The Delphi Murders: Bad Facts: The Prosecution's Case

[00:00:00] There's so much going on in the Delphi case as usual. We're talking about the case against Richard Allen, a man who is accused of murdering Delphi teenagers Abigail Williams and Liberty German back in 2017.

[00:00:14] We haven't even gotten to his trial yet and there's already been so much. Indiana Supreme Court drama, questions about whether the judge will stay on or the defense attorneys will stay on the original defense team.

[00:00:26] It's a lot. But we thought this might be a good time while we're sort of waiting to see what's going to happen next in the case to see where we've been so far and get a sense of what Kevin and I feel are the biggest hurdles for both sides.

[00:00:42] This will be the inaugural episode for a segment we're going to call Bad Facts. When a lawyer is talking about bad facts, they're talking about facts that are inconvenient or problematic for their case. In other words, something that hurts their case.

[00:00:57] This will be an ongoing series we will do when we feel we are talking about a case where we have enough information to talk about some of the bad facts facing one side or another in the case.

[00:01:09] In the next few episodes, we'll be taking you through our analysis. This is going to be analysis that's going to be opinions, but we're going to try to focus on the facts of the case against Richard Allen.

[00:01:22] Your opinion may diverge from ours. That's okay. There's room for disagreement. But keep in mind that we're looking at this more from a strategic place than simply how we feel about the case.

[00:01:35] To be clear, we're going to take an episode and we're going to look at the prosecution's case. In doing so, we're going to focus on what elements of the prosecution's case we feel are the weakest elements or what the biggest problems are.

[00:01:54] In other words, this is what's going to be challenging perhaps for prosecutor McLean. In our follow-up episode, we're going to do the same with the defense team. We're going to focus on their case. What is their biggest weaknesses that they have to contend with?

[00:02:14] In the end, we will be summarizing everything that we've learned. Maybe comparing some things head to head. What we feel shakes out for the defense and what we feel shakes out for the prosecution.

[00:02:29] By doing so, I think we'll just give a sense of where things stand right now. Some caveats, anything is liable to change. We don't ultimately know what is going to be presented at trial and ultimately that's going to be more important.

[00:02:45] This is really just reading the tea leaves of what both sides seem to have right now. There's always room for twists and turns, for more evidence to come to light, for evidence to get dismissed. Keep in mind that this is more of a barometer check than some final conclusion on who's going to win or who has the better case.

[00:03:04] It's really just where do we stand now? How can we analyze that? How can we have a discussion about that analysis and, you know, we'd be very interested to hear your thoughts as well. My name is Ania Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney.

[00:03:21] And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases. We're The Murder Sheet. And this is The Delphi Murders. Bad Facts. The Prosecutions Case.

[00:04:21] Now, to start with the biggest hurdle for the prosecution in this case as well as the prosecution in any case in this country is that under our system, the prosecution has the burden of proof. What does that mean? This means technically the defense doesn't have to do anything.

[00:04:42] They can just sit back. They have no obligations. It was the prosecution in a case that made a determination that looked at the facts and the evidence and decided we can prove that this person did these things. And that becomes their responsibility.

[00:05:03] They have to stand up in front of a judge and jury and present the evidence which proves beyond a reasonable doubt that the person charged with the crime actually committed the offenses.

[00:05:16] And if they fail to do that, then the defendant, in this case Richard Allen, must be acquitted. This means the jury has to go into this with a presumption of innocence for Richard Allen.

[00:05:30] They need to presume that he's innocent and they need to be convinced by the prosecution that he's actually guilty. And if the prosecution fails to do that, Richard Allen must be acquitted. Absolutely.

[00:05:46] The defense can just sit back and try to poke holes into all of the testimony and all the witnesses offered by the prosecution. And that's perfectly respectable.

[00:05:56] All they have to do is try to poke holes in the prosecution's case and create a situation where just one member of the jury has a reasonable doubt of guilt. That's the way the system works and that's what we should be keeping an eye on going into trial.

[00:06:12] Are they getting beyond reasonable doubt when it comes to this jury? Let's drill down on some specific points to kind of give you a sense.

[00:06:19] We're going to talk about each element of the case that Kevin and I feel could be construed as negative for the prosecution or at the very least could be exploited by the defense within trial to knock down the prosecution's case.

[00:06:37] That doesn't mean that necessarily all of these points will be exploited or will come up in this way, but we wanted to be generous and really just look at everything and not necessarily to say, well, they're probably not going to do that based on what they've said.

[00:06:50] At this point, it's unclear who's going to be the defense team going forward. It's possible that if a new defense team, if Robert Scrimman and William Labrado come in, they could totally do something different.

[00:07:00] So it's not, we don't want to assume what Richard Allen's defense team is ultimately going to do. Also, if Andrew Baldwin and Bradley Rosie say on, they could change their minds, do something a bit different.

[00:07:11] So right now a lot is in the air, but I think we can analyze what's already been put out there. So today we're going to be doing it focusing on what the prosecution has done and put out there. Let's start by talking about other suspects.

[00:07:28] One thing that's always maybe amusing is the wrong word, but it's come up the idea that other suspects can hurt the case against Richard Allen.

[00:07:38] I remember when we were starting out and we would do things like do reports on Ron Logan or Keegan Klein, people would get really mad at us because they were thinking by reporting on this, you're creating reasonable doubt because you're talking about a suspect.

[00:07:54] And what they didn't seem to realize, they were close, but what they didn't seem to realize was us reporting on it didn't make it so. The fact that the police were investigating it makes it so.

[00:08:08] Like us reporting on it didn't bring it into existence, it just points out the existence. The issue is that defense has discovery so they can look through every single person that the police have investigated and come up from that with alternate suspects.

[00:08:24] That's what can be problematic for the prosecution when that happens. Yeah, because when you think of it the fact that the investigators, law enforcement, what have you, were looking at other suspects. You could argue that means that they thought those other suspects were plausible.

[00:08:47] And if you can convince the jury that any one of those other suspects is plausible, that might be a way to get to reasonable doubt. Especially if you can't find a connection between the plausible suspect and the defendant Richard Allen.

[00:09:06] For instance, we all know that in the weeks immediately prior to the arrest of Richard Allen, there was a pretty massive search of the Wabash River based upon information that was provided to the police by Kagan Klein.

[00:09:28] And it is easy to imagine a defense attorney standing up and saying something to the effect of well in October they were convinced that my client Richard Allen was guilty. What's happening? Why is their mind always changing? Right, so there's potential there.

[00:09:50] I'll say that in general you can make two arguments about this one that is pro prosecution, but the anti prosecution side is very much that you're all over the place. Look, these guys look a lot better to the jury.

[00:10:05] The prosecution side and the law enforcement side are doing all this work to look into these people so that it's giving ammo to the defense.

[00:10:13] And that can be exploited, especially if somebody presents what the defense feels is a more compelling person of interest suspect who can be thrown up there, vilified during trial and hey, this guy seems a lot more likely than this mild mannered CVS employee.

[00:10:32] And the defense doesn't have to do that. The defense isn't obligated to present their own theory and they don't even have to get up there and explicitly say, oh, we think it was Kagan Klein or we think it was Ron Logan.

[00:10:46] But if they can just make anybody on the jury have doubts. Yeah, they don't have to do anything but we're talking about what ammo is at their disposal potentially because of the way things are happening. So it is ammo at their disposal.

[00:11:01] And one thing that compounds this, I believe, is the fact that there was a misplaced tip that conservation officer Dan Duhlin interviews Alan early on and then that does not make it into the system. It gets lost. Then that also makes things just look sloppy.

[00:11:25] Human error happens in investigations. We don't like to think about it. We don't like to acknowledge that ultimately human beings are involved. So there's going to be human error. And obviously in this situation, it's pretty upsetting that human error would be the reason for such a major oversight.

[00:11:41] But you that's what it was it seemingly that's what that's what we've been reporting. That's what we stand by in our reporting. So the fact that he comes up as a little blip and that never gets looked at until years later.

[00:11:55] That also, I don't know if it's necessarily like a strategic problem for the prosecution, but it doesn't engender confidence. As far as the jury is concerned, I believe. It doesn't engender confidence. All of that is certainly problematic.

[00:12:11] There's enough there that a good defense attorney could make something of it. Now let's move on to eyewitnesses. Let's talk about eyewitnesses in general. Eyewitnesses are terrible. They're awful. They're awful. That doesn't mean they're bad people or they're lying or they're dumb. It doesn't.

[00:12:28] But when you're walking to the grocery store and you see something, maybe it turns out to be a very, very important thing that's happening. But in the moment you're just walking to the grocery store. You're not necessarily paying attention. Here's another example. Kevin is notorious for this.

[00:12:46] Kevin will be talking about whatever and he'll say, oh, you know, that was a nice purple jacket you had on. And I'll be thinking like what? And then I'll be like, oh, I have like a kind of a pink jacket.

[00:13:00] I don't actually have a pink jacket, but I'm just using this example. You have a very different interpretation of colors than I do. Is that fair to say? That's fair to say. That can also apply to just about anything. Age.

[00:13:13] To an older person, somebody might look very young. To a young person, someone might look older.

[00:13:18] There's such a range of human experience and memory is so fallible that if you have a group of eyewitnesses about a specific event, even if they're all trying, you might get really scattered responses.

[00:13:33] This is something that if you've ever been in one of those exercises where like somebody's talking, you know, I've heard of law enforcement having like talks and doing this, you know, talking to a high school class.

[00:13:45] Then somebody comes in with like a big bag of flour runs in and runs out. Well, what was that guy wearing? Was he wearing a hat? What was he holding? And you get a range of responses. It's again, it's nobody's lying. Nobody's bad. Nobody's deceiving.

[00:13:57] It's just human nature. And again, I have a terrible memory. I've always been worried I would see something involving cars because I have no sense of cars. Like I don't know anything about cars.

[00:14:10] I feel like I would really mess that up if someone was like, well, what was he driving? I'd be like, a black car? Like, I don't know. And outside of a criminal justice context or outside of the exercise where somebody runs into the room.

[00:14:26] This happens in your own life all the time. Think about someone in your life that you've known for a long time, maybe a spouse or a dear friend or a sibling or a parent and think back to some event you shared with that person five, 10 years ago.

[00:14:46] If you sit down with the person and compare notes, the odds are that the memories of the event will not line up perfectly.

[00:14:56] You know, if Ani and I are talking about our first meal after we got married, I think it's possible that she might recall us eating one thing. I might recall us eating something else.

[00:15:10] She might recall like exactly what she was wearing because she put so much time and trouble in her outfit. And maybe I didn't notice all those details. It's just people's memories are imperfect.

[00:15:25] And keep in mind that goes especially so when I gave the mundane example of walking to the grocery store, but think about your daily life, your daily travels. These people mostly were either driving near the crime scene that day or were walking on the trails.

[00:15:41] It was a normal day for them. They were commuting, they were going on a little nature walk. They were not expecting to suddenly become involved in the biggest murder case in Indiana. So they did their best.

[00:15:53] They tried to reconstruct things for law enforcement afterwards and we commend them for that. That's not easy. But this is our way of saying that. The witness accounts are all over the place.

[00:16:05] They're all over the place and it's not going to be difficult for defense attorneys to give these people up on the stand and start pointing out inconsistencies, whether within a witness's own testimony or pointing out the challenges of making different testimonies fit together to form a cohesive picture.

[00:16:28] Absolutely. And I would say the most important eyewitnesses in terms of the person, the killer are the three girls, the three young women who were walking on the trails and saw a man.

[00:16:40] But even those differ and even those are relatively vague from what we've seen of the PCA. It seems like possibly he had a face covering.

[00:16:49] And again, that's what they saw but it makes it hard to pin that on one person, at least just purely from the eyewitness accounts. And the result of all this is that two sketches were produced and published.

[00:17:03] So that adds to the confusion of two killers, one killer, one person. Let's throw out the old man sketch. Oh, that's actually the one that Richard Allen looks more like. It leads to... Yeah, don't pass that up.

[00:17:21] The sketch that most resembles Richard Allen, we have statements from law enforcement saying, well, this is a secondary sketch. We're really not interested in this person anymore. There's indications that they identify the person in that sketch. Yeah. So they're allowed to change their minds but...

[00:17:37] But that's something the defense can play with. Here's a sketch that looks like Richard Allen. You're not interested in this person anymore and now you are? What the huh? Yeah. You can do a lot with that.

[00:17:48] And just creating the impression of like, well, was it a group of people? These two sketches don't look anything alike. So could there been another guy? Are you sure? One of them must have been Richard Allen. You can really do a lot with the variety of eyewitness descriptions.

[00:18:07] And it's just... It's another tool in the defense arsenal in my mind. And we don't know if any of these eyewitnesses have said the person I saw on the trails that day was Richard Allen.

[00:18:24] And if they have not made that identification, that is something the defense can play with. Yes. I feel... Maybe I'm wrong. But I feel like if there had been some sort of positive idea like that, it would have been in the PCA.

[00:18:40] Maybe I'm reading too much into that. But they had a while to put together some sort of photo lineup or in-person lineup when he was brought in. And there's no mention of it. So I'm going to assume...

[00:18:57] And honestly, if basically people were seeing him from a distance in their cars while driving from 50 feet away, from walking past him, but he's wearing some kind of face covering, or he's kind of got...

[00:19:12] It's not a clear look, then I don't know how much a lineup would help. Because you'd just be like, oh, vague body shape is similar. And these are people who saw him for just a few moments years ago? Years ago. Yeah. So it's just... That's a problem.

[00:19:28] The same maybe more so goes towards the eyewitnesses of the different cars. The car models makes colors are all over the place. Some have pointed out to us, some people who know cars better than we do have pointed out to us that, yeah.

[00:19:45] Maybe some of these cars aren't as different as you think. And I see what they're saying. That being said, it's still... It's still... Being all over the place still isn't good for the prosecution. It's still not helpful. All of it. I don't know anything about cars.

[00:20:02] So I'm keeping quiet during this part. Well, I'm saying I agree with those people who said, hey, the models mentioned when you actually look at them, if you're talking about a sunny day, they're dark. They could have some similarities.

[00:20:15] And I hear them and I think that they're right. But to give it to the defense on this one, to kind of talk about the stuff that really feasibly could be negative for the prosecution,

[00:20:25] I can still say that the fact that it's not like, oh, it's a Ford truck. Like it still puts it all over the place in a way that could be exploited by the defense. Now, we've talked about eyewitness testimony is notoriously challenging.

[00:20:44] We do have one piece of physical evidence in this case, which seems to definitively tie Richard Allen to the crime scene. And that is the bullet. But is that a hurdle for the prosecution in some ways? It's certainly a very important piece of evidence for them.

[00:21:01] But there are some exploits that the defense can take that could end up jeopardizing the bullet. So the bullet is an unspent round that was put in the assailants gun and ejected.

[00:21:19] And in the ejection process, marks were left on the bullet that the prosecution says can be matched to the assailants gun and that it matches Richard Allen's gun. So obviously this is important.

[00:21:30] Now, why does a bullet matter in a case when the victims were killed with a knife? Well, the answer is the girls themselves. When they're being abducted, they had Libby's camera rolling on her phone and they mentioned a gun.

[00:21:46] So we have the victims themselves telling us there's a gun involved in this crime. It makes sense in terms of accosting them and forcing them away. It also prevents them from screaming out, running away. It's very scary, especially for two young teenage girls.

[00:22:03] It's a very scary and awful situation. Scary for anyone? Scary for anybody, but it's possible you can control the victims that way. So he forces them off the bridge with the gun, abducting them. And then at some point at the crime scene, a bullet is accidentally ejected.

[00:22:21] There's been speculation about how that could have happened. But it ties the person who's abducting them to the actual crime scene. It ties Richard Allen specifically because it matches his gun. And let's talk about the problems with it because it is so important.

[00:22:40] There's been a lot of backlash to two-mark identification forensics in recent years. Ballistics, basically people calling it a junk science. Now, the people who do forensic science will tell you that a lot of improvements have been made

[00:22:56] across the board to make it more reliable, to make it so that it's not being overstated in court. But there is an atmosphere out there that's increasingly hammering at this form of science, this form of forensic science. And that's certainly gotten louder in recent years.

[00:23:18] So we've seen judges throw out ballistics based on that in Illinois at least, not in Indiana but in Illinois. So that's worth noting. There is a bit of a backlash, I guess, right now.

[00:23:36] It's also not typically the type of ballistics that you would see in a major crime. The only one that comes to mind as also using this type of bullet evidence is the Kaufman County murders in Texas where two prosecutors and one of their wives

[00:23:51] were murdered by a disgruntled former justice of the peace. So this type of bullet evidence was used there. So that's a major case it was used there. But that's really the only one that we've heard of where it's been used.

[00:24:04] So typically you're having more of a round that has been fired. And as you note, there's been a lot of people challenging ballistics evidence just period. And so because of this, I imagine that the defense team would not have any trouble finding experts,

[00:24:24] perhaps even very impressive credible sounding experts to get on the stand and tell the jury that this evidence cannot be trusted. This sort of thing can't be proven with absolute certainty. You shouldn't put too much weight onto this. Yeah.

[00:24:41] And if there's a battle of the experts and the defense wins on that point, then the bullet could be deemed less significant by the jury. There are also attempts to get the bullet thrown out on more of process grounds. And if one of those manages to succeed,

[00:24:58] then that would obviously be also a very devastating blow to the prosecution. But even if it gets in and the defense has a great expert, that's a huge problem for the prosecution. It's a huge problem for the prosecution because as we say,

[00:25:12] it's the one piece of physical evidence tying Alan to the crime scene. In some ways, it's the cornerstone of the case. They're going to need an expert who is not only able to speak to what the bullet evidence says

[00:25:25] but is able to really be prepared to defend ballistics as a whole, I think. Yeah. So that brings us to what evidence is not in existence here. So, I mean, this is a negative. The prosecution can't help the case they receive,

[00:25:42] but it's something to note because juries like DNA, DNA cases are great because you're conclusively, people understand the science, but they can conclusively say this person was participating because, look, their blood is on the knife handle used to stab this person

[00:26:05] and they have no way to account for it or their semen is in the victim when they didn't have a relationship. It just, it really is a huge piece of evidence when it's wielded, especially in a murder case.

[00:26:18] And there doesn't seem to be any usable DNA evidence in this case. That's what the Frank's memorandum said. That's what everybody should have been inferring this whole time because it wasn't solved. So when people be like, have they thought of DNA? Yes.

[00:26:34] I mean, obviously, but if there's no arrest five years in, that's because the profile wasn't big enough, it wasn't usable. And DNA isn't something that is a requirement for a prosecutor to have, but the fact is at this, in this day and age,

[00:26:52] a lot of jurors want it because that provides a level of certainty and a lot of jurors and lay people in the audience, anybody in the audience really, a lot of jurors as well as a lot of observers really want the DNA

[00:27:11] and there is an implication if they don't have DNA, maybe the case isn't strong enough. It's called the CSI effect. It's like the prevalence of forensic science and shows about that have kind of risen jurors' expectations around this, maybe to an unreasonable degree,

[00:27:31] but it is because circumstantial cases should be just as valid. The evidence points that way. But it's still something for the prosecution to have to contend with here. Yes. Let's talk about the narrative. So what I mean by the narrative is just the overall story that the case

[00:27:51] is taking for both sides. So the narrative is for the prosecution, a man named Richard Allen went out into the woods and murdered these two girls. And from what we can tell about Richard Allen, he does not have a criminal background.

[00:28:08] He does not have any documented history of abusing kids or being sexually obsessed with kids or anything like that, not that we found at least and not that anyone else is found to our knowledge. So my opinion is that the public and therefore juries,

[00:28:26] because you know juries are pulled from the public, they prefer the narrative of a random nice guy did this out of nowhere only really when it's somebody like Dennis Rader, aka BTK, a serial killer. The difference there is that Rader was accused and convicted

[00:28:48] or pled guilty to a whole range of crimes. He was a serial killer. So his murders were part of a series. So I think the public is like, okay we can see someone being a Ted Bundy type. They seem fine but they're actually doing all of these things.

[00:29:04] I think people have a bit of a harder time grappling with a bad guy pretending to be good and doing all these bad things. I think we tend to have trouble with a normal guy seemingly, goes out does something absolutely heinous

[00:29:21] and then goes back to normal life without being connected to anything else. It's like a one-shot dip into murder and then and the thing is these happen. We know that these happen. We certainly know with the advent of DNA solving cold cases,

[00:29:39] there's been time and time again where they've solved serial killer cases. But we've also seen them solve this guy killed a woman and then went back to his life. But that's hard to wrap your mind around. It's going to be hard for the prosecution because

[00:29:54] the defense team can point to this man, Richard Allen. He's been a stable member of the community. He's a retail manager. He's a person who his employers place trust in him. He's not somebody going around causing problems. He's a family man.

[00:30:15] These things will be challenging for a jury to get past. The motive does not have to be introduced by the prosecution. It just doesn't. It's not a requirement and sometimes it can be a hindrance. But being able to describe why such a heinous thing happened

[00:30:33] and why it didn't keep happening, why this guy was able to fly under the radar, I think would be helpful because I think having a story is helpful. And I'll add one thing that complicates the narrative is early comments that the prosecution,

[00:30:48] Nick McCliland and Superintendent Doug Carter of the State Police made were that they were at least open to other people being involved in this. I'm not saying that was a strategic error because if they thought that at the time,

[00:31:03] they had a duty to keep looking into it and state that and let people know that they were doing that. But it does complicate the narrative because I think they're going to have to make it clear. Do we think this guy acted alone?

[00:31:16] Or do we think that there were other people involved that we don't have enough evidence against? I don't know. I don't know what's going to happen with that. They might come out and say, no, we looked into it and we're pretty confident it was just him.

[00:31:27] Which is okay. It just needs to be clearly stated, I think. Because otherwise, I think the defense can have a lot... do a lot with that because it just adds to the level of confusion. What tentacles? What other players in this? Who are we talking about?

[00:31:44] Did you have someone in mind or is it more of the way the crime went down that it makes it more likely? Exactly. So in summary, in my view, and Kevin, you tell me what you think about this because it's lawyering.

[00:31:55] A lot of these issues have more to do with fundamentals with the underlying case, lack of evidence and the evidence available versus McCliland making own goals against himself. Yes. I would certainly agree with that. I think the silliest thing that McCliland did

[00:32:14] at one point was in the beginning when he tried to seal the PCA. That seemed like a losing move. Since then, I feel like he really hasn't been doing anything that I would characterize as like, oh my God, what is he doing? It's been pretty by the book.

[00:32:34] It's been consistent. So I think it's important to stress that most of these are kind of working with what he's got issues rather than he's introducing new problems. I think that's worth stating because there is a difference there. I would agree with that analysis.

[00:32:51] Another thing that comes to mind to me is this is not a slam dunk case where a conviction is guaranteed. I think we've highlighted that in this episode by discussing some of the potential problems. I would also say,

[00:33:11] I'm jumping ahead a little bit to what we're going to talk about in our next episode about the defense, I would also say it's not a super weak case where an acquittal is guaranteed. It's right in the middle where I think any outcome, conviction or acquittal is realistic.

[00:33:29] I think it's very much winnable by either side. By either side, but we'll talk about some things in the next episode that make me think that things need to change on the defense side strategically. There's more issues going on there that are unforced errors, I think,

[00:33:51] that are damaging chances of winning. We'll get to that in our next episode. In this situation, I think it's very much winnable for the prosecution, but it's not a guarantee. It's not a marginal case in the sense that I don't think they should have brought it.

[00:34:08] There's not a lot of razzmatazz with it. It's a stack of pieces of information that form a pile and how impressed the jury is going to be with that is going to determine the outcome. But I think it's definitely winnable for the prosecution.

[00:34:25] Despite some of the issues that we've talked about, I think also I should say this, out of all the issues we've talked about, I don't know that the defense has indicated that it's prepared to exploit everything we talked about in this episode.

[00:34:38] It certainly has for some of them and it's hard and that's good for the defense side, but there's been other things that have sort of maybe they've lost the advantage on even though it was basically handed to them as a possible issue.

[00:34:52] So tomorrow we're going to be talking about hurdles facing the defense and then the next day we're going to put it all together, kind of compare some of the issues head-to-head and give our final thoughts on the matter. Thanks for listening.

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