The Delphi Murders: Crowdfunding

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[00:01:36] Content warning, this episode contains discussion of murders, specifically the murder of two children.

[00:01:44] So one topic of interest in the Delphi murders case recently has been that of defense crowdfunding.

[00:01:51] So a fundraiser was set up for Richard Allen, the man accused of murdering teenagers Liberty,

[00:01:57] German and Abigail Williams back in 2017.

[00:02:00] And that fundraiser had to do with getting money for trial experts to put on his defense.

[00:02:08] Now there's a lot of complicated issues and discussions to be had around this.

[00:02:13] But in order to sort out the general topic of crowdfunding defense,

[00:02:19] we reached out to two excellent experts, attorneys, Hillary Gerjoy and Julian Passachow.

[00:02:26] So these are two attorneys who covered this topic in an informative article for Law 316.

[00:02:31] And frankly, to be completely transparent and open with you,

[00:02:35] we felt it was really important to get the views of attorneys about this,

[00:02:40] more specifically attorneys who were in no way affiliated with this case.

[00:02:46] A lot of the voices we've seen comment on the fundraising has come from attorneys affiliated with the defense.

[00:02:51] Yes. And so essentially these attorneys will be speaking on the general topic,

[00:02:56] not a lot of specific questions about Delphi because that's a bit of a unique situation.

[00:03:00] But we felt it was important to start with those building blocks.

[00:03:04] After we hear from them, we're going to come back and talk about more of the specifics

[00:03:10] of this particular case involving Richard Allen's fundraising,

[00:03:13] maybe offer a few opinions about that.

[00:03:16] And then at the very end of the program, we're going to have a few minutes

[00:03:21] where we talk about something that's been going on with YouTube.

[00:03:24] So it's going to be a pretty busy episode and let's get started.

[00:03:31] My name is Anya Kane.

[00:03:32] I'm a journalist and I'm Kevin Greenlee.

[00:03:34] I'm an attorney and this is The Murder Sheet.

[00:03:37] We're a true crime podcast focused on original reported

[00:03:41] interviews and deep dives into murder cases.

[00:03:44] We're The Murder Sheet.

[00:03:46] And this is The Delphi Murders crowdfunding.

[00:04:11] So can you both start out by just telling us a bit about yourselves?

[00:04:15] I'm going to start with you,

[00:04:38] start out by just telling us a bit about yourselves, your areas of practice,

[00:04:42] sort of your background professionally.

[00:04:45] Yeah, I'm happy to go first.

[00:04:46] So I am a legal ethics and malpractice lawyer.

[00:04:50] I'm vice chair of our firm's legal ethics group.

[00:04:53] And I also am vice chair of the D.C. Rules of Professional Conduct Review Committee.

[00:04:57] So that is the committee in D.C.

[00:05:00] that helps to amend the rules of professional conduct.

[00:05:03] And just to take a little step back, all lawyers, in addition

[00:05:06] to being subject to the law are subject to what are called rules of professional

[00:05:11] conduct, which regulate our profession.

[00:05:13] We're a self-regulating profession.

[00:05:16] And so we all agree when we become members of various bars

[00:05:21] to adhere to the rules of professional conduct and they govern things

[00:05:25] like how to deal with a conflict of interest, how to collect money from clients,

[00:05:31] how to what your obligations are in terms of being honest,

[00:05:36] in a tribunal, those kinds of things.

[00:05:39] And the rules of professional conduct are slightly different

[00:05:42] in every jurisdiction, but every jurisdiction has them.

[00:05:45] And so I'm the vice chair of the committee that helps to make amendments

[00:05:48] to them that ultimately get approved by the D.C.

[00:05:50] Court of Appeals so that the rules are sort of constantly evolving

[00:05:54] and reflecting our practice.

[00:05:55] I also sit on the ABA ethics committee.

[00:05:59] And so the American Bar Association will set rules of professional conduct

[00:06:03] that each jurisdiction then adapts for its own jurisdiction's purposes.

[00:06:08] And then they also write opinions that analyze what the rules do.

[00:06:14] So they come up with sort of different fact patterns either

[00:06:17] because lawyers will say, you know, how do we understand how these two

[00:06:21] rules intersect, for example, or just the committee on its own will say,

[00:06:25] I think we need to provide more clarification to members

[00:06:29] of the Bar about how these rules work.

[00:06:31] And so I'm on the committee that drafts those opinions.

[00:06:34] And then I also teach an adjunct law professor at Georgetown Law School,

[00:06:39] where I teach legal ethics and I will turn it over to Julian.

[00:06:44] Yeah. So I'm an associate at the firm.

[00:06:47] I work across several practice areas, one of which is legal ethics,

[00:06:51] working for partners like Hillary and others in our firm.

[00:06:56] And often what we're doing is advising clients with either more specific

[00:07:01] questions of how they do a particular thing or whether a particular thing

[00:07:05] is compliant with the rules of professional conduct in a given jurisdiction.

[00:07:09] Sometimes we deal with fact patterns where someone's suggesting

[00:07:13] a course of conduct that may be compliant with one jurisdiction's rules,

[00:07:17] but not another.

[00:07:18] Sometimes we help people set up legal practices

[00:07:22] or do specific things within legal practices.

[00:07:26] So it's quite a varied area of law that really runs the gamut from answering

[00:07:31] relatively simple questions to really helping someone establish a law

[00:07:36] practice that's compliant with rules across many, many jurisdictions.

[00:07:41] And as you can imagine, like Hillary was saying,

[00:07:43] because each jurisdiction has its own rule, oftentimes when you have

[00:07:47] a small law firm or a small practice

[00:07:51] that's employing people from five, 10, 15 different jurisdictions,

[00:07:54] there are a lot of different sticky issues that come up.

[00:07:59] So we came across the wonderful article you both co-pend for

[00:08:04] Law 360 that deals with legal crowdfunding and sort of different aspects of that.

[00:08:10] Can you let us know how you both came to be interested in that topic

[00:08:15] and sort of how that article came to be?

[00:08:17] Yeah, absolutely. So I actually have a regular space with Law 360.

[00:08:22] I publish with them at least six times a year and sometimes more.

[00:08:27] And this was actually one of the editors at Law 360,

[00:08:30] sent me an email and said, I don't know if you've heard about the Neely case,

[00:08:36] but would you write something about crowdfunding legal fees

[00:08:41] because it seems like this is sort of a trend that's happening?

[00:08:45] So Law 360 identified it as a trend

[00:08:48] and the case that gave rise to it that we sort of highlighted as a starting point

[00:08:53] was this case that that happened in

[00:08:58] 2023 and it happened in New York.

[00:09:02] There was an individual named

[00:09:07] Jordan Neely, who was experiencing some mental health challenges,

[00:09:11] was also experiencing homelessness.

[00:09:14] And he had been killed

[00:09:20] by an individual named Daniel Penny on the New York City subway system.

[00:09:25] And the Manhattan DA's office had charged Penny, who was a marine.

[00:09:32] I think he was 24, younger guy with second degree manslaughter

[00:09:37] after Neely had been killed on the subway.

[00:09:40] And your listeners might remember Neely had been a Michael Jackson impersonator.

[00:09:45] That was a lot of the photos that were sort of covered of him showed him doing that.

[00:09:51] Penny's defense was that he was acting in self defense

[00:09:54] and that Neely was threatening passengers on the train.

[00:09:59] As the investigation went on by the Manhattan DA's office,

[00:10:02] they found out that Neely had had this mental health crisis

[00:10:05] and had been at the time that he had been killed.

[00:10:08] He was homeless.

[00:10:10] And Penny started a crowdfunding legal fee campaign and he

[00:10:16] and the issue became very politicized.

[00:10:19] So there are politicians who were on the left,

[00:10:22] who came out in support of Neely and there are politicians on the right

[00:10:26] who came out in support of Penny and saying this was self defense.

[00:10:30] And Penny had.

[00:10:33] Raised a really significant amount of legal fees.

[00:10:37] I think it was something like one point five million dollars

[00:10:40] pretty quickly in his defense.

[00:10:43] And so the law through 60 reporters said, you know, can you write about this?

[00:10:46] Can you do this first of all?

[00:10:47] Like is this ethical? Are there what are the issues that are that are associated with it?

[00:10:52] And so Julia and I just dug into what what did the rules say?

[00:10:58] What are the ethics opinions say?

[00:10:59] And then following this, we've actually had a number of clients

[00:11:02] who have reached out who have said, you know, this is really interesting

[00:11:05] because this potentially opened up a new pathway for me to fund my defense

[00:11:12] or fund something on the plaintiff's side where one of the pitfalls.

[00:11:17] How do we how do we deal with it?

[00:11:18] So that's how it came to us.

[00:11:21] Absolutely. And I'm curious, is this a new phenomenon in law

[00:11:26] where you have crowdfunding of these, you know, public cases?

[00:11:31] Like, or is this something that there is some precedent for?

[00:11:35] So there's some precedent for it, but it's relatively new.

[00:11:38] It's sort of as new as crowdfunding, which I mean, I think

[00:11:41] maybe 10 years crowdfunding has been been a thing.

[00:11:44] It couldn't be. I'd be surprised to learn if it had been so much before that

[00:11:49] that the opinion that is the sort of presidential opinion is there's two.

[00:11:54] So in 2015, the Philadelphia

[00:11:58] Philadelphia issued a bar opinion addressing the situation and then in 2018,

[00:12:02] DC did and those ethics opinions always usually trail a couple of years

[00:12:06] after something has been around.

[00:12:08] So I'd say probably about 10 years this has been happening,

[00:12:12] but I think it's gotten a lot more interest as

[00:12:17] as time has gone on and people have gotten more comfortable with the idea

[00:12:20] of crowdfunding, particularly with like political campaigns, for example,

[00:12:24] or just like anybody I see now more

[00:12:28] people posting stuff about crowdfunding.

[00:12:31] And so I think it's gone sort of hand in hand with those.

[00:12:33] And so there is precedent for it for it happening,

[00:12:37] but I think the scale on which it's happening is a lot larger, right?

[00:12:42] And it's and it's happening and people are raising money a lot more quickly

[00:12:46] than they than they used to be.

[00:12:48] I'm curious when it comes to crowdfunding in criminal defense cases,

[00:12:53] what sort of cases are most likely to attract crowdfunding?

[00:12:59] So I don't I don't think either of us have done like a survey of all the cases

[00:13:03] that have had crowdfunding, but my my best guess and my sort of like

[00:13:07] anecdotal thoughts on this are that ones that are politicized in nature.

[00:13:12] Because I think that when there's an issue that becomes

[00:13:17] political, you get you just garner a lot more attention.

[00:13:20] And I think this penny case became political.

[00:13:23] I think it's on its face to me as a lawyer.

[00:13:26] It is not a political case. It's it's a manslaughter case.

[00:13:29] I don't see politics in that.

[00:13:31] It's just he was charged with manslaughter.

[00:13:33] But as we know in 2024, a lot of things have become political

[00:13:38] and people have sort of taken sides on on issues.

[00:13:41] And this became and a case where there was really a political divide

[00:13:47] in terms of who was sort of coming out in each camp.

[00:13:50] So I think that those types of cases tend to get more attention.

[00:13:55] But also cases defense cases where you have somebody who is a super

[00:14:00] sympathetic defendant and where and so what makes somebody defend it

[00:14:06] sympathetic defendant.

[00:14:07] Well, I think that depends on who the audience is who's listening to it,

[00:14:10] right? And who sees them.

[00:14:12] Some people are quite sympathetic to some and not sympathetic to others.

[00:14:15] But I think when you when people feel like they're giving money to a cause

[00:14:19] as opposed to giving money purely to a legal defense,

[00:14:23] I think that tends to feel different and people tend to

[00:14:27] you see more success with it, I think, because they feel like

[00:14:32] they're they're almost giving to a political cause as opposed to literally

[00:14:35] funding for lawyers to draft briefs and interview witnesses

[00:14:39] and do some of the more mundane tasks that perhaps people are not.

[00:14:44] You know, I want to give my five hundred dollars to that cause, for example.

[00:14:47] I would add one more thing about this case.

[00:14:49] I think what made it interesting and what caused such a feverish

[00:14:53] following of this case was that it raises a lot of the issues that are

[00:14:57] much more in our collective consciousness nowadays, issues of race

[00:15:01] and class and now a greater awareness of homelessness and the issues

[00:15:06] related to that mental health.

[00:15:09] And so I think that this was a case in which there were a lot of

[00:15:13] comparisons that could be made.

[00:15:15] Someone who was well to do someone who was in the armed forces,

[00:15:17] someone who was white versus someone who is experiencing a mental health

[00:15:21] crisis, someone who is homeless, someone who I believe was not white.

[00:15:25] And so I think that like Hillary was saying, this was absolutely politicized.

[00:15:28] And I think the reason why it was was because it it was ripe with

[00:15:33] all of these issues that are so much more in our consciousness nowadays

[00:15:37] than they may have been in the past.

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[00:17:28] Yeah, absolutely from the article and from what you're saying,

[00:17:31] it really seems like that case in particular hit a lot of nerves

[00:17:35] on both sides, really.

[00:17:36] Yeah.

[00:17:38] One thing I was curious about is just from the functionality of these

[00:17:41] crowdfunded campaigns, I'm I'm curious from your experience

[00:17:46] and your research.

[00:17:47] Are these mostly for private criminal defense

[00:17:52] or do public defenders do this too?

[00:17:57] Is it usually to like get legal representation

[00:18:00] or can be something as like, you know, hiring experts to come speak at trial?

[00:18:05] So it's really interesting because you were mentioning that

[00:18:06] the beginning about the case that had sort of this public defender

[00:18:10] bent to it.

[00:18:11] I've never heard of crowdfunding legal fees to be used by public defenders.

[00:18:17] I would imagine that there are real restrictions around doing that

[00:18:20] because public defenders are funded by government dollars,

[00:18:24] taxpayer dollars.

[00:18:25] I hadn't looked into it, but I've never seen it happen before

[00:18:29] and I've never heard of it happening before.

[00:18:32] I think in terms of what the money ultimately gets used for,

[00:18:35] I think that's one of the what clients I have spoken to who have

[00:18:39] engaged in crowdfunding of legal fees find is is one of the biggest

[00:18:42] benefits is that they can sort of use it for whatever they want to use it for

[00:18:46] if they've made the right disclosures.

[00:18:48] And so usually the money is not the way that the crowdfunding

[00:18:53] pages is structured doesn't designate what you're giving money for.

[00:18:57] But that's one of the things that Julian and I touch on in the article.

[00:19:00] And it's really important to mention is that anybody who is

[00:19:04] funding something, there are certain disclosures that are required.

[00:19:08] Right? So if you want to give money to somebody's defense

[00:19:13] and you want that money earmarked for something,

[00:19:16] you need to be able to communicate that and there needs to be

[00:19:19] the requisite disclosures about what's going to happen.

[00:19:21] Now, the reality is that one, money is fungible

[00:19:25] and two, it's unlikely that whoever is setting up a crowdfunding page

[00:19:30] is actually going to want to do that to say, oh, this $500 goes to

[00:19:34] like the witness section and this $500 goes to doing voids

[00:19:38] here to pick the jury.

[00:19:39] I've not seen it and I think it would be sort of a nightmare

[00:19:43] to manage it.

[00:19:45] But that is one of the really important things.

[00:19:47] And so when you see like a well structured compliant

[00:19:50] crowdfunding page, what it essentially does is says, you are giving

[00:19:54] money to this to fund this defense as the lawyers,

[00:19:59] we're choosing how this money gets earmarked and the client in

[00:20:03] conjunction with the client.

[00:20:04] And by giving us this money, you are sort of acknowledging that

[00:20:07] that's how it works because the alternative I think ends up

[00:20:11] just being too difficult to administer properly.

[00:20:16] Absolutely. Yeah.

[00:20:17] And I imagine, you know, in a case, you know, where there's

[00:20:19] criminal defense going on, you don't want to let the donors

[00:20:25] know about your strategy going in or what witnesses you're

[00:20:27] thinking about calling that, you know, there'd be all those

[00:20:31] confidentiality issues.

[00:20:33] Yeah, I think I'm even go a step further and say it's not that

[00:20:36] you don't you don't want to is that you can't and that you

[00:20:39] would be violating your ethics obligation.

[00:20:42] So one point six is the rule that governs confidentiality

[00:20:45] between lawyers and clients.

[00:20:48] And I think one thing that tends to surprise non-lawyers

[00:20:51] in particular is that confidentiality is much

[00:20:55] broader than attorney client privilege.

[00:20:57] And so attorney client privileges communications between

[00:21:00] a lawyer and his or her client in anticipation of litigation.

[00:21:04] It's it's actually pretty narrow, but confidentiality is

[00:21:09] incredibly broad.

[00:21:10] Every jurisdiction has a slightly different variation.

[00:21:12] But if you take DC's, for example, it says that any

[00:21:16] information that you learn from a client in the course

[00:21:18] of representation that the client has asked that you

[00:21:21] not repeat to anybody or that could be viewed as detrimental

[00:21:25] is confidential and cannot be released.

[00:21:27] And what counts as detrimental is incredibly broad.

[00:21:31] Even just the fact of litigation could be considered

[00:21:35] to be detrimental, like that you have been sued or that

[00:21:38] you wish to sue somebody else.

[00:21:40] And so one of the most important disclaimers that

[00:21:43] you need to have when you have a crowdfunded page

[00:21:45] is to say nothing that we by giving money to this

[00:21:50] campaign, you acknowledge that we are not going to tell

[00:21:53] you anything about this case.

[00:21:54] We're not going to give you any insider information.

[00:21:56] We're not going to take any of your feedback.

[00:21:58] You are simply donating money because you believe in

[00:22:02] that this case should be litigated in a, you know,

[00:22:05] that we should have money for lawyers and for the

[00:22:08] ancillary costs, but we can't tell you anything at all.

[00:22:12] Because if you do, then you as a lawyer run a

[00:22:15] risk of violating one of the rules for professional

[00:22:17] conduct and putting your law license on the line.

[00:22:21] And I would also add that it's understandable that donors

[00:22:25] would expect that maybe the attorney, if the attorney

[00:22:28] is the person running the fundraiser as opposed

[00:22:31] to the client, that the attorney would provide updates

[00:22:34] or otherwise provide information about how the case is going.

[00:22:39] And one of the things that we discussed in the article

[00:22:41] is that you probably shouldn't do that.

[00:22:45] If you're going to do that, a lawyer absolutely

[00:22:47] needs to get the informed written consent of the client.

[00:22:50] And what that means is that they say to the client,

[00:22:52] look, you're the person who directs the representation.

[00:22:55] It's up to you.

[00:22:56] But if you want me to provide updates about this case,

[00:23:00] you A, have to tell me exactly what you'd like me

[00:23:02] to disclose and what you don't want me to disclose.

[00:23:05] And B, you have to be aware that this will, as Hillary

[00:23:08] was saying, wave attorney-client privilege because it's no

[00:23:11] longer information that's being held within

[00:23:15] the confines of the attorney-client relationship.

[00:23:18] And so generally, our advice would be to not go down

[00:23:22] that road at all and to just not provide any information

[00:23:25] about the representation or what happens in the litigation.

[00:23:29] In terms of the person setting up the fundraiser,

[00:23:32] the crowdfunding page is because of some of those

[00:23:36] confidentiality concerns, is it best for the person

[00:23:41] running this to actually be one or the attorney

[00:23:45] for the beneficiary, for the defendant?

[00:23:48] Or is that a little bit, there's more wiggle room for that?

[00:23:52] I was going to say from an ethical perspective,

[00:23:53] it's much, much more simple to just have the client

[00:23:56] administer their own fundraiser and then use those funds

[00:23:59] to pay the attorney.

[00:24:00] It becomes much more complicated and much more

[00:24:03] rife with ethics issues when you have the lawyer

[00:24:05] administering the fundraiser.

[00:24:08] But you can certainly do it as long as you're very aware

[00:24:11] of what the ethical limitations are.

[00:24:14] And if you do it, you have to have a written fee letter

[00:24:19] that outlines the fees that you'll be collecting.

[00:24:22] You have to have an engagement letter

[00:24:23] that outlines the scope of the representation.

[00:24:26] And in that letter, the client essentially would give

[00:24:31] permission to the attorney to accept those fees,

[00:24:34] because typically a lawyer cannot accept fees

[00:24:36] from anyone other than the client unless the client can sense.

[00:24:40] So that would be one of the many issues

[00:24:42] that you would include in a very well fleshed out

[00:24:44] engagement letter saying, look, I'm going to administer

[00:24:48] this fundraiser on your behalf unless you tell me otherwise.

[00:24:51] I'm not going to provide any information

[00:24:53] about the representation or about your case.

[00:24:55] And in doing so, you're authorizing me to accept

[00:24:58] the money that is collected for your legal fees

[00:25:02] and the expenses that I incur as your attorney.

[00:25:04] And one of the other key things that happens,

[00:25:06] which we may discuss a little bit later,

[00:25:08] is how the money is actually paid out.

[00:25:11] It's very important that the money is separated.

[00:25:14] So it's not as though the lawyer takes all of the money

[00:25:16] and puts that money right into their operating account

[00:25:18] as a profit. It doesn't work like that.

[00:25:20] So what has to happen is that the money is put

[00:25:22] in a trust account for the client.

[00:25:25] And as the attorney incurs expenses either from the court

[00:25:28] or filing fees or just works time that they then

[00:25:32] bill to the client, the lawyer still has to invoice

[00:25:34] the client, but then the lawyer can take the funds

[00:25:38] that are earned or incurred from the client's trust account

[00:25:42] and then put them into the operating account.

[00:25:44] So all of these things are typically things

[00:25:46] that you would have fleshed out in an engagement letter

[00:25:48] so that there is nothing left up to chance

[00:25:52] as far as making sure that the money

[00:25:55] is properly earned by the lawyer.

[00:25:57] That makes a lot of sense.

[00:25:59] And before we talk about what happens with the money,

[00:26:03] I'm kind of just interested in more of the mechanics.

[00:26:07] In the penny case, they used a fundraising source

[00:26:09] called Give Send Go.

[00:26:12] And the Richard Allen case, which is the case we focus

[00:26:15] a lot of time on, they're using a service called Pay It

[00:26:19] and the numeral two.

[00:26:21] So an obvious question is why are people using tiny sites

[00:26:26] like that, which most of us have never heard of

[00:26:29] instead of the big sites like say GoFundMe?

[00:26:32] I was just going to say at kind of a baseline level,

[00:26:35] it seems like there's been kind of this proliferation

[00:26:38] of alternative services, kind of like how now in addition

[00:26:41] to Airbnb, there's now Verbo and couch surfing and whatever.

[00:26:46] And so there tend to be special interest services.

[00:26:49] So for example, GoFundMe to my knowledge

[00:26:51] is not religiously affiliated.

[00:26:53] It's not affiliated with any particular cause,

[00:26:56] whereas the one used in the penny case that you just mentioned,

[00:26:59] I believe that that was a Christian fundraising platform.

[00:27:02] And then I believe that there are other ones

[00:27:03] that are similarly special interest or that have affiliations.

[00:27:09] Absolutely.

[00:27:11] One question that I had is looking at this broadly,

[00:27:15] what are some of the benefits of doing this?

[00:27:18] You know, from a defendant's perspective,

[00:27:19] from a lawyer's perspective, what are some of the opportunities

[00:27:22] and benefits that can come with crowdfunding legal fees like this?

[00:27:29] I think the biggest one is that you can do things

[00:27:31] you wouldn't otherwise be able to do.

[00:27:34] And it opens up all kinds of doors.

[00:27:36] I think one of the primary, so Julian and I in reference

[00:27:40] in doing legal ethics and malpractice work,

[00:27:42] our clients are lawyers almost exclusively.

[00:27:45] And I think one of the biggest complaints that you hear

[00:27:47] from lawyers is that there is more they wish they could do,

[00:27:50] but the client won't pay for them to do it.

[00:27:53] So if you bill by the hour, for example,

[00:27:55] then every hour you spend in an hour

[00:27:56] that the client has to pay for.

[00:27:58] And so there's it would be great

[00:28:00] if we could take three more depositions.

[00:28:02] It would be great if I could write this additional motion in lemonade.

[00:28:05] It would be great if I could.

[00:28:07] And there's lots of other things that the lawyers would want to do.

[00:28:10] But if the client won't pay for you to do it, then,

[00:28:13] you know, at some point you decide what's worth it to do for free

[00:28:16] and what is work you're only going to do for a fee.

[00:28:19] And so I think it allows lawyers to have just greater resources

[00:28:24] to do more things in a defense case if it's a defense case.

[00:28:29] And it opens it up to a whole host of people

[00:28:34] who otherwise wouldn't be aware of what the case is, right?

[00:28:38] So when you're crowdfunding legal fees and, you know, the penny case,

[00:28:41] like these are all these people who have nothing to do with the case

[00:28:44] who are just independently giving giving money

[00:28:47] and allowing there to be additional resources.

[00:28:50] So I think that's that's one of the huge benefits.

[00:28:53] And, you know, defendants are legal fees are expensive

[00:29:00] and you can be a criminal defendant from any walk of life.

[00:29:04] Right? You can be a well off criminal defendant

[00:29:06] who can pay legal fees easily or you can be a criminal defendant

[00:29:09] who doesn't have enough money to pay for her fees,

[00:29:13] which is why I think your question about public defenders is particularly interesting.

[00:29:16] I'd be curious to know the answer about it.

[00:29:19] But my instinct is you'd be

[00:29:21] it would be restricted.

[00:29:23] But those who are eligible to have a public defender

[00:29:27] and then choose to make use of a public defender,

[00:29:30] obviously, public defenders, as we all know,

[00:29:32] are very overworked and resource constrained.

[00:29:37] And so this sort of opens up the opportunity

[00:29:39] for those who don't have a public defender

[00:29:41] and have private representation for their representation to do more.

[00:29:46] And then I think there's another piece of it,

[00:29:48] which is engaging public opinion,

[00:29:51] which is a sort of dicey issue because

[00:29:55] the rule of professional conduct is rule three point six

[00:29:57] and it governs child publicity and says what lawyers can and cannot do

[00:30:02] in the course of representing a client.

[00:30:04] But the overarching idea and philosophy is that lawyers should not be

[00:30:08] in the business of politicizing and publicizing their cases.

[00:30:12] Now, if you look at stuff that's going on right now with Trump,

[00:30:17] there's a lot of that has happened in a sort of a way

[00:30:21] that maybe has not happened before.

[00:30:24] But the rules of professional conduct impose restrictions on lawyers

[00:30:29] about what they can say about ongoing cases with the idea

[00:30:32] that they should not prejudicing the jury, for example.

[00:30:37] You're not supposed to get on TV and say

[00:30:41] things that would impact what a jury would,

[00:30:44] a jury's deliberation of your case.

[00:30:47] But one of the things that crowdfunding does is it sort of gets

[00:30:50] everybody to care about things.

[00:30:52] It gets a larger pool to care about things.

[00:30:54] So it's sort of maybe a way around some of those restrictions,

[00:30:58] because it's not the lawyer saying things that the lawyer is not allowed to say.

[00:31:02] But if you've sort of gotten the would be jury pool

[00:31:05] to be aware of the facts and care about the outcome,

[00:31:09] then perhaps you've gained an advantage you otherwise wouldn't have had.

[00:31:14] Well, you mentioned some of the potential benefits

[00:31:16] of crowdfunding criminal defense.

[00:31:19] Let's ask the obvious follow up question.

[00:31:21] What are some of the potential pitfalls of crowdfunding criminal defense?

[00:31:27] So I can start off with with some and Julian chime in here.

[00:31:29] But I think some is that when people give money,

[00:31:33] often they feel entitled to certain things, right?

[00:31:35] So if you've given money and then the lawyers

[00:31:38] are tight lipped about what's happening, there can be frustration.

[00:31:43] It's also you now have to deal with how you administer this.

[00:31:47] And I'd say that the most common

[00:31:51] rule of violation that that results in a lawyer

[00:31:54] being suspended from the practice of law or being disbarred that I see.

[00:31:59] And so this is, you know, my anecdotal take

[00:32:02] is not properly dealing with client money.

[00:32:07] That is among the things that the bar cares about.

[00:32:10] I'd say that's pretty close to number one.

[00:32:13] And so now you have to deal with money

[00:32:16] in a way that you probably never had before.

[00:32:19] And so the way that it works in Julian had

[00:32:22] mentioned this at the outset is that the money

[00:32:26] doesn't just become the lawyer's money, but and it has to be put into

[00:32:31] trust account in DC.

[00:32:32] It's called an interest bearing trust account.

[00:32:35] And you only get it when you earn it.

[00:32:38] But that raises questions of when have you earned it?

[00:32:41] And what are what fees are reasonable in that circumstance?

[00:32:45] So normally when you invoice a client, depending on how your your arrangement

[00:32:49] works, the client sees in close to real time,

[00:32:53] how much time you're spending on various tests.

[00:32:55] And then you invoice that now it's possible

[00:32:58] if there's this big pool of money and you're doing all kinds of different

[00:33:02] tasks and then, you know, calling on that money as you've earned it.

[00:33:07] That raises additional questions

[00:33:09] and it's not coming directly from the client anymore.

[00:33:11] And so is everything you're doing reasonable

[00:33:13] and the reasonable check often happens

[00:33:16] practically because the client is paying your bills.

[00:33:19] But if now it's this pot of money that has been donated

[00:33:22] and you've had all these disclaimers say once you just donate the money,

[00:33:25] you can't have any say over it.

[00:33:28] Ensuring that what you're doing is consistent with the rules

[00:33:31] and consistent with one point five, which is the rule

[00:33:33] that governs the reasonableness of fees, but also consistent

[00:33:37] with how you have to segregate client money and earn money, which is the one

[00:33:40] point one five rule. And so I think one of the biggest

[00:33:45] drawback is perhaps just the

[00:33:48] the the technical aspects of doing it and managing it

[00:33:53] and making sure that you're compliant because it's this novel way

[00:33:56] of dealing with fees.

[00:33:58] But I'm curious, Julian, if you had anything you wanted to add to that.

[00:34:01] Yeah, yeah, I'd like to touch on the behavioral aspects of it as well,

[00:34:05] which and there's a couple of different points here.

[00:34:07] The first is that the attorney can't charge a higher fee just because

[00:34:10] they have this big pot of money sitting around.

[00:34:13] So they can't say, hey, I usually charge

[00:34:15] $100 an hour, I'm going to now charge 200 because you have all of this money.

[00:34:19] That's number one.

[00:34:20] Number two is that now because the client is not personally responsible

[00:34:25] for paying the invoice for the attorney's services,

[00:34:28] there tends to be a lot less oversight and Hillary touched on this

[00:34:31] that typically you can see in a lawyer's bill how long they spend on each task.

[00:34:36] They they divide it out.

[00:34:38] And here it makes sense if a client receives the invoice,

[00:34:41] but the client's not paying for it.

[00:34:43] They don't really care if the attorney is over billing.

[00:34:45] So I think that that becomes a slippery slope where

[00:34:48] attorneys can take liberties and and charge more than is appropriate

[00:34:53] for certain tasks in order to spend down that money.

[00:34:56] And then one of the other issues you tend to have is when you end up

[00:34:59] with excessive funds from these from these fundraisers.

[00:35:03] And that's something that absolutely can happen.

[00:35:05] I think happens quite often when you have these very

[00:35:08] since a sensationalized cases that get a lot of media attention like the penny case

[00:35:13] where you end up with millions and millions of dollars.

[00:35:16] And in some of these cases, they settle.

[00:35:18] And so the question becomes what happens to those funds?

[00:35:21] And the answer is that the funds belong to the client.

[00:35:24] And so ultimately unless the client directs

[00:35:27] the lawyer to do something else with them, like donate them to a charity,

[00:35:30] they have to go back to the client.

[00:35:33] But other than that,

[00:35:36] things should proceed exactly as they would if the client were paying.

[00:35:40] The lawyer should charge a reasonable fee based on the work that's done.

[00:35:44] The lawyer still should advise the client about what to do

[00:35:49] based on the amount of funds or even if the client is willing to spend

[00:35:52] additional money outside of what was fund raised.

[00:35:56] And whatever money is left over goes back to the client.

[00:36:01] I'd like to follow up and just make sure I understand correctly.

[00:36:05] So hypothetically, if I donate money for the defense of, let's say,

[00:36:11] Charlie Manson and not all of the funds are used for the defense of Charlie Manson.

[00:36:18] Charlie Manson then basically just to keep gets to keep the overage.

[00:36:22] Yes. Yes.

[00:36:24] Unless, of course, the client says, I want you to refund proportionally

[00:36:29] whatever the access funds are to the donors in which case.

[00:36:34] And, and, Hillary, if you wouldn't mind turning in here,

[00:36:36] you know, at that point it would be the client directing the lawyer

[00:36:41] to reimburse the funds.

[00:36:43] And I think at that point with the clients direction,

[00:36:46] the lawyer could then theoretically pay out other parties,

[00:36:49] but you'd have to get informed written consent from the client to do so.

[00:36:53] Yeah, that's right.

[00:36:54] And what you I think often see in these cases is

[00:36:57] and what we advise clients to do is to say where where the excess will go

[00:37:02] so that there's so that all parties are informed.

[00:37:06] And so I just had a case recently where a client set up.

[00:37:10] I spoke to the client's lawyer, but the client ultimately set up a crowdfunding

[00:37:13] source and we recommended clients say anything more than what is needed

[00:37:18] for my defense is going to be donated to this charity so that you

[00:37:22] can kind of avoid that problem.

[00:37:24] Because what you don't want, what the lawyer doesn't want in our perspective

[00:37:27] is we're coming at it from thinking about what the lawyer's liability is,

[00:37:31] is you don't want a bunch of money that was not given to you that you

[00:37:34] somehow have to like figure out what to do with, which is why I think Julian

[00:37:38] was being so clear about this is really the client's money.

[00:37:40] And so that's why it's better if the client is the one who starts it

[00:37:44] and is the owner of the account because figuring out what to do.

[00:37:50] And lawyers deal with this problem.

[00:37:51] They deal with a version of this problem all the time.

[00:37:54] If, for example, they get an advance on fees

[00:37:58] and the case settles or a client passes away

[00:38:03] or they can't locate a party, there's a judgment and they're supposed to give

[00:38:07] something to another party and they can't locate him or her.

[00:38:10] And it just becomes a challenge to do.

[00:38:14] So that's one of the things to keep in mind.

[00:38:17] That makes a lot of sense.

[00:38:19] I know I saw with one high profile case, the Karen Reed case,

[00:38:22] they noted at the bottom of their fundraiser that any excess fees will go to

[00:38:26] the Innocence Project, which seems smart because it's also kind of aligning

[00:38:30] with the cause of saying this is an innocent client.

[00:38:33] Absolutely.

[00:38:35] Dovetails nicely, I think.

[00:38:36] Definitely. And one thing that at least the DC bar has said

[00:38:40] unequivocally is that they really discourage lawyers from over collecting

[00:38:44] in fundraisers.

[00:38:45] They encourage lawyers to cut off the fundraiser once they believe that they've

[00:38:50] gotten sufficient funds and they say outright that

[00:38:53] lawyers do risk putting themselves in a position where they may commit ethical

[00:38:58] violations, if they just continue to fund raise and fundraise needlessly.

[00:39:02] That's seen as an unethical practice.

[00:39:04] So there is very strong encouragement for lawyers to keep close tabs on how

[00:39:10] the fundraiser is progressing and to cut it off as soon as there has been enough

[00:39:14] raised.

[00:39:15] And one thing I should have mentioned earlier when you were asking me why a

[00:39:19] client would choose a particular crowdfunding platform over another is

[00:39:25] when you're talking about these very highly politicized cases that implicate

[00:39:30] very important issues, I think people also want to get visibility within

[00:39:35] those specific communities.

[00:39:37] So for example, in this particular case, they chose a Christian platform.

[00:39:42] But there was nothing inherently religious about this case.

[00:39:45] But there was some measure of evaluation between the client and the lawyers

[00:39:50] where they thought, OK, if we posted on a platform that has this particular

[00:39:55] leaning, we're going to get we're likely going to get a larger

[00:39:59] contingency of donors than we would otherwise.

[00:40:02] And so I think that that absolutely is the result of a conversation in which

[00:40:06] there is some maybe even some artificial politicization of the issues in order

[00:40:11] to garner more funds than you would ordinarily.

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[00:43:08] Absolutely.

[00:43:09] One thing I was curious about and you mentioned just now about like cutting it

[00:43:13] off at some point and I guess in many traditional fundraisers, you do say, OK,

[00:43:17] we've almost met our goal of 10,000. Let's go for 20.

[00:43:21] That's pretty common within fundraising in general.

[00:43:23] You know, like if you're doing well, you know, keep keep playing your winning hand.

[00:43:28] But is that allowed?

[00:43:31] Is that is that OK within reason within some of these legal campaigns or is that

[00:43:36] really more frowned upon or is it is a bit nuanced depending on the situation?

[00:43:41] I guess.

[00:43:44] I guess it's very nuanced.

[00:43:47] There's no at least from what I've seen, there's no particular number or

[00:43:52] percentage or cutoff above which you're going to find yourself facing ethical

[00:43:58] violations or you're going to find yourself in a situation with the bar.

[00:44:03] Yeah, so I think it's very nuanced.

[00:44:05] And it's also just really hard to predict how much things are going to cost, right?

[00:44:09] Like there's huge variation about how expensive we don't know if

[00:44:15] the client is going to take a plea deal.

[00:44:16] We don't know if the case is going to go through to a verdict and then be

[00:44:20] appealed. And so there's a there's a big buffer, I would say, in terms of what

[00:44:26] counts as reasonable, but leaving it open in perpetuity and raising 20 million

[00:44:32] dollars for the defense of a manslaughter case not reasonable, right?

[00:44:37] But like what's the difference?

[00:44:39] Where does what is the line where 20 million becomes unreasonable?

[00:44:43] Is it is 10 million is 5 million is 1 million?

[00:44:48] Penny raised 1.5 million that I've seen defense cases that cost that and that

[00:44:54] that is an amount of money that could could be reasonable to defend a case

[00:44:59] depending on the complexity and how long it the case goes on for.

[00:45:03] So very fact dependent.

[00:45:06] And the thing about what the rules of professional conduct do.

[00:45:10] And when I was mentioning about us being sort of being a self-regulating

[00:45:13] profession is there's a fair amount of discretion and the standard is

[00:45:19] is for most of the violations of the rules of professional conduct deal with a

[00:45:23] reasonable person standard, right?

[00:45:25] Some of them are more strict liability if you,

[00:45:28] for example, co-mingle client money in DC at least.

[00:45:33] There's not a mens rea state of mind defense.

[00:45:38] If you co-mingle client money, you are going to have a problem most likely in DC.

[00:45:45] And other jurisdictions are a little bit more lenient about that.

[00:45:49] But lots of rules of professional conduct, a violation of them is what a reasonable

[00:45:54] person under the circumstances have done X, Y or Z.

[00:45:57] And that that's a discretionary call in large part on the part of bar

[00:46:03] counsel who decides whether or not to charge these violations.

[00:46:07] And then ultimately the tribunal hears them, which is usually a hearing committee.

[00:46:13] And then a hearing committee makes a recommendation and then you have a board

[00:46:16] of professional responsibility that makes a recommendation and then you have

[00:46:19] the court of appeals. So you've got lots of people in this chain all saying,

[00:46:23] was this a reasonable call for you to have made?

[00:46:28] And one thing I was curious about, we talked a little bit about this so far,

[00:46:34] but just in terms of handling the money once it's been given from the donors to

[00:46:38] this platform, what are some other best practices and

[00:46:43] I guess means of doing this in order to ensure that a lawyer is handling

[00:46:47] some of these funds in a way that does not breach any ethical guidelines.

[00:46:52] So I'd say the biggest thing is what Julian mentioned,

[00:46:54] which is you want to put everything into a trust account.

[00:46:57] And so all lawyers need to have an operating account, which is just your

[00:47:01] account as a lawyer. So if you're it can be if you're at a big firm or if you're

[00:47:05] a solo practitioner, you need two accounts.

[00:47:07] You need one account that is I've earned this money and these are my profits

[00:47:11] and I can spend them as I wish.

[00:47:13] And then there's the trust account, which for every client that you have,

[00:47:16] you need to have it needs to have its own separate space that is not

[00:47:21] accessible for the lawyer to spend until that money is earned.

[00:47:24] So step one for sort of dealing with this money is to put everything into a trust

[00:47:29] account until you've actually incurred legal fees.

[00:47:32] I think best practices include being very clear about what you're doing,

[00:47:37] how you're spending your time, how much certain things are costing

[00:47:41] so that the client is aware of it as well.

[00:47:43] Because as Julian mentioned, to get aid for legal fees by somebody other

[00:47:48] than the client, you need to get consent from the client

[00:47:52] and part of the reason that the rules require that is that

[00:47:57] that the rules contemplate a circumstance in which if somebody else other than

[00:48:01] the client is paying for the fees, that person will have an influence on the

[00:48:05] representation and the representation, the courts of the representation should

[00:48:09] only be governed by the client and his or her lawyer.

[00:48:13] So you want to make sure that it's clear to the client how money is being

[00:48:17] spent and what it's being spent on.

[00:48:19] And ultimately the client gets to say, yes, this is reasonable

[00:48:23] or no, I don't want to do it.

[00:48:25] And just the fact that you've gotten crowdfunded sources doesn't mean that

[00:48:28] the lawyer has caught a par of blanched to make all the calls.

[00:48:31] Right? It's still because it's viewed as Julian mentioned is really it's

[00:48:34] the client's money.

[00:48:35] Just the client has gotten the money in an unusual way,

[00:48:38] but it's supposed to be viewed as the client's money.

[00:48:41] So the client can make the call, but certain things are not where they

[00:48:45] want the funds to go.

[00:48:46] And we're sort of talking about this in the circumstance

[00:48:48] where there's excess, but lots of crowdfunding campaigns have, you know,

[00:48:53] get a few thousand dollars. Right?

[00:48:54] And so you're not being able to do everything and you have to make calls

[00:48:58] as you do in most cases about what's worthwhile and what's not worthwhile.

[00:49:02] And so it's making sure that the client is the one that's making those decisions.

[00:49:06] And I think to add to that, you bring up an important point, Hilary,

[00:49:09] which is that in most of these instances, you're not collecting enough

[00:49:12] money to cover all of the legal expenses.

[00:49:15] So in those cases, it's very, very important to make sure that you

[00:49:18] have an engagement letter that sets out all of the terms.

[00:49:21] So for example, what happens to the excess?

[00:49:24] What happens if there's not enough money in the crowd source?

[00:49:27] Does the client pay? Does someone else pay?

[00:49:29] If someone else pays, is the client providing informed consent for the lawyer

[00:49:33] to accept that person's money to pay the legal fees?

[00:49:37] And I would emphasize in general just putting everything in writing,

[00:49:42] even the draft language for the crowd fund.

[00:49:47] So for example, if the attorney is going to include just three or four sentences

[00:49:52] of this is the case or crowd funding for legal fees and expenses,

[00:49:57] you want the client to approve that language.

[00:49:59] You want to include the hourly rate that you're going to be charging.

[00:50:03] Or if it's a contingency fee, you want to outline what that will be.

[00:50:07] You want to outline the fact that the client will be receiving invoices

[00:50:11] that outline the charges, even though the money will be taken from the client

[00:50:15] trust account.

[00:50:16] You want to outline every single possible aspect of this arrangement and try

[00:50:22] to consider every possible thing that could possibly go wrong or be disputed

[00:50:27] later on.

[00:50:29] That makes a lot of sense.

[00:50:31] Better to have some anxiety up front than to be dealing with something bad

[00:50:34] happening down the record.

[00:50:37] Especially because you don't want to end up in a position where,

[00:50:39] let's say you run out of money from the

[00:50:43] fundraiser and then as a lawyer, you have an obligation to your client.

[00:50:48] You can't just say, well, I'm just going to step out of your case now.

[00:50:51] You ran out of money.

[00:50:53] You have to anticipate the fact that someone's going to have to continue

[00:50:56] to pay and you're going to have to continue to provide representation

[00:50:59] to the client.

[00:51:00] And so you want to figure out ahead of time who's going to be

[00:51:02] the responsible party at that point.

[00:51:05] That makes sense.

[00:51:06] I'm curious.

[00:51:07] It sounds like you both in your practice and with your sort of public

[00:51:10] outreach, doing a great job of kind of guiding lawyers through what can be

[00:51:14] a bit tricky, but certainly a promising avenue to go down.

[00:51:18] Is there any wider movement that you see of some of this becoming even more

[00:51:23] codified or more rules being put in place in terms of just guiding folks so

[00:51:27] that they're not making ethical mistakes or violating ethical boundaries,

[00:51:32] but also getting the benefits of being able to have more freedom to put on

[00:51:36] the defense or whatever they want to do in terms of representing their clients?

[00:51:42] I think that you very

[00:51:44] might see other jurisdictions issuing their own bar opinions.

[00:51:48] As I mentioned, there's one in 2015, one in 2018.

[00:51:51] And so I think other jurisdictions might might weigh in and say,

[00:51:54] here's here's a clear road map.

[00:51:57] But the rules, there's not a lot of,

[00:52:01] I think, ambiguity about what the rules say on these points.

[00:52:05] It's really just looking at the rules in this new context.

[00:52:10] But I think you could you could absolutely see bar association saying,

[00:52:13] you know, we're seeing this happen more and we'd like a single place where all

[00:52:16] of the rules implicated are talked about and are clarified so that

[00:52:21] people can do this in a way that is compliant and they don't have to

[00:52:25] have to be worried because there's lots of worthy causes that could really

[00:52:29] benefit from crowdfunding legal fees and perhaps

[00:52:33] lawyers are hesitant to do it because they don't want to run into some kind of

[00:52:38] some kind of trap for the unwary.

[00:52:43] I also wonder if in the future there are going to be specific platforms geared

[00:52:48] towards legal representation, crowdfunding that would make a lot of sense.

[00:52:53] And it seems like there may be a bit of a hole in the market for that particular service.

[00:53:00] Yeah, I concur.

[00:53:02] I could see that being beneficial and being a space for not only individual cases

[00:53:07] because I do understand why some people are uncomfortable when it's a very

[00:53:11] politicized case and people are throwing money at their favorite cause.

[00:53:15] But I can also see it being really good for public defenders'

[00:53:18] offices to be getting a general funding boost from that

[00:53:24] because we know that that can be underfunded in some cases or that could be helpful.

[00:53:28] So I could almost see it kind of functioning, a site like that,

[00:53:31] functioning on a few different positive levels.

[00:53:35] Yeah, absolutely.

[00:53:38] Um, I suppose this has been wonderful.

[00:53:40] Thank you so much.

[00:53:41] Yeah. Is there anything we didn't ask you about

[00:53:44] that you wanted to mention or you think it's important for folks to understand

[00:53:48] this issue or anything you just wanted to emphasize to sort of close out?

[00:53:53] There's nothing I can think of, Julie,

[00:53:55] and anything that you think we didn't touch on.

[00:53:57] Yeah, maybe the one thing that kind of underlies all of this is the idea that a

[00:54:02] lawyer has to be independent in their professional judgment and that anything

[00:54:07] that happens over the course of fundraising for a client or collecting money

[00:54:11] that would threaten that independent judgment is something that just simply

[00:54:16] can't happen at least under every single jurisdiction's rules and ethics opinions.

[00:54:22] And so, for example, if you have a situation where

[00:54:25] a lawyer becomes aware that a donor's interests are

[00:54:31] are divulging from the client's interests or you have a donor that's making things

[00:54:36] difficult or in some way impeding your ability to represent the client.

[00:54:41] That's a situation where the lawyer has to look within and evaluate whether

[00:54:45] they can continue to provide the representation and whether they're able

[00:54:48] to do so in an uncomflected way.

[00:54:51] And so, in that situation, the decision may be to no longer use the crowdfunded

[00:54:56] money in some situations if it's incredibly severe, you may have a situation

[00:55:00] where the attorney even has to withdraw from the representation if there's a

[00:55:04] large enough conflict of interest.

[00:55:06] So essentially, I just emphasizing the importance

[00:55:09] of independent professional judgment here.

[00:55:13] Wonderful. Well, Julian and Hillary,

[00:55:15] both in wonderful gasses has been incredibly insightful and we just

[00:55:18] appreciate your expertise and you sharing your time with us.

[00:55:21] Of course, well, thank you so much for having us on.

[00:55:24] Thank you so much to Hillary and Julian.

[00:55:28] I think before we go into the specifics about the Richard Allen case,

[00:55:34] why don't we have some general thoughts about crowdfunding and legal defense?

[00:55:39] Yeah. So, I mean, I think we heard from our two excellent experts that

[00:55:43] as long as best practices are followed and an eye for confidentiality

[00:55:48] is maintained, crowdfunding defense can actually be a great tool in an attorney's

[00:55:53] arsenal. And I would say that that being said, there seem to be some unusual facets

[00:55:59] about how crowdfunding is being deployed here in the Delphi case.

[00:56:03] It seems odd that another attorney who is not directly representing Richard

[00:56:07] Allen is being left in charge of these funds.

[00:56:10] And the status of Bradley Rosie and Andrew Baldwin as public defenders

[00:56:15] in the case does raise some questions because they're being funded by the state

[00:56:20] to do this. In addition to that, one thing that seems very clear from some

[00:56:25] of the documents is that it is not clear at this time what exactly the judge

[00:56:31] has rejected in terms of funding the experts.

[00:56:35] More importantly, and we discussed this in a few minutes,

[00:56:38] it's not clear why she has rejected it.

[00:56:41] Is it for substance reasons or process reasons?

[00:56:45] We're talking more about that later. I'm sorry to jump in there.

[00:56:47] No, we'll jump in with that coming up.

[00:56:50] But for now, let's also talk about the overall landscape of crowdfunding defense.

[00:56:55] So I think probably the biggest crowdfunding website that people know about is,

[00:56:59] of course, GoFundMe.

[00:57:01] They do not allow criminal defense

[00:57:03] fundraising for violent crimes except in the case of people who have been

[00:57:07] exonerated.

[00:57:08] So in other words, if you've been accused of a crime and you've gone

[00:57:12] on trial and been found not guilty, GoFundMe doesn't have a problem with you

[00:57:17] fundraising to help pay for some of your legal expenses.

[00:57:20] But if you're currently accused of a violent crime,

[00:57:24] GoFundMe is a company has made the decision they do not want to be

[00:57:28] associated with raising funds for your criminal defense.

[00:57:33] Yes, some very misleading statements have been put out there by people in

[00:57:36] connection with the Delphi case noting that GoFundMe is used frequently for

[00:57:40] legal fees, but the stats they're citing have to do with civil legal fees,

[00:57:44] civil legal fundraising, not violent crimes.

[00:57:48] So this is a controversial issue.

[00:57:50] This is not something that is necessarily looked upon lightly by both companies

[00:57:56] and victims, advocates and attorneys.

[00:57:58] It's it's a new thing.

[00:58:00] So I think people are kind of still in the process of figuring out what's

[00:58:03] appropriate, what's not appropriate.

[00:58:05] How do we do this in a way that is fair to defendants,

[00:58:08] but also doesn't look terrible that you're raising funds for violent criminals?

[00:58:13] So one thing that we found was very interesting is where exactly Richard

[00:58:18] Allen's fundraiser is occurring is on a site called PayIt2.

[00:58:23] It's numeral 2 and it's a small business based in Michigan owned by

[00:58:28] a parent company seemingly called PayItSquare.

[00:58:31] And we believe that it looks like the Delphi team

[00:58:35] gravitated to the site because they actually have a history of having

[00:58:40] somewhat contentious cases on there.

[00:58:41] More specifically, they've they've hosted a fundraiser for Karen Reed and put

[00:58:47] a pin in that because we will come back to that in a few minutes.

[00:58:50] Yes, we reached out to PayIt2 to get a statement from them about what's

[00:58:55] allowed, does this coincide or does this align with their,

[00:59:00] I guess, values and policies?

[00:59:03] And they gave us a few statements in response to our questions.

[00:59:06] So we're going to just read that here.

[00:59:08] Quote, at PayIt2, we uphold everyone's constitutional rights to a fair trial,

[00:59:14] allowing the lawyers to provide the additional expert testimony for the

[00:59:18] defense prevents the defense from allowing a future mistrial appeal or

[00:59:21] allegation based on error and proceedings.

[00:59:24] To be clear, identity verification and additional document retrieval is in

[00:59:29] progress to verify the experts and claims of the lawyer.

[00:59:33] Currently, the organizer is unable to receive payouts.

[00:59:36] So if there are any issues, once documentation has been received,

[00:59:39] further action will be taken to refund the donations.

[00:59:42] Thank you for your understanding.

[00:59:44] So that's a bunch of word salad.

[00:59:46] Yeah.

[00:59:46] And if I understood that correctly,

[00:59:49] he seems to be suggesting there that allowing

[00:59:53] fundraisers for criminal defendants is some sort of clever 3D

[00:59:58] chess to box defendants in so they wouldn't later have the option for an appeal.

[01:00:03] Is that the way you read it?

[01:00:04] It's a bizarre statement.

[01:00:06] It strikes me as a very, very defensive statement thinking that,

[01:00:09] you know, they're going to be criticized for

[01:00:12] holding fundraisers for accused murderers.

[01:00:14] So they're trying to get ahead by that thing.

[01:00:15] You know, no, we're on your side.

[01:00:16] We're going to I just think it's odd.

[01:00:18] I think if you're going to fund, if you are going to have this be allowed,

[01:00:22] just have it be allowed.

[01:00:24] You don't being so defensive about it just strikes me as very strange.

[01:00:27] And I don't know why a random company in Michigan is concerned about, you know,

[01:00:32] ensuring that there are no appeals.

[01:00:34] If there's going to need to be appeals, there's going to be appeals.

[01:00:37] I don't I don't know.

[01:00:38] It's weird.

[01:00:39] And then you wrote back.

[01:00:40] Well, let me just say this stuff at the end there.

[01:00:42] We I asked because at that point there had been some indication that David

[01:00:46] Hennessy, the author of the fundraiser was not receiving funds that seems

[01:00:50] to have been taken care of, but I was asking about like,

[01:00:53] why are they not getting funds for this?

[01:00:54] What's going on with that?

[01:00:55] So I wrote back with a few follow up questions and he responds, quote,

[01:01:01] at pay it to we are in full support of the United States justice system

[01:01:04] and every citizen's constitutional rights.

[01:01:06] We do not have any opinions on the case, nor do we have access to the details

[01:01:10] of the case. Therefore, we will rely on our justice system to ensure

[01:01:13] that the correct person, parentheses S, are dealt with accordingly.

[01:01:17] So that's they don't have access to the details of the case.

[01:01:21] And of course, anyone with internet access has access to the details of the case.

[01:01:26] I've had Hillary and Julian made a really good point where like,

[01:01:29] I think we need if we're going to do this a site to arise that is

[01:01:34] is legal focused in terms of crowdfunding, like that has the ability

[01:01:37] to kind of like think through some of these things.

[01:01:41] Because yeah, some of these responses just raise more questions.

[01:01:44] Frankly, they just seem very, very defensive.

[01:01:47] And I guess I would have expected like a tech company to just be more of like,

[01:01:52] well, it's not against our rules, so it's allowed.

[01:01:53] You know, that would have been normal to me, I guess.

[01:01:57] But they're like trying to get ahead of something, I guess.

[01:02:00] So now I think we can jump into now that we've covered sort of the

[01:02:06] platform for this crowdfunding, maybe we can go into some of the reasons

[01:02:10] that have been given behind the crowdfunding.

[01:02:12] The defense had a filing on, I believe,

[01:02:17] they have the hearing March 17th, yeah, March 17th or March 18th,

[01:02:20] somewhere around there where they discuss their complaints about expert funding.

[01:02:26] And even before we get into this at the time, the crowd funder

[01:02:31] was initiated at the time the crowdfunding campaign began,

[01:02:36] the judge had not ruled on this.

[01:02:38] So they were saying,

[01:02:41] they were basically saying we need funds because she's not giving us funds at a time

[01:02:46] when she hadn't even made a ruling.

[01:02:48] So the crowdfunding was mostly a preemptive strike.

[01:02:51] Yeah, that's a kind way of putting it.

[01:02:54] Why don't we start reading some excerpts from their filing where

[01:02:59] they're discussing the situation as they see it?

[01:03:02] Yes, as they see it.

[01:03:04] And we should note that we're going to just kind of read through some of these.

[01:03:07] They're not all next to each other within the filing.

[01:03:10] They're just we'll jump in and try to interpret some of it.

[01:03:13] Yeah, exactly.

[01:03:14] Why should we read the first excerpt?

[01:03:15] Sure. So quote on February 24th, 2024,

[01:03:19] Defense Council filed a verified ex parte motion for a hearing on funding for experts.

[01:03:24] The eight page motion contained requests for funding for the services of several

[01:03:27] experts and assistance councils council identified as necessary to prepare

[01:03:32] Allen's defense in an order dated March 7th, 2024.

[01:03:36] This court granted some of the funding requests but denied others.

[01:03:39] The order is not noted on the CCS.

[01:03:41] So right there, there's an indication that

[01:03:45] Judge Goal is not just unilaterally rejecting all funding requests for experts.

[01:03:51] Yes. And it's not clear.

[01:03:53] We are hearing about experts and we're hearing about assistance.

[01:03:56] It's not clear what any like there's no further details about what any of this is.

[01:04:02] And so when I see people talking online about how she's rejected all their experts

[01:04:06] or won't give them any funding for anything, that's simply not true.

[01:04:10] That's a that's a boiled down talking point that's being used to justify some

[01:04:15] of this, in my opinion.

[01:04:16] Yes. And it doesn't reflect what the defense actually wrote in their

[01:04:20] file in their own filing.

[01:04:21] Why don't you read the next excerpt we wanted to discuss?

[01:04:24] Quote, Defense Council requested

[01:04:27] funding for additional in office assistance services.

[01:04:30] The state has enlisted help from at least two other prosecutors,

[01:04:33] as well as an untold number of law enforcement officers and their support

[01:04:37] staff, as well as the prosecutor's support staff.

[01:04:39] In February 2023, the Carroll County prosecutor obtained funding to hire

[01:04:44] a full time investigator, a full time secretary and a special prosecutor,

[01:04:48] all for this case and raises for himself, his current secretary and his

[01:04:53] chief deputy prosecutor, given the additional hours they were working on

[01:04:57] this case, he told his County Council that his office was drowning right now

[01:05:01] and needed some more people to work on this case.

[01:05:03] Recognizing the uniqueness of this case,

[01:05:05] Carroll County appropriated an additional two two point one million dollars

[01:05:10] in funding for Allen's case.

[01:05:12] That's interesting.

[01:05:14] I think it's also worth noting

[01:05:17] that after this filing, the defense requested that an additional lawyer

[01:05:22] be added to their team.

[01:05:24] Yes. Jennifer Oje,

[01:05:25] she's an attorney and she.

[01:05:28] That was approved.

[01:05:29] That was approved.

[01:05:29] So she will be able to that they will fund that.

[01:05:33] I believe the filing said that she can file invoices and they will accept that.

[01:05:37] So you just said something there.

[01:05:40] They're going to be important later in filing invoices filing invoices.

[01:05:44] Well, I just I think it's important to note that, you know, again,

[01:05:48] whatever is being touted out there as some sort of unilateral black

[01:05:53] and white issue is actually more nuanced.

[01:05:55] Yeah, I want to read a quote from this filing and then talk about it.

[01:06:00] Quote, the court has denied all requests for anticipated expenses

[01:06:06] and costs that have not yet been incurred in quote.

[01:06:10] So that really gets to the heart of this.

[01:06:13] It is not clear to me if Judge Gohl has been denying expert requests

[01:06:18] because she doesn't believe those experts are needed

[01:06:22] or if she has been denying those requests because they're not being filed

[01:06:28] in the appropriate procedural way.

[01:06:31] In other words, they seem to be asking for the right for

[01:06:36] to have expenses approved in advance while Judge Gohl seems to want

[01:06:42] to require the use of invoices.

[01:06:45] I don't know about you and I'm speaking to you to you, the listener.

[01:06:51] But I have had some unfortunate experiences in my life when I've been in car accidents.

[01:06:56] And when this has occurred, my insurance companies don't just say, oh,

[01:07:01] how much Kevin do you think you need to fix the car?

[01:07:04] And I then don't just pull a number out of the air and they give me a check.

[01:07:09] What happens is I go to a mechanic, maybe two mechanics and the mechanics look

[01:07:16] at the car, figure out the damage to the car,

[01:07:19] figure out what needs to be done to fix it, how much it would cost to repair it

[01:07:24] and then prepare a detailed invoice, which I then provide to my insurance company.

[01:07:30] And then the insurance company pays it.

[01:07:32] And it sounds like that seems to be something similar to what's happening here.

[01:07:38] Judge Gohl wants a detailed invoice so she knows exactly what she's paying

[01:07:43] for before she cuts a check.

[01:07:45] And the defense attorney seemed to want instead just the right to say, well,

[01:07:50] we need a hundred thousand dollars or fifty thousand dollars or whatever number they

[01:07:54] pull out of the air and then have her just write the check and trust them

[01:07:58] that it would be used for appropriate services.

[01:08:01] Yeah.

[01:08:01] And I feel like at this point in a case like this where there's obviously

[01:08:05] been so much trust loss that that seems like a

[01:08:09] rather bold move on their part, frankly.

[01:08:12] I don't even know if it's an issue of trust loss.

[01:08:14] It just seems that's the way there's a process in place and follow the process,

[01:08:19] frankly. And I don't know.

[01:08:20] It's possible that she preemptively excluded or said, I'm not going to fund

[01:08:24] some of these experts based on I don't think that this is relevant or this is

[01:08:29] it, you know, in which case some of their arguments about getting crowd funding

[01:08:33] for experts might make sense.

[01:08:35] We don't have an ability to know that, though.

[01:08:37] If this is simply like I'm not going to preemptively fund some

[01:08:41] private investigator that you want to bring in,

[01:08:44] then that's a completely different issue because then they could feasibly get the

[01:08:48] funding. They just have to follow the process.

[01:08:50] And let me just also say this, I feel again like this is why when you have

[01:08:57] people who are frankly just spinning for one side, getting out and talking about

[01:09:02] this and essentially acting like it's an either or zero sum game,

[01:09:06] they're not getting experts or they're getting experts.

[01:09:08] They're completely minimizing what the defense themselves are saying.

[01:09:12] Yeah, I want to read another quote here.

[01:09:15] By refusing to pay the necessary expected expenses and by requiring invoices

[01:09:21] before paying for the limited services the court were potentially pay,

[01:09:24] this court has put the defense at an unfair disadvantage.

[01:09:29] So again, their complaint is where it seems to be

[01:09:33] she's not paying things in advance.

[01:09:36] She's not paying expected expenses in advance.

[01:09:41] She's requiring invoices.

[01:09:43] And so maybe it would be more accurate if the fundraiser had been less about

[01:09:49] constitutional rights and more about the rights of lawyers not to pay invoices

[01:09:54] or preparing voices.

[01:09:55] Yeah, it's yeah.

[01:09:58] And I kind of just say like I think there might be, you know,

[01:10:01] like we're heading towards a speedy trial in May.

[01:10:04] And so I feel like some of the tenor of their filing is like, well,

[01:10:08] we don't want to have to like just pay for it ourselves and then find out

[01:10:11] we're not going to get invoiced because we need this stuff quickly.

[01:10:13] But guess who asked for the speedy trial?

[01:10:16] OK, if they're having to rush through anything at this point,

[01:10:19] then perhaps May is not realistic and perhaps it was never realistic.

[01:10:24] And perhaps that's not in the best interest of their client if they're

[01:10:27] basically having to slap a dash things.

[01:10:30] Right.

[01:10:31] I mean, like that that is a that is a deadline that they themselves are

[01:10:35] imposing at this time.

[01:10:37] And exactly.

[01:10:38] A lot of people have noted that it's very unrealistic, but at the same time,

[01:10:43] they did that to themselves if there if this is all about basically like rushing

[01:10:47] through stuff and not wanting.

[01:10:48] I don't have time to file the invoices.

[01:10:50] Just tell me I have the money.

[01:10:52] Well, again, that's on them.

[01:10:55] Here is another quote from this document.

[01:10:57] The court stated that it would reimburse for criminal investigative services

[01:11:01] as long as a proper invoice was submitted.

[01:11:04] So again, I'm just wondering how much of this is just about invoices.

[01:11:08] Yeah, I mean,

[01:11:10] we can't know because as I said, it's possible that she

[01:11:12] substantively rejected some of their their experts.

[01:11:16] We can't know that from these documents, but people who are assuming

[01:11:19] that that must be the case also don't know.

[01:11:22] We don't know.

[01:11:23] And frankly, there's an awful lot of invoicing in this document.

[01:11:27] And there's not a lot of talk about substantive

[01:11:29] rejection of experts unilaterally.

[01:11:33] Quote, the appointment of experts for indigent defendants is left to the trial

[01:11:38] court's discretion.

[01:11:40] The trial court is not required to approve payment for any expert that

[01:11:44] the defendant might find helpful.

[01:11:46] The defendant bears the burden of demonstrating the need for the appointment

[01:11:50] with the central inquiry being whether the services are necessary to ensure

[01:11:54] an adequate defense.

[01:11:56] So that acknowledges that.

[01:12:01] Judge Goh has a discretion here.

[01:12:03] She does have discretion.

[01:12:04] They can't just I mean, again, I've used a silly example.

[01:12:06] There's no way they're doing this.

[01:12:07] But like if they said we need to bring in a psychic who can tell us that

[01:12:10] Richard Allen wasn't at the bridge that day, she does not have to approve that.

[01:12:14] But, you know, one would think that any any substantive, you know,

[01:12:19] somebody who can speak to critical things like DNA or confessions would be

[01:12:23] approved of potentially as long as they had the bona fides.

[01:12:27] But I we just don't know what is going on here.

[01:12:31] And I don't understand why people are just running with this narrative that

[01:12:36] it has to be that she's preemptively denying people because she's biased

[01:12:41] as opposed to there's some sort of process issue that seems to be

[01:12:45] cropping up between these two groups.

[01:12:49] So with that said, this crowdfunding effort was set up.

[01:12:53] The person placed in charge of it was David Hennessey.

[01:12:57] And that is surprising for numerous reasons.

[01:13:02] Number one is probably the fact that he technically represents

[01:13:07] attorneys Rosie and Baldwin, he doesn't represent Richard Allen.

[01:13:10] So that makes him an odd choice.

[01:13:13] And another reason he is an odd choice, and I will phrase this

[01:13:17] as delicately as I can.

[01:13:20] It's an odd choice to put him in charge of something so important

[01:13:24] because his recent performance has not been what I would characterize as impressive.

[01:13:31] And certainly some of the early stages of this fundraiser also seem to be

[01:13:39] troubled like the address of his office that he provided in the fundraiser

[01:13:45] didn't match the Google address.

[01:13:47] The initial version of the tax had some incorrect information about Richard Allen.

[01:13:53] And in fact, the tax underwent several revisions.

[01:13:59] Yeah, doesn't exactly look good.

[01:14:01] And then we mentioned earlier that we'd come back to the Karen Reed matter.

[01:14:07] Do you want to explain that?

[01:14:08] So Karen Reed is facing accusations of murder.

[01:14:12] This is a very contentious case.

[01:14:14] It's not one that we're particularly familiar with.

[01:14:16] So it's just we're bringing it up because it's also high profile, also contentious.

[01:14:20] Also has a fundraiser on Payette, too, which I should note, appears to be run

[01:14:25] by one of her lawyers.

[01:14:27] So that already makes sense.

[01:14:30] But let's look at the text of the Karen Reed fundraiser.

[01:14:36] Quote, Karen has been wrongfully accused of John's murder, but is

[01:14:39] investing everything she has to fight for her freedom and for justice for John.

[01:14:43] Quote. OK. So that's, you know.

[01:14:45] When she read it from the original version of this Hennessy fundraiser,

[01:14:49] Richard has been wrongfully accused of Abby and Libby's murders,

[01:14:52] but is investing everything he has to fight for his freedom and for justice

[01:14:56] for both victims of this heinous crime.

[01:14:58] So basically they're plagiarizing Karen Reed plagiarize the text of it on the

[01:15:02] fund, which is just OK.

[01:15:04] I mean, like interesting.

[01:15:06] But let me just also note that investing everything he has, he has public defenders.

[01:15:12] So I don't even know what, like, I mean, maybe emotionally, I don't know.

[01:15:15] It just.

[01:15:17] It just laziness, frankly, it looks like laziness on the part of whoever set this up

[01:15:21] to be just basically cribbing language from another fundraiser fundraiser that

[01:15:24] you're trying to emulate, obviously.

[01:15:26] And they say we need twenty five thousand dollars.

[01:15:28] They didn't explain what exactly that money was for or how that figure was

[01:15:32] arrived at and then by an amazing coincidence, as soon as they get close

[01:15:36] to that number, they say, oh, actually we need forty five thousand.

[01:15:40] Yeah, it doesn't seem like they came in into this with any sort of specific.

[01:15:43] You would think that if Judge Gold was denying specific

[01:15:48] substantive witnesses or expert witnesses that they would have some kind of ball

[01:15:53] park of like, well, we would need like thirty K to cover that.

[01:15:56] But nope, they're just going to keep cranking it up.

[01:15:59] Yeah, I.

[01:16:02] It's interesting.

[01:16:04] And I'm confused about how it works is like David Hennessy going to get this

[01:16:09] money and then cut checks to Baldwin and Rosie, or is he going to pay for these

[01:16:14] experts from the fund directly?

[01:16:17] I don't understand this because his role in this has been to defend them

[01:16:22] from contempt charges.

[01:16:24] So it's not like this is a situation where you're like, OK, I can understand

[01:16:28] how this rolls into that, how defending them from contempt also rolls into

[01:16:33] being the manager of some financial enterprise here.

[01:16:38] I don't understand.

[01:16:40] I don't understand why he's in charge of this and not them.

[01:16:43] Also, I feel like maybe he wants to help them out, but why not just set it up for

[01:16:48] them and put their names on it and put like a trust fund that they have under it?

[01:16:53] I just I don't get it.

[01:16:54] It was so poorly set up and organized that a number of people who were

[01:17:01] sincerely interested in donating were concerned that the whole thing might

[01:17:05] be a scam.

[01:17:07] And so because of that, David Hennessy actually had to go on YouTube

[01:17:11] and do an interview saying, no, it's not a scam.

[01:17:15] And that interview itself was in my judgment bizarre because at one point

[01:17:20] in the interview, he starts alluding to

[01:17:25] state witnesses that are coming up in the case.

[01:17:28] Yeah, he's noting that I'm not breaking any gag order because I'm not talking

[01:17:32] about any facts of the case.

[01:17:33] But here are the state witnesses who are going to come up.

[01:17:35] He doesn't give their names, but he tells, you know, what what kind of experts they

[01:17:40] are that certainly seems like a violation of the gag order.

[01:17:45] Even if it isn't, it seems like it raises some questions.

[01:17:49] In the same interview, he compares Judge Gold to Gollum.

[01:17:53] Is that how you pronounce it?

[01:17:54] Gollum, I guess, from the Lord of the Rings.

[01:17:57] And I certainly I understand that if you're in a bubble

[01:18:01] where you are surrounded by people who think exactly as you do,

[01:18:05] maybe things like that might play well.

[01:18:08] But I think to an outside audience using that sort of othering language

[01:18:14] about the judge in the case doesn't play well.

[01:18:17] Certainly we've criticized the judge for things that we don't agree with

[01:18:21] that she did, but that sort of language is strange, especially since

[01:18:26] this is a judge in a case he's currently involved with.

[01:18:29] Yeah, it's it's it's bizarre.

[01:18:32] I don't understand it.

[01:18:33] It just seems like all in very poor taste and unprofessional from my perspective.

[01:18:38] Comparing the judge to some sort of like subhuman entity who's

[01:18:43] I just OK, I mean, I guess I'm like, what do you hope to gain from that?

[01:18:47] I guess except for pats on the back from people who are already acting

[01:18:50] crazy online, but why focus on that?

[01:18:54] Why play to that audience?

[01:18:56] Yeah, I just don't even know.

[01:18:59] I would think that if I were representing Richard Allen,

[01:19:04] I would be trying to find ways to bring new people to my cause,

[01:19:09] to convince people who may be on the fence to join my side and believe as I do.

[01:19:15] And when you go out and use that sort of language about a judge or things

[01:19:20] of that nature, you don't do that.

[01:19:22] You just look foolish to people who haven't already

[01:19:27] indicated they're completely in agreement with you.

[01:19:29] Yeah, I think these people don't seem to understand that like a lot of people are

[01:19:32] actually turned off by kind of pointless bravado and insulting others.

[01:19:37] I just it just doesn't really seem professional.

[01:19:41] And I think then some of the points that you might be trying to make that

[01:19:44] might be good or might resonate with a wider audience get lost in the shuffle.

[01:19:49] So we move on.

[01:19:50] Yeah, absolutely.

[01:19:52] And this is a part of the episode where we're going to actually talk about

[01:19:56] the video interview that Hennessy did, namely the platform it was on.

[01:20:01] Because we think it's important to discuss this.

[01:20:05] This is a person who has taken on a very strange and frankly murky dual role

[01:20:11] in this whole case, and we think it speaks to.

[01:20:15] How when you don't have boundaries in a true crime setting,

[01:20:19] you can get some pretty into some pretty ethically dubious territory pretty quickly.

[01:20:25] And at this point, we've been sort of watching this unfold from afar for some time.

[01:20:31] And at this point, we feel like it's probably necessary to say something

[01:20:35] about how uncomfortable it makes us.

[01:20:37] Who are we talking about?

[01:20:38] So we're talking about defense diary, specifically Bob Mada.

[01:20:42] He's the person who interviewed Hennessy in this kind of bizarre conversation.

[01:20:46] And I would describe him as a pro defense YouTuber.

[01:20:50] Let me interrupt.

[01:20:52] I think it's important to be completely fair and accurate with what we say.

[01:20:57] I don't believe Bob Mada is a pro defense YouTuber.

[01:21:02] I think Bob Mada is a defense YouTuber.

[01:21:05] I think he is not supporting the team.

[01:21:08] He's a member of the team.

[01:21:10] That's certainly what he seems to want his audience to believe on some level.

[01:21:14] I mean, he's been pretty open about that.

[01:21:16] He's made it clear he's not just promoting this fundraiser.

[01:21:21] He's had a role in its creation.

[01:21:24] He talks about how much he is helping the team, the defense team, the defense team.

[01:21:31] I remember at the in the Supreme Court hearing, he actually joined them.

[01:21:36] He got seats from the defense team that were provided to him.

[01:21:40] Kathy Allen, she was not there.

[01:21:42] Bob Mada got a seat.

[01:21:43] Again, I don't know if the other two weren't offered them.

[01:21:45] It just seems the optics on that are pretty weird.

[01:21:49] He certainly has a very cozy, cozy, close relationship with these people,

[01:21:55] especially David Hennessy.

[01:21:58] You will recall that one of David Hennessy's filings before it was made

[01:22:03] available to the public, David Hennessy gave Mada a sneak peek and Mada

[01:22:09] rushed to YouTube with it.

[01:22:11] And I don't I don't know if you would call that a leak or if you would call

[01:22:15] that a violation of the gag order since it was already filed.

[01:22:19] But at the very least, it shows the very tight and cozy relationship

[01:22:25] that he has with these people.

[01:22:28] And it's it was interesting to me that Hennessy

[01:22:33] shared this filing with him in the Supreme Court hearing.

[01:22:37] Shared this filing with him about essentially about leaking, right?

[01:22:43] Before a very contentious hearing about leaking.

[01:22:46] It was interesting judgment.

[01:22:48] It really was.

[01:22:49] And I suppose for me where Mada makes me uncomfortable in this whole situation

[01:22:57] is that I feel like there is an attempt to have it both ways.

[01:23:01] Now, for me, if you if you come to Indiana and you are so

[01:23:05] enchanted by this defense team that you want to provide your services toward them,

[01:23:09] whether or not that's compensated, who knows?

[01:23:12] Maybe you're just acting as a free consultant.

[01:23:14] But I think if you're going to do that, then you should proceed with extreme

[01:23:22] caution when covering it or maybe consider not covering it at all and instead

[01:23:27] focus all your energy on behind the scenes.

[01:23:30] Because when you're doing both, I'm going to talk about this,

[01:23:33] but it gets murky or you act independently and don't offer any sort of

[01:23:40] consultations or free advice or whatever this is to either side.

[01:23:45] And you act as an independent commentator in that situation.

[01:23:48] You can be as as pro defense and

[01:23:51] bias as you want.

[01:23:52] And I don't necessarily think there's an ethical problem there because

[01:23:55] that's just your perspective.

[01:23:56] He's coming at this from a defense attorney's perspective.

[01:23:59] So I think if there was no sort of like weird working relationship behind the scenes,

[01:24:04] you couldn't really complain about that because that's just his perspective.

[01:24:07] To me, the melding of both is just

[01:24:12] again, putting a kindly ethically dubious.

[01:24:14] And let me give you an example of what I'm talking about and where I feel

[01:24:18] like there's a problem here.

[01:24:20] So I used to cover Walmart at my old job.

[01:24:24] I was the reporter, one of the reporters covering Walmart.

[01:24:27] So

[01:24:29] a blurring of the lines that I would see is similar would be as if I were going

[01:24:34] behind the scenes to Walmart's team as a reporter covering Walmart and starting to

[01:24:39] say, well, you know, you guys, you know, here's how you're going to frame

[01:24:44] your new self checkout technology.

[01:24:46] And they're like going to me for advice and I'm like reading their press

[01:24:49] releases and editing them and offering insights on what I think is going to

[01:24:53] really resonate with the media and get a lot of positive press on their new self

[01:24:57] checkout technology.

[01:24:59] And I'm going around and taking calls with them and basically behaving in that way.

[01:25:05] And then I start reporting on the self checkout technology myself and talking

[01:25:09] about how great it is and how like, wow, this really this kicks targets.

[01:25:12] But and like, you know, really leaves Kroger in the dust.

[01:25:15] And, you know, kind of just going on television writing articles in that vein.

[01:25:21] And I mean, honestly, if that got if I got caught out doing that,

[01:25:26] I'd be fired because that's you're essentially acting as an unofficial

[01:25:31] spokesperson for something.

[01:25:33] And I think Mada is in an odd space because he's traditionally kind of

[01:25:39] portrayed himself as different things to different audiences.

[01:25:43] You know, what he says in Discord is not the same thing as what he says

[01:25:47] in his Facebook groups is not the same thing as what he says to your face.

[01:25:50] You know, this is this has kind of been a common pattern with him,

[01:25:53] frankly, behind the scenes.

[01:25:54] But I don't feel he's fully disclosing the level of contact he has here and

[01:26:01] the level of closeness he has here to television audiences in particular

[01:26:05] when he does appearances.

[01:26:06] I think the level of contact he has, the level of closeness he has,

[01:26:10] he should be essentially claiming the role of spokesperson and being honest

[01:26:16] about that so that people can assess what he's saying and saying, well,

[01:26:20] this could be his opinion or these could be talking points that he's been asked

[01:26:24] to put out there and given and I would probably feel pretty differently

[01:26:30] about this, if this defense team hadn't

[01:26:34] tried to court the media or tried to attract media or tried to manipulate

[01:26:38] the media at every turn, but they have.

[01:26:40] So I don't when they have and when he has this level of relationship

[01:26:45] with him, I feel like I don't what is he being told to say?

[01:26:48] And what is he actually thinking?

[01:26:50] Yes, it basically creates the appearance that he may not be an independent

[01:26:56] spokesperson. I don't believe he is.

[01:26:58] No and more of a shell.

[01:27:00] Yes, to be blunt.

[01:27:01] Yes, it's it's

[01:27:04] it would be one thing if a veteran criminal defense attorney stands up and says,

[01:27:10] I think what Baldwin and Rosie are doing is great.

[01:27:14] And maybe you as a listener and I as a listener would hear that and say,

[01:27:17] well, this this independent criminal defense attorney thinks this

[01:27:21] and we'll give that a lot of credence because that's their independent opinions.

[01:27:25] They're not friends with anyone.

[01:27:26] They're not running around behind the scenes with anybody.

[01:27:28] But if someone who is affiliated with that criminal defense team stands up

[01:27:33] and says those things, I think we need to know that that's where it's coming

[01:27:36] from and I think we would all give it less credence.

[01:27:40] But like deservedly so.

[01:27:41] But this is classic true crime because I mean this kind of line blurring

[01:27:46] occurs and it's it's

[01:27:49] it's not it's not OK in my opinion.

[01:27:51] It's not ethically OK.

[01:27:53] And, you know, people just kind of accept it sometimes and I don't understand that.

[01:27:58] You know, I'm not saying everyone has to be a journalist who takes a completely

[01:28:04] journalistic approach. As I've said, I don't have a problem with people

[01:28:08] being opinion based or being analysis based.

[01:28:10] That's fine.

[01:28:11] If you want to get out there and say that these guys are the best attorneys

[01:28:15] and they're never more power to you, maybe that argument should be made.

[01:28:18] Maybe people need to get that perspective.

[01:28:20] But when you're doing that and also bragging about how you're consulting

[01:28:25] with them behind the scenes and how they're like running documents by you,

[01:28:29] then I have a problem because then you're trying to have it both ways as

[01:28:33] some sort of independent analysis analyst rather and also as a guy who's joined

[01:28:41] them as, you know, some sort of unspecified role, which just makes ultimately

[01:28:47] a lot of what you say look like shilling because it very well may be and nobody

[01:28:51] has the ability to judge it.

[01:28:55] And the reason we're talking about this now is

[01:28:58] Mada very, very actively promoted this crowdfunding effort in a post on Twitter.

[01:29:06] He wrote this is not a fundraiser declaring that Richard Allen is innocent.

[01:29:10] Yes, he couched it as some sort of lofty constitutional rights sort of thing.

[01:29:16] But the original text of the fundraiser says on October 31st, 2022, Richard Allen

[01:29:21] was arrested for a crime that he did not commit.

[01:29:24] That sure sounds to me like the fundraiser is declaring that he is innocent.

[01:29:28] But that is not even the fact that he is promoting the fundraiser.

[01:29:33] The fact that he was distorting what the fundraiser was about.

[01:29:37] That's not even personally my biggest concern about how he promoted this fundraiser.

[01:29:44] Agreed.

[01:29:44] He promoted this fundraiser in a tweet where he used a hashtag with the names

[01:29:51] of Abby and Libby, Justice for Abby and Libby.

[01:29:56] So in other words, this is a fundraiser for a man who has been

[01:30:00] criminally charged with the brutal murder of two young girls.

[01:30:04] And they are promoting it by using the names of those two young girls in a hashtag

[01:30:10] that has been appropriated from its original use, which was by families,

[01:30:17] the families of the victims and their supporters,

[01:30:20] traditionally, which was about finding who killed them.

[01:30:24] So it's being appropriated now for a different purpose.

[01:30:27] We talked to several relatives of different murder victims to ask how they'd feel

[01:30:33] if someone use the names of their lost loved ones to promote a fundraiser for

[01:30:40] the person accused of those loved ones murder.

[01:30:42] And I'm sure you won't be shocked to hear that their reaction was pretty negative.

[01:30:47] They were appalled.

[01:30:49] You know, one hypothetical that was brought up is, you know, imagine in the

[01:30:54] 1960s or rather 1970s and people who were supporters of Charles Manson were

[01:31:00] doing a hashtag justice for share and taint thing.

[01:31:05] I think that would go over pretty badly to be clear.

[01:31:08] I'm not comparing Alan to Manson.

[01:31:10] Alan is not he's innocent until proving guilty as far as I'm concerned.

[01:31:15] But I think that the optics of doing this are still equally horrible when

[01:31:22] you consider the perspective of the families, those who knew the girls

[01:31:26] and anybody who doesn't believe that the case against Alan is weak.

[01:31:33] I think these people just get into a bubble and they don't realize.

[01:31:39] Or maybe they do and don't care.

[01:31:40] I don't care.

[01:31:41] I don't know.

[01:31:43] This sort of thing affects and hurts the families.

[01:31:47] Real people justice for share and taint.

[01:31:49] Yeah, it's it's it's ridiculous.

[01:31:52] It is ridiculous.

[01:31:53] And here's what bothers me.

[01:31:55] I believe that you should absolutely be able to advocate for anyone you think is

[01:31:59] wrongfully accused or wrongfully convicted.

[01:32:01] That is an important role of true crime.

[01:32:04] That's that's not something we should walk away from.

[01:32:07] But I believe and I've seen people doing that advocacy work in very sensitive

[01:32:13] and thoughtful and compassionate ways.

[01:32:16] It it means having a healthy separation.

[01:32:20] It means not doing theater when it comes to victim-centric approach.

[01:32:26] And what I mean by a theatrical version of victim-centric

[01:32:29] approach is like hashtag justice for Libby and Abby as opposed to like

[01:32:33] actually thinking about how this could affect their surviving family members

[01:32:38] and maybe considering having some space between the two and not

[01:32:43] appropriating something that

[01:32:47] you shouldn't appropriate in this case.

[01:32:49] I mean, just inappropriate.

[01:32:51] Here's the thought.

[01:32:53] Maybe if you want to raise money for something,

[01:32:58] maybe don't use the names of murdered victims to raise those funds unless you

[01:33:05] have the permission and blessing of those who love those who are lost.

[01:33:09] Yeah, I cannot overstate

[01:33:13] how bad of taste this is in.

[01:33:16] Yeah. And I'm not I would never presume to speak

[01:33:22] for the Patty family or any of the families or the Williams family, the Williams family.

[01:33:27] But I did notice is we were getting ready to record.

[01:33:32] I saw that Kelsey hit Kelsey,

[01:33:34] Kelsey German, the sister of Liberty German,

[01:33:38] read retweeted something from light the way.

[01:33:42] And I want to read what she retweeted from them.

[01:33:46] So this is not her words.

[01:33:47] She's not breaking the gag order.

[01:33:48] She's just retweeting and amplifying something.

[01:33:52] Quote, in February 2017, the lives of Abigail Williams and Liberty German were taken.

[01:33:59] Since then, their loving families and friends have worked tirelessly to share

[01:34:04] their faces and memories on social media using the justice for Abby and Libby hashtag.

[01:34:10] Recently, the hashtag has been filled with information about the man who is

[01:34:13] set to stand trial for their murder.

[01:34:16] Let's join together in support of Abby Libby and their loved ones as we share

[01:34:20] their pictures and stories as we take back the hashtag justice for Abby and Libby.

[01:34:27] That's what that hashtag is about.

[01:34:28] That is not about trying to make a buck for any reason whatsoever.

[01:34:33] Yeah. And the fact that, again, you have a man who is declared that he is

[01:34:37] essentially working for the defense team, who's then hawking a fundraiser

[01:34:42] to raise money for said defense team, including a guy who's become his buddy,

[01:34:47] essentially, David Hennessey and that he's not only doing all of that,

[01:34:53] which I frown upon, but then adding insult to injury by appropriating

[01:34:59] a hashtag and sort of a movement that has traditionally existed

[01:35:03] to support the victims' families.

[01:35:05] And remember the victims themselves is something that I find pretty abhorrent.

[01:35:12] And I just feel like,

[01:35:16] you know, sometimes we hold our tongues on stuff that's happening in this case.

[01:35:20] And, you know, and that's the appropriate approach.

[01:35:23] But in this case, I don't

[01:35:24] we've gotten to a point with this behavior that I just don't feel

[01:35:29] comfortable staying silent on it because what's happening is unethical and

[01:35:33] wrong. And I feel like, you know, when you're in our position,

[01:35:37] you're complacent if you're not saying anything about it.

[01:35:40] I would say generally that he, Mr.

[01:35:43] Mata has lowered the level of discourse around this case.

[01:35:49] He's actively lowered it.

[01:35:51] We've seen that firsthand that he certainly amplified and spread false

[01:35:55] things about us, false things about the content of the show,

[01:35:59] false things about us personally.

[01:36:02] But he does this to others as well.

[01:36:04] He amplifies strange theories from strange people, frankly.

[01:36:09] And there was something I saw on Twitter the other day,

[01:36:12] someone tweeted about this case.

[01:36:15] They got their man.

[01:36:16] In other words, they were saying,

[01:36:18] this person personally believes Richard Allen is guilty.

[01:36:21] And part of Mata's response was,

[01:36:24] you quite literally would have been one of the people screaming to burn women

[01:36:28] at the stake, calling them witches back in Salem.

[01:36:31] Think about that because it's the exact same mentality.

[01:36:33] Can I just say no witches were burned in Salem?

[01:36:35] He's thinking about European witch trials.

[01:36:37] They were hung. One man was pressed to death.

[01:36:40] It's not just historically accurate.

[01:36:43] I'm sorry, I love early American history, so I had to say something.

[01:36:47] But yeah, so he's using the language of witch trials and accusing people

[01:36:54] who believe Richard Allen is guilty of, I mean, and to me,

[01:36:57] this woman's tweet was just, this is what I think.

[01:37:00] Not saying like we should not have a trial or like any kind of extreme

[01:37:05] rhetoric like that, but I think a lot of us would find very objectionable.

[01:37:08] Just sort of like this is my opinion.

[01:37:10] But to me, when you have a man who is

[01:37:12] thrown in his lot with a group of people who are accusing

[01:37:16] uncharged men who have not been charged with a crime of doing occult rituals

[01:37:23] in the woods and you're saying that the other side are the people who are

[01:37:27] acting like they're part of the Salem witch trials.

[01:37:29] The self-awareness seems to be very low there because this is again,

[01:37:34] these are people who take defense rhetoric and take defense talking points.

[01:37:39] But at the end of the day, a lot of what they're doing is claiming that

[01:37:45] a group of people or child murderers based on what appears to be not a lot of evidence.

[01:37:52] So I don't understand where they can get off

[01:37:54] telling other people that they're behaving like they're in a witch trial

[01:37:58] when they seem to be using the same tactics, if not worse, against another

[01:38:02] group of individuals, I just I don't understand that.

[01:38:05] You know what I mean?

[01:38:06] Like like I guess like I would love some consistency in the rhetoric.

[01:38:11] And to me, this would have not been a so

[01:38:13] much of a problem if they were just taking a defensive stance on Richard Allen

[01:38:16] like the state hasn't proven their case and let's knock down the bullet

[01:38:19] and let's knock down the confessions.

[01:38:21] That would be one thing, but they are actively they've actively dragged

[01:38:24] other people into this to say that these are the child murderers.

[01:38:28] Look, they're doing weird religious rituals in the woods and they must

[01:38:31] have sacrificed to girl.

[01:38:33] I mean,

[01:38:34] yeah, where's the witch trial there?

[01:38:39] I also want to highlight something else.

[01:38:42] Bob Mada makes a lot of mistakes about the facts in this case.

[01:38:47] I think a lot of people noticed after the last hearing he made a mistake and said

[01:38:53] that Johnny Messer had kidnapped a young girl.

[01:38:55] In fact, it was something else entirely different.

[01:38:58] And we had to correct that because essentially

[01:39:00] like the internet around this case, especially the pro defense side of it,

[01:39:04] erupted and was carrying this as fact and spreading it around.

[01:39:09] It was misinformation.

[01:39:10] And what we said on the show was we felt it could be an honest mistake, which is

[01:39:14] yeah, where we get to that in a minute.

[01:39:16] Yeah.

[01:39:17] And more recently, there's been this issue of when these interviews were

[01:39:21] deleted in 2017, what did investigators think they think that Holder was a suspect?

[01:39:27] And Mada tweeted out that, well, in 2017,

[01:39:31] Clicks certainly thought Holder was a suspect and in fact,

[01:39:34] Clicks didn't even come onto the case until 2018.

[01:39:37] So.

[01:39:39] So what we're seeing here is we're seeing he makes mistakes and the mistakes

[01:39:44] seem to pretty consistently be mistakes that favor the defense.

[01:39:49] Yes.

[01:39:50] Also just sort of an over the top, a gas nest about everything from like

[01:39:55] standard Indiana trial, pretrial operating procedure that just is constantly

[01:40:01] framed by him in the most extreme way.

[01:40:03] How could this be happening?

[01:40:05] And it's like, and then you look into it nearly this always happens in Indiana

[01:40:09] or with this court or this is not unusual.

[01:40:12] It's every but like again, people make mistakes.

[01:40:16] That's fine.

[01:40:16] But when all of your mistakes seem to favor one side over another,

[01:40:20] I think that's something to interrogate.

[01:40:24] Now, the final thing I want to mention about all of this is if you follow Mada,

[01:40:29] you are surely aware that he often suggests that other people who cover the case

[01:40:35] are biased, that they are pro prosecution.

[01:40:39] And I don't understand how anyone could possibly conclude

[01:40:44] that Bob Mada is a credible person to call out so-called bias.

[01:40:48] For instance, we really tried to be even-handed and fair

[01:40:52] and to criticize either side when we think they deserve it.

[01:40:56] And with all that said, there are certainly people out there who do

[01:40:59] identify themselves as pro prosecution.

[01:41:02] Of course, there's nothing wrong with that.

[01:41:04] But there is absolutely no equivalent of Bob Mada and his crew on the prosecution side.

[01:41:11] There are no pro prosecution YouTubers who got special seats for court hearings

[01:41:16] from Nick McClendon.

[01:41:17] There are no pro prosecution YouTubers who organize and promote fundraisers for

[01:41:22] the prosecution with hashtags calling for justice for Richard Allen.

[01:41:26] Mada stands alone in that.

[01:41:30] Well said.

[01:41:32] You want to get to some other YouTube nonsense now?

[01:41:34] You take it away.

[01:41:35] Yeah. All right.

[01:41:37] So you've probably seen from the most recent

[01:41:40] prosecution filing that on March 28th, 2024, a YouTuber based in the Netherlands

[01:41:45] named Frank Westling posted a video with graphic crime scene pictures.

[01:41:49] These were the crime scene pictures from the defense leak.

[01:41:52] They got out to a number of YouTubers as we've reported in the past.

[01:41:56] And one of those YouTubers was Frank Westling.

[01:41:59] So not only, well, I mean, to go back to Mada for a second, he's one of those

[01:42:04] who's been like kind of like facetiously calling this leak a drip and like,

[01:42:08] oh, isn't it so crazy that they're making a big deal of it?

[01:42:11] Which that level of minimization, I think, is incredibly insulting to the families

[01:42:15] of the victims and also totally not necessary to defend Andrew Baldwin.

[01:42:20] I think the leak can be a big deal and Andrew Baldwin could be

[01:42:24] blameless in the affair.

[01:42:25] You don't need to minimize one to defend him.

[01:42:27] So it's it just seems like it's more of a cruelty thing at this point

[01:42:32] because unfortunately, the worst outcome happened as as McLean noted in his

[01:42:38] filing photos, these photos were sent by Westling to family members of the victims

[01:42:44] who saw them. So they've seen these.

[01:42:47] This is something that we were afraid was going to happen, that we were afraid

[01:42:50] that some creep was going to do this.

[01:42:52] And unfortunately, that has come to pass.

[01:42:55] So I mean, I would hope that would make some of these people reconsider

[01:42:59] some of the rhetoric they use around it as like an amusing little thing

[01:43:03] and minimizing it because I think it's probably been devastating for those

[01:43:08] who love these girls who saw them like that.

[01:43:10] So so Westling sent the crime scene pictures to family members and also

[01:43:17] posted this video, then he himself took the video down.

[01:43:21] But obviously the damage was done.

[01:43:22] So Westling is a person with a history of very bizarre behavior in this case.

[01:43:26] And given that he'd done probably the most extreme thing one can do on YouTube,

[01:43:31] showing photos of dead children, we decided to reach out to YouTube

[01:43:34] for comment to ask if that was allowed or if that was within, you know,

[01:43:38] was that a violation of its terms of service and whether Westling would be

[01:43:42] allowed to even continue on the platform given his behavior.

[01:43:45] And so we received the following statement from a YouTube spokesperson

[01:43:50] quote, the channel in question was terminated for violating our terms

[01:43:54] of service, which prohibit operating a YouTube channel following a previous

[01:43:58] termination. So then we saw that his channel was taken down.

[01:44:02] It turns out that Westling wasn't even allowed on YouTube

[01:44:05] because he's been terminated in the past.

[01:44:07] So in addition to that, posting such graphic crime scene photos was

[01:44:12] also an obvious violation of YouTube's rules.

[01:44:15] So he's gone.

[01:44:17] The way YouTube works is that when a creator's channel is terminated,

[01:44:21] they're banned from creating other channels to get it because that would be

[01:44:25] basically trying to get around the policy enforcement.

[01:44:28] And in addition to that, they're not even allowed to be prominently

[01:44:30] featured on channels that are not their own.

[01:44:32] So they're basically done on YouTube after that.

[01:44:35] That doesn't mean that they can't come back and have some, you know,

[01:44:39] you know, get a new email, get a new IP address, put it on there briefly.

[01:44:44] But at this point, if you see Frank Westling on YouTube,

[01:44:47] you can report him and they will take him down because he's not supposed to be there.

[01:44:51] And I will say YouTube, we've been critical of social media around

[01:44:55] true crime in the past, but YouTube got back to us promptly.

[01:44:58] They acted professionally and they seem to care about not having stuff like

[01:45:02] this on their platform.

[01:45:03] So we were heartened to see that.

[01:45:04] And I think it's worth noting for other YouTubers who might be so inclined,

[01:45:10] you know, I would believe that posting these photos at this point would probably

[01:45:16] engender and prompt similar treatment to that which Frank Westling received here.

[01:45:22] But I just think again, like.

[01:45:28] I feel like this incident highlights the fact that we have had.

[01:45:33] Social media folks.

[01:45:36] People with small but wild platforms essentially have a real impact on the people

[01:45:43] at the heart of this case, you know, I've said sometimes I feel like it's

[01:45:47] the internet versus real life with Delphi.

[01:45:49] And when you have people on the internet doing really callous and upsetting

[01:45:55] things like this, it's not something that's happening in a vacuum.

[01:45:59] It's happening in a way that affects real people.

[01:46:01] And I think as a community, regardless of what our opinions are about the case,

[01:46:08] regardless of what our theories are, we need to try to at the very least

[01:46:13] stand up against things like this because it shouldn't be happening and it's

[01:46:17] unnecessary and it's just cruel.

[01:46:20] So that's what's happening on YouTube.

[01:46:23] Thank you so much for listening.

[01:46:25] I hope you all have a wonderful weekend and we'll talk again soon.

[01:46:28] Thanks.

[01:46:35] Thanks so much for listening to the murder sheet.

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