The Delphi Murders: Richard Allen Goes to the Indiana Supreme Court: A Conversation with Indiana University Maurer School of Law Federal Habeas Project Director Michael Ausbrook

[00:00:00] Content Warning This Episode Contains Discussion of Murder On the Murder Sheet, we're very fortunate to get to speak to a wide range of attorneys with experience dealing with different aspects of the law.

[00:00:13] And one thing you learn pretty quickly when you talk to a bunch of attorneys is that often they don't agree on very much. They have very different opinions about things.

[00:00:24] And so we've always made an effort to try to bring you as many different opinions and viewpoints as we can, especially as they relate to the ongoing case against Richard Allen.

[00:00:35] Yes, and in this episode, we'll be speaking with an attorney and an expert about the current Indiana Supreme Court case involving Richard Allen.

[00:00:45] So essentially, this is the case that may determine whether or not Allen's original attorneys, Bradley Rosie and Andrew Baldwin, come back, whether or not Judge Francis Gull leaves the case. This is a very, very important case. And so this is going to be one perspective on that.

[00:01:04] We are of course speaking to attorney Michael Ausbrook. He is a professor at Indiana University's Morrer School of Law and he is the director of the habeas project there. And he's also a board member of the Indiana Public Defender Council.

[00:01:20] Mr. Ausbrook has years of experience working habeas cases. We were really pleased that he agreed to give us some of his insights into the Allen cases. My name is Anya Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is the murder sheet.

[00:01:38] We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases. We're the murder sheet. And this is The Delphi Murders. Richard Allen goes to the Indiana Supreme Court. A conversation with Indiana University Morrer School of Law Federal Habeas Project director Michael Ausbrook.

[00:02:03] Well Michael, thank you so much for joining us today. We really appreciate you coming on the show. Well thanks for having me. It's quite an opportunity and I do want to say a couple of things.

[00:02:58] One, I'm a board member of the Indiana Public Defender Council which filed an amicus brief in this case. And I had nothing to do with the decision to do that or with the drafting of the terrific brief that Joel Schoen did who's also on the board.

[00:03:15] And I am just speaking for me. Also goes, I also teach at the Morrer School of Law here in Bloomington and I'm not speaking for them either. It's just a little old me. Absolutely. That's a good caveat to put in there. We definitely appreciate your expertise.

[00:03:32] I guess before we begin can you just tell us a bit about yourself, your background, sort of your expertise in law? I'm a primarily a Habeas lawyer. There's a terrific quote from, I've seen it attributed to various people but I think it fits Hemingway.

[00:03:48] So it's that critics are men who come down, who watch a battle from a high place and then come down when it's over to shoot the survivors. And so what I'm doing today is, so I'm a Habeas lawyer for the most part.

[00:04:04] I've been doing that work for about 10 years together with a clinical class at the Morrer School of Law here. My students and I call them my Habeas hit squad, and they are terrific. I mean really brilliant talented people.

[00:04:17] I really view them all as colleagues more than students truly. So I've been doing Habeas work for a while. We've had pretty good success and you know, I think we'll talk about that another time.

[00:04:28] But I started doing Habeas work 12 years ago or so when I was just tired of the state courts. And I wanted to go see if you could spot Habeas cases with a pretty good chance of winning and then if you could go out and win them.

[00:04:42] So anyway, that's what I do. I teach Habeas. Everybody makes mistakes. I've certainly made my share over the years, some fairly recently. Yeah, I think there are two Habeas lawyers around the state. I think we do most of the cases that get litigated by lawyers.

[00:04:59] I mean, there are lots of petitions by people, pro say. So that's kind of my background. I graduated from law school 30 years ago and I was contract counsel to the state PD's office for 10 years. Contract counsel to the Marion County Public Defender Agency, so valid operation.

[00:05:17] And so I'm kind of, I am not a trial lawyer. I am an awe of trial lawyers. What they do is the hardest thing on the planet.

[00:05:25] I couldn't do it. Certainly with state post conviction work, there are trial like aspects to it because you have evidence theory hearings, but those are limited to issues. You don't have facts flying. Everything that you learned in discovery blowing up in your face because of a particular witness.

[00:05:45] One thing that trial lawyers in this case had to deal with was a protective order on discovery. Are those common? What sort of obligations do they place on the attorneys? Well, I don't remember the name of the case. There was a case just litigated.

[00:06:03] There are at least two counties. I know Elkhart's one of them that at least and so these aren't protective orders. That when the state gives defense discovery, they're non disclosure agreements. It's really interesting whether this can be enforced. You know, there is a right to discovery in Indiana.

[00:06:24] That's not true in every state. It's not true in federal prosecutions. And I don't know whether the state can restrict discovery with a non disclosure agreement. I don't know whether protective order is on discovery or common.

[00:06:38] If you've looked at the protective order in this case, it's really kind of funny because it says these materials should not be copied for any reason. And then it goes on to say if they're copied.

[00:06:53] So what happened in this case, part of the affidavit, of course, is Mitch Westerman says he went into a conference room where these pictures were lying on a table. The crime scene pictures and he took photographs of them without the knowledge of the defense attorney.

[00:07:11] And so because of that, he's been charged with conversion. So what do you think of that? Is that an appropriate charge? Is this a good case? What are your thoughts? No, I think there's no crime here. Not all bad behavior, even really bad behavior is criminal.

[00:07:29] When I put this way, I'm the pizza guy and it's actually I'm the pizza guy and it's my brother's house. I'm delivering the pizza to and he says come on in while he's going to get the money.

[00:07:41] And I step into his living room and take pictures of his family photos and then distribute them. Is that a crime? Is that conversion? No. I mean, I just I don't I you know how a judge found.

[00:07:56] Yeah, we have a judge she found probable cause and I don't get it. I just know crime, you know really. I think David Hennessy said he could have a motion to dismiss ready in 20 minutes. I told him he was slow.

[00:08:09] I don't get it and and and I might even sure law enforcement should have been involved in investigating this. I mean, it's not a crime. Maybe they need to investigate to see if there was a crime. I don't know.

[00:08:24] I know that I think that Andy Baldwin said that he thought he'd been the victim of a crime. I think that's in the probable cause affidavit. I just don't think that's right.

[00:08:35] But you know, the nice thing about getting a whole bunch of lawyers together is you're not going to get to agree about almost anything. But I really I really believe there was no crime here. Would there be in a situation like that?

[00:08:48] Just like, I mean, you mentioned not all bad behavior is criminal, right? Like something can be maybe morally wrong. We can look at scans at it, but it's not necessarily that it fault the level of the criminal justice system.

[00:09:00] I mean, like from the perspective of something like that happening to a lawyer where somebody leaks out stuff that was in their office. Is that something you've seen before? I mean, it just I'd almost be worried about setting a bad precedent.

[00:09:13] But then again, it just doesn't seem to happen that often from what we can tell. Yeah, I don't know. I've never heard another case like that. And the other thing is I think that I'm trying to stay away from, you know, habeas lawyers are kind of bloodless.

[00:09:30] So I'm going to try and stay away from names and just what was just just the people involved in the roles they play. You know, there was another activation out there that, oh, you know, this isn't the first incident, some discovery outline,

[00:09:47] not the discovery itself, some discovery outline was sent to the wrong person because the email address repopulated and, you know, and then another part of the complaint was that nobody was notified. The judge wasn't notified law enforcement wasn't notified. And it's like, why? Why would you do that?

[00:10:11] Why would you notify anybody? You would like get in hold of the person you, I mean, why? And what's the duty to do that? I mean, you didn't release any of the actual discovery. It's your work product, whose business is it? But there's at least that's my take.

[00:10:30] Yeah, no. And were you, I mean, one thing that I want to get to the bottom of this more so I don't necessarily want to speak out of turn in terms of this.

[00:10:39] You know, I thought it was interesting that there was some indication that perhaps the co-counsel wasn't alerted there. But I mean, it's such a brief interaction.

[00:10:48] I don't necessarily think we're getting the whole story there, but I would be curious with that aspect of the lack of notification surprise you or is it just one of those things where it's like it was a mistake moving forward?

[00:11:00] You know, basically we don't need to make a big deal about it. You know, I can see telling my co-counsel that I did that, but I can also see that I look at it.

[00:11:12] I mean, I don't know the person that it was sent to accidentally, but I can also look at it as something so unimportant and I'm so busy, I actually just forgot about it.

[00:11:22] And I, you know, I just, I just don't see what business it is of anybody's but the lawyers and the clients. I mean, if it's something damaging, you got to tell a client.

[00:11:32] Well, of course all this business about the leak is we all know ultimately led to a situation where judge go in essence removed Baldwin and Rosie from the case. So what are your thoughts on that just in general?

[00:11:48] Well, let's talk, let's talk a minute about again sort of the bloodless thing, the geometry of the case and then which is actually as it turns out now the geography of the case. And then maybe, maybe some optics.

[00:12:02] So what we have here is we have a couple of now fired lawyers. We have and they're not in Carroll County.

[00:12:12] We have maybe most importantly I should have started with him Rick Allen who's in not in Carroll County, not in Cass County, he's in Westville suffering terribly by all accounts. We have a judge and Allen County. We have now two new public defenders from Allen County.

[00:12:32] We have a jury coming from Allen County and then down in Indianapolis, we've got the Indiana students. So everybody's kind of spread out and they all have slightly different roles and the optics of this case. Are just really bad.

[00:12:55] You know, people have called it hot mess dumpster fire. There's some other less flattering things they've called it. My goddaughter used to refer something was really hot and dirty hot. And so this is this is kind of a dirty hot mess. What you have here is a Judd.

[00:13:14] At least as I understand the facts and people. People are free to correct me, but it sounded to me from reading the transcript of the first.

[00:13:26] Oh, the only person in Carroll County actually there are two people in Carroll County one is the clerk and the other is the prosecutor. That's all that's left of Carroll County.

[00:13:37] From some document, I forget which now it sounds like the first mention of disqualification came from the prosecutor. And then the judge said, I'm inclined to agree. The prosecutor never filed a motion disqualify. The lawyers. Let's jump ahead a little bit after the disqualification.

[00:14:01] What happens to Allen County? Help defenders get appointed who are here in front of the judge all all all the time. One of whom has already commented on television about the tool mark evidence and doesn't he doesn't exact. He didn't exactly say that.

[00:14:22] Oh, that's strong evidence, but he also doesn't say it's not.

[00:14:26] And you've got a judge on her own motion who not just disqualified the lawyers, but a week before doing it actually told them to stop working on the case with a trial date in January, which I think is so this is what mid October.

[00:14:48] Yeah, mid October with a trial date three months out. And I think as Bob Mada said on on styries, you know, for the trial lawyers, that's a blink of an eye, especially for a big trial. How long to stop working on a case. Geez.

[00:15:08] You know, if there are all kinds of different ways this could have been handled if you know judge golf on it rose. I used the name. If the judge had thought that what had happened rose to the level of contempt criminal or civil.

[00:15:28] I would have gotten a special judge and gotten Mr. Get gotten the prosecutor or somebody to actually file an information for contempt, and then it would have had to be tried in front of somebody else. Certainly wasn't direct criminal content. It wasn't or direct civil content.

[00:15:46] But as I thought I don't think there was any content because they didn't knowing that the lawyers did not knowingly or intentionally violate the protective order. As far as we know.

[00:15:57] That would have had to mean like I tell Kevin, hey, put this out on the internet versus Kevin sneaking in and taking a document without my knowledge. Yeah, I think if there's a protective order and a lawyer says hey go put this out on the internet.

[00:16:14] That's yeah, I think that would be a problem. I wanted to raise with you that we talked a little bit prior to this conversation but just about the standard of gross negligence. What that means is that a standard in a legal setting.

[00:16:31] What are your thoughts on that as far as you know how it's being used in this situation. I, you know, it isn't the standard. And if the judge thought that the lawyers were being in effective within the meaning of Sixth Amendment.

[00:16:53] One thing she could have done is appointed a lawyer to consult with Mr. Allen to make sure that and informed him of the circumstances make sure that he was fully informed and Mr. Allen could have decided whether he wanted to go forward with the lawyers he had.

[00:17:15] I have to say that to drill down a little bit on facts, one of the cases we did involve the judge. That's called Lewis Visa Techie.

[00:17:32] In the 7th century, that's a 20-21 case and a public defender of hers got up at a sentencing hearing where his client, Roderick Lewis was facing 135 years for two murders. And he said nothing. He introduced the client, said I'd like to say a few words.

[00:17:53] The lawyer did nothing in the sentencing hearing and Judge Gull did nothing in the sentencing hearing except sent him, Roderick Lewis to 135 years. She did not get rid of the lawyer.

[00:18:05] She did not get in front of, she did not get in touch with the chief public defender in Allen County and say you really need to get somebody else in here.

[00:18:16] And I actually sort of raised this with a couple of trial judges and I said, you know, I didn't specify who it was but I said, you know, you face the situation. What would you do?

[00:18:28] I'd get hold of the, I'd get a new PD in there and I continued the hearing if I had to.

[00:18:35] You know, when the judge with her and so Lewis V. Tuckie said, yeah, this is a case under the United States to be chronic where, yeah, he had a lawyer there but it was equal to having no lawyer.

[00:18:50] And so it would have been a natural place to inquire at least, well, have you prepared Mr. Lewis for this statement? And I think it was a great show that he hadn't.

[00:19:04] And this was after by the way, the lawyer had thrown the client under the bus in closing argument, you know, putting him in a boat with a bunch of other witnesses just saying, oh, these are all including his client really bad people.

[00:19:19] My sense is that the, again, the optics, I hate motives and I don't know why anybody does anything to human beings are complicated. I know that the, there's a thing you may know what Occam's razor is this thing called Hanlon's razor.

[00:19:37] Hanlon's razor says never ascribe to malice what can adequately be explained by negligence or incompetence.

[00:19:44] And, you know, I don't know why people are doing what they're doing, but you know, and I know that around fence diaries, there was a suggestion that this all happened to slow things down because the judge and the prosecutor

[00:19:59] weren't ready. I don't know if that's the case. It is interesting at least that. I'd be interested about where the sources for that. Well, I think it's I think it well, I think it was just inference.

[00:20:12] I don't think it was a source. I think it was an inference from Judge Gall. He used the name again. The judge having said that she hadn't read all of the Frank's memo and had hadn't read all the Frank's memo.

[00:20:28] I think she said hadn't looked at any of the attached exhibits. I'm not sure what the inference that the prosecutor where the inference came from that the prosecutor wouldn't be ready.

[00:20:38] But, you know, going back to the optics bit, you've got a judge who's at least originally most of the stuff is back. I can't keep track. So in the first original action challenging the treatment of the public records, I can't keep track.

[00:20:58] You know, Maggie Smith did a terrific job along with Jesse Cook and forget whether Cara Winicky was on that first one as well. But you have a judge who suddenly out of nowhere had the Frank's memo disappeared. I have no idea why she did that.

[00:21:20] Somehow she thought it was going to appropriate. I don't know what I mean. Lawyers talked to courts through motion and they talked to the prosecution, defense lawyers talked to the prosecution through motion. There was nothing had been ordered seal.

[00:21:39] The prosecutor came back with a response saying that I mean one line in the response was that there were things in it that were unprofessional. Well, he didn't identify anything that was unprofessional.

[00:21:51] It was actually as I think David Hennessey's already pointed out, practically a work of Frank's memo was practically a work of art. I mean it really, I mean you could if they have the evidence to back it up.

[00:22:06] I mean, I don't think I mean these are incredibly experienced trial lawyers. They're not they're not making allegations they have no evidence for and if they are that's a problem. I have a question from you know you speak with other attorneys just kind of in the community.

[00:22:22] Do you feel that it was regarded as a work of art from people you've spoken with just about this? Yeah, I looked at I thought it was amazing an amazing piece of work. I mean, took hours and hours and hours.

[00:22:35] You know, you can argue about whether you needed to go through each. I mean, what is it? There's a section of it. It's a little bit like the it's a little bit like the history of Waterloo and keeps popping up and lame is a rival.

[00:22:51] But the whole step by step how many how many different things whoever committed these murders would have had to do you know you can tell the TLD are but yeah we get the idea.

[00:23:08] It takes you know 81 steps to do this and I couldn't have been done in time but you know it was thorough it was complete it was detailed. The prosecution wants to prove that it's nonsense. Let them have at it but there was nothing in there that was unprofessional.

[00:23:32] They did not publish the file is confidential the supporting documents. It was a completely professional job and you look at the you know the reaction again, you know it's just optics it's not motives but one in it just looks bad because that does anybody serious.

[00:24:01] Anybody seriously think that these lawyers would have been disqualified if there had been no Frank's memo. I don't know, but it seems like it seems like it's the Frank's memo that's running this and that the the disclosures might even be an excuse.

[00:24:22] Yeah, Frank's stuff wasn't part of it. One thing she did say was that we talked about how lawyers talk to each other and the court through filings.

[00:24:36] And one thing the judge did say was that she felt there were some basically lying by the defense attorneys in some of their motions particularly the safekeeping motion.

[00:24:47] And so I'm curious how is that sort of thing handled and how should a court determine the difference between what some people might say is lying other people might say is zealous advocacy.

[00:25:00] Well, I don't think lying is all advocacy but the fact that she believe the warden and my understanding is it with the word and didn't show up he just filed an application prosecution filed an app David. He was at the safekeeping hearing.

[00:25:19] Okay, okay well the judge is free to believe the warden and not believe that that but the fact that somebody believes somebody else and not the other side doesn't mean the other side is lying.

[00:25:35] I don't think and you know the standards probably going to be preponderance of the evidence.

[00:25:40] I mean, you know, part of the, you know bad optics of this too though are not transferring Rick Allen to Cass County when it when guess what the lawyers had arranged for that to happen the prosecutor had no objection. I mean, why didn't that happen? I don't know.

[00:26:03] It seems like everybody, everybody who needed to be on board with that was except for guess the judge.

[00:26:12] Well, I guess one of the major issues here we've been talking about some of the side issues when the major issues is the importance of a defendant to have not only counsel but counsel of his choice.

[00:26:26] So I wonder if you could talk about why that is important and what in your view some of the consequences are if a defendant does not have counsel of his choice.

[00:26:37] Well, there's a case from 2006 I believe it is it's the United States versus Gonzalez Lopez from the United States Supreme Court. And the Sixth Amendment gives you the right to counsel of choice.

[00:26:57] And they really that case really says that there are only two circumstances in which you're not entitled counsel of choice. One of those is that your lawyer's not a lawyer in the jurisdiction and the other is if your lawyer has an actual conflict of interest.

[00:27:19] I can see and I can see a couple of other possible situations where you might not be entitled to counsel of choice. I think one is the is the Louis V's a techie situation where the lawyers gotten up and said nothing.

[00:27:37] But I think you've got to and before before you get rid of the lawyer, I think you have to inquire of the you know, do you want this lawyer performing this way.

[00:27:53] And there's a case Florida v Nixon, it's against Berg opinion, which says basically if the client either actually a sense to a strategy or doesn't oppose it after it's been communicated to him or her. That's not an effective system.

[00:28:11] I mean, I mean that they ratified that strategy so you know in the Louis V is a techie setting.

[00:28:18] If the judge is simply actually going off the record even on the record, inquired about whether you know any investigation has been done mitigation investigation has been done or actually just asked Mr.

[00:28:29] Louis if he was satisfied with what Mr. What the lawyer involved was doing that probably would have been enough but otherwise the other situation in which you might not be entitled to counsel of choice is again if you've got something approaching.

[00:28:47] Contempt, but I'm not even sure contempt gets rid of the lawyer. I don't know what you do if you have criminal contempt. Direct criminal contempt judge sentence you I think the limit six months just sentences use six months in jail for the criminal contempt and they can't.

[00:29:06] Obviously it's hard to represent somebody from jail for criminal content. But I really don't see any other situations as long as the client wants the lawyer or lawyers. Gonzalez Lopez says it's structural error, which means you don't have to you can't look at the prejudice.

[00:29:25] It would be all hypothetical. You don't know what one better lawyers would do and you know I think judge go out using the name. That's okay you don't have to edit that.

[00:29:39] It's kind of funny I think but I've had a few run-ins with this particular judge over the years. What was I going to say I was going to say oh the judge go and judge go said that she was concerned about Mr. Allen's right to a fair trial.

[00:30:01] She didn't say anything about effective assistance. She only talked about fair trial and the due price and and and and Gonzalez Lopez actually talks about this. The due process clause gives you the right to a fair trial, but the Sixth Amendment has specific provisions that implement that.

[00:30:27] The judge never found that anything any of the lawyers had done amounted to ineffective assistance. And I think without that I don't think you can remove lawyers.

[00:30:43] That is to say as I think in the reply and the second original action, I think it would amount to if the lawyers remain removed, it would be a free trial.

[00:30:56] But Rick Allen's been denied counsel of choice that structural error, the trial itself without counsel of choice is the constitutional violation game over. Now you can get into a really interesting counsel of choice aspect in this case comes in two flavors.

[00:31:15] First when they've been removed and when the lawyers have been removed, they were public defenders being paid.

[00:31:25] They were taken by Carroll County and it's a slightly different question whether once public defender has been appointed, whether you have the right to whether Rick has the right to those lawyers once pointed.

[00:31:41] I think I think he does that there certainly there's a I think one of the cases cited in the original action papers is a District of Columbia case. And I think once the lawyers are appointed, it's especially problematic in Indiana where the appointments are often by judges.

[00:32:01] In fact, I'm the judge in this case, I believe appointed Andy Baldwin and then I think Andy Baldwin got Mr. Ozzie and as well. But you can't have what the lawyers are doing for their client, the defendant, depend on the judge's opinion of their performance.

[00:32:26] I mean, absent something that's plainly ineffective assistance on its face.

[00:32:32] Actually, just so our listeners know and have a sense of that what would that even look like ineffective. You mentioned you know somebody you know this attorney didn't even speak up for his client or even you know through him under the bus as you mentioned but

[00:32:46] things would kind of fall into that category. Not much actually because a strict one be Washington sort of leaving case since 1984 on an effective assistance says there are wide range of ways a lawyer can represent a client and defend a client.

[00:33:05] I think you'd have to run into cases like Koi, I think it's versus Obama where the lawyer actually gets up and admits clients guilt. Well, as part of a strategy but the client had well as a death penalty case and the idea was to admit guilt.

[00:33:25] So you go into the penalty phase and it's actually not a terrible strategy. I think it's one of those. I'm not a I don't do capital work but I think it's a fairly common thing with apparently the client said specifically do not do that.

[00:33:43] And you know if I was the judge sitting on a capital trial in light of McCoy once the lawyer had done that.

[00:33:51] I would sort of go back in chambers with the could we take a break here and go back in chambers and ask the lawyer did your client say doing that was okay if it is will just move on and if not I'm going to have to declare a missed trial.

[00:34:07] But it would have to be something extreme like that. I mean, something it's almost unimaginable and I have to say and you know, Luis Vizatecchi the judge might be able to assume right but Sticklen says you know we assume that lawyers represent their clients confidently.

[00:34:25] So, you know maybe it wasn't a mistake. Not intervening and in that case, because she could have assumed that, you know, Mr. Lewis had been prepared to make the statement. I might want to inquire but I expect that there are there's a wide range.

[00:34:46] Just as there's a wide range of ways to represent a client there is a very wide range of ways to confidently judge. So I'm not. One thing I'm curious about is we talk about the Sixth Amendment right to counsel and such. Of course, the Sixth Amendment federal rights.

[00:35:06] If the Indiana Supreme Court doesn't rule on this case in favor of Allen and his attorneys, does this at some point become a federal case?

[00:35:16] One of the reasons I've come a little ways down the hill off the hill from the high down from my place talk is to express my hope that very, very sincerely held hope that it does not become a federal case.

[00:35:35] But that said, I thought it might be useful to think about the possible outcomes and in the second original action in the Supreme Court. The records case is interesting but it ultimately doesn't affect Rick Allen's trial. So what could happen? Everybody's gone. The judge is gone.

[00:35:58] The lawyers are gone. The former lawyers are gone. I don't know whether that means the current lawyer's stay or whether it goes possibly to the state public defender for appointment of counsel, which is certainly something that can be done under Carroll County's public defender plan.

[00:36:22] So that's one possibility. The other possibility is judge stays but the lawyers are gone. The third possibility is the lawyer stay and the judge is gone. And I think it unlikely that you're going to have the fourth possibilities that the former lawyers come back and the judge stays.

[00:36:45] Just don't. That would be a dirty hot mess. That's not going to happen. So the one thing, so if you've looked down these possibilities, the one thing that there is no federal claim and the original action for removing the judge. It's just under the there's no claim of.

[00:37:12] So the due process plus gives you the right to truck their trial in front of an unbiased judge, but there is no claim of actual bias and in second original action as I read it. That's all under the canons of judicial conduct and sort of.

[00:37:31] But the the council of choice claim is not going to go away. And if everybody's gone, doesn't work. In that that at least from the heaviest lawyer's perspective. The only real resolution of this case that that is going to be legally.

[00:37:56] Supportable is the judge has gone and the former lawyers are back and it's an open question, whether the former lawyers are back as public defenders or whether they're back as provoking counsel. I don't I don't know.

[00:38:09] And there is a former lawyers are not reinstated either as public defenders or. As pro bono counsel. Yeah, there's a heaviest case we have there's a there's a statute 28 USC 20 to 41 is the basic habeas statute says. You can buy for rid of habeas corpus.

[00:38:33] If you're being held in violation of the Constitution or laws of the United States so it has to be a federal claim.

[00:38:39] And you know with most habeas cases you have to wait till the trials over but and there's case out there called younger v Harris that says it's a Supreme Court case and.

[00:38:52] US court case and it says basically the federal court should slide out of state trial, but there's a very well recognized exception to that and that's double jeopardy claims. Now I've seen one case that says that the only recognized section.

[00:39:09] And the idea is that with a double jeopardy claim you shouldn't have to wait till the trials over because it is the trial itself that is the constitutional violence.

[00:39:19] You know normally if you have, you know, confrontation plus violation, you're not allowed to confront the witness against you you don't know about that that hat.

[00:39:27] You don't know about that happening until the trials over but where you're given Gonzalez Lopez and given that that it's structural here to be denied counsel of choice.

[00:39:41] But you don't look at the prejudice and the rationale applying to double jeopardy claims ought to apply with a denial of counsel of choice and by the way there's also it's not just denial of counsel of choice one.

[00:39:57] It's raised as counsel of choice in in the original action pleadings but there's a little thing also mentioned in Strickland, state interference with counsel.

[00:40:09] And boy do we have state interference with counsel here and you elaborate on that and what you feel is the state interference in this case.

[00:40:18] Well, where the state is you know the judgment there's a there's a case written by Chief Justice Rush called becker v. State, which he says the state is the state. Well, yeah, I mean, the judge is the state.

[00:40:33] And I think there are cases out there saying that state interference has to actually be either from the judge or because of the statute.

[00:40:42] And I think we got state intervention where you tell the lawyers to stop working on a case a week before you're figuring out what's happening. And then you remove the lawyers. I think you've got state interference with counsel here. We can argue it in others.

[00:40:57] I think a lot of people out there all kinds of attendance about whether the removal was justified and what a terrible thing. I mean, as far as I can tell, I think over in the fence diaries they said sort of the same thing.

[00:41:12] This leak is a nothing burger. Nobody's got it as far as we know. I mean, that's not just that whatever there's been no fallout from it except for to the lawyers. There's been no fallout to Rick Allen. You say no one's got it.

[00:41:30] What do you mean by that? I mean, it hasn't been out. I mean, some small handful of people may have seen whatever those pictures were that were taken and the lawyer's office. I haven't. I guess you all have but I haven't.

[00:41:47] Well, one image was published all over Facebook and Twitter but other than that, the most worst ones for our knowledge have not been published on the as they call it at the very least. Okay, well, there's one out there.

[00:42:05] You know, I don't know that there's any indication that's been damaging to Mr. Allen's defense. Obviously the lawyers and Mr. Allen, the former lawyers and Mr. Allen himself don't think that there's been any particular damage and they want to soldier on.

[00:42:26] And so what would happen if the lawyers might happen and you know, depends on what Mr. Allen wants and it depends on what might happen is he'd have to file one would have to file a

[00:42:41] petition probably in the Northern District of Indiana asking for a preliminary injunction to stop the state trial and it would be more delay and what the writ would look like would be something like either release Mr.

[00:42:59] Allen or give him back as counsel of choice and they don't give him back as counsel of choice and I don't know who would be the who. It's an interesting question.

[00:43:13] So, but if they didn't do that and they released him then they could re the state could re arrest him and we're doing it all over again. And habeas is an extremely blunt instrument. I mean if there weren't this really clear cut counsel of choice question.

[00:43:28] I wouldn't even be thinking about it. I mean, habeas really this is really generally for really bad violations of federal law that the state courts have failed to do anything about.

[00:43:44] One thing I'm curious about we've gotten some questions about this is that the judge and the attorney general made an argument in their filings that basically I'm simplifying the court doesn't need to to even reach the substance their procedural

[00:43:59] errors these things shouldn't have been filed before the Supreme Court first. And I was just wondering if you had any insights and opinions on whether or not it was appropriate to bring this before the Supreme Court when they did. Absolutely.

[00:44:14] I mean there's a so, you know I think in the Mr. Allen's reply which Mark Lehman, Carol Winnickie a couple of really brilliant lawyers did and appeal would have taken a while even an expedited appeal and that's a judge.

[00:44:28] If the judge had certified the question for interlocutory appeal.

[00:44:33] I think we're out of time now for an interlocutory appeal actually, but you know we're asking for just qualification of the judge and by the way when removal of the lawyers structural error in your opinion and by the way the Supreme Court as exclusive jurisdiction over the regulation of lawyers

[00:44:58] boy it sure looks like an appeal would be inadequate even if you could get one and I think I truly think that the judge was under a duty not to remove the lawyer.

[00:45:12] You know, again it comes into you know two stages, even if you don't like the PD, if she could remove them as public defenders I don't think she could remove them when they showed up. That's just saying well I don't like the way you lawyer.

[00:45:30] One thing I'm going to ask you to do which is a super annoying question I know but you know if you have a little crystal ball there you talked about the different outcomes that we could see here you know everyone's removed nobody's removed.

[00:45:42] Some people are removed others aren't but do you feel that there's a you know likely outcome here as far as you see it or is it still pretty up in the air for you.

[00:45:53] You know I have so what I'm going to say is let me prep as if by saying I haven't drunk the defense collade as it were.

[00:46:03] I mean one thing about doing saviours work is as I tell my students you got to figure out all the ways you can lose before you can even think about winning.

[00:46:14] And I was a deputy attorney general for most of a year 87 and oh and the appeals division so you know I'm not I'm not just your old fence lawyer pushing pushing the fence out here but I don't see why were the Indiana Supreme Court.

[00:46:34] I wouldn't want to see this case again at least not on these issues. And the only way that happened. Is if you get rid of the judge.

[00:46:49] This just goes on and on if you don't room state lawyers I think now that's up to you know that would be up to Rick Allen in the end. You know maybe if judge Gall stays and the lawyers are removed. He won't want to pursue it any further.

[00:47:07] Just get on with things. Don't know. But if I were the Indiana Supreme Court, I think given what the judge has done with the record.

[00:47:18] I think certainly wish the judge well I know she's been ill recently maybe she's better I don't know how serious it was there's a.

[00:47:26] He has a defense he has defense lawyers who know the case I mean justice just pragmatically if you're the Indiana Supreme Court you don't want to see this again you want to get this thing going.

[00:47:38] Get rid of the judge and get the lawyers back again whether they come back as PDs or pro bono counsel I don't know. I can see them saying judge stays in the lawyers go but I think that's a problem.

[00:47:49] And then is there we breeze through all of our questions I'm looking at the list. Is there anything we didn't ask you about or that you wanted to clarify more or do you really think people should walk away from this conversation kind of maybe thinking about.

[00:48:02] Yeah, well as I tell my students you know criminal defense is a group effort and and if you look at, you know the group involved here.

[00:48:10] I mean, Maggie Smith and Jesse cook and on the first original action I think there were others Karen winicky may have been on that. David Hennessy I mean Rick Allen's lawyers themselves. Andy Baldwin and Brad Rossi.

[00:48:25] Second original action Mark Leeman and Kara winicky again Joel Schoen and the public defender Indiana public defender counsel on the amicus briefs these are all just really amazing lawyers who have stepped up. And put in hours and hours and hours and hours of work. Without getting paid.

[00:48:47] To pick something. So we'll listen Michael thank you so much for your time and insight we really appreciate you coming on giving the habeas perspective giving giving some of the perspective on, you know what the consequences to this pretty important event could be.

[00:49:03] Yeah, we'll see it's you know why we play the games right. And we're looking forward to talking with you again I think next week. Yeah, I'm really excited about that. Yeah, it's gonna be fun talking about class I look forward to it too thank you for the time.

[00:49:19] We want to thank Michael for sharing his time and insight with us we think it was a really valuable conversation and we just really appreciate him doing it. Thanks so much for listening to the murder sheet.

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