The Delphi Murders: A Conversation with Two Attorneys About the Motion for Early Trial

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[00:02:39] Content warning. This episode contains discussion of the murder of two girls.

[00:02:44] The other day, there was a major filing in the Delphi case. It was only one sentence long.

[00:02:51] Motion for Early Trial. The defendant Richard M. Allen by council moves the court for an early trial

[00:02:58] within 70 days, pursuant to criminal rule 4B1 of the Indiana Rules of Procedure.

[00:03:04] We'll talk about this filing and what it means in today's episode. We're fortunate enough to

[00:03:10] talk to a lot of wonderful lawyers about legal issues in this case. Today we'll be hearing from

[00:03:16] two Indiana lawyers that we've had on the show before. Public Defender Timothy Sled and Defense

[00:03:21] Attorney Mark Inman, they'll weigh in on the concept of early or speedy trials and give us some

[00:03:27] insights on what we might expect to tap in next. My name is Anya Kane. I'm a journalist.

[00:03:34] And I'm Kevin Greenley. I'm an attorney. And this is the murder sheet. We're a true crime

[00:03:39] podcast focused on original reporting, interviews and deep dives into murder cases. We're the

[00:03:45] murder sheet. And this is the Delphi murders, a conversation with two attorneys about the motion

[00:03:51] for early trial.

[00:04:16] So under Indiana and federal law, citizens have their right to a public and speedy trial. Let's

[00:04:42] read this section of the Indiana Rules of Criminal Procedure that deals with this.

[00:05:12] Based caused by a defendant, congestion of the court calendar or an emergency are excluded

[00:05:17] from the time period. Any defendant detained beyond the time period of this section must be released

[00:05:23] on reconnaissance but continues to be subject to the criminal charge within the limitations provided

[00:05:29] for in section C, B, defendant and jail motion for early trial. A defendant held in jail on a pending

[00:05:36] charge may move for an early trial. If such motion is filed, a trial must be commenced no later than

[00:05:42] 70 calendar days from the date of such motion except as follows. One, delays due to congestion

[00:05:49] of the court calendar or emergency are excluded from the 70 day calculation. Two, the defendant who

[00:05:56] move for early trial is released from jail before the expiration of the 70 day period or three.

[00:06:02] An act of the defendant delays the trial. If a defendant is held beyond the time limit of this

[00:06:07] section and moves for dismissal, the criminal charge against the defendant must be dismissed.

[00:06:14] Section C deals with situations where the defendant is not incarcerated. That obviously is not

[00:06:20] the situation here with Richard Allen so we're going to skip ahead to the next section.

[00:06:26] D, dismissal for delay in trial when may be refused. Extensions of time. If a defendant moves

[00:06:32] for dismissal under this rule the trial may be continued for 90 days and the defendant released

[00:06:38] without money bail or surety subject to such restrictions and conditions as determined by the

[00:06:43] court. If the state shows the following one there is evidence the state would be entitled to

[00:06:49] present a trial. Two, the evidence is presently unavailable. Three, a reasonable and diligent

[00:06:56] effort was made to procure the evidence in timely manner prior to moving for an extension of time

[00:07:01] and four, the evidence can be obtained within 90 days. If the defendant is not brought to trial

[00:07:07] within the 90 day period the criminal charges against the defendant must be dismissed with prejudice.

[00:07:12] For purposes of this section the evidence sought need not be essential unique nor is the state

[00:07:17] required to actually present such evidence in trial. However, if the state fails to make reasonable

[00:07:23] and diligent efforts to procure the evidence after the court grants the extension the court may

[00:07:27] dismiss the criminal charges against the defendant with prejudice. With all that in mind let's hear

[00:07:34] from Tim Sled who is a public defender in Lawrence County Indiana. We've had him on the show before.

[00:07:40] He was kind enough to talk us through some of the points around this concept despite the fact that

[00:07:45] he's preparing for a speedy trial of his own. So what is a speedy trial request? A speedy trial or

[00:07:51] an early trial is a specific request by a distance to be brought to court within 70 days of the

[00:08:00] request being made. This is something that fast tracks cases and gets them to be brought to trial

[00:08:08] within 70 days of the request. Is there something that's an automatic thing if a request is made

[00:08:14] must the judge grant it? I don't know the answer to that but I presume yes. I've never known a judge

[00:08:21] to deny a speedy trial request that was made appropriately. Now they're inappropriate ways for

[00:08:27] somebody to make a speedy trial request such as they have an attorney of record and they write

[00:08:34] a letter of pro say to the court requesting a speedy trial. I've seen judges deny those is not being

[00:08:41] appropriately filed but I've never seen a judge deny a speedy trial request that's been made

[00:08:49] probably because it's a constitutional right. I wouldn't expect you to ask that question and

[00:08:53] I've never experienced it. I think because it's a constitutional right judge will take it

[00:08:58] pretty seriously and get it set. No, no, that makes sense like it's that's typically the way things

[00:09:06] go. I'm curious, you know, is there any strategic benefit for doing a speedy trial request as far

[00:09:15] as the defense is considered just in cases in general not speaking specifically on Delphi?

[00:09:20] So answer your question directly yes there can be strategic reasons why you would file for a fast

[00:09:27] speedy and most of the time it's when you believe that there is material evidence that's necessary

[00:09:36] for the state's case that they can't acquire, obtain, find or present to a jury within that 70

[00:09:43] day window. I have successfully had cases get dismissed after filing fast and speedy trial where I

[00:09:51] knew that the state was not going to be able to get the complaining witness in to testify at a

[00:09:58] deposition or come to trial because the complaining witness is gone incarcerated someplace else or

[00:10:06] not cooperating with the state. Another reason fast and speedy trials are filed frequently

[00:10:15] is because the state toxicology lab or the state lab and the Department of Toxicology

[00:10:23] has two different things but they they process the evidence at a snail pace and if they have

[00:10:31] a quantity of a substance that's necessary to be proven in order to reach a level of an offense

[00:10:40] they may not measure that substance you know from months and months and months but if you get a trial date

[00:10:46] set it expedites the measurement so you know there have been times when my client says I know exactly

[00:10:52] how much there was and there wasn't that much they must be weighing the bags or weighing other stuff

[00:10:58] with it and it gets you under a threshold wait for a charge then you know filing the fastest speedy

[00:11:05] gets the case put on the docket gets the state lab moving toward the results and then when

[00:11:12] the prosecutor gets the results that show it wasn't the amount that they thought it was they have to

[00:11:18] amend their charge or dismiss their counts or you know go to trial and lose on those on those count

[00:11:25] so there can be strategies typically the strategy is you know you believe that you know material evidence

[00:11:33] that the state will not be able to produce that's necessary to their case and putting them under

[00:11:39] the time crunch either will expose that or facilitate that so it's kind of like telling the

[00:11:44] prosecutor to put up or shut up yeah I think that's exactly right you can be you can be doing it saying

[00:11:52] well we're all in I mean if they it is in using poker parlance it's pushing all of your

[00:11:59] all your chips to the middle of the table you're you're all in if you go fast and speedy can you

[00:12:04] can it backfire absolutely absolutely I was taught in my early years in defending that the state

[00:12:10] case never gets better with time so catching a case and processing a case while it's fresh

[00:12:18] in the investigator's mind while it's fresh in the prosecutor's mind you're going to be

[00:12:23] you know you're going to be facing a case that the ink on the paper is very clean and easy to read

[00:12:29] but if you if you let a case age people's memories fade people's organization causes them to lose

[00:12:37] things they might need and you know so there's there is a possibility that you know with with delay

[00:12:45] of a case your ultimately will get better you know I've asked until my clients right now you are

[00:12:49] the hottest burner on the stove we don't want to go and try to strike a deal or or do anything

[00:12:55] right now because the prosecutor is dealing with you as the hottest burner on the stove let's let

[00:13:00] you cool down and let somebody else whose hotter pop up and take their attention and then we can

[00:13:05] strategically move to negotiate or try the case so the backfire that can happen here is you've

[00:13:12] now given by asking for a speedy trial you've now given your counsel 70 days to polish everything

[00:13:18] up to be ready to get in front of the jury to organize all of the material so that you and master

[00:13:24] all of the material you put the time clock of 70 days on it and or less and you got you got to

[00:13:31] be ready you got to go you know if there's for example you know in a case that I have that set for

[00:13:37] a fast and speedy pretty much everything else has been pushed to the side so that we can

[00:13:43] get all the depositions done get all the docs reviewed get all the witnesses subpoena communicate

[00:13:49] with all of the witnesses to make sure they're going to be able to be there on the days that are

[00:13:52] they're being subpoenaed to be there so it is an immense amount of pressure you put on defense counsel

[00:13:59] and typically the state either by way of its investigators or prosecutors they know their cases

[00:14:07] really well and they probably have at least two people the investigator and the prosecutor that

[00:14:12] are going to be somewhat able to organize the case so they they shouldn't be on their back foot

[00:14:20] but if they're on their back foot then a fast and speedy might be a good a good strategy to

[00:14:26] to shake them uh and to and to try the case if they can't meet a material element if they're not

[00:14:32] on their back foot if they're prepared if they're ready to go it's going to be a harder

[00:14:37] road to hoe for the defense lawyers and for the prosecutor but that doesn't mean the outcome will

[00:14:42] necessarily be negative can you essentially undo or take back a request for a fast and speedy trial

[00:14:48] can is there a way to you know if you change your mind as a defense attorney can you revoke it

[00:14:54] yeah um the client the client has to revoke it it's the client's right so once the speedy trial has

[00:15:00] been requested and granted uh in my experience if the it's the defend that the client wants to

[00:15:09] withdraw all the speedy trial rights there's usually a hearing with an advisement of right

[00:15:14] if this is an extreme disruption of the courts docket and calendar so courts don't clear their

[00:15:20] calendar get a fast and speedy set and then just willy nilly you know pull the

[00:15:26] upon a request pulls a fast and speedy uh because they don't they they've got to use their docket

[00:15:32] space very very carefully so you can pull i mean i've had cases plea out after fast speedy has been

[00:15:39] filed i have had clients say well we really now know that our our lawyer needs more time because

[00:15:45] things have come to light through the expedited discovery process that happens during trial

[00:15:51] preparation that we need more time and so we're gonna we're gonna lay off the gas of this fast

[00:15:56] and speedy and go back to the normal trial docket and when Kevin asked me the question can a judge deny it

[00:16:04] one of the things that went through my head was i'm wondering if a judge can deny a second or third

[00:16:11] motion for speedy trial when a defendant has already asked for one been granted one and with

[00:16:17] drawn one i'm one that was a question that went through my head but i don't know the answer of that

[00:16:22] off the top of my head i've i've never been in that situation but i could understand how a judge

[00:16:27] could get very frustrated with a defendant who filed for a speedy trial it's against the trial set

[00:16:33] clears the docket and then withdraws the fast and speedy and then does it again uh because

[00:16:39] it is extremely disruptive to the court calendar you know they're they're usually

[00:16:43] folks in the wings waiting to have their cases tried that when you file for a fast and speedy you

[00:16:49] now raise yourself to the top of the trial list and those people get subverted and their

[00:16:55] their cases get what's called congested off under cr4 they're if they have a trial date that's set

[00:17:02] in a uh speedy comes in front of them their case gets congested off and the court has to find

[00:17:07] another date for those trials so if you then pull your fast and speedy those folks don't get

[00:17:13] their their counsel won't be ready they don't get a trial and so they're left in the lurches so it

[00:17:19] can be a it can be very disruptive uh i know that in the fall and winter of 20 23 i filed a fast

[00:17:27] and speedy for one of my clients and it raised him from being like a nine or 10th setting to the

[00:17:36] number one setting for incarcerated folks for trial and you know there were people that had been

[00:17:42] jail you know much longer that had normal trials sets that got subverted to his fast and speedy

[00:17:51] absolutely at that point it just sounds like it might become the uh legal equivalent of lucid pulling

[00:17:56] the football away from charlie brown yeah that's that's a great uh stupid terms

[00:18:02] oh yeah i'm curious how common is this is there something that gets filed for often in the state of

[00:18:09] Indiana i think it is pretty often i would say i don't file them often my office doesn't file them

[00:18:17] often but they're filed enough around the state and within my office so i can say that they're

[00:18:24] they're not abnormal you know it's if a it's a calculated measurement with the client's desire

[00:18:31] and the in the readiness of the case to be tried along with perceived weaknesses in the state case

[00:18:36] when all of those things come together and and sort of a perfect match then it can be strategically

[00:18:43] the right move to make it can also be as as Kevin said uh put up or shut up if you got a

[00:18:49] prosecutor that you know not seeing a weakness in the case or not thinking there's a weakness in

[00:18:54] the case and you're serious about resolving the case and they haven't given you anything to

[00:19:01] to to lose it can be something that says well now you got to now we've got you in a position where

[00:19:07] you know it's a it's a binary equation you're either going to win or you're going to lose

[00:19:12] and you know often negotiations speed up because of the filing of a fast speedy i do think it's

[00:19:19] fairly common though i we read enough cases where we see that the case was brought

[00:19:25] with a fast speed the percentages i don't know i don't have that data i think the average is

[00:19:30] around eight percent of cases in the set of filed get tried and so probably only a quarter of those

[00:19:38] if that are fast speedies would be my guess it's rare in the terms of if you if you have a criminal

[00:19:45] case is it going to go to a fast speed trial no that would be very rare but it's very rare that a case

[00:19:51] even goes to try you know i think the stats are 92 percent are pled out if they're pled out or dismiss

[00:19:57] and then eight percent get tried and the defense mantra as a state case doesn't get better with age

[00:20:02] you're probably not gonna rush too many of them through to trial but again sometimes it's the way

[00:20:09] to go that makes a lot of sense just from your own personal experience with these sort of things

[00:20:15] how stressful is it for the attorneys to to do this um you know it sounds like it can be a great

[00:20:21] strategy but also sounds like be a lot of work so um what's that experience like preparing for

[00:20:27] a trial that you've requested be speedy yeah so it's case by case and and because cases vary in

[00:20:35] complexity but the more complex the case and the tighter the timeframe you have to really get

[00:20:43] down to the brass packs and get ready for trial it would be very stressful very time consuming

[00:20:49] the more complex the case the more you're going to be in any whether it's a fast speedy or

[00:20:54] or regular jury trial you're gonna be sending a lot of time getting ready you know if you have a

[00:21:01] three witness case um you know I say you've got a uh an OWI case and operating while in toxicated

[00:21:07] case where you have the Pillover officer you have the drug recognition expert policeman who does

[00:21:12] the SFSTs and then you've got the blood draw technician I mean that's three witnesses you can

[00:21:18] if you're gonna do a fast and speedy on that you've got 70 days to prepare you're probably

[00:21:22] gonna put in about the same amount of work you would if um if it was like the CR4180 trial I mean

[00:21:28] it's not it's not gonna take you that much that much extra work because you're gonna have body

[00:21:32] cameras to watch you may do a deposition here a deposition there but you can get that done

[00:21:36] 70 days but if you have 50 60 witnesses and you're starting from raw from fresh that's a lot to

[00:21:44] get through in 70 days and to get prepared for if you've had a case for a very long time and you've

[00:21:50] prepped the case and you're ready for trial as I was in the fall I was ready for trial when I filed

[00:21:57] for my fast and speedy we had already we already knew what the evidence was we already knew

[00:22:01] what our case was going to be we had we were waiting on one particular witness to resolve a case

[00:22:10] so that then they wouldn't have a fifth amendment right and I could depose them without them

[00:22:15] asserting the fifth amendment right that person plowed out we deposed them and then the day after

[00:22:22] that deposition we filed for a fast and speedy because my guy was in jail and wanted to get the

[00:22:27] process moving forward so that case there was there was very little stress or very little additional

[00:22:33] stress because it's fast and speed we were already wet but you know in other cases where you know

[00:22:39] there you come to learn that there's even more and more evidence that wasn't obtained by the state

[00:22:46] before you file your fast and speed now you've got to catch up you gotta learn it you gotta prepare

[00:22:51] for it gotta figure out where the puggle piece sits in it can be very stressful imagine I know

[00:22:56] you like using aology so it's so imagine that you are going to play a game of chess okay playing a

[00:23:05] game of chess is one thing it can be very difficult you get you can you need to be looking ahead many

[00:23:10] moves all the strategy you got to be thinking about the movements each piece makes now play time to

[00:23:18] where there's a clock ticking and if you run out of time you lose and that let's say that time is

[00:23:24] half the length of time that you would normally have to play it's automatically you know you are

[00:23:29] more inclined to make mistakes you're more inclined to move quickly you're more inclined to be

[00:23:35] a little looser in your gameplay or your strategy because you just you gotta get moving so there

[00:23:42] there are some from additional stressor that can come with trying a case within 70 days

[00:23:50] absolutely well this has been great Tim thank you so much is there anything we didn't ask you

[00:23:56] about that you think it's important for people in regards to understanding this topic the

[00:24:02] the risk and the reward will often come down to the relationship between the client and the

[00:24:09] attorney the the defense lawyer if they are communicating well if they are on the same page if

[00:24:15] the lawyer is being heard and the client is being heard to limit for a surprise then it's

[00:24:23] a heavy decision to make but it can be the right decision given the right circumstances

[00:24:29] the concern I would have as a supervisor of lawyers is if I had a lawyer that was saying hey I

[00:24:36] think I want to do a fast and speedy trial on this case it would be well let's make sure the client

[00:24:42] understands the risks in the reward let's make sure that you can see not only a tree but you can

[00:24:48] see the forest because if they come rushing out too very quickly and you're going to want to be able

[00:24:54] to you know to to Bob and we then duck and move and and far where necessary but also avoid

[00:25:02] sending your wheels in you know Maya that can be a time suck when you don't have any time to lose

[00:25:10] you know it's a careful I have had clients the first time I meet them say file a fast and speedy

[00:25:15] for me and I say okay you're going to hamstring because I need to be able to analyze your evidence

[00:25:20] I need to be able to test the state's case and if you want this fast and speed I understand that

[00:25:26] you're right I will file that for you but I'm going to be limited in the amount of time I have to prepare

[00:25:32] why don't we get the evidence first why don't we analyze the evidence why don't we see what they

[00:25:36] do and they don't have so that we're not surprised we can always make the decision file later

[00:25:43] but you know sometimes that's not the right choice for the client and in my practice it under the

[00:25:50] commission that we're with it you know client-centered practice if if the client is informed

[00:25:55] understands knows what's out there has been advised and is is wanting to exercise that then we will

[00:26:03] file an exercise that for them it is a it is a grave decision a heavy decision because when you

[00:26:12] put the case in front of the jury it's been in front of the jury they they get to decide they

[00:26:19] get to analyze they get to wake that ability they get to determine the fact and they get to

[00:26:26] determine the law to a certain extent and it's no longer in your attorney's hand and so

[00:26:32] to make the decision to go to trial or to go to a fast and speedy trial the client really needs

[00:26:39] to understand the gravity of that depending on the complexity of the case it can it can really be

[00:26:45] handicapping sort of a a golf sense hand to handicapping to an attorney to have to

[00:26:53] prepare the trial within 70 days of the motion now that's presuming that the case is relatively new

[00:27:00] to the attorney but if the attorney has a case for a very long time you know they could have been

[00:27:05] strategizing this all along that they might be laying in the weeds preparing their case ready to go

[00:27:11] file a fast and speedy and and hamstring the state but typically from my experience is the

[00:27:17] prosecutors aren't too hamstrung by that because they've got teams of investigators or even if

[00:27:24] it's just one investigator that is going to have lived their case well enough to to put it

[00:27:30] together within 70 days absolutely well Tim thank you so much we really appreciate you taking

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[00:29:43] dot com slash investing in america we also talked with indiana defense attorney mark in man

[00:29:51] who we've also had on the show before mark took some issue with what he felt was the weaponization

[00:29:56] of the speedy trial motion namely the fact that alan's defense team has had assigned cart

[00:30:01] blanche copy of the motion for months and have been seemingly just been hanging onto it

[00:30:06] mark also expressed more skepticism that a speedy trial can even happen in a case like this

[00:30:12] with so many unresolved issues and a jury that would need to be brought in and housed from out

[00:30:18] of carol county he indicated that the rules around speedy trials can be more complicated than they

[00:30:23] initially appear because if you want a speedy trial the point of that was speedy trial right

[00:30:29] if i pick a time we're all the sudden you think you're going to get an advantage

[00:30:34] i don't think and knowing knowing that you can get congested for a continued and a heartbeat

[00:30:39] there if i'm the judge i just stay look we're not moving the trial date and i'll tell you why

[00:30:43] because i can't get jurors i can't i can't get hotel room if i can't get buses we can't do this

[00:30:48] thing that way and you're the one that requests for how to state their out of county juries

[00:30:53] but don't just keep throwing dark and i'm gonna go and you know like i think they admitted that

[00:31:00] was their strategy through their employer in the supreme court that you know they they're

[00:31:08] the moment in time that they feels appropriate that they're gonna i don't know keep the dates from

[00:31:13] learning the who the eight uh old you have learned that take that stash in a witness room somewhere

[00:31:20] i don't know is there adverse strategy to doing speedy trial and what would that be

[00:31:25] yeah if you're as opposed there is if the case is simple and you think one of their witnesses

[00:31:31] disappeared they will find them in 70 days but you always have to keep in mind

[00:31:37] that and maybe it's a strategy towards maybe working out a little better deal that

[00:31:44] you know i'm gonna put your feet to the fire and if you can't find this witness you don't want

[00:31:48] this guy released let's work out a better deal but once again if you talk about before there's no

[00:31:54] deal to be had in this case the Delphi case no so but i just i think you know any

[00:32:04] in order to do the research on any major case you need more than 70 days and people are locked up

[00:32:12] on cases that aren't major unless they've got other holds on them i mean keep in mind let's say

[00:32:17] for instance this was a felony drop drive okay all right and Alan had cases pending in two other counties

[00:32:27] well the court can release him on this case but he's just gonna go he's in one status and

[00:32:32] in Mary County and he just goes sits in the jail down there that happens all the time

[00:32:37] that that's that that's the balancing act you have to do

[00:32:40] do that makes sense that does make sense and could this be like any sort of faint or strategic move

[00:32:47] on on their part that you know would make sense or be good for their case not that i can take

[00:32:53] sure i think it's just i think they just think that they can keep making a record on this

[00:32:57] beauty trial thing but the Supreme Court already told him no and and yet they're gonna get into

[00:33:02] an argument as to this responsible for all the delays i don't think they can get i mean there's

[00:33:08] they've done actions that that that can still be held contemptible that means the delay that means

[00:33:18] the delay is on the time of that delay is is going to be there's gonna be accountable for that so it

[00:33:25] doesn't count on the 70 days but read read the rule four and it looks very straightforward but then

[00:33:32] you start looking at the case one all that which was what i was looking at after you had called the

[00:33:36] first and i mean the case after case which denies an appeal based on criminal for for all kinds

[00:33:46] of different reasons because it's in practice so it's much less cut and dry than it might appear

[00:33:52] up at first absolutely and keep in mind that the remedy is not dismissal necessary

[00:33:58] i mean and that's right in the statute so

[00:34:04] i don't

[00:34:09] thank you so much to tim and mark for their time and their great insights

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