Justices: Judge didn’t have authority to hit ‘eject button’ on Delphi murder defense team
In another move, Judge Gull delays a hearing to consider new charges against Richard Allen in the Delphi murder case and contempt allegations against his reinstated defense team
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INDIANA SUPREME COURT: JUDGE IN DELPHI MURDER TRIAL DIDN’T HAVE AUTHORITY TO REMOVE DEFENSE TEAM
Indiana Supreme Court justices issued an opinion Thursday that special Judge Fran Gull, assigned to the Delphi murder case of suspect Richard Allen, was right to “try to get the situation under control quickly and decisively” as her concerns mounted about what she’d called “gross negligence and incompetence” by defense attorneys.
But the justices wrote that Gull lacked the authority to abruptly remove attorneys Brad Rozzi and Andrew Baldwin in October 2023 without considering other, less drastic options and weighing what the move would do to Allen, essentially delaying his trial “by at least nine months.”
“So not only would Allen’s trial be delayed for at least many months if his original attorneys were not reinstated, if Allen were convicted, correcting the disqualification by vacating his conviction and ordering a second trial would produce years of further delay and an enormous waste of time and resources,” the justices wrote. “That would not serve anyone’s interests – not Allen’s, the State’s, the victims’ families’, the courts’, nor the public’s.”
The opinion, written by Justice Derek Molter, came three weeks after the justices heard arguments and ordered that Rozzi and Baldwin could get back to defending Allen, a 51-year-old Delphi man accused in the February 2017 murders of teens Abby Williams and Libby German.
The order came just came a few hours on Jan. 18. But it didn’t come with the court’s rationale, laid out Thursday by the Indiana Supreme Court.
At issue was Allen’s contention that Rozzi and Baldwin had been given little choice but to step aside when Gull confronted that in her judge’s chambers with her frustrations about how they were handling the case.
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Gull raised her concerns about crime scene photo evidence that leaked from Baldwin’s office and wound up in true crime media sites; a November 2022 press release Baldwin and Rozzi sent out after they’d “assured the trial court that they did not intend to ‘try this case in the media’ … and knowing that the trial court would likely soon issue a gag order;” A time when Baldwin was accused of mistyping an email address, sending information about the case meant for Rozzi instead to a defendant with a similar first name in an unrelated crime; and allegations that Rozzi and Baldwin provided false information to the court regarding Allen’s treatment and the adequacy of trial prep conditions in the Westville Correctional Facility, where Allen was being held on a safekeeping order out of Carroll County. Gull had told them that she was prepared to read a statement outlining her allegations if they didn’t withdraw from the case.
In court documents and before the Supreme Court, Allen’s representatives had argued that he wanted Rozzi and Baldwin, who had been appointed to his case in November 2022, shortly after he was charged. They argued that the judge might not have liked the zealous approach Rozzi and Baldwin took, but they hadn’t been negligent in their representation.
For more on that June 18 hearing: “Supreme Court reinstates Richard Allen’s defense team in Delphi murder case.”
And for more on the October showdown between Gull and Allen’s defense team: “Judge: ‘Cannot … will not’ reinstate defense attorneys. Delphi murder trial pushed back.”
In their opinion, the justices wrote that a court cannot disqualify court-appointed counsel over the objection of a defendant unless it is the last resort and is necessary to protect a defendant’s constitutional rights and ensure the proceedings are conducted fairly and up to ethical standards.
The justices wrote that Gull could have addressed her concerns “through a combination of procedural rules and court orders.” The justices wrote that there was “no suggestion that Baldwin and Rozzi are out of their depth” as attorneys in the case. They wrote that Gull might have had concerns that “disclosure of case materials undermines Allen’s defense, but they don’t explain how.”
The opinion reflected the questions and concerns justices raised during the June 18 hearing about wanting to get the stalled trial – which had been on scheduled to start in early January, but now is slated for October – back on track.
“The prejudice to Allen begins with the fact that information and momentum spillage is inevitable as one trial team hands a complicated case like this over to another,” justices wrote. “Add to that, Allen has already been in jail for about a year and a half now, and substituting counsel requires a nine-month delay in the trial date with substitute counsel unsure whether they would even be ready by then. That is not surprising given that this is a complicated, high‐stakes case. Further, it has already been seven years since the murders. And fact‐finding only gets harder as time passes, memories fade, and evidence is lost.”
The justices also put the question into context with the fact that Allen was being kept in the Wabash Valley Correctional Facility, a state prison in southern Indiana. Both sets of Allen’s court-appointed defense teams have tried to persuade the court to move him to a county jail to improve his conditions and help him prepare for trial.
“We are in no position to evaluate the claims in those motions, and the special judge has concluded at least some of Baldwin and Rozzi’s claims about the confinement conditions are wrong,” Molter wrote. “But even assuming every aspect of Allen’s pretrial confinement is proper (and again, we are in no position to say one way or another at this point), extending it for at least nine months still presents extraordinary challenges for which there is no adequate appellate remedy.”
(On Thursday, Gull denied the latest effort to transfer Allen to a county jail. Here’s more on that motion: “Delphi murder suspect’s new attorneys raise old concerns about prison conditions.”)
While the justices found that Gull’s conclusion “was too harsh,” they wrote that “she wasn’t wrong to be deeply concerned that sensitive case materials had leaked.” That was part of their order that allowed Gull to remain on the bench for Allen’s trial.
“Though she mistakenly hit defense counsel’s eject button instead of the case’s lockdown button, she was right to try to get the situation under control quickly and decisively,” the justices wrote. “Her efforts did not reflect any bias or prejudice, and Allen doesn’t identify anything she has done that demonstrates she isn’t impartial.”
Justices Loretta Rush, Mark Massa and Christopher Goff concurred with Molter’s opinion.
Justice Geoffrey Slaughter concurred in part, but dissented from the majority opinion, writing that while Gull’s “actions raise a potential constitutional problem, it is far from clear she exceeded her authority.” Slaughter wrote that “Allen does not have an unquestioned right to keep” Rozzi and Baldwin and that the court’s opinion essentially makes up a rule that Gull couldn’t have been aware of before she was accused of breaching it.
Slaughter, in his dissent, wrote that the court’s order “appears to strike a reasonable balance between the competing interests” of right to counsel and a judge’s duty to make sure a defendant receives a fair trial. But he wrote that he fretted the ruling allowed “Allen to short circuit the appellate process” and would “invite future deviations from our rules.”
“In my view,” Slaughter wrote, “these institutional costs far outweigh the benefits to Allen.”
Judge delays next week’s hearing: Gull agreed Thursday to postpone a hearing scheduled for Monday, Feb. 12, to March 18. In play that day are motions from the prosecutor to add charges of kidnapping against Allen and that Rozzi and Baldwin should be found in contempt for their handling of evidence and the case. McLeland argued in a six-page document filed in late January that Rozzi and Baldwin had been playing loose with evidence – either by leaking it or sharing it in some way that allows it to wind up in podcasts or YouTube channels – and working around the edges of a gag order Judge Fran Gull issued in the case. McLeland’s filing echoes many of the allegations Gull raised in October 2023, when she told Rozzi and Baldwin to withdraw from the case or she’d go into open court and lay out accusations of her own. Rozzi and Baldwin had asked for continuances on both of those matters so they had time to prepare – particularly on allegations that could bring sanctions or even jail time. The March 18 hearing will be in Gull’s home court in Allen County.
Not in contention that day will be Rozzi and Baldwin’s motion, filed this week to dismiss the charges against Allen, contending that evidence that could have cleared him of the crime was destroyed. The move centers on recordings of interviews between investigators and a pair of men in the days after the girls were found Feb. 14, 2017. The defense team argue that while notes from the investigator interviews with the two men are available, the full recordings aren’t. Their motion contends that when they raised that question in September 2023, they weren’t given a reason why by Prosecutor Nick McLeland. Rozzi and Baldwin were taken off the case in October 2023, before they were able to get better answers, the motion contends. They also contend that video recordings of investigators’ interviews up to Feb. 20, 2017, were recorded over. The prosecutor hasn’t responded and Gull hasn’t set a hearing on that matter.
Read the Indiana Supreme Court opinion here:
PRIMARY CANDIDATE DEADLINE: NOON FRIDAY
With a noon Friday, Feb. 9, deadline for major party candidates to file for the May 7 primary ballot, a couple of fields got more crowded in the past two days.
Tippecanoe County commissioner: Dave Byers, an incumbent Tippecanoe County commissioner in District 2, will get a challenge in the Republican primary by Jeff Findlay. Findlay, a retired owner of Findlay Drilling Co., has been prominent in recent months, as protest continues over Indiana Economic Development Corp.’s proposal to plant high-volume wells in western Tippecanoe County and build a pipeline to take water from the aquifer near the Wabash River to service large manufacturers being recruited to the 9,000-acre LEAP district two counties away, near Lebanon. No Democrat had filed as of Thursday afternoon. Libertarian Steve Mayoras has filed to be on the November ballot for a commissioner district that covers the western portion of the county.
Tippecanoe County Council: Make that 10 candidates – five Democrats and five Republicans – who have filed for three at-large seats on the Tippecanoe County Council, the fiscal body of the county government. Paige Britton, a Republican, filed this week.
House District 41: State Rep. Mark Genda, a Frankfort Republican whose district includes the southwestern corner of Tippecanoe County, already has a primary challenger in Joe Sturm, a Lauramie Township Board member. Dan Sikes, a Democrat, filed this week.
Here’s a list, including candidates who have announced intentions to file, as of Thursday. (* = incumbent)
Commissioner, District 2: David Byers* and Jeff Findley, R; Steven Mayoras, Libertarian
Commissioner, District 3: Tom Murtaugh*, R; Jaime Ortiz, Libertarian
County Council, at-large (3): Republicans: John Basham*, Paige Britton, Dan Dunten, Barry Richard* and Kevin Underwood*. Democrats: Katy Bunder, Ben Carson, Amanda Eldridge, Joe Mackey and Wendy Starr.
Coroner: Carrie Costello*, R; Elizabeth Tran, D
Treasurer: Yadira Salazar*, R
Surveyor: Zach Beasley*, R; Deni Gavin, D
Judge, Circuit Court: Sean Persin*, R;
Judge, Superior Court 6: Michael Morrissey*, R
House District 13: Matthew Commons and Sharon Negele*, R; Ed Moyer Jr., D
House District 26: Chris Campbell*, D
House District 27: Sheila Klinker*, D; Oscar Alvarez, R
House District 38: Heath VanNatter*, R
House District 41: Mark Genda* and Joe Sturm, R
Governor: Mike Braun, Brad Chambers, Suzanne Crouch, Eric Doden, Curtis Hill and Jamie Reitenour, R; Jennifer McCormick, D
U.S. House, District 4: Jim Baird*, Charles Bookwalter and Christopher John Lucas, R; Rimpi Girn and Derrick Holder, D
U.S. Senate: Jim Banks and John Rust, R; Valerie McCray, D
Shadeland Town Council: Michael Kuipers, R; Pamela Luenz, R; Robert Morrison Jr., R;
Shadeland Clerk-Treasurer: Charlene Brown, R
The general election also will include …
School boards: Lafayette School Corp., three at-large seats; Tippecanoe School Corp. seats in District 4, District 5, District 6 and District 7; and West Lafayette Community School Corp, four at-large seats.
For information about filing as a candidate, go to: https://www.tippecanoe.in.gov/448/Candidate-Information
To check your voter registration status: Go to the Secretary of State’s portal at www.indianavoters.com.
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