Sentencing today in Delphi
Richard Allen faces 45 to 130 years for the murders of Abby and Libby. Another Q&A on potential appeal strategies. Plus tributes to three in the community. And more tracks for the BiL Holiday Playlist
Thanks today for ongoing help from Based in Lafayette sponsor Long Center for the Performing Arts in downtown Lafayette, where tickets make great gifts. For tickets and details on shows and events, go to longpac.org.
TODAY IN DELPHI …
Sentencing for Richard Allen, the 52-year-old Delphi man convicted Nov. 11 in the 2017 murders of Abby Williams, 13, and Libby German, 14, is scheduled to start at 9 a.m. Friday at the Carroll County Courthouse.
Allen faces anywhere from 45 years to 130 years in prison. There will be no cameras, broadcast or electronics allowed to send updates from the courtroom, which tracks with the way Judge Fran Gull ran the trial. On Thursday, Allen’s attorneys filed a sentencing memorandum that said Allen maintained his innocence and wouldn’t speak during Friday’s hearing, saying he had little to gain given that the minimum sentence likely would amount to a life in prison. Instead, they’re aiming at an appeal to get a second trial. Here’s more on that from a Thursday edition:
Q&A: ANOTHER LOOK AT HOW AN APPEAL MIGHT PLAY OUT FOR RICHARD ALLEN
Andrea Burkhart, a defense attorney from Washington state, was among those who braved the elements and lines to get one of the sparse public seats to watch and listen to Richard Allen’s trial in October and November. Nightly, she went through evidence and testimony on her YouTube channel, devoted to commentary and legal analysis of high-profile cases. I asked her similar questions I had in Thursday’s edition for Shay Hughes, a criminal defense attorney in Tippecanoe County who has been watching and offering legal breakdowns in the Delphi murder case, looking at what a strategy for an appeal might look like for Allen.
Question: First off, have you recovered from a month of Richard Allen’s trial and everything it took to cover it?
Andrea Burkhart: I got really sick when I got home and it took a while to recover! So now I am behind on everything else. Long trials are physically demanding even in the best circumstances, and we had a whole additional set of challenges with getting in the courthouse door.
Question: Were you surprised, given the testimony, at the verdict? How so?
Andrea Burkhart: I was surprised but not shocked. Surprised because the evidence in Libby's phone did not support the state's theory of how the crime occurred, and because their theory did not explain the unusual features of the crime scene, such as why Abby's body and hands were clean and why small twigs were placed on her. He also didn't look anything like the man the witnesses near the bridge at the time described seeing. I'm not shocked because people find confessions to be very persuasive, and there isn't yet a broad understanding of how common false confessions are and how they're produced.
Question: What’s your prediction on the sentence Friday? Will Judge Gull give Richard Allen the maximum in prison? Or will mitigating factors come into play, do you think?
Andrea Burkhart: Yes, I think she will give him the maximum sentence of 130 years. There are mitigating factors present, but those won't override the aggravating circumstances of the crime – the especially vulnerable victims and the crime's exceptionally heinous and cruel commission.
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?
Andrea Burkhart: Absolutely. There is no question that he will appeal, he has the right to do so and will exercise that right.
Question: What, if anything, makes the state’s victory most susceptible to an appeal?
Andrea Burkhart: The number of restrictions Judge Gull put on the defense's ability to defend and respond to the state's theory are especially problematic when the evidence of guilt is circumstantial and not overwhelming. That she often appeared to apply inconsistent standards to the state and the defense is not helpful either, such as allowing lay prison guard witnesses to opine about the veracity of Mr. Allen's statements while not allowing a psychologist expert in false confessions to do the same.
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?
Andrea Burkhart: Some of the most significant issues I see are: (1) excluding the third-party culprit defense, (2) excluding geofencing data showing that Mr. Allen's phone was not in the area at the time of the crimes while other phones were, and (3) denying the defense's motion to exclude the firearm comparison evidence without a hearing. To succeed on any of these issues, the defense has to show that the errors were not harmless, meaning that they had a material impact on the outcome of the trial and could have changed the jury's calculation as to whether Mr. Allen committed the crime.
Specifically as to the first issue, the defense needs to show that there are non-speculative reasons to believe that one or more of the alleged suspects committed the crime. They will point to the connections between a self-avowed Odinist and Abby Williams, his inconsistent statements about meeting her, incriminating statements by other alleged Odinist suspects, incriminating social media, all of their incomplete or failed alibis, and the ritualistic characteristics of the murders to argue that this is all non-speculative evidence that they, not Mr. Allen, were the killers.
As to the second, the defense may not have preserved this issue for appeal if they did not ask again to admit it at trial, like they did with the third-party culprit evidence, so they would need to show that they asked to introduce it (perhaps at sidebar) and were denied. Finally, on the third point, the defense will rely on the testimony of firearm analyst Melissa Oberg as to her methodology comparing an unspent cartridge to a fired shell casing along with the testimony of defense experts Drs. Rubin and Eric Warren to show that this methodology is untested, unvalidated and unreliable.
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?
Andrea Burkhart: It is very likely that the voluntariness of Mr. Allen's statements will be challenged on appeal, although I do not expect them to win on this issue because the law in this area is not favorable. However, the circumstances in which he made them are troubling, and it will be important for the defense to try to minimize the statements to discourage the appellate court from relying heavily on them to establish that any trial error was harmless because the confessions would still result in the same verdict. I certainly expect appellate judges to be far more familiar with the prevalence of false confessions than the general public, as well as the significant due process concerns about the circumstances of Mr. Allen's detention in solitary confinement in prison without having been convicted of any crime.
Question: Do you think there’s a chance that appeals judges would be more open to hearing the Odinist, ritualistic killing theory? And if so, do you think a jury puts stock in that theory – enough to say not guilty?
Andrea Burkhart: The appeals judges will consider the ritualistic killing theory in the light most favorable to Mr. Allen because their role on appeal is simply to determine whether he has presented sufficient evidence that, if believed, would call into question whether he is the killer. They will not consider whether or not they believe the evidence when they reach that conclusion. Personally, I believe that many aspects of the ritualistic killing theory provide better explanations for the crime than the state's theory, but whether it will be sufficient to persuade a jury that reasonable doubt exists likely depends on how much weight the jury gives to Mr. Allen's confessions.
Question: Does the uneasy, even contentious relationship between the judge and Allen’s defense attorneys factor into the potential for an appeal?
Andrea Burkhart: They'll likely argue on appeal that she should have granted their motion to disqualify her on the basis of bias against the defense attorneys. The Indiana Supreme Court previously allowed her to remain on the case, but that was before she presided over contempt proceedings against the defense attorney and returned a ruling that disparaged their representation. The defense would very much like a ruling that she was biased because they'd prefer that any potential retrial be before a different judge. While I think they'll raise this issue, I don't think it is likely to succeed because Indiana law is clear that they can't rely on her consistently, even wrongly, ruling against the defense to show that she is biased against them.
Question: What other context should people know as they watch for the sentence and what could come after that?
Andrea Burkhart: The sentence is a foregone conclusion – he will receive the maximum sentence of 130 years because of the nature of the crime and the victims. The appeal process will likely take between a year or two and focuses solely on whether legal errors were committed in the case. There are other processes available to allow Mr. Allen to continue to try to prove his innocence, such as requesting post-conviction testing of crime scene evidence like the unidentified human hairs, but he can't seek to use any of those processes until after the appeal is finished.
THIS AND THAT/OTHER READS …
I was glad to see the family of Keith Ford tell more about his story. Ford, 35, was killed Dec. 5 when Louis McGlothlin, 73, drove all day from his home in Lincoln, Nebraska, pulled into the Lafayette Laundry on South Street, went inside and just started shooting. Two other Lafayette residents – Renee Martin, 32, and Salvador Antonio De La Cruz Reyes, 30 – were wounded in the attack. McGlothlin went outside and, after shooting a round into the ground, shot himself in the head. He died two days later. Police still haven’t figured out a motive for the shooting or why he came to Lafayette that day. J&C reporter Ron Wilkins spoke with Keith Ford’s brothers to rounded out more about his life: “Family of laundromat shooting victim wrestles with unanswered questions and grief.”
J&C reporter Sam King had nice look at the life and impact of Frank Kendrick, a star for the mid-‘70s Purdue basketball teams who became a central figure on the staff of coach Gene Keady in the ‘80s and ‘90s. Sandwiched in between was a pro career that included an NBA championship with the Golden State Warriors. Kendrick died this week at age 74. Here’s more from King: “Passion for Purdue basketball shined through for Frank Kendrick.”
The news of the death of Ron Smith, owner of Smith Sound, had tributes from the music crowd humming in the past few days. And rightly so. Smith was behind-the-soundboard/behind-the-scenes guy so affable, so supportive and so good at what he did. Bands loved to see him at sound check. And chances are, you loved that he was at Indiana Fiddlers’ Gathering/Mosey/Friends of Bob/Name Your Event even if you didn’t even know he was there for the load-in – things ran that well on sound. Among the tributes out there, I liked this one from Cody Hall, who performs as CoyoteBear: “Ron gave me some of the best advice about running sound/playing music I'd ever heard, and I think about it all the time. ‘Look around the room, if people are having a good time, it sounds good.’” Sounds about right. Smith died Dec. 13. He was 75. Here’s his obituary.
IT’S YOUR HOLIDAY PLAYLIST
BiL readers understood the assignment with the Based in Lafayette Holiday/Seasonal Playlist. There’s room for more, three songs at a time. Here’s where we stand (including suggestions from readers still in the queue and on their way to publication in the coming days).
Today’s picks come from …
Loran Parker
In her own words: “I am a transplant from South Bend who arrived in West Lafayette 25 years ago for a Purdue education and fell in love with Greater Lafayette. My husband and I are raising our two children here, and I am a research scholar in Purdue's College of Education. About my selections: I attended the only private, non-religious K-8 school in South Bend. As such, it was a school rich in cultural and religious diversity – not unlike Greater Lafayette. We spent time every December celebrating the traditions of the various families that made up our school community. Even though I was raised Presbyterian, I really enjoyed getting to learn about and celebrate a wide array of traditions every year. I thought I would add some of my favorite Hanukkah songs to our list.”
“The Chanukkah Song,” Adam Sandler – As an Xennial, this song is seared into my brain. I cannot enter December without singing it and smiling.
“Hanukkah Blessings,” Barenaked Ladies – Who knew the Barenaked Ladies had a holiday album!? Now you do.
“8 Days (of Hanukkah),” Sharon Jones and the Dap Kings – The late, great Sharon Jones produced some of the best soul music of the past few decades. She and the Dap Kings bring their best soul to this school-house rock style jingle.
Mike Smith
From your friendly county election board staffer and keeper of election minutia in Tippecanoe County.
"Go Tell It on the Mountain,” Janice Harrington – Janice Harrington is a jazz and blues goddess who got her start in the ‘60s in USO shows. She still performs in her 80s. This song is from her “Christmas in New Orleans” album and also features her husband – the great jazz trombonist Werner Gürtler – and her best friend Linda Fields.
“Carol of the Bells/We Three Kings,” Scott Bradlee – Scott Bradlee puts together a great medley/mash up in his Post Modern Jukebox-style Christmas piano solo. Whenever I hear this I smile, as it reminds me of the fun and innovative orchestra teacher I had, the fantastic Jeff Boswell. Mr. Boswell not only taught the technique and theory of music, but the joy, satisfaction and pure unadulterated fun of making music, like the founder of Post Modern Jukebox, Scott Bradlee.
“A Christmas Festival,” Boston Pops with Arthur Fiedler conducting – This version has the swelling 4800 pipe Aeolian-Skinner organ of Boston Symphony Hall taking the nine-minute medley to beat all Christmas medleys to a rousing crescendo finish. The Boston organ was just a year old that time, and the composer/arranger, the famed Leroy Anderson, was on hand to insist upon its use as they recorded the performance for RCA Records. The original recording was a 78 single, with half of the medley on one side, half on the other because a 78 record was limited to about eight minutes of play to a side.
Your turn: What’s on your list?
What three songs are going into your holiday/seasonal playlist this year? If you’re game to share, here’s all we need:
Three songs and the artists.
One or two sentences about why you chose each one – could be a memory or a short history or review about why that track belongs in your mix and why you’d recommend it to others.
A little bit about you to let readers know who’s making the picks.
Send to: davebangert1@gmail.com
Thanks again for ongoing support from Based in Lafayette sponsor Long Center for the Performing Arts in downtown Lafayette. For show information and tickets, go to longpac.org.
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Tips, story ideas? I’m at davebangert1@gmail.com.