The Delphi Murders: Richard Allen Goes to the Indiana Supreme Court: The Court Weighs In

[00:00:00] Content Warning This Episode Includes Discussion Of Murder Well, it seems like ever since the team representing Richard Allen has filed some rits with the Supreme Court of Indiana, we've been waiting. We've been waiting to hear what the court would do. And it turns out that tonight, December 11th, 2023,

[00:00:28] we get a result. We get some answers from the Supreme Court of Indiana. We also get some more questions, more things to ponder and think about. So let's just take a few minutes to discuss what happened and what we think it might possibly mean.

[00:00:47] My name is Anya Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases. We're The Murder Sheet.

[00:01:04] And this is The Delphi Murders. Richard Allen goes to the Indiana Supreme Court. The Court weighs in. Now, the key thing to remember, of course, is that there were actually two separate rits. The first writ was entirely related to record keeping, basically saying,

[00:02:09] Judge Gull is not making public the records she should be making public. The second writ was the one that has gotten more attention. This is the writ where basically says, Judge Gull was wrong to remove attorneys Brad Rosie and Andrew Baldwin from the case.

[00:02:30] They should be restored to the case. They should once again be the attorneys representing Richard Allen. And furthermore, Judge Gull should be removed from the case. And furthermore, again, there should be a trial of Richard Allen scheduled for within 70 days. So two separate rits.

[00:02:49] Yes. And so the rulings on those will be separate. Yes. Why don't we talk about the order that was handed down in the first writ? It was denied. Yes. Shall we read some of that order? Certainly. Published Order Denying Rit of Mendeamus and Prohibition.

[00:03:10] Richard Allen has petitioned this court under the Rules of Procedure for Original Actions for a writ of Mendeamus and Prohibition. He requests that we one, order the trial court to reinstate several court records as publicly accessible documents on the chronological case summary, CCS, and the electronic case file.

[00:03:27] Two, prohibit the trial court from ordering the removal of any court records filed in this case from the CCS and the electronic case file.

[00:03:35] And three, prohibit the trial court from excluding from public access any court records without complying with the requirements of our rules on access to court records. ACR rules.

[00:03:45] Allen argues our intervention is necessary because the trial court has failed to perform the clear absolute duty imposed by our rules to ensure public access to court records.

[00:03:55] We first explain why Allen has failed to show that our intervention is warranted, and we then provide guidance about the requirements in our ACR rules. Original Actions are viewed with disfavor and may not be used as substitutes for appeals.

[00:04:10] Indiana Original Action Rule 1c. Because a writ is an extraordinary remedy, we will not issue a writ unless the party seeking relief can show a clear and obvious emergency where the failure of this court to act will result in substantial injustice. In substantial injustice.

[00:04:27] Allen has not made the requisite showing here. The request that prompted this petition have largely been resolved and thus mooted by the trial court's order entered on November 14, 2023. This order directed the trial clerk to take specific actions.

[00:05:12] ACR rules going forward. If there are any remaining concerns about access to court records here, interested parties should first seek relief in the trial court and then pursue an appeal if necessary.

[00:05:24] We now take this opportunity to clarify the requirements in our ACR rules, which recognize the strong societal reasons for allowing public access to court records.

[00:05:34] The ACR rules presume the public will have open access to court records with limited exceptions. Those exceptions are found in Rule 5, which identifies two types of records that are excluded from public access.

[00:05:45] First, Rule 5a sets out several categories of entire cases excluded from public access, including when either statute or court rule requires the records to be treated as confidential. For these records, exclusion from public access is automatic and no other notice is required.

[00:06:03] Second, Rule 5b sets out 13 types of individual case records excluded from public access. For records falling under this rule, documents must be filed as confidential and include an ACR form identifying the specific basis for exclusion.

[00:06:19] Aside from these two exceptions, Rule 6 permits a trial court to exclude otherwise public court records from public access only in extraordinary circumstances and by following the rules process.

[00:06:30] That process requires any person affected by the release of the court record to make a written request to prohibit public access, which must give notice to the parties and allow them 20 days to respond.

[00:06:42] And before a trial court excludes the requested record, it must hold a public hearing and issue a written order explaining why it is granting the request. The justices of this court have reviewed the briefs and other filed materials and conferred with each other.

[00:06:55] Because Allen bore the burden to persuade this court to issue a writ and he has not done so, the petition is denied. This disposition is final. No petitions for rehearing or motions to reconsider shall be filed in this original action.

[00:07:07] Done at Indianapolis, Indiana on December 11th, 2023. Loretta H. Rush, Chief Justice of Indiana. All justices concur. So there is some stuff to chew on there.

[00:07:23] First of all, I think it's fair to say that most of the people we talked to behind the scenes felt that of the two rits this one was the stronger. That is correct.

[00:07:35] Because just looking at the record, it appeared as if Judge Gull was not following the appropriate procedures. Yes, and that things were going off the rails in that sense in terms of documenting everything.

[00:07:48] And we generally don't like to share opinions, but we have always strongly favored transparency and openness. In fact that a reference to 118 documents. That was Kevin and Shea Hughes. So they got them released.

[00:08:05] And Ania Kane, we filed into the case earlier in the year to get more documents released. Kevin, I am but a humble reporter. I'm not an attorney, so I had little to do with it.

[00:08:19] But it is important to stress that our bias in this case often tends to be releasing more information. Yes, we strongly believe that. And I know people often say moral victories don't count. I'm inclined and maybe you disagree.

[00:08:38] I'm inclined to believe that the defense attorneys on this particular writ may deserve to get credit with a moral victory because I'm not sure what happened is that after this was filed,

[00:08:53] Judge Gull on her own released a bunch of documents and did a bunch of things that the team asked for. Yes. I'm not sure she would have released those documents or done those things had not this written file.

[00:09:06] I think the moral victory stands and I think that with this situation is important to note though, I don't know whose fault was this was. I don't know why the weirdness was happening with the records that were not being posted.

[00:09:21] There seems to be almost maybe several things that may have been happening at once. I'll be honest with you. I'll be really, really blunt. I don't care whose fault it was. It's inexcusable. All these records should be public. I completely agree.

[00:09:37] But frankly, I'm a nosy person and I like to know who messed up here. I like to know who's to blame not so I can get mad but just so maybe that situation doesn't happen again. So if it was Gull unilaterally saying,

[00:09:49] Get rid of these for all of these then that would be concerning or if the clerk messed up. I don't know.

[00:09:57] If you're pointing the finger at one another to a certain extent, we have heard that weird things can happen when you have a special judge because they're not necessarily keyed into the courthouse or the system as much as they would be if it was a local judge.

[00:10:10] But it's unclear to me. I would love to know the backstory but ultimately what matters is that hopefully things will be different going forward because I think the court made it pretty clear that that's what they expected.

[00:10:21] And let's also be honest on you mentioned that earlier this year documents were being kept secret in violation of the rules. So we filed into the case. We got a bunch of documents released.

[00:10:34] You all remember this happening and after that happened there were assurances this would not happen again that the rules would be followed and documents would be released in the future. And that apparently didn't happen the way it should.

[00:10:48] And so now we're getting more assurances that it won't happen again and rules will be followed in the future.

[00:10:55] So I hope that that is the case and I hope that someone else doesn't need to file into the case in two or three months to get more documents released. I mean we will do so again if we have to. Yes.

[00:11:07] Well, the other thing though I do think it's important to stress is that you know we did get those 118 documents released.

[00:11:13] It sounds like they weren't put on my case in an appropriate way and I think that's a fair criticism but it's not necessarily that we're going to have a massive new wave of new information on the case at this point. It's more about how is it presented.

[00:11:29] In any case as we acknowledge we don't like to give opinion that we do have a strong bias on the issue of transparency.

[00:11:35] Well, I think moral victory for the defense but certainly a pretty resounding procedural loss in terms of how they went about filing this and I guess from that perspective maybe it's not surprising given what experts have told us that Ritz and Mandamus are looked on very disfavorably.

[00:11:55] They don't like them. They're not going to do them unless it's an absolute emergency. And what I heard here was why didn't you just go to the trial court and then do an appeal if that didn't work. Why are you coming here?

[00:12:08] And I also wonder part of the reason they give for not granting this writ is because Judge Gull on her own issued an order for the records to be released. If she had not done that, I wonder if the Supreme Court would have ruled differently.

[00:12:23] It's a good question. I remember at the time when she did that, I felt it looked like a strategic move of like, well, what's the problem folks? It's already been done. And if that is what it was, then it worked to that extent.

[00:12:37] But I think the tone of the filing is very much like don't let it happen again. That's the vibe I'm getting. I don't let it happen again. I mean, don't let the records be kept secret again. Yes. What else would I mean?

[00:12:53] It's basically don't let the records be kept secret again. That's the vibe I'm getting. That's not a real thing. It's just my opinion, obviously. So just take it with a grain of salt. That's just how I'm reading into it.

[00:13:07] But it'll be, I'm sure it's a disappointment for the appellate team to lose though. You know where this, especially since this was the one that we got the sense that people had, you know, this is the less dramatic writ.

[00:13:18] But it is a writ that a lot of people believed in just on principle and it was not successful in winning in court, although it did maybe result in some changes. So let's talk about what the court did on the second writ.

[00:13:36] Will you read to us what the court issued today? Notice of hearing the Supreme Court will hear oral argument on the relator's second application for a writ of mandamus and prohibition in state ex rel Allen on January 18th, 2024 at 11am.

[00:13:57] Relator seeks a writ from this court reinstating his former counsel, setting trial within 70 days and removing the trial judge and appointing a special judge. The argument will be conducted in the courtroom of the Indiana Supreme Court.

[00:14:12] The argument will be 60 minutes equally divided between relator and the parties opposing the writ. Any entity granted amicus curi status may argue without further motion, but only with the consent of the party with whom the amicus curi is substantively aligned.

[00:14:27] The relator shall open the argument and may conclude the argument by reserving part of the relator's time for rebuttal before beginning the argument. Notwithstanding original Act Re4C, appearance by the respondents or counsel is required.

[00:14:43] Attorneys of record shall file an acknowledgement of the hearing no later than five days after service of this order and should arrive at least 20 minutes before the scheduled start of the argument to complete an appearance form done at Indianapolis, Indiana on December 11th, 2023.

[00:14:59] Loretta H. Rush, Chief Justice of Indiana, All Justices Concur. So basically they want the attorneys to come in and do oral arguments so they can hear more information about the case. So what does this mean?

[00:15:16] The first thing that jumps out to me is that on this program, we always try really hard to listen to all points of view and also behind the scenes. We try to listen to all points of view and I'm sure the people in the audience do the same.

[00:15:37] And one thing we've heard from people on the prosecution side of things is this writ is really, really weak. There's no value in it whatsoever. It's going to be immediately denied.

[00:15:52] And on the other hand from people on the defense side, we've heard this writ is really, really strong. It must be granted in order to preserve constitutional rights.

[00:16:04] The Supreme Court will grant this writ and what this tells me is the Supreme Court of Indiana doesn't agree with either of those positions. They feel in short that the conclusion of this case, the ultimate decision in this case is not clear.

[00:16:22] At least not now. It's not obvious. They need more information in order to make a determination and that tells me that any ruling is possible from the court. Wow. So you're just saying it's just... There's no way to really read into this or what do you think?

[00:16:43] I'm saying if they thought the decision was obvious, they could have just denied it the way they did with the first writ. So they're considering this and this would be the thing, this would be the writ that would really have a huge impact on the case.

[00:16:58] Yes, this is the seismic writ. This is the writ that could change everything. Yes. So they...this basically still a chance for Judge Gull to be removed. The original attorneys to be reinstated and the trial to be bumped up till 70 days. Yes. Wow. Well, it's definitely interesting.

[00:17:19] I should note that also there's some good news for those of you out there who are interested in such things because oral arguments in the Indiana Supreme Court are webcast live and I believe they're archived. Oh, so people can watch at home.

[00:17:39] You don't have to get up early and stand in line to the Supreme Court or some whatever equivalent. You can watch it on your computer like a civilized human being. You can watch it on your computer and get all the information you need.

[00:17:52] What are these Supreme Court hearings like? Have you ever seen one? Yeah, a hearing like this is very different from a trial. Yeah, and that's why you have people who focus on this and are appellate lawyers.

[00:18:08] So basically the attorney for either side will stand up in front of the judges and will start making a presentation.

[00:18:18] You always write out a presentation of what you're going to say and then as they start talking, typically the justice will start interrupting them with questions like, oh, what do you mean by that? Or what if we change this fact? Would this affect what you're saying?

[00:18:34] And they would start asking questions to really challenge the attorneys and get them to really have to defend their arguments in often creative or challenging ways. Sounds terrifying. So it's basically...

[00:18:52] You have to be a special breed of attorney to be able to do this and do it well.

[00:18:55] It sounds like the legal equivalent of one of those Western movies where the evil cowboy is shooting at somebody's feet and making them dance. Is that it? That sounds like it. I think I nailed that analogy.

[00:19:08] I'm sure appellate attorneys out there would not disagree with you. And if there are appellate attorneys out there who would like to come and talk with us on the show about what the experience is like and how you prepare for it, we'd love to have you.

[00:19:22] Yeah, you got to really be... I imagine very cool, calm, collected in order to deal with that stress. Is it a situation just for our listeners at home? I think I know the answer. But will they then come back with a result immediately or they need some time to simmer on it?

[00:19:41] They need some time to simmer on it.

[00:19:44] And think of any time in your life when you've had to give a presentation or even just when you're talking to someone, like maybe you're trying to talk to your spouse about a vacation you want to take or something of that nature.

[00:19:58] And they just start asking you questions and they might ask you unexpected questions. Or perhaps a better comparison might be if you're a parent of a small child and a small child is always asking questions and asking why, why? It can be frustrating.

[00:20:17] Are you calling these esteemed justices children? I'm just saying it's a challenging position to be in. Yeah, I imagine as you said there's people who specialize in this and that's why because it's different than your standard trial work. And I will be so curious to watch this.

[00:20:36] And I'm going to ask what sounds like a very dumb question and I apologize for that but they're not going into this with their minds made up. What happens in that courtroom on that day in January could influence how things go, right? Sure. Because we've gone to...

[00:20:55] Obviously I don't know what's in the hearts and minds of these justices. And certainly if you, I'm not going to talk about politics but certainly if you follow US politics and US legal news whenever important cases go before the United States Supreme Court.

[00:21:12] Most people who are familiar with the court on the big cases can tell you well we know these... They have this many votes on this side, this many votes on this side and you can guess how the people are going to vote.

[00:21:25] So I don't know if the justices in this case have an idea of how they're going to vote. All we know is together they feel more information is needed. Interesting. So this means that things could totally change in January.

[00:21:45] Yes and also keep in mind you read their response to the first writ in which they say you really, really have to meet a high burden to get us to grant a writ. You really, really need to do this.

[00:21:59] You really need to jump through all of these hoops and prove X, Y and Z and you did not do it here. And they're not saying that about this second writ. They're saying we need more information. Interesting. Wow.

[00:22:15] Well I will be both obviously tuning in and figuring out... And again I think we granted a moral victory to the team in the response to the first writ. Just the fact that the second writ, the court decides it's meriting an oral hearing.

[00:22:33] I think that's a bit of a moral victory for them as well. Yes. Well obviously if it didn't get shot down immediately that's good. That's good for one team and not the other.

[00:22:44] But for me the moral victory in the first writ is kind of tempered by the fact that it's over now. It's been discarded and it's been thrown out for procedural reasons and it's essentially been said why did you do this?

[00:22:57] This was not the right way to do it. So ultimately that's a loss even if it resulted in some positive changes. I think the goal of it was to win, not to win a moral victory. But for this one there's still a chance to win.

[00:23:14] And this is the more important one for the structure of the case and the geography of the case I would argue because if you have Judge Gull removed then the other attorneys could come back on.

[00:23:27] I imagine they could say no one comes back on, we just get totally new people. I mean that's been an outcome we've heard about. There's all these different possibilities. The writ being considered, the court is considering a writ for a very specific remedy.

[00:23:43] They're considering the writ, bring back the defense attorneys, get rid of the judge, order a trial. Could they say no, yes, no? They can't pick and choose. They have to do it exactly as it was said.

[00:24:01] I remember very early on in law school one of the instructors said basically judges can do almost anything they want as long as they can write an opinion justifying it. Oh God. So they could pick and choose? Yeah.

[00:24:21] They could say we're kicking everybody off and it's going to happen in 70 days. That seems very unlikely. Oh gosh. Wow. Well, certainly keeping things interesting in Delphi. And again I'm not an expert on the appellate process.

[00:24:44] I would really appreciate it if there was attorneys out there who've worked in that field could offer us insights.

[00:24:51] Yeah and I just, yeah it's just wild but it shows you we've been talking with a lot of really smart people behind the scenes who just like okay what do you think about this? How is it going to go?

[00:25:00] And like I don't think anybody said I think the first writ will be unilaterally denied out of the gate and the second writ will be allowed to move forward. Did anyone say that? Now that I recall and most people did not expect it to go to oral arguments.

[00:25:16] At least by most people I say most people behind the scenes that we spoke with on both sides of the equation. Yeah some people are frankly biased for the prosecution in this or the judge I would say and then others are biased for the defense.

[00:25:30] And so you want to talk to both groups and people who maybe are more in the middle to get a sense of like just what the opinions are, reading the tea leaves. And in this situation it's definitely a mixed bag.

[00:25:45] Is there, is it possible that since it's such an important case they just want to have it do it in the most thorough way possible and not dismiss it out of hand?

[00:25:57] If you're arguing that the Supreme Court of Indiana wants to dot all the I's, cross all the T's in this Richard Allen case then why wouldn't they also done the same with the first writ? Well if they felt that it was just taken care of then yeah.

[00:26:16] Or they felt that basically there was no business in asking and if they opened the door to that it would open a lot of doors that they didn't want to open for the first writ.

[00:26:28] I'm inclined to think that they would not have wanted it to move forward unless there was at least a death. Oh I'm certainly saying, I'm not saying that they were just oh this is totally maritalist we just want to appease everybody.

[00:26:44] I'm not saying that. I'm just more saying that like I mean it is so important it is such a big, it's such a fundamental crossroads about who stays and who goes.

[00:26:55] In an important case in Indiana I'm just you know it almost feels like it makes sense to have arguments because it's just that important. I don't know. I'm not a lawyer I'm just a humble reporter.

[00:27:10] It's really it's going to be fascinating because as all of you know the questions at the heart of this writ touch on a lot of important issues about how attorneys in a case should operate the rights of a defendant to choose their own attorneys.

[00:27:32] There's lots of things at play here and I think it's possible for reasonable minded people to come up with all sorts of different opinions on this. And they certainly have. I think it's possible to even come up with opinions that wouldn't satisfy other people.

[00:27:55] I know for instance I've talked to people who say I really don't like what Baldwin and Rosie did they shouldn't have been removed from the case.

[00:28:03] Yeah, yeah there's I mean there's so much nuance here and that gets boiled down when people just treat it like a stupid sports game where it's one team versus the other.

[00:28:11] There's actually a lot of room for nuance and concern on both sides or saying that you know I just think I think it's good to be thoughtful and nuanced and not necessarily knee jerk in our reactions here.

[00:28:27] And that's why we have a lot of different people with a lot of different opinions on the show who are either talking to us in the background or who are talking to us on the show and hopefully people are at least understanding different viewpoints and seeing OK it's a complicated issue.

[00:28:42] And that's what the point is of the oral argument process because when a lawyer gets up to make a presentation they have all of their points in mind.

[00:28:53] They know exactly what the strongest possible things are to say but it's important for the judges to throw them off their game and humiliate them. It's important for the justices to say well here's where your argument might be weak respond to this respond to this respond to this.

[00:29:12] So I forget did you say you've seen one of these before in person. I've been to oral arguments. What was it like what I've described but was it like stressful for you as an audience member or just like whatever. It can be stressful as an audience member.

[00:29:27] Yeah and it and as I say the oral arguments for the state of Indiana are available online. So if you want to get an idea of what the process is like you can go online and pick an argument at random. Yeah that's it.

[00:29:43] That would be a great idea for if people want to prep and just get a sense of like what this is going to be like because it is going to be different from your typical criminal justice trial.

[00:29:51] And it also might be interesting most of the attorneys in this case certainly on the defense side have had experience and appellate courts before.

[00:30:00] And so maybe we can look and see if there was arguments with these attorneys at me before the court and see how they handled it. Interesting seeing people's different styles come out. Well thank you all so much for listening.

[00:30:16] This has been a quick Delphi update but we'll just be keeping you informed as we hear other things in this case and we hope you have a great evening. Thanks so much for listening to the murder sheet.

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