Attorneys: Richard Allen prepared to appeal Delphi murders conviction, nothing to say at sentencing
Attorneys say Allen, convicted in 2017 murders of teens Abby Williams, Libby German, won't talk with 'state actors,' saving it for ‘a full defense’ on appeal. Plus, a Q&A on possible appeal strategies
Attorneys for Richard Allen, convicted in November for the February 2017 murders of Delphi teens Abby Williams and Libby German, say for former pharmacy tech at the Delphi CVS maintains his innocence, plans to appeal and won’t participate in the pre-sentencing investigation, according to court documents filed Thursday morning.
A day ahead of Friday’s sentencing hearing in Carroll Circuit Court, Allen’s defense team wrote in a sentencing memorandum that he “is hopeful that the appellate process will provide him with an opportunity to present a full defense at a second trial.”
Allen’s court-appointed attorneys – Brad Rozzi, Andrew Baldwin and Jennifer Auger – wrote that they advised Allen not to offer information ahead of or during Friday morning’s sentencing hearing, because “there was not value in Richard Allen continuing to talk with state actors.” The attorneys also wrote that they planned to speak and make arguments “in minimal fashion during the sentencing hearing.”
Allen, 52, faces a prison sentence of at least 45 years, with a maximum of 130 years for the murders Abby Williams and Libby German near the Monon High Bridge Trail.
They wrote that Allen, “on his best day at sentencing,” would face more than 33 years in prison, with time credited for good behavior. That would put him at age 85 when he could be released.
“The practical reality is that unless this matter is reversed and retried, Richard Allen is likely facing the rest of his life in prison,” his attorneys wrote. “Again, his continued interaction with state actors does not make sense considering that a second trial may occur which would allow him to present a full defense.”
The defense team signaled before and during the trial that an appeal would be likely. Allen’s attorneys tried several times to get Judge Fran Gull to step down from the case or have her removed for bias against Allen. The Indiana Supreme Court declined to do so earlier in 2024, at the same time that they reinstated Rozzi and Baldwin as Allen’s attorneys after they’d been forced off the case when Gull accused them of “gross negligence and incompetence” in how they handled things.
(Thursday’s court filing included a line about an appeal that “will include adjudication by a neutral, detached and unbiased tribunal.”)
After the jury had left on Day 15 of the trial, defense attorney Baldwin made run at an offer of proof to introduce evidence about a third-party theory that Abby and Libby were victims of a ritual killing done by people practicing Odinism/old Norse paganism. Judge Fran Gull had knocked down each of those attempts before and during the trial, ruling in August that the burden was on Allen’s attorneys “to show a nexus between Odinism, cult or ritualistic killing” or any of the names of the men attached to the third-party theory. Baldwin attempted to make the connection with testimony about the possible meaning of sticks found covering the girls’ bodies – and whether they represented Norse runes – and questions about how one man in the alleged Odinist plot had asked an investigator after an interview in early 2018 whether, if traces of his spit were found on one of the girls but he could explain why, would he still be in trouble.
Gull’s response from the bench: “We’ve had this conversation a thousand times.” Baldwin told her that he was making the request in court so it was in the record for future use by the Court of Appeals.
Ahead of the trial, Gull also rejected efforts to toss more than 60 self-incriminating statements from Allen after his October 2022 arrest, when he was kept under a safekeeping order in an isolated unit at Westville Correctional Facility. Allen’s attorneys then argued that the confessions were effectively statements coerced by the state due to its safekeeping order, given what the conditions of the pre-trial prison setting did to his mental state.
The defense team raised those issues again in Thursday’s sentencing memorandum, also bringing up statements Allen made to a prison psychologist assigned to Allen at Westville.
During the trial, Dr. Monica Wala testified that Allen described details during a session in prison about forcing the girls off the Monon High Bridge with the intent of raping them, only to get scared when he spotted a passing van – a piece of the timeline investigators said was something only the killer would know. Wala testified that Allen told her that he killed the girls, making sure they were dead and then walking away to live his life. Wala’s testimony was a target of the defense, after she admitted that she was a true crime fan and had been closely following the Delphi murders case in recent years. She also admitted on the stand to checking prison records to look up subjects in other cases that had tangential ties to the murders of Abby and Libby.
“Throughout this case, Richard Allen has brought to the court’s attention that he was detained in solitary confinement without due process,” Rozzi, Baldwin and Auger wrote. They continued:
“This constitutional violation by the state was then exacerbated by the assignment of staff psychologist, contracted by the (Indiana Department of Corrections), who while having a deep personal interest in the case, engaged in ‘confidential’ discussions with Mr. Allen about the details of the acts for which he was accused. In total, Mr. Allen was housed in four different jails or prisons during his detention without any input from himself or his appointed counsel. During this time, Allen was exposed to staff, law enforcement officials and offenders, all of whom have reported circumstances that negatively impacted his defense. This is not the intended purpose of pre-trial detention in our system of criminal justice. As a result of these constitutional violations, Richard Allen’s defense team believes it has an obligation to protect him from the prospect of any further inappropriate contacts with state actors.”
The defense team also questioned why Gull didn’t use Carroll County probation officers to conduct the presentencing investigation, instead opting for those from her home court in Allen County.
The court filing also asked the court to consider mitigating factors, including Allen’s lack of a criminal history; the fact that he had been the breadwinner in his family before his arrest; his service of nearly a decade in the U.S. Army National Guard; and consideration of his history of treatment for major depressive disorder and anxiety when deciding where he is sent while he awaits an appeal.
WHAT’S NEXT: A sentencing hearing for Richard Allen is scheduled to start at 9 a.m. Friday, Dec. 20, in Carroll Circuit Court in Delphi. There will be no cameras allowed and no broadcast from the 72-seat courtroom, according to orders from Judge Fran Gull. Allen faces up to 65 years in prison for each murder.
Q&A: HOW AN APPEAL MIGHT UNFOLD FOR RICHARD ALLEN IN THE DELPHI MURDERS CASE
In this Q&A, Shay Hughes, a criminal defense attorney in Tippecanoe County who has been watching and offering legal breakdowns in the Delphi murder case, takes a look at what a strategy for an appeal might look like for Richard Allen.
Question: First off, were you surprised, given the testimony, at the verdict on Nov. 11? How so?
Shay Hughes: I was somewhat surprised at the verdict. Genuinely thought the jury would be deadlocked given the length of deliberations. As for the verdict, it is always difficult to defend crimes against children. Likewise, it is not easy to counter incriminating statements made by your client.
Question: What’s your prediction on the sentence? Will Judge Gull give Richard Allen the maximum in prison? Or will mitigating factors come into play, do you think?
Shay Hughes: I believe Judge Gull will sentence Richard Allen to approximately 120 years, fully executed in the Department of Corrections. I have doubts Allen will be sentenced to the maximum of 130 years (considering double jeopardy for two additional counts of murder; 65 years on each count; running consecutive). In terms of mitigation, the two biggest factors are that Allen has certainly lived a law-abiding life and supported his family prior to his incarceration. I would also contend imprisonment would result in undue hardship given his prior psychosis and related behavior while incarcerated.
Question: Richard Allen’s attorneys have been hinting, before the trial and during the trial, about an appeal. Do you expect that as a foregone conclusion at this point?
Shay Hughes: I fully expect Allen to exercise his right to appeal the conviction and sentence.
Question: What, if anything, makes the state’s victory most susceptible to an appeal?
Shay Hughes: In my opinion, the most susceptible issue to the verdict is the validity of the search warrant pertaining to Allen's home. Probable cause affidavits in support of a search warrant must include all material facts, even if they cast doubt on the existence of probable cause. Omissions will invalidate a search warrant if: 1. the police omitted the facts to make the affidavit misleading or with reckless disregard; and 2. if supplemented with this information, there would not be probable cause.
In this instance, Carroll County Sheriff Tony Liggett, then a detective, spoke with Betsy Blair and Sarah Carbaugh – who had been on or near the trail the day Abby and Libby were killed – and Allen, with Allen contending Liggett made several omissions regarding statements taken from the aforementioned individuals. On appeal, Allen may argue that Liggett had personal knowledge of his omissions and mischaracterizations within the affidavit. More specifically, the affidavit makes it appear Allen was on the trail after 1:30 p.m. despite Allen stating otherwise. Likewise, the affidavit makes it appear Blair observed Allen when her complete statement diminishes such. Further, Carbaugh did not observe blood or a blue jacket – though, during trial, she reportedly testified she did reference blood. That it is entirely possible then-Carroll Circuit Judge Benjamin Diener's decision turned on Blair's statement, Carbaugh's observations and Allen's initial statement to police.
Question: If you’re coming at this for an appeal, what are, say, three prime candidates as issues to argue? And what would those take to be successful?
Shay Hughes: In my opinion, the three biggest issues are, first, the validity of the search warrant.
Second, the exclusion of third-party evidence. Evidence is admissible if it is relevant and can only be excluded if its probative value is substantially outweighed by its prejudicial effect. Evidence is relevant if: 1) it has any tendency to make a fact more or less probable; and, 2) the fact is of consequence in determining the action. Evidence that demonstrates someone else may have committed the offense makes it less probable it was Allen and is certainly a fact of consequence, as the state must prove identity. In her order issued Sept. 4, 2024, Judge Gull found Allen did not demonstrate a “nexus” between the third-party evidence and the murders. But I think there's an argument to be made that the trial court did not impose the correct standard and is deviating from the Rules of Evidence. The Indiana Supreme Court previously rejected the argument that third-party evidence must be directly connected to the charged crime in order to be admissible and, instead, noted its review was guided by the Rules of Evidence. With that said, the Indiana Supreme Court later determined evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect and that, in the context of third-party evidence, there must be some connection between the third-party and the crime.
Finally, the exclusion of Dr. William Tobin as a witness. Allen sought to have Dr. Tobin testify about tool mark examination (on an unspent .40-caliber round found at the crime scene) and that the methodology utilized for identification is flawed. The Indiana Supreme Court has stated the rules on expert testimony were not intended to be unnecessarily burdensome. That tool mark examination of firearms is on the margins of testimony governed by expert testimony evidence rules. That even though tool mark identification testimony may be equivocal and the methodology lacks formal testing, this all goes to the weight of the expert's testimony, not its admissibility. Indiana courts have consistently recognized that when expert testimony is admitted, the credibility of the expert's opinion may be challenged by rebuttal evidence. I would also note that Dr. Tobin's testimony was referenced by the Maryland Supreme Court in a landmark decision that held identity theory utilized by tool mark examiners was not reliable for an expert to opine bullets found at the crime scene were fired from a specific handgun.
Question: Even at the appellate level, is there any getting around 60-plus self-incriminating statements? Will appeals judges be more or less sympathetic to the evidence about how those confessions and related statements came about, given questions about Allen’s mental state and isolation in a prison cell after his arrest?
Shay Hughes: It is very difficult to win an appeal on sufficiency of evidence grounds. The appellate court neither reweighs the evidence nor the credibility of witnesses. If there is sufficient evidence of probative value to support the conclusion of the jury, the verdict will not be disturbed.
Also, I have doubts an appellate court will determine these statements are inadmissible, as they were not the result of an interrogation (express questioning on part of law enforcement, or their agents, that police should know are reasonably likely to elicit an incriminating response). Volunteered statements are not protected and not all conversations amount to an interrogation. I expect an appellate court will hold Allen's mental state and the conditions of his confinement go to weight, not admissibility.
Question: Do you think there’s a chance that appellate judges would be more open to hearing the Odinist, ritualistic killing theory Allen’s attorneys floated? And if so, do you think a jury who hears it puts stock in that theory – enough to say not guilty?
Shay Hughes: Appellate courts have consistently stated that trial courts have broad discretion when ruling on the admissibility of evidence. The standard of review for admissibility of evidence is abuse of discretion. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court.
This standard of review would not favor Allen's argument regarding the admissibility of third-party evidence. With that said, the trial court did not provide much reasoning for its decision and did not cite to any authority in support. But this is certainly an uphill battle for Allen.
A jury may put stock in such a theory, but I'm not confident it would be enough for a not guilty verdict – though I believe it increases the probability of a hung jury. If this evidence was determined to be admissible, the state would have the opportunity to rebut it and could even get ahead of it during its case-in-chief.
Question: Does the uneasy, even contentious relationship between the judge and Allen’s defense attorneys factor into the potential for an appeal?
Shay Hughes: I don't believe the contentious relationship between Judge Gull and Allen's attorneys will factor into the appeal. I am interested to see who and how many attorneys are appointed. While it is typical for only one attorney to be appointed in a criminal appeal, I think two appellate attorneys are necessary.
Question: Why is that?
Shay Hughes: Two attorneys were appointed to try this case at the trial court level. Thus, I believe two appellate attorneys are necessary for the appeal. This is a complex case spanning over two years with an investigation originating in 2017 and continuing through trial. Allen's attorneys will also be responsible for assembling the appendix (compilation of documents filed in the trial court case). Likewise, this is going to be a lengthy transcript, thousands of pages. Appellate rules require facts relied upon to be supported by a page reference to the transcript/appendix. Further, there is a deadline to file a brief. While the Indiana Court of Appeals will provide a party with an extension or two, briefs are generally submitted approximately 60 to 90 days after the transcript is filed.
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