Delphi / Richard Allen Supreme Court Transcript: Oral Arguments held on January 18, 2024
The Richard Allen Supreme Court transcript below offers a detailed account of the hour-long oral arguments conducted on January 18th, 2024, at the Indiana Supreme Court. In October 2023, Special Judge Fran Gull removed counsel for Allen, who faces charges related to the 2017 deaths of teens Liberty German and Abigail Williams, commonly known as the ‘Delphi murders.’ Following a series of events that involved a former employee of attorney Andrew Baldwin accessing a conference room, covertly taking photographs of crime scene images, and sharing them online, Judge Gull accused Baldwin and co-counsel Bradley Rozzi of “gross negligence” and asserted that she could no longer permit them to represent Allen, despite the defendant’s objections.
Questioning the court’s authority to sever the attorney-client relationship, Allen urgently petitioned the Supreme Court for relief. His requests included the reinstatement of his attorneys, the appointment of a new judge, and the scheduling of a ‘speedy trial’ date within 70 days.
State of Indiana ex rel. Richard M. Allen
– v. –
Carroll Circuit Court
and
The Honorable Frances M. Gull, Special Judge
[ BEGIN RICHARD ALLEN / DELPHI SUPREME COURT TRANSCRIPT ]
SHERIFF JOE DOWDELL: All rise. The Supreme Court of Indiana is now back in session. [Gavel strike] Please be seated.
CHIEF JUSTICE RUSH: Good morning and welcome. We’re here this morning to hear an argument in the case of State ex rel. Richard Allen, relator, v. Carroll Circuit Court and The Honorable Fran M. Gull, respondents. Counsel for Richard Allen, the relator, will argue first.
We are hearing this case on a Writ for Mandamus in a prohibition case. Representing the relator today, we have Mark Leeman. Good morning and welcome, Mr. Leeman. You will be arguing the case.
At counsel table we also have Cara Wieneke. Good morning, Ms. Wieneke. And Bernice Corley, good morning and welcome, Bernice Corley.
Representing the State of Indiana at counsel table, we have Angela Sanchez. Good morning, Ms. Sanchez, and welcome. You’ll be arguing first, correct?
ANGELA SANCHEZ: Second.
CHIEF JUSTICE RUSH: Second, all right. You’re just listed first on the appearance, got that.
So, Matt Gutwein, you’re representing Judge Fran Gull, and you will be arguing first.
And at counsel table, we also have Chris Stake who is also here on behalf of the respondent, correct? Good morning and welcome Mr. Stake and counsel.
Counsel, as we begin conducting oral arguments, you’ll each have about two minutes before we may start asking questions. Each side has 30 minutes. So, are you ready to proceed?
ATTORNEY MARK LEEMAN: I am, Your Honor.
CHIEF JUSTICE RUSH: All right, Mr. Leeman.
ATTORNEY MARK LEEMAN: Good morning, Justices.
No Indiana court has tolerated a trial judge removing a lawyer from a case over the client’s objection based on the judge’s subjective belief the lawyer is negligent or being ineffective.
Cases across the entire country do not tolerate the removal of the entire defense team from a case over the client’s objection where the lawyer is licensed in the jurisdiction and prepared for trial on the scheduled date.
When a judge severs the attorney-client relationship over the client’s objection, the integrity of our entire judicial system is undermined, and the unauthorized action necessitates that this court intervene and invoke its inherent authority to supervise the conduct of lower courts.
On October 12th, the judge ordered counsel to, quote, “… cease work on Mr. Allen’s case until we meet on the 19th.”
This was a period where intensive work was occurring in the case. Where Mr. Allen and his lawyers were in the middle of tactical decisions and strategy review. This impinged the right to counsel.
When October 19th rolled around, the judge took clearly coercive action to sever the attorney-client relationship on her own motion.
The judge was without jurisdiction to sever the entire defense team over the objection of Mr. Allen’s wishes, and his licensed counsel, who both remain in active & good standing in our state.
JUSTICE MASSA: Without jurisdiction? Explain that. Why was the judge without jurisdiction?
ATTORNEY MARK LEEMAN: Judge, I think the judge here exceeded her jurisdiction when she refused to accept Rick Allen’s wishes when she had an absolute duty to act upon them. And the judge crossed the barrier of neutrality and entered the realm of being an advocate.
And when the defendant is saying “This is what I want, this is what I desire” then the judge is without jurisdiction and has an absolute duty to act upon the client’s wishes under those circumstances.
JUSTICE MASSA: So, isn’t your argument more accurately phrased that she’s under a duty to let them back into the case? It’s not a question of court’s jurisdiction being exceeded, is it?
ATTORNEY MARK LEEMAN: No, judge. I see those as one and the same—
CHIEF JUSTICE RUSH: Are you talking about authority or jurisdiction? I mean, we have a lot of cases that define both of those differently.
ATTORNEY MARK LEEMAN: Judge, I think that under either construction… I see this as the judge is without authority — or excuse me, the judge is under an absolute duty to act upon the wishes of the defendant under these circumstances.
CHIEF JUSTICE RUSH: Okay. But it’s – but, you don’t cite a lot in that. So, when you talk about absolute duty, a court — we have cases that say courts can remove counsel for various reasons; if they’re not a member of the bar, if there’s a conflict that really is to the detriment of the client.
So, there’s not an absolute duty to always leave counsel on, correct? There is some discretion the trial court judge has.
ATTORNEY MARK LEEMAN: There is an absolute duty to follow the client’s wishes, and then when a conflict of interest arises, the issue is whether the client fully understands that — whether he’s making a knowing and voluntary decision in that regard.
CHIEF JUSTICE RUSH: And the absolute duty is found under the Sixth Amendment?
ATTORNEY MARK LEEMAN: Judge, I think the absolute duty could just be under this court’s case law. But I think that in the aggregate, that the three violations of the Sixth Amendment provide this — constitutes three situations where in their totality, they clearly place the limit on the judge.
CHIEF JUSTICE RUSH: Is there a reason why you didn’t file a State Constitutional claim?
I was sort of surprised by that… under Article 1, Section 13?
ATTORNEY MARK LEEMAN: Judge, we didn’t feel like we had the record that had preserved that issue and developed a separate argument under the Indiana Constitution. But, we are not arguing that this court isn’t free to proceed under that analysis. We had basically five or six days under a situation where the judge wasn’t even giving us a transcript to see exactly what took place within that January– excuse me, October 19th hearing —
CHIEF JUSTICE RUSH: You have a lot of concerns. You had a lot of concerns, and you do a nice job laying those out in your brief, but there’s a couple things…
You are asking the court to issue a ruling for a speedy trial. It appears Mr. Allen signed that with his attorneys in August, but they had never filed it, so… correct?
ATTORNEY MARK LEEMAN: Yes. I think when he signed it, they were outside of the 70-day.
But the speedy trial was —
CHIEF JUSTICE RUSH: But you acknowledge that you’re asking us to grant something that wasn’t requested at the trial level?
ATTORNEY MARK LEEMAN: Well, it wasn’t requested at the trial level, Your Honor, because it wasn’t necessary until October 31st when the judge removed them, the third and kind of final time.
CHIEF JUSTICE RUSH: So, they sat on it. They had it for two months and didn’t file it?
Your client signed it in August under the–
ATTORNEY MARK LEEMAN: Yeah — yes, Your Honor. They had it and did not file it.
One, there wouldn’t have been reason to file it, they had made— So, the speedy trial was an intimate part of their strategy here, and they had developed a strategy and tactics with Mr. Allen as to when specifically to file that.
The request for the completion of discovery was granted by the judge, but that deadline was submitted, or ordered by the court, to be November 1st. And then the tactic there would have been to file for a speedy trial right after that to lock in the trial date and to close down the evidence that the prosecutor can then introduce at that point.
But, Your Honor, that request, because it’s the relief that our client wants and wants — and so we needed to present it to this court.
Obviously, if this court reinstates attorneys Baldwin and Rozzi and orders the judge off the case, then if we proceed forward with the trial, then they can refile that with the senior judge who would take over the case.
But, the relief that Mr. Allen wants is he wants Attorneys Baldwin and Rozzi on the case, and he wanted a speedy trial. And, in order to show that that’s an intimate part of the trial tactics and decisions that were going on was to present that to the court and make sure that this court had an opportunity to rule on it if it wanted to do so.
JUSTICE SLAUGHTER: But does your argument depend on our having found that the trial court’s underlying findings of gross negligence and incompetence were wrong?
ATTORNEY MARK LEEMAN: No.
JUSTICE SLAUGHTER: Well, if she’s right about those findings, why isn’t that — why isn’t the relief that she ordered appropriate?
ATTORNEY MARK LEEMAN: First, Justice Slaughter, she’s not right about those findings.
Second, there isn’t a record to even substantiate those findings. But third, those issues don’t involve —
JUSTICE SLAUGHTER: If there’s not a record, maybe then the findings aren’t proper, but if the findings are correct, why doesn’t what she did follow from those findings?
ATTORNEY MARK LEEMAN: Because the attorney– excuse me, the client, has the autonomy to choose the direction of his representation. And if he is aware that there may have been some sort of violation or the judge feels that there is a violation, he is allowed to waive that concern and to proceed forward with the lawyers that he’s developed a relationship with.
JUSTICE SLAUGHTER: Waive what concern? Waive — for example, she’s concerned, at least as I understood the record, she’s concerned that with these counsel proceeding on his behalf, if they go to trial, he may well have built in reversible error because his counsel are ineffective. Constitutionally ineffective.
And if you’re talking about a waiver of rights, are you suggesting that your client would waive whatever Strickland violation might occur were he to proceed to trial with these lawyers?
ATTORNEY MARK LEEMAN: Judge, that’s almost essentially what happened with regards to the disclosure of the Westerman materials. He filed with the judge, says “I’m aware of that!
I’m ready to ride or die with these lawyers!”
JUSTICE SLAUGHTER: I’m just asking you to tell us on the record whether that’s something you’re asserting on your client’s behalf. If we grant the relief you want, there will be no Strickland claim that can be asserted because you’re waiving it.
ATTORNEY MARK LEEMAN: I think on the Westerman — if the judge was to build appropriate record, that can happen. That’s what happens in all conflict-of-interest cases, and that’s what happens under this court’s case law. You bring the defendant into chambers and you say, listen, in lota he’s representing the wife, he’s representing you — or excuse me, he is representing your husband, ma’am, and he’s representing you. Do you fully understand that by proceeding forward, that could cause some problems for you? And he may not have fully disclosed those to you because his interest, his loyalties are divided.
JUSTICE SLAUGHTER: If I hear what you’re saying, you’re invoking your client’s right to counsel of choice, but you’re disclaiming your client’s right to competent counsel – if and when he goes to trial.
ATTORNEY MARK LEEMAN: Disclaiming — no.
JUSTICE SLAUGHTER: You’re waiving your client’s willingness or right to invoke a Strickland argument on collateral review.
ATTORNEY MARK LEEMAN: The client can knowingly and voluntarily waive conflicts of interest, and he can waive certain issues for collateral review, absolutely. But, none of that happened here because the judge didn’t hold a hearing. The judge didn’t hold a hearing and say, “Listen. I feel like this pretrial publicity somehow a year ago is going to contaminate your trial—”
JUSTICE MASSA: Counsellor, we’re not talking about waiving conflicts of interest.
We’re talking about waiving ineffectiveness.
ATTORNEY MARK LEEMAN: None of these things that the judge is citing have anything to do with ineffectiveness of trial counsel at trial. Ineffectiveness is not co-extensive with ethical violations.
JUSTICE SLAUGHTER: She thought his representation was grossly negligent and incompetent.
ATTORNEY MARK LEEMAN: She said, “You’re grossly negligent and incompetent.”
I don’t know if it was about trial representation at all.
And in the arguments that she advances in the brief regarding what she says is grossly negligent and incompetent have nothing to do with whether a fair trial is going to happen here.
And if there was a hearing where these matters were discussed and fully vetted, then either the client could waive any Strickland issue as to those issues, or the issues would be proven that the judge— there’s no foundation for the concerns that she’s having.
JUSTICE GOFF: Mr. Leeman?
ATTORNEY MARK LEEMAN: Yes, Judge?
JUSTICE GOFF: That’s really what I’m struggling with. Our original jurisdiction is very limited, and so if we were to agree with you on the substantive arguments that you’ve made, why is it that the regular appellate process is wholly inadequate?
ATTORNEY MARK LEEMAN: Justice Goff, interlocutory review and direct review are impossible and don’t get us anywhere near the relief that my client’s entitled to.
My client was entitled to a jury trial today. My client’s entitled to a jury trial with effective lawyers that he spent a year and three months developing a well-thought-out strategy of third-party guilt and a speedy trial to catch that prosecutor on their back foot.
And it was blown out of the water from a judge who exceeded her authority.
And so what we couldn’t — we would have began that interlocutory review process by putting a motion in front of the judge asking her to certify an order that we weren’t even sure what her order was, but she wouldn’t give us the transcript until we came to this court and insisted that she get it to us so we could figure out what the scope of what happened was.
So, she would have had 30 days to rule on that interlocutory request. Meanwhile, Ms. Wieneke and I got this entire case briefed on an original action to this court in less than 30 days with amicus filings on all parties, and that was even with the judge asking for an extension of time.
This gentleman had Attorneys Baldwin and Rozzi who he had been working with for over a year to develop and get ready to catch that prosecutor on their back foot with a well-developed third-party guilt strategy that was to be going now.
CHIEF JUSTICE RUSH: Mr. Leeman, we would have a full record if they hadn’t agreed to withdraw, correct? It would have gone to hearing?
ATTORNEY MARK LEEMAN: I don’t think we would have had a full record even then, Judge. The judge was saying that there wasn’t– there was a coercive action of the judge. “I’m going to go out there and say these things” and Mr. Rozzi presses at her “Well, what’s that proceeding going to be?”
And the culmination of it, that judge says, the culmination is “You’re removed.”
So, the record, I don’t know would have been any better. And in fact, it would have harmed Mr. Allen even more because it would have put– on the public record– the judge’s personal bias towards the strategy that he had developed, which is a strategy of these two gentlemen —
CHIEF JUSTICE RUSH: That’s one of the things you have to prove with regard to the request to recuse.
ATTORNEY MARK LEEMAN: Well, we believe, Your Honor —
CHIEF JUSTICE RUSH: Because you’re saying “there’s not enough for this, but there is enough for that.” There’s not enough information with regard to the negligence and incompetence, but there is enough with regard to personal bias.
ATTORNEY MARK LEEMAN: Correct, Your Honor. I do think that —
CHIEF JUSTICE RUSH: Without a hearing…
ATTORNEY MARK LEEMAN: I don’t think those positions are inconsistent.
There is no evidence of incompetence, certainly no evidence of trial incompetence, which is what the Sixth Amendment–
CHIEF JUSTICE RUSH: My concern is getting this case back on track.
ATTORNEY MARK LEEMAN: Yes.
CHIEF JUSTICE RUSH: So, your argument is that you have a constitutional right to counsel of your choice in this circumstance, and you acknowledge that there are some circumstances that you do not. And if this case would go to trial, if there was a conviction, it’s structural error, and it would be reversed, and everybody would have to go through this again, correct?
ATTORNEY MARK LEEMAN: Yes. Judge, but I do want to clarify that this is more than just the choice of counsel case. Like, this is an interference of counsel. And this is — the right to counsel itself. Because the right to counsel is meaningless if a judge can say “Stop all work. I know you’ve got a relationship going on. Stop it all until you come to my chambers.”
And then says “You’re off the case. Whether we go into the courtroom, or you stay in here, you’re off the case.”
CHIEF JUSTICE RUSH: There were a lot of events in this case that led up to the hearing, correct? With regard to sending information on a case to another criminal defendant, with regard to — well, there’s a lot. I don’t need to go through it, it’s in both of your briefs.
There’s a lot of questionable things that have occurred up to this point with regard to the release of discovery, or letting third parties have access to discovery.
Is there no line that a judge — let’s say that everything was turned over, and counsel didn’t show up for hearings.
Is there ever a line that a trial court judge has, to say, “Listen. I know this is your — at this point a court-appointed counsel. I do not think you’re going to get a fair trial, and you’re going to set yourself up on the flip side for reversal” just like I talked about the structural error being grounds for reversal the other way.
You’re going to come in on the Strickland ineffective assistance of counsel and say my Attorneys were not effective. I mean, I lost, and this is because my attorneys did x, y, and z.
ATTORNEY MARK LEEMAN: The ‘not showing up for hearing’ is a unique situation because, one, the lawyer is not being a lawyer at that point.
CHIEF JUSTICE RUSH: Not filing briefs, not meeting deadlines, not — submitting a brief of A.I. that doesn’t make any sense.
ATTORNEY MARK LEEMAN: Judge, if a judge is exhausting other remedies short of disqualification, extreme misconduct will eventually fall into one of our other categories.
That is, the client will object to the continued representation, that the lawyer will be removed from the — excuse me, the lawyer will eventually himself pull out of the case or a conflict of interest will develop.
And, we see that in some of the other cases across the country.
And so, like, if a lawyer in one case was obstructing justice, he was literally going behind the scenes talking to codefendants who were represented, trying to manipulate their testimony.
The judge at that point just proceeds forward with the law and conflict of interest and says — calls for those witnesses. Said “Did this lawyer try and obstruct justice? Did he try and commit a crime?”
At this point a conflict of interest occurs because then the lawyer can’t advise the defendant to take a plea because for fear he might himself be more criminally culpable.
JUSTICE MOLTER: But, you believe that all conflicts are waivable? Am I understanding your position right?
ATTORNEY MARK LEEMAN: I think there are rules that an actual conflict of interest is unwaivable when you sue one party versus the other, and shockingly that seems to have happened in one of the cases in Indiana. So I think — but other conflicts are waivable conflicts.
Other than that one rare exception of —
JUSTICE MOLTER: And I’m still a little confused with the exchange with Justice Slaughter about waiver, so let me ask it this way: If we want grant you the relief you’re requesting and reinstate counsel and Mr. Allen’s convicted, can he pursue through PCR, postconviction relief proceedings, a claim that his counsel were ineffective for the very same reasons that the trial judge here found?
ATTORNEY MARK LEEMAN: So the trial judge here found — it depends on what record the court would build regarding those.
No– I’m going to change that, Justice. No.
Because these issues have nothing to do with effective representation at trial. So I don’t think he could pursue them on those grounds. So, I don’t see how these three violations, inadvertent disclosure of pretrial discovery, that the press release over a year ago in direct response to press that the government was putting out. I don’t see how those issues affect his trial.
So, I don’t think he gets a postconviction relief through that, because those issues don’t affect trial strategy.
JUSTICE MOLTER: But, you’re saying he would lose on the merits. You’re not willing to concede that it would be waiver, and it seems odd he could have it both ways.
He can say “You can never remove my counsel over my objection. I object.”
But then still have available to him the argument later that, “Well, even though I objected, it was still ineffective.”
ATTORNEY MARK LEEMAN: If the judge exhausts, I think the judge can take care of that.
The judge can call, say let’s have a hearing regarding that pretrial publicity and somehow establish that that might be affecting his trial and then fully and fairly advise him that that’s a repercussion.
But when he’s fully and fairly advised of the repercussions of that judge’s subjective belief that there was somehow some sort of ethical violation there, I think that would — he would be waiving it. So, yes.
JUSTICE MASSA: Counsel, are you arguing that the record doesn’t support a finding of ineffectiveness by the trial judge, or are you saying if the judge finds it, she still can’t remove him?
ATTORNEY MARK LEEMAN: Both. This record does not support ineffective assistance of counsel.
JUSTICE but even if it did —
ATTORNEY MARK LEEMAN: No, sorry. The reasons that she advances aren’t reasons to find a lawyer ineffective.
Now, if this court was to say those are reasons that would constitute ineffective assistance of counsel for a Sixth Amendment violation, so if we were to get to that point and he was fully and fairly advised of the potential repercussions of those violations on his trial strategy, then you could have a waiver issue.
But, the reasons that she cites for doing what she did had nothing to do with trial.
But let’s assume for a moment that she cited a reason, that there is an intimate relationship going on, and she pulls them in. Goes into chambers and says, “Listen. I understand that there’s an intimate relationship occurring between the defendant and you. Do you understand that’s a conflict of interest? That it’s a violation of the ethical rules? That there’s a disciplinary proceeding that I’m going to be referring for him? Do you want to go forward with this representation?”
And the client says “Yes.”
I think you’ve got a waiver of ineffective assistance of counsel on those grounds. But. I don’t think the judge is absolutely precluded from injecting herself and saying – well, in that case it would be a conflict of interest.
We are struggling to find a situation where there is an ethical violation that affects the outcome of the trial, where there is a situation where the defendant says “I want to go forward.
I’ve been fully and fairly advised of it” and the judge somehow has a role, absent of conflict of interest, injecting herself into that.
And I do think that you can waive — you can waive an ineffective assistance of counsel claim.
That’s well-established case law.
None of these things the judge cites have anything to do with ineffective assistance of counsel.
These are purported ethical violations, and not every ethical violation necessarily, even if it was established, has anything to do with trial strategy and whether a defendant receives a fair trial.
And these are examples, these are good examples of that.
The inadvertent disclosure of pretrial discovery has — the alleged violations here would have nothing to do with the trial strategy that Attorneys Baldwin and Rozzi developed with him and would have no impact on that case.
JUSTICE GOFF: Mr. Leeman, let me just sort of ask with respect to the line of questioning, if we were to agree with you and find that there was inadequate reason, at least on the record, to allow for the removal or the refusal for counsel to reappear. Nothing would stop the trial court from making a more complete record and going through a different process if, in fact, it believed that there were sufficient reasons to remove them. They just weren’t adequately reflected in the record?
ATTORNEY MARK LEEMAN: Judge, I think a court has broad discretion on how it conducts proceedings in the courtroom. But, none of the reasons that she cites in her brief would, even if found, would substantiate the removal.
JUSTICE GOFF: But, if the court were nonetheless worried about the finality, the eventual finality of the proceedings and wanted to nip a problem in the bud, is there anything that would stop her from conducting a proceeding on remand or similar to prevent that from happening?
ATTORNEY MARK LEEMAN: No. I think if there’s a concern, say for example, the pretrial publicity, the press release. If you say listen, I think — the violation says it has to affect a fair trial. So, okay, you’re going to have a hearing. The judge could have a hearing.
Let’s provide proof or get some sort of sense as to how this has affected the jury pool or prejudiced the jury pool.
I assume the judge could conduct some sort of proceedings to investigate that.
But if the client is fully and fairly aware of those proceedings and still wants to proceed forward with these clients, then the judge has an absolute duty to accept or to act on his wishes.
JUSTICE SLAUGHTER: Mr. Leeman, is it your belief that if we deny the extraordinary request that you’ve sought today, and the case goes back to trial with a different set of lawyers that this defendant just does not want, that there is built into that record — at least fundamental error and maybe structural error that’s reversible?
ATTORNEY MARK LEEMAN: Yes. Trial is for show. It’s a practice only trial, Judge.
And that’s why we came here as fast as we could. Because, if we do not get something done now, the victims are going to be hurt, the public’s going to be hurt. The entire Indiana judiciary is going to be harmed because this trial’s been pushed off until October.
And when the judge set it in October of 2024, one of the lawyers I believe he even represented, he didn’t think they were going to get that date either.
Everybody’s hurt, and we’re going to delay things–
JUSTICE MASSA: And you think the Gonzalez-Lopez precedent to the U.S. Supreme Court would dictate that outcome?
ATTORNEY MARK LEEMAN: I think it’s structural error, yes. And this trial is going to be for practice only, and we have built-in error. And the only way we can fix it and address the speedy trial problem because that was an intimate part of the trial strategy, is to get Attorneys Baldwin and Rozzi back on the case and get this case set for trial in a timeframe that’s as fast as our law allows, which is 70 days.
And that’s the relief we are requesting.
Thank you very much.
CHIEF JUSTICE RUSH: Thank you, counsel. We’ll hear from you again on rebuttal.
[ Having finished, Mr. Leeman steps down. ]
CHIEF JUSTICE RUSH: Mr. Gutwein.
ATTORNEY MATT GUTWEIN: Chief Justice Rush, and may it please the Court.
I am Matthew Gutwein representing respondent, The Honorable Frances Gull.
This court should deny the petition for three reasons.
First, the trial court’s decision to remove Mr. Allen’s counsel was an exercise of discretion.
And this court has uniformly held that a Writ of Mandamus will not lie in matters that rest with the trial court’s discretion.
Second, Mr. Allen’s remedies on appeal are not wholly inadequate.
The United States Supreme Court and Indiana’s Appellate Courts have regularly resolved Sixth Amendment claims, such as those that Mr. Allen raises here, to the ordinary appellate process.
And third, on the merits. In removing Mr. Allen’s counsel, the trial court did not abuse the court’s discretion.
The trial court has significant latitude to prophylactically prevent a violation of Mr. Allen’s constitutional right to effective assistance of counsel.
JUSTICE MASSA: Counsel, is that really what’s going on here? We don’t have a great record before us on which to make these judgments.
But reading what we have, I’m left with the impression that it’s quite possible that two different concepts, ineffectiveness and insubordination, are being conflated here.
There seems to be a great deal of concern by the judge that these lawyers were flouting her gag rule and that they were insubordinate.
But, where’s the evidence in the record that they are “constitutionally ineffective”?
I mean, the order seems couched in that language that we’re trying to protect the defendant from his own lawyers. But, it’s hard to look at this record and not get the impression that, perhaps rightfully so, the judge was exasperated with their conduct.
But, these are two different — these are two different things, aren’t they, insubordination and ineffectiveness?
ATTORNEY MATT GUTWEIN: Under the United States Supreme Court decision in Wheat, the trial court, in exercising her discretion to remove counsel, does not need to find constitutionally defective counsel.
It does not need to require ineffective counsel, rather as in Wheat, there just needs to be the possibility of ineffective assistance of counsel.
CHIEF JUSTICE RUSH: But I’m really struggling with that. Butting that up against the Sixth Amendment constitutional right to counsel and particularly when they filed the second petition of filing as private counsel of their choice, that’s structural error. And I agree. It is, okay? And you can shake your head, but, you know, I’m reading Justice Scalia and taking him for his word on what that is.
And how do we get this case back on?
So, we have that hearing. You have issues with regard to, well, you gave a press release. Well, the gag order was after the press release.
You’ve got, well, we don’t like, you know, what you filed — I think it was in June — with regard to conditions in prison.
Well, most of those were wrong. That means some of them were right.
We have in the record now, because we can take notice, there’s a new motion to transfer Mr. Allen filed by his current attorneys.
So, we don’t have a hearing. We don’t have findings. You’ve got a constitutional right to counsel, and he’s choosing this counsel. You have a constitutional right to say, “I don’t want an attorney”, correct?
ATTORNEY MATT GUTWEIN: Under Wheat as well as lotta, this court’s precedent, he does have a constitutional right to select counsel, but that constitutional right is highly limited, and that right may be outweighed by any number of interests.
CHIEF JUSTICE RUSH: But, counsel, you’re a very — and I’m quoting Chief Justice Shepard in the Knox case saying, a judge has a very limited right to tell someone who their attorney can be. They just decided not to go with the parameters there because there was an agreement to withdraw.
ATTORNEY MATT GUTWEIN: Wheat says the opposite, Your Honor. Under Wheat, the trial court’s discretion, when faced with the balance between on the one hand counsel’s right to select counsel, and on the other hand counsel’s right to effective assistance of counsel, what Wheat says is the trial court is to be given substantial latitude, is to be given wide latitude.
What Wheat says is that decision is best left for the intuition and judgment based upon the experience of counsel in weighing those competing rights.
Wheat says, in a highly deferential standard, the issue of whether trial counsel should be removed must be primarily resting–
CHIEF JUSTICE RUSH: And I don’t read Wheat– and I looked at Wheat several times, as strong as what you’re doing, and I think what you’re doing is you’re butting right up against a constitutional protection — and you’re doing it at your peril, and this court would do it at its peril — with regard to a case possibly having to be tried twice and having everybody go through that again.
ATTORNEY MATT GUTWEIN: That exists either way, right? In other words, as this court has already identified, if they — if she — if the trial court, if Judge Gull, does not remove counsel, then counsel has the possibility of raising an ineffective assistance claim.
JUSTICE MOLTER: Isn’t that a really good reason for us to just go ahead and address the merits?
I mean, I’m a little confused why the respondents don’t want us to address the merits. I realize you think there was no mistake. So, why not ask us to just say that?
And you’re certainly right, we have plenty of cases, say in original actions, where we don’t review discretionary issues, especially not issues of first impression. But I think I found at least four cases where we went ahead and did exactly that. We’ve looked at attorneys’ disqualification issues including issues of first impression.
So why isn’t it in your client’s interest just to get an answer from our court, one way or the other, whether this was error?
ATTORNEY MATT GUTWEIN: Well, I do think it would undo enormous amounts of procedural law on original actions. I mean, this case has so many procedural burdens, hurdles, that Mr. Allen cannot scale based upon the procedural requirements. And I don’t see how this court could exercise a limiting principle that somehow it’s perfectly fine to grant the writ when this is a matter of discretion.
The court doesn’t grant writs for matter of discretion. There’s a remedy on appeal. The court doesn’t grant writs for remedies on appeal. They never specifically even asked for this relief from the trial court. The court doesn’t ask — grant writs.
So, I think you would be doing structural damage to your original action jurisprudence and frankly, then, open up the floodgates because these kinds of pretrial claims of constitutional violation are extremely normal. They are extremely rare. And if this court wants to get in the business of addressing the merits every time a criminal defendant raises a pretrial constitutional violation, you will be flooded with these kinds of actions.
JUSTICE SLAUGHTER: Counsel, why you think of Counsel’s, Mr. Leeman’s, argument that no meaningful appellate right exists is just wrong from your perspective?
ATTORNEY MATT GUTWEIN: Well that is absolutely wrong. And Hanna reflects that. Hanna is an interlocutory appeal on a claim for a violation of the right to select counsel, and on that interlocutory appeal, the Indiana Court of Appeals found there to be a violation and restored counsel.
There can’t be any serious question that these kinds of claims for Sixth Amendment violations right to select counsel are resolved on the ordinary appeal process.
In fact, every single United States Supreme Court case to address the issue of the right to select counsel made it to the United States Supreme Court through the ordinary appellate process.
And the Supreme Court had never so much as even hinted that the relief on appeal is somehow inadequate for a Sixth Amendment violation.
JUSTICE SLAUGHTER And just so I’m clear, what you’re talking about in the ordinary course would be a final judgment. He goes to trial with different counsel, he’s convicted, and then you go up and appeal on the ordinary course?
ATTORNEY MATT GUTWEIN No, not necessarily. I mean, here there are interlocutory appeals. There are emergency interlocutory appeals. There are appeals after final judgment.
There’s appeals on PCR. And we have examples of all of those cases.
The absolute fact is that the ordinary appellate process offers a wide array of avenues for Mr. Allen to seek relief for his constitutional violation, and he has availed himself of none of those avenues.
JUSTICE MOLTER: What about our 1982 precedent, State versus Tippecanoe County? The shoe was on the other foot. It was the prosecutor’s office that was disqualified. And the prosecutor sought a writ in our court. Now, we denied the writ, but we said that it was an issue of first impression. We reached the merits, and we gave the State the answer that it wanted through an original action.
ATTORNEY MATT GUTWEIN: Let me answer that in two ways. First of all, you’ve already identified, this court denied the writ in that case. And second, there is no discretion for a prosecutor who has a conflict to prosecute a case.
In that case the trial court had no — had no discretion, had an absolute obligation to remove a prosecutor who has a conflict.
That is not the case here under this — under the United States Supreme Court’s jurisprudence in Wheat, the decision to remove counsel, based upon the possibility, based upon the potential for there to be —
CHIEF JUSTICE RUSH: But it has to be done — there’s a way that you do it, and it does not appear this was done the proper way. You’re supposed to have a hearing. The court did it sua sponte, which means on their own motion. There was a hearing in chambers.
So, did she exceed her authority by the manner that she presented them back in chambers saying “You’re either out or I’m going to publicly out you?”
ATTORNEY MATT GUTWEIN Well, there’s certainly no US Supreme Court case law or Indiana case law that says there has to be a certain amount of procedure–
CHIEF JUSTICE RUSH: So, there’s no process involved at all for taking a — no hearing?
No, “I have the suspicion that this is going on? I think you’re incompetent, and you’re out?”
ATTORNEY MATT GUTWEIN Well, the trial judge was prepared to have a hearing here.
A hearing was scheduled. Counsel had notice of a hearing. The prosecutor was there ready to present witnesses.
And the counsel in this case made their own strategic decision to withdraw rather than go out in open court and have a hearing. And that was their choice. And they made that choice, I’m sure —
CHIEF JUSTICE RUSH: Having read the transcript, was it a full and free choice?
ATTORNEY MATT GUTWEIN Well, these are very experienced lawyers. These are highly competent lawyers in other contexts. And they had notice that the judge was considering disqualifying them.
They had notice on October 10th when the judge told them that she was considering disqualifying them. They were leaning in that direction.
And between October 10th and October 19th, an awfully lot of lawyering occurred.
On the 11th, Mr. Rozzi filed — got together with their client and drafted a letter.
On the 12th, Mr. Rozzi filed a highly detailed letter with the court offering his defense and asking not to be disqualified.
Sometime before the 19th Mr. Baldwin hired outside counsel. On the 19th outside counsel filed a brief.
They prepared — they had oral argument. There were nine days of an awfully lot of lawyering that occurred in that period. And at the end of that, what both counsel elected to do was state their intent to withdraw.
And, Mr. Rozzi said, “I’ve got a life outside of this case. I’ve got a life outside of this courtroom. I have a family. I have a law practice. And I’m going to withdraw.” And that is his choice. That is his decision to do that.
But if they had wanted, they could have filed for a continuance. They didn’t do that. They could have gone out and had a hearing and presented evidence. They didn’t do that either.
What they did is withdraw.
JUSTICE MOLTER: Would any of those actions have been non futile? I mean, I thought the judge made it clear that her mind was made up. She had prepared a script. She had already made the decision that if they wanted a hearing, they could get it. But there was no opportunity to persuade her. Did I misunderstand?
ATTORNEY MATT GUTWEIN: We’ll never know, right, because there wasn’t a hearing because counsel elected to withdraw.
CHIEF JUSTICE RUSH: We do know because she said then at the hearing on the 31st “What’s changed?”, which means… we do know that.
ATTORNEY MATT GUTWEIN: We don’t know what would happen at a hearing that never happened. But — you’re right. I certainly acknowledge that, there’s — she probably wouldn’t have changed her mind.
JUSTICE MASSA: Counsel, I appreciate you looking out for our original action jurisprudence and our potential future caseload, but as long as we’re here, what can you tell me — what can you point to in the record that supports a finding that these lawyers were ineffective to the point where they needed to be removed to protect the rights of Mr. Allen?
ATTORNEY MATT GUTWEIN: Again, under Wheat, there doesn’t have to be a finding that they were actually ineffective. What there has to be a finding of — and this is under Wheat — that there is the potential to be ineffective.
And here it is not within the norms of the profession to negligently and repeatedly allow the unauthorized disclosure of highly confidential material in work product.
JUSTICE MOLTER: Can you help me understand how that hurt Mr. Allen’s defense?
ATTORNEY MATT GUTWEIN: Well, believe Mr. Rozzi. Mr. Rozzi himself said the likelihood of public backlash is significant, and this leak serves no legitimate public purpose.
The reality here, as we all know, is that we already have a polluted jury pool because of the inordinate pretrial publicity that this case has garnered. And the further disclosure of highly confidential inflammatory material further pollutes that jury pool, making it that much greater to have a fair trial for Mr. Allen.
And the trial court is rightly and appropriately able to exercise under Wheat, and I quote, “intuition and judgment based upon experience” to find that if counsel is capable in the pretrial stages of making this many mistakes, what manner and magnitude during trial is counsel capable of making?
CHIEF JUSTICE RUSH: But, I keep getting back to it and — I understand what you’re saying, but I keep getting back to if a criminal defendant has a constitutional right to say “I’m going to be my own attorney”, well that’s fraught with more than just —
ATTORNEY MATT GUTWEIN: Yeah.
CHIEF JUSTICE RUSH: What we’re talking about here — he wants these attorneys.
And so, we’re spinning and spinning and spinning on this saying delay and this, but he wants these attorneys.
There’s not been these findings with regard to incompetence.
There’s a lot of words out there.
But let him have his attorney. Get this case back. Let him have his attorneys. He wants to privately hire them.
I’m really struggling with why he can’t make that decision that that’s in his best interest and get this case moving again?
ATTORNEY MATT GUTWEIN: Let me answer that in two ways, Your Honor:
First, again, in Wheat, the accused in Wheat, Mr. Wheat, knowingly and intelligently waived the conflict in that case. And there was only a potential conflict. Wheat waived that conflict–
CHIEF JUSTICE RUSH: There was a major conspiracy with lots of different people playing — I mean, in the Wheat case.
ATTORNEY MATT GUTWEIN: Wheat himself —
CHIEF JUSTICE RUSH: I don’t find Wheat tucked as nicely as you find Wheat, so go outside Wheat and give me something else.
ATTORNEY MATT GUTWEIN: Well… but again, Wheat himself claimed that this conflict was highly remote, highly unlikely to occur, very small chance that the conflict will ever occur.
And he waived the conflict. And yet the trial court found, based upon the court’s intuition and judgment, based on —
CHIEF JUSTICE RUSH: But where can you point to me saying — with regard to saying somebody is incompetent or negligent, we have a string of cases. These conflict cases have come up before with disqualification. I’ve not — where are we on this?
ATTORNEY MATT GUTWEIN: Well again, it is certainly not consistent with the norms of the profession to negligently and repeatedly allow the unauthorized disclosure of highly confidential material that will pollute the jury pool. And here, we already have a jury pool that is polluted.
JUSTICE MOLTER: Does that rule apply both ways? Because one of the things defense counsel said in their letter to the court was that they believed that the State had allowed the dissemination of information regarding the crime scene. So can a judge disqualify the prosecutors, too?
ATTORNEY MATT GUTWEIN: Well, again, the judge certainly could disqualify the prosecutor.
We don’t have any evidence in the record — we have that Mr. Allen’s counsel is asserting that.
There’s been never a hearing on that. There’s never been a finding on that.
JUSTICE MOLTER: I’m just trying to understand the scope of the rule and how sharp of a double-edged sword this might be, that any leak of crime scene photos or anything like that can lead to the disqualification of counsel on either side — I think is your position?
ATTORNEY MATT GUTWEIN: Your Honor, our position is under US Supreme Court precedent as well as this State’s precedent, this court’s precedent, the trial court is vested with discretion.
And even Wheat said that faced with the same facts, one court might find disqualification appropriate. Another court might find it not appropriate.
But because two courts could reach exact opposite decisions in matters that rest with discretion doesn’t make one right and one wrong.
So, I’m not suggesting, nor is Judge Gull suggesting, that there is an absolute rule here that every time there is an unauthorized disclosure, that gets into the discretion of the trial court.
CHIEF JUSTICE RUSH: You would agree the practical effect of the position you’re advocating today will cause significant delays in this case going to trial?
ATTORNEY MATT GUTWEIN: Yes. I agree with that.
JUSTICE MOLTER: Does that have to be a factor in the consideration when exercising discretion?
ATTORNEY MATT GUTWEIN: It doesn’t have to be a factor. It certainly can be a factor, right?
The trial court, in exercising its discretion, is allowed to consider the totality of circumstances.
And, again, Wheat went out of its way to say this decision can be based upon intuition and judgment based upon experience, which requires less detailed findings, and it’s a highly differential standard.
JUSTICE GOFF: Mr. Gutwein, I guess more the issue before us, when we’re deciding whether or not the regular appellate process is wholly inadequate, how should we weigh the delay, especially when it’s been asserted that Mr. Allen wants to exercise his speedy trial right?
ATTORNEY MATT GUTWEIN: Well, again, Justice Goff, as you already recognized, counsel never filed the necessary paperwork to exercise that trial. So that issue is, I would say, not appropriate to seek relief because it doesn’t satisfy the basic threshold condition recedent for seeking relief here.
JUSTICE GOFF: Whether we give relief through an original action, or we’re concerned that there should have been more process afforded in this issue, a more full process with respect to the issue of removal… what possible harm could there be if we were to go do it, do it the right way?
I mean, if we’re concerned about the eventual finality of these proceedings, everyone having to go through and do it twice, whether we reinstate counsel or we remand with current counsel and say you need to go through this process, wouldn’t that save time in the long run?
ATTORNEY MATT GUTWEIN: Well, let me — perhaps. We don’t know. But let me offer this —
JUSTICE GOFF: Wouldn’t that protect everyone’s interest and finality in the long run?
ATTORNEY MATT GUTWEIN: Yeah. We really don’t know what Mr. Allen wants. And it was not necessary for the trial court to hold a hearing to judge his wants because she was removing counsel.
But if this court were to consider reinstating counsel, then the trial court would absolutely would be required to probe his interest and make sure that he understood that counsel in this case had engaged in conduct that was detrimental to his interests — as counsel himself has already acknowledged it, and then see if he has a knowing and intelligent interest in having counsel continue, that clearly on this record has engaged in conduct that’s detrimental to his defense.
I have exceeded my time, and so I will yield the remainder of my time to my good friend, Ms. Sanchez.
Thank you, Your Honors.
CHIEF JUSTICE RUSH: Thank you, Mr. Gutwein. Ms. Sanchez?
[ Attorney Sanchez approaches ]
ATTORNEY ANGELA SANCHEZ: May it please the court.
There’s nothing clear or absolute about this case, the record, the proceedings that led us here today, the legal issues before the court, or the nature of the rights that Mr. Allen’s counsel today seeks to vindicate.
There are means through the trial court and the appellate process to untangle complicated questions. This court has repeatedly stated that those are the methods that are far more well suited to such complex issues.
The appellate process, for example, would allow a full record in the criminal case, which we do not have here. It would make the parties to the underlining action the actual parties in this case. Unlike here, where the Attorney General’s Office is in the nature of something like an amicus wherein the party of interest is in the court, forced to act as advocate in defense of itself.
The —
CHIEF JUSTICE RUSH: What would be the harm if — because of the necessary delays, in backing up and going back through again, reinstating counsel? And if the judge is correct, then that will weed itself out, and there will be a hearing, and it will be done a proper way in the trial court and then come back up?
ATTORNEY ANGELA SANCHEZ: The State shares the concerns, most especially the Attorney General’s Office given our role, given this court’s caseload and the increased use of that.
But putting that aside, as Justice Massa suggested, there are other concerns here.
In this specific case we agree that if any form of relief were to be given that included putting these attorneys back on, it would absolutely be necessary that further proceedings were had.
On October 19th, when the judge warned the counsel of her intentions and her concerns, they chose to withdraw to avoid a hearing. A hearing at which the State was prepared to present evidence, evidence that may well have been about an active investigation, evidence that may well be relevant to full understanding of the conduct that is of concern to the judge.
Of course, the summary proceedings in chambers don’t allow full challenge, full understanding and elucidation of the concerns. So, a complete assessment of what is at issue here and the risks. The risks not only to Mr. Allen’s representation at trial and his interests but the entire risk to the process.
Trial courts are not just tasked with protecting the defendant’s right to effective counsel.
They’re tasked with protecting the entire proceedings and the fairness of the proceedings for everyone involved, for the integrity of the entire system, for the reliability of the truth-seeking function —
CHIEF JUSTICE RUSH: Do you agree that with — under U.S. Supreme Court precedent Gonzalez, if there is a mistake made on the front end of this case with regard to a defendant’s constitutional right to counsel of his choice, that you can go through this entire process and have to do it again if there’s a conviction?
ATTORNEY ANGELA SANCHEZ: The State is concerned that if you look at what happened on the October 31st — and that is a very ambiguous series of events there– if someone were to conclude that what happened there was, in fact, Mr. Allen– it’s a personal right to choose your counsel, he was, in fact, exercising it, and that it was wrongfully denied to him, that would be structural error. It is a concern for the State, that if those things were to be the way that record was.
Now, what’s happening that day is itself another unclear and ambiguous thing. Counsel comes and files these appearances. On the face of them, they both purport to be pro bono but also reassert the resistance — the rejection of the prior waiver and the desire to be reinstated as public defenders, a contingent willingness to be pro bono counsel.
Of course, the only knowledge we have of Mr. Allen is — or what he wants, what he knows, what he understands is, of course, secondhand.
The choice of counsel is a unique aspect of the sixth amendment right. It’s completely separate from the right to assistance of counsel, the effective representation, which protects the fair trial right.
The choice is about your autonomy and independence, your — it’s a personal exercise. And, we need to know that Mr. Allen is, in fact, the person who was making that choice. That he was, in fact, competent to make it. There’s been many consistent allegations about his mental state throughout the case. And then, of course, that he has the information he needs to make that as a knowing and intelligent exercise of a constitutional right under the circumstances, including the concerns about his counsel, the other options that he has available to him, that he’s choosing against and so on.
So, of course, none of that happened in this case.
JUSTICE MOLTER: Should we, like in Wheat, at least start with a presumption in favor of the continuity of counsel?
ATTORNEY ANGELA SANCHEZ: There is presumption… highly significant, weighted–
JUSTICE MOLTER: The default rule, something like it?
ATTORNEY ANGELA SANCHEZ: At the end, the desire of a defendant — the State agrees, to either retain his counsel that he’s had, is a factor a court has to consider and give weight to amongst all of the considerations at play when deciding how to balance all of the concerns for a fair trial, for his representation, to all of the other issues of efficient.
JUSTICE MOLTER: And are you aware of any Indiana cases where Attorneys have been disqualified on grounds similar to this?
ATTORNEY ANGELA SANCHEZ: No, Your Honor. In fact, there is a wide variety of cases around the country for various conduct that could be contemptuous, violation of court orders… behavior in and during court proceedings, or ethical violations.
The trick here is that we find very few cases that involve multiple different types of allegations, which appear to be what the trial court is raising… a pattern of behavior.
But, again, it is not fully explained because of the abbreviated proceedings below.
I this it is reasonable when looking at if that is, in fact, what the judge means, I think it would be reasonable for a trial court to have greater concerns about the prospective performance of counsel and the effect of their performance on the proceedings looking forward — if what the court was recognizing was a pattern of conduct that violated the rules, that tried the case in public, that did not follow court orders, et cetera, et cetera. But where any one of those instances in itself might not —
CHIEF JUSTICE RUSH: But there’s no other case out there where a judge, sua sponte on her own motion, disqualified based on her findings — her belief in incompetency and gross negligence?
ATTORNEY ANGELA SANCHEZ: There are cases of disqualification based on the court’s own motion, and even —
CHIEF JUSTICE RUSH: But for these reasons. It could be conflict; it could be conflict —
ATTORNEY ANGELA SANCHEZ: The wording the judge chose is unique in itself… another point that would help with a larger record to explain exactly what the judge means. Because, of course, we presume — we are inferring from that choice of words and the particular things cited by the judge, what she meant by analogy to the use of ethical rules, the ineffective assistance of counsel cases, and so forth. But it’s not the ‘typical’ language.
JUSTICE SLAUGHTER: Just so I’m clear, you’ve acknowledged the risk of structural, reversible error if this defendant proceeds to trial with new counsel that are now representing him.
Despite that, the State’s going to double down and say, “no relief today”. Is that right?
ATTORNEY ANGELA SANCHEZ: No, we don’t think it’s a writ. There’s no order, there’s no absolute duty for anything to be ordered by this court. That said, the State does acknowledge that there are proceedings… proceedings that can continue to happen if Mr. Allen, in fact, is trying to exercise his rights. He isn’t prevented from doing so, even now.
JUSTICE SLAUGHTER: Tell us more about that. What do you envision? If we grant — if we go with the State’s view and deny the writ today, what do you envision that might happen going forward that would minimize or eliminate the risks that we’re talking about?
[Allotted time on clock has expired]
ATTORNEY ANGELA SANCHEZ: I see that my time’s up.
JUSTICE SLAUGHTER: [jokingly] Saved by the bell, huh?
ATTORNEY ANGELA SANCHEZ: [laughs]
CHIEF JUSTICE RUSH: You can answer that.
ATTORNEY ANGELA SANCHEZ: Well, no one wants more proceedings. There is no barrier to the filing of further motions. There was no barrier prior to bringing the original action, whether it be motions to clarify the prior orders, and then to seek appeal from that. Whether it be a motion seeking to exercise, specifically exercise, his right to choice of counsel and then, if necessary, appeal that.
There is nothing stopping further actions and motions in the trial court and proceedings in accordance with that. There never was.
CHIEF JUSTICE RUSH: Thank you, Counsel. Mr. Leeman, rebuttal?
ATTORNEY LEEMAN: Justices, I would like to begin by correcting the record.
The judge says that we don’t know what Rick Allen’s wishes were, and the Attorney General says nothing is clear.
On October 11, 2023, Rick Allen filed the following:
[Attorney Leeman reads a letter Richard Allen sent to the Court]
“Dear Judge Gull,
Please accept this letter as confirmation that I have communicated with my Attorney Bradley Rozzi regarding the circumstances regarding the leaking of sensitive information in this case.
I am aware that the images of crime scene photos, and other related documents, were taken by a friend and former employee of Attorney Baldwin at Attorney Baldwin’s office.
I have discussed with Attorney Rozzi the potential impact that the distribution of these documents could have on my defense. Attorney Rozzi has also communicated with me that the prosecutor has requested that the attorney be disqualified from representing me in this case.
I do not want this to happen.
I want Mr. Baldwin and Mr. Rozzi to continue to represent me until this case is resolved, one way or the other.
CHIEF JUSTICE RUSH: We have that letter. We have that letter.
ATTORNEY LEEMAN: Yes. It’s on page 221 of the record, Your Honor.
JUSTICE MOLTER: Counsel, what if we end up agreeing with Mr. Gutwein with respect to court-appointed counsel, but we end up agreeing with you with respect to volunteer counsel. I just want to make sure I understand the parameters of your requested relief.
Are you only interested in having them reinstated as court-appointed counsel, or do you have an alternative request for their participation as pro bono counsel?
ATTORNEY LEEMAN: Our obligation is the defendant. The defendant wants Attorneys Rozzi and Baldwin to represent him, and he could not be more clear despite what the other side has tried to represent.
But, to do a half-measure is to credit the judge and the Attorney General for allowing this to happen, because Mr. Rozzi and Baldwin were the ones who had an absolute duty to protect their client’s wishes, and they did everything they could to do that.
To put them back in the case to say, “you’re working for free”, or “Mr. Allen needs to pay you”, is to punish Mr. Allen and Mr. Rozzi for doing what their ethical rules require them to do, which is to give you zealous advocacy for your client.
And those gentlemen, when faced with a real tough call, financial tough call, career tough call, they showed up on October 31 and said, “Listen. Our client, he’s been clear what he wants.
And this is what we are willing to do in order to protect his rights.”
But to say that they need to go back in and work for free, or that he needs to pay them, is to miss what happened here — which is the judge had an absolute duty to act. And that is to accept his letter — and his representation of what his expectations were — in that, ‘I want these gentlemen to see this case to its end.’
The Attorney General and the judge want to create ambiguity where none exists.
We don’t have records like this in other cases.
This gentleman could not have been more clear on October 11th.
There could not have been more clarity on October 19th.
There could not have been more clarity on October 31st.
And if the court looks at the new filings where he also is waiting for this court to rule, because he’s confused as to who his lawyers are.
We have some clarity here, and to do anything short of putting them right back in where they were when the rights were violated would be a half-measure, Justice.
So, we’ll accept whatever the Court’s ruling is. But, I think that that alternative there falls short.
With regards to Wheat, Wheat says: “where a court justifiably finds an actual conflict of interest…” — that’s when the discretion kicks in.
Conflicts of interest are different than these rules that the judge is citing here. Because a conflict of interest, the judge is complicit in the ethical violation because she has two appearances representing both parties in front of her, and they’re different because we know that that’s a situation where the lawyer hasn’t fully and fairly advised the defendant as to what the repercussions are on proceeding forward.
Absent a conflict of interest, we trust these letters like October 11th from these defendants.
We trust that they understand what’s going on, that they have cooperated with their lawyers and developed a good trial strategy and tactic to catch that prosecutor off on his back foot on a trial that was supposed to happen in January, and to have a well-developed strategy of third-party guilt.
These lawyers knew that they were doing. They had articulated it in 100-some pages of briefing. ‘Here’s what we see in this case. We’re ready to go forward with trial.’
So, conflict of interest doesn’t apply, and that’s what Wheat is clearly about.
Conflicts of interest are different, and this court would be the first court in Indiana for sure, if not the first court in the nation, to say that “we treat all kinds of ethical violations — like pretrial publicity or the inadvertent violation of a discovery order — as something on the same level as Wheat’s conflict of interest.”
That’s unheard of, and this court should not be using the original action to create new law like the Judge wants us to say here.
Justice Massa and Justice Goff — or excuse me, and Justice Slaughter, you had asked me a question about ineffective assistance of counsel.
I’m clouded sometimes by my judgment, because the rules that the judge cited here aren’t ineffective. But absolutely, a defendant could waive a claim of ineffective assistance of counsel on the record, and that’s what our conflict-of-interest case law establishes.
If you pull the gentleman in and you explain to him what your concerns are going on and make sure that he knowingly and voluntarily knows what’s going on and wants to proceed forward, yes, you can waive ineffective assistance of counsel claim.
So, if a client wants to represent himself, he can waive his right to effective assistance of counsel if he knowingly and voluntarily says, “I want to go forward and do this on my own.”
My troubles with answering that question is, I feel so passionately — and Mr. Allen and Attorneys Rozzi and Baldwin feel so passionately — that what the judge is talking about here is zealous advocacy: defending the rights of their client and trying to get this thing to trial quickly.
And the reasons that the judge is stating in her brief-– which are a little different than the reasons on the record– but none of those are what we see as relating to ineffective assistance of counsel, or would even, if proven to be something wrong, aren’t going to meet the Strickland prejudice wrong.
But, yes. If these things could ever arise to ineffective assistance of counsel — and Justices, I’m not conceding that, but if they could, hypothetically, yes, you can bring the defendant in and he can waive those rights. But that’s not what we have here.
In the end, Your Honors, the judge exceeded her jurisdiction and refused to accept Rick Allen’s wishes when she had an absolute duty to act upon them, and there’s an emergency that exists.
I think when those things are before this court, there should not be a question as to whether original action exists.
And there is more clarity than we see in records across this State as to what this gentleman’s wishes are. They are undisputed.
And I think that the judge had an absolute duty to recognize what he wanted, go forward with trial in January, and we should — this case should be heard in Carroll County today rather than before the Indiana Supreme Court.
But I appreciate your time and consideration. And we ask you to grant the relief we have requested.
Thank you very much.
CHIEF JUSTICE RUSH: Thank you, Counsel.
I want to commend counsel on both sides, just excellent briefing, excellent argument.
We will be discussing the case and getting a decision out as quickly as possible.
SHERIFF JOE DOWDELL: All rise.
[ Court is adjourned ]
[ END OF RICHARD ALLEN / DELPHI SUPREME COURT TRANSCRIPT ]
How to Watch the Richard Allen / Delphi Murders Supreme Court Livestream
State of Indiana ex rel. Richard M. Allen v. Carroll Circuit Court and The Honorable Frances M. Gull, Special Judge was filmed live and is available to watch online via the Indiana Courts website.
To watch the Richard Allen Supreme Court oral arguments, click the following link, which will lead you directly to the Supreme Court’s broadcast: Delphi / Richard Allen Supreme Court Livestream
