradley Rosie and Andrew Baldwin.

[00:37:35] Now there are some new defense attorneys coming in Robert Scrimman and William Lerato.

[00:37:41] I know that in her comments to the court Judge Gall indicated that she expected the original defense team the old defense team to pass on discovery to the new defense team when you have that sort of handoff is it is a typically between.

[00:37:56] The two defense teams or does the prosecution have to get involved to make sure that everything is handed over.

[00:38:05] So in my experience and having taken over cases for prior counsel before you typically get the the evidence directly from prior defense counsel.

[00:38:15] Then it's best practice to set up a meeting with the prosecutor's office and do a cross check.

[00:38:23] Not because you think that the prior counsel did anything but you if the defendant is the one that has the right to the discovery so a frustrated or taxed prosecutor can look at the court and say I gave that defendant all the evidence when it gave it to the first lawyer.

[00:38:45] And so if the second lawyer says well I don't have it and there's a receipt showing that it was sent to the first well that's not on the prosecutors not in the state there's no remedy to the state so when I've taken on a case that somebody else had before I look through the evidence I get it organized in my way and I put together a list of the items.

[00:39:03] And then I go to the prosecutor and I say hey I want to sit down with you I want to go through this evidence just to make sure I have everything.

[00:39:10] And usually it's a check check check check check everything's there you're good to go.

[00:39:14] And you can do that in such a way that doesn't play any hands towards strategy or or give up any attorney client confidence because it's just acknowledging what hasn't hasn't been received.

[00:39:24] Most often that's how it's done is it's done from defense to defense where the judge as in that in the Delphi case seems to have lost confidence in the ability of the prior defense team to manage its documents.

[00:39:39] It may say no you're going to get all of your evidence from the state and the defense prior defense team has to give it back to the state.

[00:39:46] And so everything is going from one channel that way subsequent counsel can't you know can't sort of point to whatever was happening in the in the prior groups digestion of that material to say well we were thwarted from from actually doing a good defense for the client because we had to we were basically eating

[00:40:07] the chewed cut of the other of the other team we want it fresh and I want to fresh fresh eyes on it.

[00:40:13] So goals sending it to McLean and then saying hey McLean you're going to give it to the next council and we want up we want the old council to still cooperate you know because who knows what they may have done with it they may have they may have been preparing exhibits they may have been preparing charts

[00:40:32] they may have been preparing things that would benefit Richard Allen.

[00:40:37] I mean Richard Allen's defense was being created by these folks and it's still his defense.

[00:40:44] And if it's going to facilitate the next group so they can hit the ground running.

[00:40:49] She it sounded to me like she wanted them to cooperate but she wasn't letting letting the state off the hook by saying yeah you've already you've already divvied it out divvied out again.

[00:40:58] I just have one quick final question.

[00:41:02] Near the beginning of this conversation we were talking about discovery and I think most lay people think of discovery as being a one way street from prosecution to defense and you alluded to the fact that there are some occasions where the defense has to turn over materials to the prosecution.

[00:41:18] Now just wondering if you could discuss that.

[00:41:21] Sure.

[00:41:23] Again a defendant has a Fifth Amendment right to remain silent and does not have to produce any evidence call any witnesses doesn't have to do anything but stand back and say prove it so very seldom is there going to be anything sent from the defense back to the state.

[00:41:44] However, there may be times where there's been an expert hired where there's been an independent analysis of something done that and there's a report that goes along with that where there's a witness that has come forward and will testify on behalf of the defendant in some way shape or form.

[00:42:04] The state has the right to be on notice of all of that.

[00:42:08] Now certain defenses have to be raised early and loudly and there's actually a burden that goes to the defendant to to meet certain things such as insanity where an insanity defense is lodged.

[00:42:22] The defendant has the burden of proving insanity by a preponderance of the evidence and then the state has the burden of disproving it beyond a reasonable doubt.

[00:42:33] So there's automatically going to be an exchange of information related to that.

[00:42:41] Sometimes the witness list for the defendant will be people that are also on the state's witness list.

[00:42:50] I mean, there's you know, there's the gray and the gray with there's black white and gray and the gray witnesses sometimes get listed by the defense as well.

[00:43:01] But it's it is not very common that there is a large exchange from the defense back to the state for the accused unless there's some sort of, you know, science issue or other witness that's that has an alternative theory that they're willing to go into court and testify about.

[00:43:24] Because typically the state has, you know, ironed that out or their witnesses will be able to to be had on cross examination to elicit or elucidate those points.

[00:43:37] And another, you know, another strategy for the defense is that cross examination is a much richer way of exposing holes flaws miscalculations in the state's case or with the state's witnesses then direct examinations.

[00:43:53] And so when if a defendant holds back on a witness or has a witness that the state isn't going to call that they need to call, they have to know that the prosecutor is going to get cross examination of that person.

[00:44:06] Cross examination often is the narrative of the lawyer with the simple answer of yes or no from the witness.

[00:44:14] So the lawyer is testifying and the witnesses agreeing with their testimony. Good cross examination often feels just like that and juries like to hear the lawyers answers.

[00:44:27] And then of course, lawyers who are already know what the it's predestined what they're going to argue and close close argument.

[00:44:35] They're building they're building that map toward good trial or is are building that map toward that final thing. And so if they can get person A to say yes, but the yes is to, you know, it was a red truck with, you know, great big tires.

[00:44:50] Well, you ladies and gentlemen jury, you heard, you know, witness a say it was a great big truck with big red tie red truck with big black tire person didn't say that they said yes to it.

[00:45:03] But the closing argument was made so, you know, cross examining, you know, is off the defense has the ability to cross examine the state's witness and get all of that done versus have their own come in and be subject to cross exam, especially the defense

[00:45:17] goes after the prosecution. So the state case, state rests defense goes and any witness they call gets cross examined so the prosecutor gets the opportunity to be or rating the facts with yes no responses.

[00:45:32] The state can then call rebuttal witnesses if necessary if they weren't able to clean something up. But then they go into closing arguments and closing arguments as you both are aware is the state goes the defense goes and the state cleans up.

[00:45:45] So it's, you know, it's because they had the strict and heavy burden. They get that opportunity. But there's a lot of there's a lot of strategy and calculation to that. And one one way to address that is through like depositions is having the depositions done.

[00:46:03] Is there anything we didn't ask you about Tim that you wanted to mention about discovery or you think it would be important for people to understand this, you know, somewhat complicated subject that seems to differ a lot depending on the case but also have these kind of rules that need to be abided by just to help people understand it a little bit better.

[00:46:20] I mean, I think just maybe to summarize is that discovery is legal procedure. It's even though there's still room for litigation within the practice of what is the right discovery or you know what is a Brady discovery violation or what is a sanction for a discovery breach.

[00:46:45] It's largely what lawyers do what trial lawyers prosecutors and criminal defense lawyers do, you know, in every case we're doing some level of discovery some level of sharing of the evidence. And so as a as sort of

[00:47:06] tantalizing as it might seem, it's probably a pretty boring process. And in very seldom is it the, you know, is it the aha moment in a case and ultimately you don't want it to be the aha moment in any case because that means lawyers messed up a case versus, you know, you know, the the the facts not bearing out you if

[00:47:33] if good lawyers prosecutors or defense lawyers are analyzing the evidence right. The case should proceed in in its terminal path very smoothly. That means there's not going to be suppressions doesn't mean there's not going to be arguments or a jury trial or

[00:47:51] or the things that go on but having sidebars or side hearings on sanctions and things like that. That's not the life of a that's not the right track for a case to go. That means there's been, you know, that's taking away from the issue that the defendant is probably sitting incarcerated during that period of time and not having their case

[00:48:11] progress toward trial or or, you know, or the in the sense of the Delphi case the the I don't even I don't know if you can call them facts of the case or the evidence of the case or at least the theories of the case are

[00:48:27] are being litigated even before we get to the opportunity to have a jury hear them.

[00:48:35] And so, you know, the discovery is meant to allow for the lawyers to be able to prepare for the trial and and to know what each side is going to have and be able to use so yeah if you have any other questions about that.

[00:48:55] No, I didn't do you have any. This has been very helpful. This is incredible. Thank you so much. Thank you so much Tim for your expertise and sharing it with us in our audience. We really, really appreciate it. No problem.

[00:49:05] Thanks so much for listening to the murder sheet. If you have a tip concerning one of the cases we cover, please email us at murder sheet at gmail.com.

[00:49:18] If you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[00:49:27] If you're interested in joining our Patreon, that's available at www.patreon.com.

[00:49:35] If you want to tip us a bit of money for records requests, you can do so at www.buymeacoffee.com.

[00:49:45] We very much appreciate any support.

[00:49:50] Special thanks to Kevin Tyler Greenlee who composed the music for the murder sheet and who you can find on the web at kevintg.com.

[00:50:00] If you're looking to talk with other listeners about a case we've covered, you can join the Murder Sheet Discussion Group on Facebook.

[00:50:08] We mostly focus our time on research and reporting so we're not on social media much.

[00:50:14] We do try to check our email account but we ask for patience as we often receive a lot of messages. Thanks again for listening.