The Delphi Murders: Bad Facts: The Overall Case

[00:00:00] Content Warning this episode gets into discussion of the murder of two girls. Hi everybody, thanks for tuning in. Today we're going to be doing our third and final Bad Facts segment on the Delphi Murders case, at least for now.

[00:00:16] So we previously took you through Bad Facts facing the prosecution side as well as Bad Facts facing the defense side. Today we're gonna be putting it all together, putting some of these issues head-to-head and discussing them.

[00:00:29] And again, Bad Facts is a segment that's all about breaking down some of the inconvenient or problematic facts facing one specific side of a case. We're gonna be doing this in other cases we covered too.

[00:00:40] One thing that you often hear criminal defense attorneys and prosecutors talk about when they're talking about a case is like, this is a bad fact or that's a bad fact. That's something that undermines their case or harms their case.

[00:00:52] So this is our opportunity to get really negative on both sides. My name is Ania Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is the Murder Sheet. We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases.

[00:01:11] We're at the Murder Sheet. And this is the Delphi Murders. Bad Facts. The overall case. So where do you want to start?

[00:02:02] I think we could probably just go through point by point talking about each subject and where we feel things fall right now for the defense and the prosecution. Sort of a head-to-head comparison with the caveat that anything can change. So what we're talking about isn't static.

[00:02:20] More information can come to light. Information can be debunked or thrown out. So if that happens, all bets are off. This is just a snapshot of where we feel the case is right now. And of course, reasonable people can disagree.

[00:02:33] So if you disagree, that's okay. Don't worry about it. Come to our group on Facebook and talk about it. Chat about it. You know, we love civil disagreement. There's a lot of that in our Facebook group. People have all sorts of different opinions.

[00:02:44] Not all disagreements have to devolve into people getting mad on the internet sometimes. We can stay happy on the internet and still disagree. Yes. It's been known to happen. It's been known to happen occasionally.

[00:02:57] And okay, so I'll just kind of throw out a topic and we'll talk about each one as it pertains to bad facts for either the prosecution, the defense, or in some cases both. There are other suspects prior to Allen. This is a bad fact for the prosecution.

[00:03:14] Beasably, it could leave room for reasonable doubt. Yeah, because if the prosecution had built up a solid case for like Logan or Klein, a juror can say, well, I think that's a good case.

[00:03:27] I think this person more likely did it than Richard Allen, where they can say, oh, there's some pretty good facts tying these people to the murders. That means I don't see any connection between them and Richard Allen. That makes me doubt Richard Allen is involved. Right.

[00:03:45] How do we feel this issue shakes out for the defense and the prosecution within what's actually happened so far?

[00:03:53] Well, for one thing it depends on, first of all, is the defense team, whether it's the old defense team or the new defense team, are they going to go into court and try to posit, for instance, that Ron Logan was the killer or that Kagan Klein was the killer.

[00:04:14] We don't know. But the odds are, no. If they were, I think that could help muddy the waters and potentially help create reason without.

[00:04:24] I think for both Ron Logan and Kagan Klein, while there are certainly extreme problems with both of them as suspects that we've talked about on the show, neither of them is a perfect suspect.

[00:04:35] But they both have enough intrigue and have attracted enough attention and have attracted enough law enforcement resources that they both proved to be, in my opinion, a more imposing alternate suspect than what we've gotten so far, which is a loose knit but also highly organized gang of

[00:04:55] odinous that have correctional officer ties and are statewide and expansive.

[00:05:01] That's not the most realistic theory in the world to put it mildly, whereas a man who has been abusive to women in the past and own the property where the bodies were found and a convicted child predator both at least sound better to a lot of people.

[00:05:23] So I don't think the defense is capitalizing on this bad fact for the prosecution because the benefit of their being suspects prior to Alan is that you pick one of the suspects that sounds better than Alan. And I don't think they've done that.

[00:05:36] Here's another bad fact for the prosecution. Witnesses are all over the place. Yeah, we talked about this a lot in our bad facts for the prosecution. We have different witnesses offering different descriptions of an individual that I think the prosecution wants us to think is bridge God.

[00:05:58] We have different witnesses describing different vehicles or the description seemed inconsistent. And I think the prosecution wants us to think that this is Richard Allen's vehicle.

[00:06:12] And so that's a challenge because a defense attorney can get these people on the stand, poke at the inconsistencies in their story and perhaps make a juror doubt if these people really saw Richard Allen that day. Yeah. And that could be devastating.

[00:06:32] So there's still potential for the defense to really win the day on that. It is very much undermined by the fact that Allen himself puts himself on the trails that day. I think this alone could be devastating for the prosecution if he didn't do that.

[00:06:50] Yeah, Richard Allen put it himself there that day was a crucial help to the prosecution. Everything else by the case was the same, but Richard Allen denied being there that day or even said I never go there. That would have been a problem.

[00:07:04] But of course, Richard Allen actually stepped forward and said he was there and he was there that day. Yeah. And I'm sure the defense could try to spin that as he was just trying to help.

[00:07:15] Yeah, but I mean, the problem isn't so much about him looking helpful for a jury is him looking guilty. And it makes him, you know, one thing that you have to be in order to be guilty is you have to be there.

[00:07:28] And so I think they would have had a hard time getting him there if he didn't put himself there because nobody was there who knew him seemingly and said, hey, it's Richard Allen from CVS. Hey, Richard. He did that to himself.

[00:07:41] And that that's pretty devastating because they really could have had more fun with the witnesses. I think if they can still, they can still do that. They can still undermine their credibility so it's not the prosecution is not out of the woods on this one in my opinion.

[00:07:55] But it's a lot of the damage that could have been done is undermined by Richard Allen himself. So this is a bad fact that could be bad for the for the defense or the prosecution.

[00:08:07] I think it's worse for the defense, but I think a lot of it depends on what happens in trial. What's that? The bullet. The bullet. The bullet found at the crime scene that the prosecution says is linked to Richard Allen's gun.

[00:08:24] This is the single piece of physical evidence where if you believe the prosecution's contention, this is the single piece of physical evidence that definitively ties Richard Allen to the crime scene. Think of it a little bit like in terms of its importance to the case.

[00:08:44] Think of it a bit in terms like a game of Jenga. We have a big tower of circumstantial evidence against Richard Allen. And there are a couple of pieces in that tower that if you pull them out, the whole tower potentially collapses and you lose your case.

[00:09:07] And I think one of the potential things if you pull it out of the tower that would completely damage and destroy the case would be this bullet evidence. Oh, 100%.

[00:09:16] If you get this bullet evidence thrown out or if you convince the jury that the analysis by the prosecution's experts is incorrect, then that throws into doubt your contention that Richard Allen was physically there at the crime scene when the girls were being killed. Yeah.

[00:09:37] And so it's a really crucial piece of evidence and it's going to be a huge focus in the trial. I don't think that Indiana is going to sour on ballistics to the extent that perhaps Illinois has.

[00:09:54] I don't think it's going to be tossed out because ballistics is bad quote unquote, which is very much a trend with on the defense side within criminal defense spaces. It's junk science. It's useless.

[00:10:06] Forensic scientists say it's not useless and the standards have improved a lot recently so it's less touted as some sort of definitive thing and more of like the science indicates that this could be a match.

[00:10:18] So there's going to be a back and forth but I think it really depends on what experts they bring in. And keep in mind, ballistics evidence is not like DNA. Over the years we've gotten used to a standard with DNA where it's a thousand percent accurate.

[00:10:38] No doubt about it. And the FBI and other agencies have said you cannot with 100% certainty establish that a particular bullet came from a particular gun. Because you cannot examine all the guns in the world. But you can come close.

[00:10:57] Yeah, I mean I think the caveat of because you can examine all the guns in the world is an important thing there. And I think that ballistics should be looked at as part of a stack and not conclusive.

[00:11:08] Not necessarily like we're going to convict a man on this alone. It's it should be part of a holistic approach. There's a whole Jingo tower of circumstantial and other bits of evidence that you need to convict him.

[00:11:23] But if you pull this out, I think your case is gone. I agree. And I think focusing more on that and less on putting out a convoluted theory of the defense would be better, would be time better spent. Because if you can kick out the bullet, great.

[00:11:46] Even if you can't, if you can really undermine it with the jury, also great. Let's talk about something that's a bad fact for the defense. These are the incriminating statements that Richard Allen made while incarcerated.

[00:11:58] This is another piece of the Jingo tower that if you pull it out, it could be damaging. Yeah, he really hurt himself with this. We talked about this in the defense focused episode, but it's not just that he confessed it's who he was talking to.

[00:12:12] His wife and mother on a recorded phone line. And it's very interesting to me how little this gets talked about. Even the defense when they tried to deal with it in the past, they almost treat it like it's a little bit radioactive and they don't mention it directly.

[00:12:34] They deal with it indirectly by things like the safekeeping motion like we talked about yesterday. I think if it was really he said basically nothing, they would have worked that into a filing. They would have worked it in the Frank's memo.

[00:12:44] If he'd said something like, oh, I don't know. I'm innocent. I know I'm innocent, but I don't know me. I'm losing my mind. Maybe I did do it. Everyone thinks I did it. So maybe I did.

[00:12:53] If it was something like really weak like that, I don't just rip the band-aid off and put it in the Frank's memo. You put everything else in there. So I think it's probably worse than that.

[00:13:04] Of course, we've all heard of false confessions and the defense is going to have to find some way of arguing that for whatever reason this was a false confession. But when you think about false confessions in other cases like John Carr in the John Bene Ramsey case,

[00:13:30] John Carr was not at the crime scene. A bullet from John Carr's gun was not found at the crime scene. So things like that help land credibility to Richard Allen's confession that you wouldn't see lending credibility to confessions in other cases.

[00:13:48] Also, it doesn't resemble a false confession in that it wasn't to an inmate who you might be, you know, in prison when you want to be tough. You might be trying to get someone off your back or frightening them. Yeah, I did kill them.

[00:14:01] What do you what of it? You can understand how a fall or the inmate might decide to lie about you so they can strike a deal that happens all of the time.

[00:14:11] I'm inherently skeptical of prison and jail informants because you get stuff like that and there's perverse incentives.

[00:14:20] The other aspect of this is that when you're dealing with correctional officers or law enforcement officers, you know, there's a power differential and there can be interviews or interrogations that last a very long time that employ coercive techniques, offer a deal.

[00:14:37] Hey, this all stops as long as you tell us what really happened. People can give a false confession in those settings. It absolutely happens. You know, we shouldn't ignore that it happens.

[00:14:46] The problem with what Richard Allen did is that he didn't do this in either of those settings. He did it in a phone call that was recorded to his wife and mother.

[00:14:54] And so I don't really see any sort of pressure or coercion there given that both women support him. I don't think that either woman was confessed. Tell me what happened. I because they still show up to his hearings.

[00:15:10] I think he unilaterally did this and the context in which it happened, I don't think.

[00:15:17] I think it's so damaging that he doesn't need to necessarily get into a lot of detail for if he's making an assertion, I did this just so you know, then that is really bad for him and a jury is going to hear that.

[00:15:32] And it's like a cancer that is like growing and affecting other aspects of the case because it is such a bad fact. You have to come up with an explanation for it if you're the defense attorney and that explanation can't be that it was an accurate confession.

[00:15:50] It has to be something like it's a mental health thing and they tried that and that didn't seem to work. And they have to, it was the guards. So you have to come up with something so expansive.

[00:16:01] You have to come up with something like a massive conspiracy involving prison guards making threats in order to get rid of the confession.

[00:16:12] And then you're in a situation where the explanation you've come up with to deal with the first bad fact of the confession itself is so complicated that it itself becomes a bad fact for you. It's a mess. It's all scrambling and butt covering.

[00:16:27] I mean, that's the way I see a lot of these behaviors and actions from the defense team ever since. And that doesn't speak to a mild little misunderstanding that the prosecution oversold us and incriminating statements.

[00:16:41] That sounds as he's going to sound really bad when this comes out because I don't know why you would be doing all of this at the risk of your own credibility at times in terms of some of the strategies they've employed.

[00:16:53] In order to react to something that's not really that big of a deal. You know, if there's a tiny little itty bitty pothole in the road, you don't, you know, you don't reroute your route by like three hours. But if the road caved in, you do. Yes.

[00:17:08] This case is such a mess. So you mentioned the scrambling.

[00:17:16] So that includes mental health, I think could have been a really good route for him because I think people can understand that if someone has some sort of diagnosable issue, perhaps sometimes part of that is being psychotic and saying things that you don't mean and are not true.

[00:17:36] Because to you, they're true in the moment, but they're not true to anybody else. So that would have been really good. And they completely backed off that. Yes.

[00:17:45] And we do have the statements that he was examined and was found that he did not need to be forcibly medicated. And a lot of the experts we've talked to have indicated that's a bit of a tell that saying that he's not really psychotic.

[00:18:00] Yes, you can't turn off psychosis. Anybody with a mental health issue will tell you. You can't. Oh, I'm sorry. Is that inconvenient for you guys? Okay, I'll just, I'll just stop. That's not how it works.

[00:18:11] So he was either malingering or he was exhibiting behavior that maybe came from a place of sincere anguish, but was not part of some sort of mental health episode.

[00:18:30] And then also you have the fact that the prosecution has been trying to get access to the mental health records and the defense has been fighting that.

[00:18:40] And if there really was a mental health issue that would explain away the confessions, you think that the defense attorney would want to get that out there to help the client. Is there something in those mental health records that would be damaging?

[00:18:59] And then just to be clear, people's health records and stuff. There's a reason why they're private. We all deserve that privacy. But if there's something in the records that would help Richard Allen's defense, you expect those to not be fought over.

[00:19:17] You expect those to be given to the court. Yeah, he's mentally ill. Okay, let's see his mental health records then. Actually, the guards threatened him. He was a totally rational act. What mental illness? That's what we saw here.

[00:19:30] And that tells me either the mental health records indicate that he was malingering. He was lying. Or he made some incriminating statements to a mental health professional in the prison.

[00:19:42] Or there's something in there that indicates that he was making statements about other things that they really don't want to come out at trial. There's something really bad in there because otherwise I don't know why you reroute your strategy from something that makes sense, like mental illness,

[00:20:02] to something that doesn't make any sense at all and they have no evidence for, i.e., Odinus guards coerced him by threatening his family. I mean it's like out of a bad movie. You don't do that. You don't go with the worst option for no reason.

[00:20:23] You do it because the going forward with a better explanation is going to lead to something that you really don't want. You're motivated to use this another stupid analogy. It's like if I give you a really mediocre fast food hamburger and a really deluxe delicious

[00:20:42] prepared by a Michelin star chef hamburger, Kevin. But then the chef whispered, I poisoned the fancy burger. You know you're probably going to choose the fast food burger and to all people observing they might be like why do you do that?

[00:20:57] The other one looks better but you know it's not going to end well for you if you eat the other one. So let's talk about the narrative. And this of course is the narrative that the prosecution is pushing which is that

[00:21:11] seemingly a guy with no criminal history just did this and we don't have him tied to any other crimes directly. So he just kind of did it out of the blue versus a statewide Odinus conspiracy of Odinus cultists sacrificed them in a ritual. Okay, let's unpack.

[00:21:30] Well, I pointed out issues with the prosecution's narrative. First of all, they've complicated it by saying well maybe there were other people involved. Let us know if you know in the beginning of all this so that's something that the defense could exploit.

[00:21:44] They don't even seem to know like why would they not know? They don't even know what happened. Right. They're coming into court. They're making this arrest. They don't even know what happened. They think there might have been other people.

[00:21:52] So there's problems with that. There's also problems with the Odinus theory.

[00:21:58] So a quote is often attributed to John Lennon of the Beatles where he this is actually I don't believe he actually said this, but it's often popular attributed to him where he said Ringo wasn't even the best drummer in the Beatles.

[00:22:14] So Paul McCartney was you know is a multi instrumentalist. He played drums on back to the USSR and a number of other Beatles songs. And Ringo was kind of more self taught. He's not like a fancy jazz drummer. So some people denigrate Ringo Starr's abilities.

[00:22:28] I don't think that's fair. But anyways, not to get into whole Beatles thing. So the joke is though that you know he's the drummer for the Beatles and he's not even the best one in the band.

[00:22:38] I feel somewhat similarly about the Odinus theory that was presented in the Frank's memorandum. It's not even the best Odinus theory out there. I think a more streamlined version exists.

[00:22:48] Before we even get to that, let me bring up something which I think is really going to be a huge problem about this Odinus theory.

[00:23:00] And you're edging up to it, which is that in the Frank's memorandum, it's explained that this theory was investigated and developed by three super cops who did this amazing job. Who did this amazing job of putting together this theory and breaking the case wide open.

[00:23:24] One of those cops, unfortunately is deceased. One of them is a member of the Indiana State Police. Don't know what his views on it are. But the other member of this triumvirate who developed this case, this theory about Odinus, you can get him on the stand.

[00:23:45] If you're a prosecutor and you can say the defense has put forward this theory of Odinism that you investigated, you developed a theory of Odinism. Do you Todd click? Do you believe the defense's theory of Odinism and Todd click would say no, you would have to say no.

[00:24:05] So when you have the person who is the godfather of the theory, the father of the theory, whatever you want to call it saying I don't believe this. I think that's a huge problem. And I know exactly why I work well.

[00:24:20] I have a feeling I have a strong feeling why they diverged from clicks theory. But again, so my Beatles joke is a reference to this because Todd click gave a statement to us and other media that he felt that it was sensationalized with the defense put out there.

[00:24:37] He also indicated that he did not believe that a religious ritual took place. So his motive of the murder is different. In many other respects, his theory is very similar. Same people involved. Same same rushville to Delphi connection. So it's not it's not like a completely foreign concept.

[00:24:56] They could have gone with that. But frankly, from you know what it looks like his theory may be more down to earth and the theory also doesn't involve Odinist guards in the prisons. You need the guards in the prison to explain away the confession. Yes. Yes.

[00:25:14] So I said the confessions are like a cancer on the defense. You have to come up with increasingly desperate attempts to explain them, which then your explanation start undermining. It's all about the bad facts.

[00:25:26] So much of what the defense is doing is motivated by this and it's very apparent. It's like watching an episode of faulty towers, which is about a, you know, cantankerous hotel owner in England played by John Cleese who's always running around.

[00:25:39] He's always getting into situations and then everything he does to deal with the original situation is just making things worse. Next thing you know, things are on fire. People are running around and it's madness.

[00:25:51] So this just seems like a very, you know, messy, messy reaction to something that is going to really hurt the defense. And it's couched up and what's kind of eye rolling about it is they couched up in this bravado look.

[00:26:07] We have to be the ones to defend them. We have to do this always totally innocent and it's like so much of what they're doing is so incredibly defensive when you look past the rhetoric that it's a little bit, it seems disingenuous.

[00:26:21] It seems like a big but covering episode and it's, yeah, it's kind of interesting. Some people kind of, I think, look more at the rhetoric and look, well, they still think he's innocent.

[00:26:34] It's like, yeah, but they're certainly exerting a lot of energy to get around something that indicates that they think it could do serious damage. And you need to have a more elaborate version of the odinous theory if you want to make the confession seem less bad.

[00:26:55] And so that's why you have to throw away clicks more down to earth version. You have to have it be a statewide connected to the correctional department correction. It has to have the Indiana Department of Correction Connection. It's got to be more elaborate.

[00:27:12] It's got to be more razzmatazz, even though I would say that a pared down version of the odinous theory would probably be more believable and realistic. It would be, I think, would probably be more compelling to a jury. It wouldn't explain away the confession, though.

[00:27:30] And then also it's easy to imagine ways that if you have this statewide odinism conspiracy, perhaps you could also come up with an explanation to get rid of the bullet. Yeah, I mean good luck, but yeah.

[00:27:43] Well, you need a big conspiracy to solve all of your defense problems. You're in trouble. As I said, the defense attorneys only do this when they're in extreme distress. And that is what it looks like here.

[00:27:57] I think they recognize that they're up against a case that is not a blockbuster but that there is a stack of evidence that looks really bad.

[00:28:06] And so the way you, the way they have deemed to deal with that is in a very dramatic and chess puffy way of we're going to be throwing out all these things and making accusations and doing all this.

[00:28:18] And I question that because I tend to think that in a situation like this, even though some of the evidence looks really bad against Richard Allen, taking it piecemeal and chipping away at things one by one so that the case is weakened is a better act of sabotage and a better act of lawyering than the dramatics, the theatrical approach.

[00:28:42] But of course people like that because they watch Perry Mason and they think that's good lawyering. So and I just want to do, I do want to know this is such a side issue. This isn't really a bad fact. It's just more of amusing to me.

[00:28:54] The defense makes such a human cry in the Frank's memorandum about Sheriff Tony Liggett and former Carroll County Sheriff Tobleson be disagreeing on how many killers there were. Remember that? I do. Liggett says one. Tobles says it's got to be more than one. Okay, fine.

[00:29:16] And yeah, they should make a big deal of that. Hey, they're not on the same page. What's going on? That's fine.

[00:29:21] But the fact that then they put together this whole odinous memo that was mostly cribbed from Todd Click and his first reaction to it is this is really sensationalized and that they couldn't get on the same page with him to any degree.

[00:29:35] And listen, we pushed, we pushed back and we said, is there anything you generally agree with it? And he said, yes.

[00:29:42] So I mean, he agrees with the fundamentals, but the fact that his first statement was like, oh, geez is embarrassing because it sort of feels like they kind of did the same thing here with the odinous theory.

[00:29:53] And the Frank's memorandum as a whole is an incredibly riddled document riddled with holes, factual problems. It's sloppy. It's not a strong piece. And I think that's because there it's trying to do too many things.

[00:30:13] It's better to focus on doing the things that you know you can knock out of the park than to try to be some sort of one man band and you're messing up the harmonica and then you're singing voices horse and you're not doing the drums right just just play the guitar like you're not pulling it off.

[00:30:32] This should have been paired back for so many reasons, but mostly because when you include stuff that's weak with stuff that's stronger, it just makes everything look like a weak sludge. It's kitchen sinking. It's not compelling.

[00:30:51] When we're going through the social media claims with a researcher named Thomas in a recent episode and he's pointing out like, okay, well they're saying that this is proof that Elvis Fields and Brad Holder were buddies, but look like it's just a random photo of a mason jar and they look totally different.

[00:31:06] I mean that is not compelling. That is not compelling at all. It's just it's a reach and then it's like, well what else are they reaching? As a defense attorney, you're not supposed to make stuff up and I'm certainly not saying they did that.

[00:31:22] But I think in some instances, you know, they use their imaginations in ways that maybe could feel like overstepping. That's my opinion. Some people might find elements of it compelling. I think that's valid.

[00:31:33] I just really it made me lose a lot of faith in this defense team to be perfectly blunt. There's just too much in there that's just smells like nonsense. Is it time for some final analogies? Yes.

[00:31:52] Let's start to wrap up and try to discuss some of the ways that at least we're going to be thinking about this case moving forward regardless of what happens in the Indiana Supreme Court. Yeah, if the new attorneys come on then they might do something totally different.

[00:32:10] It's a lot of this maybe irrelevant. If the old attorneys come back on, they might switch strategies or do things slightly different or they might keep on it. So it just we don't know. Can we talk about weights? Weights, weights and measurements. Yes.

[00:32:24] So I have a stupid analogy. Let's let's back up. So the concept of a final judgment is a very common one in religions around the world. And in criminal cases, in murder cases, I've used an analogy about rocks and pebbles before.

[00:32:40] That's my analogy that some cases are like a big boulder. They kind of like just outweighs everything. And then others, the evidence is like a stack of little pebbles that add up to a greater weight.

[00:32:53] So in ancient Egypt, they believed in something that's called like the weighing of the heart. So when you died, your heart was placed on a scale along with a feather from Ma'at who is the goddess of truth. And the goddess Anubis would act as the judge.

[00:33:11] So the scales balancing, you're watching it. And it's a very crucial outcome because if your heart balances with the feather, if your heart is light as a feather, you go on to meet Anubis' father Osiris, the god of the dead and he will bring you into his kingdom.

[00:33:25] Wonderful. That's what you want. You want to go with Osiris. But as you're watching the scale and it sinks, your heart sinks. It's weighing more than the feather.

[00:33:36] Then your heart gets tossed to the goddess Emmet, a crocodile who eats it and your soul is destroyed and you cease to exist. And that's the end of the episode. I'm not going to explain it. No, I'm just kidding.

[00:33:51] I tend to think about criminal cases as I said in weights and measurements. Both sides are trying to scheme to get the scales of the case to go their way. In slam dunk cases against a defendant, it's like someone is...

[00:34:05] It's like the prosecution is putting a massive boulder onto the scale with the person's heart. That's like when you see a case where the rape kit comes back with DNA of a person that was never in a relationship

[00:34:19] and can be seen on camera breaking into the victim's house and it is seen breaking out covered in blood. We have a pretty good sense of what happened there. That's pretty conclusive evidence. It's video evidence, it's DNA evidence, it's slam dunk.

[00:34:34] And in those cases, unless the defense attorney can somehow manage to dislodge the boulder, it's going to be difficult for them. It's going to look bad for the defendant. Other cases are more circumstantial.

[00:34:45] Those are more like a series of pebbles are added to the scale along with the defendant's heart. In those cases, it's more up in the air. Maybe the pebbles are too small. Maybe the pebbles are big enough.

[00:34:58] If the defense though can work to get specific pebbles removed, that is very important. Meanwhile, the prosecution is fighting to keep them in place. So that's how I see the case against Alan. It's a fight to death over pebbles.

[00:35:13] The determination is going to be where the weights come out. That will determine the outcome. In general, I think that Alan, as we said, has been his own worst enemy. He's added pebbles where he didn't need to add any pebbles.

[00:35:28] Frankly, that's important because I see this is a case where small incremental victories and losses are a big deal. I do think it would be possible for the defense to knock off some of those pebbles

[00:35:39] and prevail, but when you have a defendant like that, when you have a client like that, it's made more difficult. Yeah, all of that is very true. It all comes down to the pieces. It's like what we're talking about earlier about the Jenga Tower.

[00:35:55] If you pull out enough pieces, even if you don't cause the whole tower to come down, if you still pull out enough pieces and there's enough holes in your little Jenga Tower, a jury is not going to be impressed by that and agree with your analysis. Well said.

[00:36:13] That was a more relevant and contemporary analogy than mine. So I think people, they went back in time to Egypt. They don't know why I took them there, but you brought it back with the Jenga reference. Alligator named Amit. Amit, the goddess. Oh, it's a crocodile.

[00:36:33] There's no alligators in Egypt. Another analogy. This has more to do with lawyering. We've heard from defense attorneys that clients often feel best served by a vigorous, loud, strenuous defense. The underlying implication there that we've heard from other attorneys,

[00:36:55] but also that I feel personally is that vigorous isn't necessarily always better. If you think of like a singer, I can get up on the karaoke stage, work really hard, be doing a lot, have a great time and still sound awful. No, no, no. You're a great singer.

[00:37:19] You know, like if I get up there and start, you know, belting out Celine Dion again, it's a doll or someone who can actually sing. It's going to sound pretty bad.

[00:37:29] And I could be trying very hard and working up a sweat and doing all that and it doesn't make a difference. It still sounds bad. The outcome is still bad. To use another artistic example, let's talk about, let's pretend that there is a community ball dance competition.

[00:37:46] And each pair of dancers is assigned a charity and whoever wins gets to donate their charity, $1,000. So Kevin and I sign up just asking for trouble. And let's say we're wrapping the ASPCA. We want to help the animals. That's what we want to do.

[00:38:04] Let's say we show up without any skills. That's probably being generous. We probably would show up with negative skills, I would say. And we do what we do with everything we're going to practice. We never have enough time, so we're just going to show up.

[00:38:20] And if we wanted to kind of like look like we were trying, we might get really vigorous. We might be getting red in the face doing a random, you know, we don't know how to foxtrot, but maybe we can kind of break out a random jig, right?

[00:38:35] And we're working hard. We're spinning around. We're looking ridiculous, but like we look like we're having fun. Let's say the ASPCA workers are in the audience. They, if they're immune to secondhand embarrassment, they might like what we're doing because they can tell we're working hard.

[00:38:49] We're having fun with it. They can tell the passion we're putting into it, the exertion, the difficulties. And they might prefer to see that than us slowly and poorly going through the steps of the actual ballroom dance.

[00:39:06] But the thing that's going to get us closer to winning is going through the steps, is working quietly and methodically, not busting out a random Irish step dance in the middle of something because that's just going to get us disqualified or reviled by the judges.

[00:39:25] We're not really benefiting their cause, but they might like to see it anyway. And I think there's a, there is a massive gap between what the public thinks good lawyering is and what good lawyering actually is.

[00:39:36] I think there's a massive gap between what a client thinks will help them. You know, clients want you to go out there and yell at, you know, yeah, he's innocent. How dare you? I'm Atticus Finch. He's an innocent man.

[00:39:47] What often helps in situations are quiet methodical work to undermine the prosecution's case. You know, those kind of deadly quiet questions of witnesses and law enforcement that just kind of derail their whole thing. And smart, thoughtful, alternate theories and things like ultimately negotiations, plea deals, things like that.

[00:40:18] That often makes, makes it a better situation for a defendant than getting out and screaming everything and filing things like the Frank's memorandum. So hard, hard work is not always. Can I try one? Hit me. We have a close relative who's a doctor.

[00:40:35] So sometimes I think of things in medical terms. Let's say I go to a doctor and I'm having like a burning chest pain and the doctor immediately says, oh my God, brushes me into the surgical room, cracks my chest open, does open heart surgery.

[00:40:59] And does he give you anesthesia? Yeah, all of that. He does everything by the book. He's really working hard. He's crying. He cares about me. He's putting in the effort and everybody can see that effort and can appreciate it. So that's one side.

[00:41:18] And let's say I go to another doctor and say, I have a chest pain and the doctor says, well, why don't you take a previsit? And I'll take care of it.

[00:41:28] It's entirely possible that the less showy doctor who only gave me a couple of minutes of his time and said, take this medicine will completely take care of the problem without all the fuss.

[00:41:40] It's a good example because you might feel more cared for by someone who's making a big deal of everything. And they're certainly working harder. It's harder to do surgery than to give someone a little over the counter idea.

[00:41:52] But it's not necessarily the best thing for you, the patient. If I can do one more, and this is a silly one. You always make me look silly in these. Like I'm always speeding around or getting arrested for bank robbery.

[00:42:06] So if I hired you as my bodyguard, you're my Kevin Costner. And we're wandering through an empty field as we do and we're costed by miscreants. Would I prefer for you to bust out your martial arts move that you learned in two seconds on YouTube?

[00:42:24] You know, that's if you pull it off, that's impressive. If you, you know, martial arts them to death and or at least into submission and defeat them that way. It's certainly harder and it's more of a technical feat.

[00:42:38] Or do I want you to pull a weapon and threaten them to back off? Obviously the second. But again, the first one looks cooler and would be cooler in a movie.

[00:42:48] But what's cool in a movie, what's cool in an episode of Perry Mason or Law and Order or any of these fictional shows, what kind of conforms to our beliefs of what the lawyering is, is not always the same of what is more beneficial to a client.

[00:43:02] And at the end of the day, the only metric that matters when it comes to judging the performance of attorneys in a case is what was the end result? I think in terms of lawyering in this case,

[00:43:16] McLean has done a good job of filing what he files and keeping his head down and not making any own goals that we've seen. I think that that will benefit him. I don't think you can say that about the original defense team.

[00:43:36] I think their exertions have been obvious and not always. And frankly, in some situations seem to have made things worse for their client. I mean, I'm going to put it very bluntly, but I think they've undermined a lot of credibility, their own credibility.

[00:43:52] And I think especially the actions around the confession that are obviously inspired by that, it just makes it hard to take some of it seriously. I think that at this point we're both in the camp that they will likely come back. I think is that fair to say?

[00:44:12] We don't have any inside knowledge. I don't want people to think we have. Nobody does. Only the Indiana Supreme Court does. Yeah, so I don't know what's going to happen. I would not be surprised if they come back.

[00:44:24] I think we're both leaning towards they probably come back because that's what the attorneys behind the scenes that we talked to have said. At times they were like, probably not.

[00:44:33] And then it kind of shifted well the prudent and conservative thing to do maybe to just let them back on. And again, to be air on the side of caution and clarity when we say we talk to attorneys behind the scenes. Unrelated to the case.

[00:44:48] No one. We don't have any inside knowledge and we haven't talked to anyone with inside knowledge. This is just asking polling attorneys that we know and saying, hey, what do you think of this? What do you think the outcome would be?

[00:45:00] And then saying, well, based on my understanding of the law and how these things work, it's an unusual situation. I'm not really sure. But if they wanted to be conservative, they'd let them back on.

[00:45:08] Yeah. The final thing I'll say about that is you have to keep in mind that we've all been focused on the Delphi case and what if they come back, they don't come back. How is that going to affect this one particular case?

[00:45:27] The Indiana Supreme Court is going to have a wider perspective. They're going to be thinking about how is this going to affect other cases in the state of Indiana?

[00:45:40] Do we want it to be easier or harder for a judge to be able to remove lawyers from a case? How would this affect everybody's rights? So they're going to look far beyond just Delphi while us, all of us are just looking at Delphi.

[00:45:56] Yeah. It's important. I'm so glad you brought that up to explain that wider context. They don't make decisions based on one case. They make decisions based on the legal system and what the impact would be of their decision.

[00:46:10] I think it's possible that they won't come back in which case all bets are off. The new defense attorneys can do whatever they want. If they do come back, I certainly would hope that there would be maybe a recommitment to a strategy that seems more winning.

[00:46:30] I don't necessarily think that them coming back benefits Allen in terms of his chances. Yeah. I'll just bluntly say that. I don't think it does. I think that these men are talented. We've talked to many of their colleagues who expressed a lot of admiration for them.

[00:46:47] I don't think this undoes any of that, but I think that things came up in this case that they were not prepared for and it shows. And I think the quality of the work they've been doing on it while strenuous, while it's hard work, while they're trying.

[00:47:03] And I see that and I think that's a sincere effort and we can't dismiss that. I don't think it's been good quality work. In fairness, a lot of the things they've done have been in response to problems created for them by their client.

[00:47:25] It just reminds me of a situation where somebody is trying to put out a fire and throws gasoline on it. I think that's what I'm seeing. And the intention is obviously to douse the fire.

[00:47:34] It's like the person doesn't have bad intentions, but the result is that the fire gets bigger. So even though I do see them reacting to things that their client is throwing at them, I don't think their strategies have been effective in neutralizing those.

[00:47:51] A skilled defense strategy would be to deal with whatever your client is throwing at you and try to not make it into a bigger situation.

[00:48:02] And I think letting his confessions box you into a theory that's not the most realistic version of the theory that's even out there is bad for him, for Richard Allen. You're going into the Indy 500 with a car that is not the best car that's been offered to you.

[00:48:21] You can still win. Maybe something bad happens to all the other cars. So it's not like it's impossible. I think it's winnable for them.

[00:48:32] That's why I would hope to see maybe a more pick at the prosecution's issue strategy rather than all the noise because I think it is winnable for them.

[00:48:43] But I think they would maximize their chances by doing things a bit differently when they come back or they could draw a conspiracy minded jury. All it takes is for just one juror to have doubts and get a hung jury. Get a hung jury?

[00:48:58] Then we can do the whole thing all over again. Oh boy. It's to do the whole thing over again. But the problem with a hung jury is that then the next jury can convict you. Yes, obviously.

[00:49:08] And I think an acquittal would be easier with what they presented so far from a conspiracy minded jury.

[00:49:14] I think it would be more beneficial to Richard Allen if they were going with something that didn't require such a jury, if they went with something that could appeal to a reasonable jury. Makes a lot of sense. But again, it's still winnable. It's still up in the air.

[00:49:29] I don't think the prosecution has a lock on this. We've outlined all the problems with their case. And I think that things could change.

[00:49:40] And we certainly have not made up our minds or come to any definitive conclusion regarding what we feel the case's outcome will be because there's probably a lot of information on both sides that we don't know about. We just don't know.

[00:49:58] Hair phrase, former Defense Secretary Donald Rumsfeld, we don't know what we don't know. There are unknown unknowns. You're Rumsfelding it to close this out. That's ominous. Thanks for listening, everybody. Thanks so much for listening to the murder sheet.

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