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1:00

Content warning. This episode contains

1:02

discussion about the murder of

1:04

two children. Sometimes

1:08

it is difficult to find experts to speak

1:10

about the Richard Allen case. Sometimes

1:13

it's not. Shea Hughes,

1:15

who works as a public defender in Tabakonoe

1:17

County, which borders Carroll County,

1:19

regularly post terrific legal analysis

1:22

about this ine other cases on Instagram

1:24

and Twitter. You can find

1:27

ine by looking for who's your public defender on

1:29

either of those sites. After

1:31

reading some of his post, we knew

1:33

our audience would be interested in hearing

1:35

from him, and we were delighted when

1:37

he agreed to speak with us about the Delphi

1:39

case whether or not he expects Allan to

1:41

face the death penalty ine a host

1:43

of other related subjects. My

1:47

name is Anja Kane. I'm a journalist.

1:50

And I'm Kevin Greenlee. I'm

1:52

an attorney. We first connected

1:55

while looking into the Burger Chef MurderSheet.

1:57

In Indiana cold case. Together,

2:00

we built a spreadsheet documenting hundreds

2:03

of cases of restaurant related

2:05

homicides. That original

2:07

spreadsheet gave way to our

2:09

podcast,

2:10

The Murder Sheet. Now we

2:12

maintain that same research centric

2:15

investigative approach as we

2:17

look into all sorts of homicides, including

2:20

unsolved cases, historical

2:23

crimes, and of course

2:25

restaurant murders.

2:27

We don't just chat about the headlines.

2:30

Our podcast is a platform for

2:32

our journalism. The murder

2:34

sheet focuses on investigative reporting,

2:37

thoughtful analysis,

2:39

thorough research, and in-depth

2:41

interviews. We're the

2:43

murder sheet. And this is

2:45

a conversation with the Hoosier public

2:47

defender.

3:35

What stands out for you in

3:37

the Richard Allen probable cause

3:39

affidavit? Well, the

3:41

one thing that stands out, I guess,

3:43

is ultimately, I mean, he puts himself

3:45

at the scene of the

3:48

alleged offense, but

3:51

not to reiterate what prior guests have

3:53

kinda said. The one thing that I'm I'm of

3:55

surprised about is,

3:58

you know, the lack of or any reference

4:00

about the voice identification of

4:02

the recording, the detective at the end of

4:04

the probable cause affidavit mentions

4:08

and kind of concludes that

4:10

from eyewitnesses and so forth that they're

4:12

identifying the same person as Richard Allen.

4:14

He makes those conclusions himself. But

4:17

there's no nothing about

4:19

the recording. So that's one thing

4:21

that I ine of find interesting. The other thing

4:23

is just about the whereabouts after

4:26

the ine terms

4:28

of the timeline about what were Richard

4:30

Allen's whereabouts after this

4:32

occurred, and we have no information

4:34

about that. What do you make of

4:36

them not referencing either the recording

4:39

or the timeline? You

4:41

know, there's not much for me to ultimately,

4:43

I I guess, speculate about that. I'm

4:45

I'm just I'm surprised

4:48

about the voice recording just because

4:50

it's pretty easy. I shouldn't

4:52

say easy, but Ine terms

4:54

of voice identification, you

4:56

know, I would say from a law enforcement perspective,

4:59

it is easy to establish

5:01

a foundation in terms of voice

5:03

recognition. You know, essentially, you

5:05

just need someone that heard

5:07

the person's voice, provide the time in

5:09

place, that the witness recognize a voice

5:11

as a certain person, they're familiar with

5:13

it. And then the witness explains

5:16

the basis for their familiarity with

5:18

the boys. You know, hey, look. I

5:21

interviewed this person previously. I've heard

5:23

recordings and so forth of this person

5:25

through ine. Ine, you

5:27

know, I've listened to this recording as

5:28

well. And in my opinion,

5:31

you know, it it sounds similar.

5:34

In

5:36

terms of the PC in ine Delphi,

5:39

I mean, when you're looking at over

5:41

the course of your experience doing criminal

5:44

defense, How does

5:45

the PC look compared to most PCs that

5:47

you've sort of viewed in

5:49

your time?

5:51

It's a lot different than a lot of other

5:53

probable cause that David's, you

5:56

know,

5:56

you wouldn't kind of have and and I get that

5:58

it's it's just different because

6:00

you you know, you

6:02

have all circumstantial evidence. You don't have

6:04

any direct evidence. So that's obviously

6:07

gonna change kind of the

6:09

how you lay out the probable cause affidavit,

6:12

but it's

6:14

different in the fact

6:15

that you know, it ine takes a long

6:18

lining up to get to, you know, okay, how

6:20

we get ine Richard Allen. And then you

6:22

have a lot of speculation at the end

6:24

of it from the detective that

6:26

I just honestly don't believe will ultimately

6:29

a court would allow during trial

6:32

So the format is a little bit

6:34

different than the ordinary probable

6:36

cause after day, but definitely. Yeah.

6:38

speaking about whether or not things are

6:40

different, was the defense

6:43

motion for discovery. Is that

6:45

typically the sort of motion you would

6:47

see for discovery? Or was that also unique

6:49

in some ways?

6:51

No. That's a that's a typical

6:53

motion that you would see in discovery.

6:57

Yeah. You know, I had mentioned ine my social

6:59

media about it essentially being

7:01

a template. I believe this

7:03

ultimately came from the

7:05

Indiana Public Defender Council. And it's been

7:07

kind of passed around with other attorneys, and

7:09

that's fine. You know, it's something that I've

7:11

even used myself. I've seen it from

7:13

other attorneys. You know, so when

7:15

I say it's a template from our

7:17

perspective as

7:18

public, we shouldn't read too much into

7:20

what's being requested.

7:21

You know, I know there's been some discussion about,

7:24

you know, was there a grand jury

7:26

or a confidential informant? I

7:28

doubt that any type of grand jury was

7:30

ultimately conducted. That's

7:32

part of the template that I've seen, the

7:35

confidential ine, same there.

7:37

Were there anonymous tipsters that were probably

7:39

utilized? Yeah.

7:42

Definitely. But I just wouldn't read too

7:44

much into the template. Self. I think paragraphs

7:46

twenty one through twenty

7:48

three are the only paragraphs

7:50

that seem to be tailored towards

7:53

this case that being requesting records

7:55

associated with the Carroll County Sheriff's

7:57

Office. So so even

7:59

stuff like when they were asking

8:01

for, did anybody basically,

8:03

in the prisoner of the jail over

8:05

here in ine

8:06

comments, that's just something that you would

8:08

see asked for typically. Yes.

8:11

And, you know, I compare the

8:13

template that I have to

8:16

the to the motion self

8:18

ine pretty much ine is verbatim

8:20

word for

8:20

word. The exception being

8:23

paragraphs twenty one and through twenty three.

8:27

Having seen some of these documents

8:29

from the defense also some of the media

8:32

comments before the gag order went

8:34

down, are you putting together any

8:36

sort of insights? Or can we draw

8:38

any conclusions about what sort of

8:40

strategy they might be going for?

8:42

For example, one thing that we noted is

8:44

that at least in the initial

8:46

media comments and and certainly in the

8:48

statement they sent to us and other outlets, you

8:50

know, they're very much stressing Ine

8:52

seemed like actual innocence as opposed

8:55

to another sort of strategy ine defense

8:57

might employ. Is that something

8:59

that you're of seeing or thinking about?

9:01

Or what sort of insights do you have on

9:03

that?

9:04

Well, in terms of defense strategies, I

9:07

mean, it's all going to boil down to

9:09

one thing ultimately, which is

9:12

identification. Can they prove that

9:14

it was the defendant Richard

9:16

Allen that committed

9:18

the murder So, you

9:20

know, related to that, there's gonna be

9:22

an argument of insufficient evidence.

9:24

You know, in other words, it's states

9:26

burden to prove identity beyond a

9:28

reasonable doubt. A strict heavy burden, then

9:30

it's presumed innocent, that you

9:32

should conform the evidence to that

9:34

presumption if you can do so.

9:36

That if there are two reasonable interpretations of

9:38

the evidence, you have to choose the

9:40

interpretation consistent with Richard

9:42

Allen's ine. More

9:45

factually that there will not be

9:47

a single witness on the trail that day

9:49

that is going to be able to identify

9:51

Richard Allen ine court all

9:53

witnesses came forward after, I'm assuming,

9:56

the police solicited assistance

9:58

from the public, that some of

10:00

those witnesses came forward

10:02

at or having observed the

10:04

video or or photographs.

10:06

And that makes their testimony highly

10:09

suggestive. That the witness,

10:11

in particular, who saw the

10:13

muddy, bloody male never

10:15

called police right thereafter. At least that's not

10:17

provided for the proper cause affidavit.

10:19

That essentially the state's

10:21

case is entirely circumstantial evidence.

10:25

So you know, that's that's

10:27

one theory or one defense

10:29

strategy that I see. The other one is gonna be

10:31

alibat. Alibat is a little bit different.

10:33

It's a defense

10:35

where a defendant demonstrates that

10:37

because he was not at the scene of the

10:39

crime, having been at

10:41

another place, he could not have

10:43

committed the crime. And this would be

10:45

ultimately it depends

10:47

on how they're going to demonstrate

10:49

this defense, but ultimately

10:51

would require them putting on some evidence

10:53

that could be from third

10:54

parties, and it could have come from Richard

10:56

Allen himself.

10:58

I

10:58

guess a problem there would be that Richard Allen

11:01

himself puts himself

11:01

roughly at the scene of the crime. He

11:04

certainly does. But, you know, we do have a

11:06

gap in time. If I recall correctly

11:08

from from

11:08

the probable cause epidemic, it's what

11:11

around, like, two thirty or so forth. I

11:14

think the the last report of

11:16

anyone seeing the figure. So,

11:18

yeah, looking at my notes, It's

11:21

around two two

11:23

twenty eight, two thirty, other

11:25

witnesses on the trail. None of them saw

11:27

a male subject matching what's

11:29

commonly referred to as

11:29

Bridgecag. But then, you

11:32

know, the bodies ine the two girls aren't found

11:34

until the following day. If I

11:35

recall correctly. So you have this large

11:37

gap in time of

11:39

what was Richard Allen's whereabouts

11:41

from approximately around two

11:43

thirty that day moving

11:45

forward. And I know I think his first

11:47

statement to police, the

11:50

conservation officer had noted it. What was

11:52

it? I think he was there from of

11:54

the hours of one thirty to about three

11:56

thirty PM, but we don't have

11:58

anything thereafter. So I get, you know,

12:00

that he does put himself early in the day. But

12:02

whether or not he has anywhere about to

12:05

of thereafter, IIII don't

12:07

know.

12:08

Also, a lot of people

12:11

are curious about

12:13

coming up next month is the

12:15

bond hearing. What can you tell

12:17

us about that process

12:19

ine what sort of things people can

12:22

expect from that hearing?

12:24

Well, the bond hearing is going to be a little bit

12:26

different than the typical bond hearing that

12:28

you would have in a criminal case. You

12:30

know, in a typical criminal case,

12:32

it's usually the defense just simply

12:34

calling their own client to talk

12:36

about their ties to the community and so

12:38

forth, and they'd be having a family member test to

12:40

buying, and then it's just argument and counsel.

12:43

This is a little bit different because he's

12:45

held no bond right now.

12:47

Under the Indiana Constitution, murder

12:50

can be El Ine Bon, but as

12:52

long as there's proof that is evident

12:54

or the presumption

12:56

is strong. So

12:58

it's ultimately the state's

13:00

burden once you file a motion

13:03

asking for a bond in

13:06

a murder case ine they'll have to

13:08

show by a preponderance of

13:10

evidence that Richard

13:12

Allen's guilt is evident or there's

13:14

presumption of

13:15

guilt. Not only is it it's a burden, but

13:17

they just simply can't rely

13:19

on the charging information or

13:23

the probable cause affidavit itself, they

13:25

in fact actually have to

13:27

present evidence at

13:29

the hearing on which ine

13:31

independent determination can be

13:33

made. So ultimately, what does

13:35

that mean and what to expect

13:37

during the bond hearing? I

13:39

would suspect that they're gonna put on

13:41

a detective or some

13:43

type of law enforcement officer

13:45

that has worked this case extensively

13:47

that is familiar with ine, and

13:50

that detective will summarily

13:52

testify about the investigation

13:55

for me, you know, in terms of any testimony

13:57

that I would like to see to ensure, you

13:59

know, from ine stage perspective that Richard

14:02

Allen continued to be held no bond.

14:04

Is really narrowing that timeline.

14:06

You know, hey, look, we

14:09

spoke to Richard Allen about

14:11

where he went thereafter, we

14:13

couldn't collaborate anything he said.

14:15

It's just solely his word. You

14:17

know, related to that, there's

14:20

no possibility of misidentification. You

14:22

know, there's some mention the

14:24

probable cause affidavit of other people

14:26

being on the trail that day. Ine

14:29

and I guess the testimony that I'd be

14:31

looking for is, you know, we thoroughly

14:33

vetted these people ine and there's just no

14:35

reason to suspect that they're suspects.

14:37

So in other words, no possibility, misidentification,

14:40

no possibility of

14:42

alibi. And, you know, what I can

14:44

say Related

14:46

to that, for a bond hearing, the

14:48

rules of evidence don't apply.

14:50

Okay? So there's a lot of things that the

14:52

detective ordinarily wanna be able to

14:54

get into in trial

14:56

but could get into during a

14:58

bond hearing.

14:58

That's very interesting. Can you

15:01

explain the difference between the

15:04

burden of proof we could expect to

15:06

see at the trial ine

15:08

the burden of proof that will be

15:10

the standard of this bond

15:11

hearing. Yeah. So, you know, I mentioned

15:14

with the bonds here ine preponderance of the

15:16

evidence more true than not, you

15:18

know, people would like to ine a percentage of

15:20

fifty one percent beyond a

15:22

reasonable doubt is the highest burden that

15:24

you essentially have in

15:26

law. And I think I kind of touched on it

15:28

previously ine you know, it's a It's

15:30

a strict and heavy burden. The

15:33

defendant is presumed innocent

15:35

that you should conform the evidence

15:38

to his innocence and that if there

15:40

are two reasonable interpretations of

15:42

the evidence, must choose the

15:44

interpretation consistent with Richard

15:46

Allen's

15:47

innocence. You

15:49

mentioned the wrinkle

15:52

of alternative suspects in

15:54

this case. And I was

15:56

just curious just

15:58

looking at this overall, how

16:00

do you sort of weigh that factor in all of

16:02

this? The fact that there have been other

16:04

suspects in this investigation

16:06

and that currently, since

16:09

we last heard from the prosecutor ine many

16:11

of the law enforcement figures in this case. They're

16:14

indicating that the investigation is so

16:16

ongoing they believe that

16:18

other factors, other parties may

16:20

be involved.

16:23

Yeah. I mean, you

16:25

know, it makes it an interesting case

16:27

and one thing that I kind of failed to

16:30

know from a defense perspective is, you

16:32

know, it wouldn't surprise me that essentially

16:34

if if during their case

16:36

in chief that they

16:38

ine go on the offensive, that they almost

16:41

kind of act like a prosecutor, so

16:43

to speak, ine you

16:46

know, put on evidence to

16:48

point at other suspects. I

16:50

mean, that's entirely possible. Now

16:53

from the prosecutor's perspective,

16:55

you know, the way to address it

16:57

ine simply get out ahead of ine, get out

16:59

ahead of it in your case and cheat. You

17:02

know, always ask the bad questions

17:04

first. The difficult questions

17:06

first. That's something I mean, make a

17:08

good point with that about there being

17:10

other suspects, but that's how I would address it

17:12

if I was a prosecutor. Simply

17:15

try to get out ahead of it,

17:17

mention that, yeah, there were other

17:20

suspects, but here's why we excluded them.

17:22

Don't give the defense any

17:24

benefit.

17:24

That makes a lot of sense. And then one

17:27

other thing that we've been thinking about

17:29

from the defense perspective as

17:31

sort of a strategic move

17:33

Ine was wondering if you're sort of seeing any opportunities

17:35

for this or how you're thinking

17:37

about this. And that's just

17:40

possibly motions to suppress certain

17:44

elements of the prosecution's case,

17:46

you know, certain pieces of

17:48

evidence. And as far as

17:50

as you've seen, ine sort of

17:52

the public developments here, are you noting any opportunities

17:54

for the defense to

17:56

possibly get certain things

17:58

suppressed? Ine. Not at this point. I mean, there's

18:00

nothing for me to suggest that

18:02

there's anything to suppress. I haven't seen

18:04

anything of that nature. Would

18:06

it surprise me if there's no suppression ultimately

18:09

filed? Yeah. But I

18:11

suspect we'll see something at some point

18:13

in ine. But, you know, expect that

18:15

this case is essentially gonna go

18:17

through every type of

18:19

evidentiary hearing that you can imagine.

18:22

That being, you know, what you alluded

18:24

to the suppression. And then

18:27

more well, for now,

18:29

at the top of my head is is what witnesses

18:31

can testify to. You

18:33

know, I think there's gonna be a a

18:35

long motion

18:37

limiting hearing related to this

18:39

case regarding what

18:42

testimony witnesses can

18:44

and can and cannot

18:46

get

18:46

into regarding

18:46

this case. And then I think we

18:48

were curious about your thoughts on the

18:51

charging information here. That's been

18:53

something that's sort

18:55

of been a matter of discussion in the

18:56

case? And what what are your thoughts on

18:59

that? Well, you know, it it just doesn't

19:01

make sense to me why why well,

19:03

it's commonly referred to publicly as

19:05

felony murder. You know, in Indiana,

19:07

we have essentially four kinds of

19:09

murder. They're all referred to as it

19:12

just doesn't make sense to me

19:15

why they charged felony

19:17

murder. Okay? You know, murder

19:19

itself. I'll just quickly define ine. You know,

19:21

it's just it's four elements. Okay?

19:23

One that defendant, two knowingly or intentionally. Three

19:27

killed ine poor the

19:28

victim. So four elements. Right?

19:30

Pretty easy, pretty straightforward. Felony

19:32

murder, the prosecutor ine essentially

19:34

gonna have ine or eight

19:37

elements depending on how you look

19:38

at it. But it would be ine, the

19:41

defendant, two killed, three,

19:43

the victim, four, while committing or tempting to

19:45

commit kidnapping, which is defined as

19:47

follows. One, ine

19:49

two, no longer intentionally, three, remove

19:52

the victim, four by force

19:54

or threat of force, and five

19:56

from one place to another.

19:58

So you're

19:58

adding essentially four or five

20:01

additional elements that

20:03

you don't need for ordinary

20:04

murder. You know,

20:05

I don't

20:06

get it at the end of the day because the

20:09

offense you know, in terms of sentencing

20:11

remains the same between ordinary murder

20:13

and felony murder. Okay? You know,

20:15

it's still forty five to sixty

20:18

five years advisory sense is fifty five

20:20

years. Okay? Both counts

20:22

can run consecutive to each other

20:24

regardless of ordinary murder

20:26

or felony murder. So for a total of one

20:29

hundred and thirty years, you

20:31

know, regardless you'd have to serve

20:33

seventy five percent of the sense.

20:35

The only thing that I can see for charging

20:37

felony murder is that

20:40

this would ultimately make

20:42

the case death penalty or

20:44

life without parole eligible.

20:47

So in Indiana, a murder can

20:49

be life without parole death penalty

20:51

eligible. There's an ad abbrevating circumstance that

20:53

exists. There are forty

20:55

plus aggravating circumstances that

20:57

qualify. One of those is

21:00

committing or attempting to commit

21:02

kidnapping. The only thing

21:04

that the state would need to do given

21:06

the charging information is just file

21:08

a notice of intent that they're seeking a death penalty

21:11

or a sentence of life without

21:14

parole and then ultimately reference

21:17

that kidnapping offense

21:19

as ine aggregating circumstance.

21:21

But that notice hasn't

21:23

been filed. Okay? And if you're not

21:25

gonna go through with life without

21:28

parole or death

21:30

penalty, then Ine I guess, why

21:32

did you charge felony murder.

21:34

You know, it's just a lot easier

21:37

to just simply do

21:40

ordinary murder But with

21:42

that said, the state can always amend the

21:44

charges so long as the amendment doesn't

21:46

prejudice the dependent substantial

21:48

rights. The state can

21:50

always file an intention seeking life

21:52

without parole or death penalty

21:54

at any time so long as the defense

21:56

is afforded an opportunity to prepare.

22:00

But long story short, it's just

22:02

a lot easier from the

22:04

prosecutor's perspective you

22:06

know, to charge and to try

22:08

murder itself if they're not going

22:10

to see the death penalty or

22:12

life without parole.

22:14

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PC through Facebook games. Do

23:52

you have

23:53

any sense or feeling if they will

23:56

end up seeking the death penalty in

23:58

this case? My sense would

23:58

be that they ultimately wouldn't. I

24:01

mean, they're

24:02

what is it now? I mean, we're

24:04

we're already more

24:06

than two months and since

24:08

they've filed the charge itself. You

24:11

know, from Richard Allen's

24:13

perspective, if this is some type of

24:15

plea negotiation or something they're holding over

24:16

said, it's not going to make any

24:19

difference. And

24:20

there's a tremendous expense

24:24

associated with death

24:27

penalty cases with the prosecution of

24:30

such. I

24:32

think Indiana did a ine.

24:34

as I thought maybe this is

24:36

nationally, maybe this is in the state of Indiana.

24:39

But it it it averaged out,

24:41

you know, claims

24:43

are around five hundred thousand

24:45

dollars when debt penalty

24:47

cases are prosecuted. You

24:49

know, that extremely significant for county,

24:51

like Carroll County. So

24:54

I just don't envision them doing it,

24:56

you know, and essentially when you're looking at

24:58

that much time, the judge is if you're convicted

25:00

of both counts anyways, the the judge is likely

25:03

gonna run those consecutive, I mean,

25:05

he would be serving out

25:07

you know, his time in prison.

25:10

So, yeah, I I

25:12

just don't foresee them filing.

25:15

That penalty. Now life without parole,

25:18

that is different. I mean, the expense

25:21

there, it's much lower. Again,

25:23

don't call me on this, but I thought the

25:25

average cost of prosecuting a

25:27

life without parole cases around fifty

25:30

thousand dollars. So, fiscally, it's a

25:32

lot more manageable. But

25:34

again, with that said, I just

25:36

I just don't see it happening.

25:38

You know, given his age, given the time

25:41

that he's facing, you're essentially gonna get

25:43

the same result

25:43

anyways. And then just generally

25:46

how Greenlee, I

25:48

guess, for of a better term,

25:51

is Indiana to

25:53

the death

25:53

penalty? Is ine we a state that

25:56

carries out

25:57

capital punishment

25:58

a lot in your experience? Or

26:01

is it relatively

26:02

rare? You know, that's a good

26:05

question. I don't know off the top of

26:07

my head. How many death

26:09

penalty cases have ultimately been

26:11

tried ine then what the result of

26:13

those have

26:14

been. I would just say that obviously

26:16

the feelings

26:17

on the death penalty have definitely changed.

26:20

And I think many people oppose it. I

26:22

think you're in the ine. If you're

26:25

favor of the death penalty nowadays.

26:28

And even in

26:31

Indiana, I would say that that's

26:33

it's probably close to

26:35

about a fifty fifty split.

26:38

But if there's a change

26:40

of venue in the county that

26:42

this is probably gonna head to or some of the counties

26:44

that it's likely gonna head to, which are gonna

26:46

be bigger, more

26:48

metropolitan areas. I

26:50

think you'd be in the

26:51

minority, you know, in

26:54

those areas

26:55

if you're

26:55

in favor of the death penalty. And

26:58

then just in terms of the media coverage

27:00

of Delphi, as you're sort

27:02

of following that as as

27:04

a defense attorney, Are

27:07

you noticing any

27:09

information that's not quite accurate

27:12

or people missing a point of

27:14

certain things or elements of this

27:16

case that people are sort of not

27:18

really covering in the depth it

27:19

deserves. And if so, could you

27:22

tell us a little bit about those?

27:24

Well,

27:24

yeah, I think media has

27:26

been well intention. You

27:29

know, my my only issue or is

27:32

obviously just trying to get ine

27:34

legal analysis correct, but that ultimately

27:36

requires, you know, having

27:39

a legal background And,

27:41

you

27:41

know, I can't think of anything off the top of my

27:44

head that really stands

27:46

out. I can tell

27:48

you

27:49

you know, having having represented somebody

27:51

that was suspected of this,

27:54

sometimes, you

27:54

know, people get things misconception

27:57

crude. I mean, I did have I remember a New York post

28:00

article or

28:00

a client of mine who was it it

28:02

was captioned saying that he was,

28:04

in fact, arrested for

28:07

this offense when that wasn't the case. But going

28:09

back to Richard and Allan, I can't really think of

28:11

anything off the top of my head.

28:15

But that comes with all cases, you

28:17

know, that people that just don't have ine legal

28:20

background ine of

28:22

misconstrue things here and

28:24

there. As it relates to legal analysis.

28:26

That's an interesting point

28:28

with the media coverage. We definitely try

28:31

to I mean, are there any

28:34

elements of Indiana law?

28:36

Indiana criminal law in particular that

28:38

are maybe a bit unique to the state

28:40

or at least you know, might differ from,

28:43

you know, some other places in the United

28:45

States or anything like

28:47

that? I

28:48

can't think of anything with

28:52

respect to this case,

28:54

that would that would be vastly

28:56

different from any other

28:59

any other state?

29:00

No, not

29:00

really. I mean, I could talk about

29:03

consent to search and how we have a fertile

29:05

warning that's similar to Miranda warning

29:07

to her in custody, but that's

29:09

kind of diving into some

29:12

legalese that were different from

29:14

other states in that

29:14

respect. But please

29:16

dive into the legalese, please.

29:19

Well, I mean, one thing III can that

29:21

makes Indiana ine, and I don't

29:23

know. if profit will have any impact on this

29:25

case, but it's one thing

29:28

worth mentioning because we're unique in

29:30

this respect is that if you're

29:32

in ine, and

29:35

police ask to

29:38

search an item

29:40

of yours, whether it be your house,

29:42

your car or belonging, then

29:45

they have to advise you

29:47

and provide a turtle warning,

29:50

meaning in other words that you

29:52

have the ability to refuse

29:54

consent in that you

29:57

can speak with an attorney or consult with

29:59

an ine. Prior

30:01

to giving

30:01

consent. And that makes Indiana

30:04

unique. That's one aspect of criminal

30:07

law. That I can think

30:08

of. But in terms of anything else

30:10

that relates to this case, no, I can't

30:12

really think of anything. Howard Bauchner: Yeah,

30:15

well, this has ine terrific.

30:17

I mean, I guess, I just wanna zoom out

30:19

for a second and just get your thousand

30:22

foot view. Is this

30:24

case against Richard Allen on the

30:26

surface.

30:27

Strong, weak, somewhere in between. What are

30:30

your thoughts

30:30

on that? Both sides have their

30:33

work cut out for them. I mean, this is

30:35

gonna be a extremely difficult

30:37

case for both sides you

30:39

know, for the prosecutor, it's

30:41

gonna be about narrowing that timeline.

30:44

And for for

30:46

Richard Allen, you know,

30:48

Look, you

30:49

know, who's

30:50

who's my concern on on any criminal case

30:52

that I have ine

30:55

a jury

30:56

you know, we could talk about the presumption of innocence

30:59

and all that. But, you know, jury's

31:01

invested in law enforcement. Right? I

31:03

mean, they wanna see you

31:05

know, they're tax supported

31:07

agencies doing well.

31:10

They wanna see law enforcement do

31:12

well. You know, they wanna see the

31:14

prosecutor do well. That

31:17

makes it difficult from

31:19

the defense side. You know,

31:21

I can dive a little deeper ine if you

31:23

hunt about the the unspent

31:26

round and all that. But there's a lot of

31:28

work to be done from the defense side

31:30

on that and trying to limit or keep

31:32

out that evidence ine entirely because,

31:35

you know, the case law

31:37

when it comes to tool

31:39

markings and so forth is

31:41

not defense friendly. So

31:44

there's gonna be a lot of evidentiary

31:46

rulings that are gonna go

31:48

likely against Richard Allen.

31:50

You know, that makes it extremely difficult.

31:53

So, you know, at the end of

31:55

the day, I mean, both sides have their work cut

31:57

out for them. Anyone that

32:00

tells you that they know, you

32:02

know, they feel strongly one way or the

32:04

other. I I really

32:06

doubt that they've tried the

32:07

case. I mean, it it is it is very

32:10

difficult. Absolutely. Well, this

32:12

has been incredibly informative and

32:14

helpful, and we really appreciate you

32:16

sharing your insights with us.

32:18

Is there Anything about this case that we didn't ask

32:20

about or any other

32:22

elements that you wanted to stress or you think

32:24

would be important for our listeners to

32:26

know about?

32:27

You know, if Ine

32:27

if I can just briefly touch on the

32:30

firearm with the bullet and all that

32:32

--

32:32

Yes. -- I I just wanna let it be known. Because

32:35

I did post some stuff about

32:37

this, and I I am gonna do a follow-up

32:39

post. But I should know that

32:41

back in twenty eleven, the

32:43

Indiana Supreme Court allowed

32:45

expert testimony of a firearm

32:47

ine toolmark examiner who

32:50

testified that tool marks

32:52

on an unfired cartridge found in the

32:55

residence of where the defendant was

32:57

staying, matched tool marks

32:59

found on four discharge

33:01

cartridge casings found at the

33:03

crime

33:03

scene, and that the marks

33:05

were made by the same tool

33:08

of an unknown origin. So in other

33:11

words, the India Supreme Court is

33:13

previously allowed toolmark

33:16

examinations to come into

33:18

evidence. And in the case that I just

33:20

referenced, in that case, they didn't

33:22

actually have

33:25

a handgun. They didn't have a firearm at all to examine. They

33:27

were just taking an unspent round

33:29

that they believe

33:30

was ejected. Ine they

33:33

compared it to four cartridge

33:35

casings that were found in the scene of

33:37

the crime. They compared the two

33:39

and said, yeah, we got a match. So,

33:43

you know, that kinda puts Richard Allen

33:45

ine his defense team kinda behind the a

33:48

ball because I think there's a little bit more. I mean,

33:50

they actually have a firearm,

33:52

you know, that that evidence is

33:55

gonna likely come in

33:57

at ine. Now, there are ways to

33:59

discredit it. You know,

34:01

subjective in nature. The

34:03

the opinion even

34:06

says such. There are things to suggest

34:08

about. The conclusion is

34:10

suggestive just given that the information

34:12

that police ordinarily provide

34:15

to a lab analyst when they send

34:17

something off. You know, they're

34:19

definitely gonna have their own experts that

34:21

are gonna come in and testify about how

34:23

you cannot make that conclusion, you know,

34:25

that there's really no I

34:28

shouldn't say

34:30

I

34:30

mean, there is some stuff to suggest about standards and so forth,

34:32

and there there is that in place, but

34:35

ine it's

34:35

ultimately difficult

34:36

to determine the reliability, the repeatability,

34:40

the method used by tool marking experts

34:42

and that

34:42

you're just not able to provide a level of

34:44

confidence given your opinion. But,

34:48

you

34:48

know, I think that people should know that this

34:50

evidence in my opinion is

34:52

likely to come

34:53

in. That makes a lot of

34:56

sense given given that there is a precedent there?

34:58

Well, thank you so much. This has been very

35:00

interesting. We really appreciate you taking the

35:02

time to speak with

35:04

us today.

35:05

Thank you for having

35:06

me. Can we bug you again in

35:07

the future if if, you know, as more

35:10

developments arise?

35:13

Definitely, you know, I'm more than happy to be

35:15

on your show. I've I've listened to a couple

35:17

episodes myself ine I I think you guys

35:19

are doing a

35:19

terrific job. We did our first call with to

35:22

January thirteenth hearing in Richard

35:24

Allen's case. After

35:26

that hearing, ine regrouped

35:28

to talk about things like judge Frank

35:30

Gahl's ruling on the defense's

35:32

change of venue

35:33

request. We'll get back to

35:35

our conversation with Shea in just a moment.

35:37

But first, here's a word from our sponsors. As you

35:40

know, judge GOL decided

35:42

that the trial would be held in Carroll County,

35:44

but

35:45

jury would be brought in from another county. What did you think of

35:48

that choice? Well,

35:50

I

35:50

was surprised by the

35:54

ruling itself you know, and I I get where she's coming from. Let me prep

35:56

assist. That the

35:57

Indiana Court Supreme Court has

36:00

stated that the core, the trial

36:02

core can balance the rights of the media, the

36:04

defendant, and the county

36:06

citizens when determining change of any

36:09

ine

36:09

I from the news

36:11

reports that I saw,

36:14

I think she took into account

36:16

the witnesses being in

36:18

the county if I'm correct and then

36:20

along with the community's investment.

36:21

I just don't personally find

36:23

that reasoning compelling

36:26

because that's inherent with

36:28

every criminal

36:29

case. And

36:30

if we're

36:31

gonna put substantial weight

36:33

on those factors,

36:34

you know, it's gonna be difficult for anyone to receive a

36:36

full venue change. You know, in other

36:38

words, if if Richard Allen can't receive

36:41

a full venue change, than

36:44

who can. You know, there are

36:46

a few cases that have received the attention like

36:48

this one

36:49

has.

36:49

In your view, you know you know, I think a

36:52

lot of lay people might see taking the jury from

36:54

elsewhere ine solving the

36:56

need for a venue change because

36:58

you're having a fresh

37:00

jury poll as opposed to a Carroll County jury

37:02

poll. In your view, what

37:04

risks does Richard Allen

37:06

still run by having his trial

37:08

just take place physically in Carroll

37:09

County? There's a lot

37:12

of concern with it just in terms

37:15

of the logistics making sure

37:18

that all the jurors obviously end

37:20

up safely arriving to Carroll

37:22

County. But then trying to

37:24

control what

37:26

occurs out I had ine courthouse is gonna be kinda

37:27

difficult. I

37:28

think it's

37:29

fair to assume that jurors are

37:31

going to see and

37:34

hear supporters as

37:35

they enter and exit

37:38

the courthouse daily, the court's

37:40

gonna have to go to some

37:42

you

37:42

know, gonna have to go out of their way in terms of

37:45

ensuring that there's no outside influence on the jurors. And that's

37:47

one thing

37:48

that really concerns

37:48

me. I saw a news report

37:51

where there was at least one

37:53

heckler entered

37:54

the courthouse, and I expect

37:56

there

37:56

to be

37:57

more as trial proceeds.

38:01

And

38:01

when it comes to heckling like

38:04

that, is that the sort of

38:06

prejudicial activity that if the

38:08

jury witnesses that can it

38:10

result in something like a

38:11

mistrial? You

38:12

know, I've never seen that. I don't

38:14

know of any authority in Indiana law, but it's

38:17

something that I would certainly raise.

38:19

If I was defense

38:21

counsel. Right.

38:24

So not necessarily, but something

38:26

that the defense could grab onto. I

38:28

guess ine point I'm trying to kinda get at is that it seems

38:30

like people doing that sort of thing

38:33

or maybe possibly could

38:35

be handing the defense a

38:38

tool, essentially. And and obviously, if

38:40

they're against Richard Allen, then

38:42

it's kind of counter counter

38:44

intuitive, but hurling abuse

38:46

like that in public that a jury could

38:48

witness would be in a way

38:50

making the defense

38:51

job easier. Yeah.

38:53

You're definitely, you know, helping

38:55

or or providing evidentiary support

38:57

for defense,

38:58

you know, that that

39:01

he cannot receive. A fair trial in Carroll

39:03

County regardless of where the jury

39:06

comes from.

39:09

What are some of the problems

39:11

in your mind with bringing in a

39:13

jury from elsewhere as opposed to

39:15

simply having the trial elsewhere?

39:17

Well, off the top of

39:20

my head, ultimately, it's

39:22

just

39:23

kind of the you know,

39:26

the the day to day needs of a

39:28

jury. I mean, in terms of, you know, where are you

39:30

gonna put them up at

39:32

night?

39:32

What are you gonna do in terms of

39:34

food? Things of that nature. You know, the other

39:36

thing

39:36

with this case,

39:37

it's gonna take,

39:40

I

39:40

I would say, at least four weeks

39:46

So, you know, you're gonna have to

39:48

have probably more

39:50

alternative jurors

39:52

than you ordinarily would. I mean, I would say on a typical major

39:55

felony case, ine have about one

39:57

or two alternative jurors

40:00

you're probably gonna have wanna have more given that case is gonna

40:02

take at least a

40:03

month. And then there's

40:05

security issues as well. How do

40:07

you ensure that

40:10

jurors aren't receiving any outside

40:11

influence, so those are all things that need to be

40:14

considered.

40:15

Given the high level of scrutiny on

40:18

this case, would you have any

40:20

concerns about somebody who

40:22

knows a lot about it essentially

40:24

trying to fib or

40:27

omit their way onto the

40:29

jury? Yeah. That's

40:31

always a concern. People trying to work

40:33

their way into it, you know, and not a case

40:35

like this even if you move

40:37

it. Are going to have the jurors

40:39

from another county. You're ultimately gonna

40:41

have to do individual

40:44

jury selection.

40:46

So that means you bring in the the by

40:48

one and individually ask ine

40:51

questions.

40:51

Ordinarily, on a major felony case,

40:54

you'd have

40:55

depending on how big the jury box

40:58

is, twelve to thirteen

41:02

prospective jurors. Where you're kind of

41:04

asking them questions as a whole. Sometimes you

41:06

get more individual questioning.

41:08

But on a case like this, you're gonna be

41:10

bringing them in individually

41:12

and question to try to weed through that. The other thing that I

41:14

would suggest is that

41:17

they ultimately send

41:19

out a custom jury

41:22

questionnaire that is tailored specifically

41:24

to this case and

41:26

then that they send that out

41:29

well ahead of

41:29

time. That

41:31

way, you know, defense counsel in

41:34

the state

41:35

has the opportunity.

41:36

To read through the responses and investigate prospective

41:40

jurors further. As

41:43

as we've mentioned, you share

41:46

insight about this and other

41:48

cases on Twitter and Instagram.

41:50

Is who's your public defender? And since

41:52

this decision the other

41:54

day, you've been a bit critical

41:56

there of the performance for lack

41:58

of a better word of the defense attorneys.

42:01

You said they made a good record. Can you

42:04

explain what you mean by that?

42:06

Yeah.

42:06

You know, and let

42:09

me preface this by before going

42:11

into that, you know, I I do think that Richard Allen has two very

42:13

good attorneys. And I

42:16

think Andrew Baldwin

42:18

is extremely Greenlee.

42:20

I refer them as a road warrior because

42:22

he takes cases across the

42:24

state, and, you know, he

42:27

ultimately tries those cases. But,

42:30

you know, here's the issue that I have with their motion.

42:32

It only sites ine criminal

42:35

rule twelve. Okay? Ine makes no

42:38

mention of, you know, the

42:40

constitutional right of an impartial

42:42

jury that it originates from the

42:44

sixth

42:44

amendment. Of

42:44

US constitution, along with Article one, section thirteen

42:47

of the Indiana constitution. And,

42:49

you

42:49

know, the other thing I will say in

42:52

their defense much of the

42:54

case law for change of menu is

42:56

not favorable to

42:57

defendant. But,

42:58

you know, they should have at

43:00

least cited a case that I mentioned

43:02

ine social media, which is Ward B state. You

43:04

know, there,

43:05

the defendant was charged with murder

43:07

out of Spencer County.

43:10

The newspaper reported

43:12

on the community's reaction.

43:14

They published the defendant's criminal history.

43:16

They ultimately sent out

43:18

a twenty eight page questionnaire to

43:21

perspective jurors with over sixty five

43:23

percent stating they want to believe

43:25

as the guilt or

43:26

innocence. But ultimately, the

43:29

Indiana Court determined that the trial court aired and

43:32

denying awards

43:33

motion for change of venue. And when you

43:36

compare award to Richard

43:38

Allen's case, County ine Carroll County

43:40

are similar in terms of

43:41

size, population. There's certainly been a ton

43:43

published about Richard Allen that would

43:45

likely be ine admissible. Ine

43:48

I'm sure if a questionnaire was presented to prospective jurors in

43:50

Carroll

43:50

County, you'd have a similar result.

43:53

If it

43:53

were me

43:54

drafting this motion, I

43:58

would have supplemented it with a memorandum, would have

43:59

had a number of news

44:02

articles as

44:04

exhibits. I would have requested

44:06

that a test jury being paneled if

44:08

the court wasn't inclined to grant the

44:10

motion based on the pre hearing filings.

44:13

And I would have proposed submitting a custom

44:16

questionnaire for jurors to fill out ahead of

44:18

time. You know,

44:20

and ultimately, here's my

44:22

issue. Initially, my reaction was that they

44:24

should file for an

44:26

interlocutory appeal and have the

44:28

appellate court decide this, but you know, I'm kinda

44:30

going against that now.

44:32

And ine issue is this,

44:34

ultimately,

44:34

is, you know, if Richard Allen

44:37

is convicted,

44:38

Ine if this issue is raised on appeal,

44:41

the appellate court,

44:43

I think there's

44:46

a high probability that they're going to agree with the trial

44:48

court because the appellate court

44:50

will

44:50

only only reverse for an abuse

44:52

of discretion. And what that means

44:55

Ine means when the trial

44:57

court's ruling was clearly against logic

44:59

and effect of the facts

45:01

and circumstances considered before

45:04

ine. Well, Ine this case,

45:06

there just wasn't much provided

45:08

to the trial

45:09

court, and I get it that, you know, it was a

45:11

very short hearing

45:13

that's all the more reason that you you wanna

45:15

get out ahead of time and make

45:17

that record. And, you know,

45:19

my concern is you know, that if

45:21

that were the case and he was convicted, the

45:24

issues raised on appeal,

45:26

that this will be repeatedly

45:28

cited by prosecutors

45:31

moving forward anytime

45:33

an issue change venue comes

45:35

up. In other words, a

45:37

look, you know, there was substantial

45:39

news coverage in Richard to Allan's

45:41

case ine a change of venue was,

45:43

you know, not

45:46

fully granted. In that case, so why is it appropriate

45:48

for you, which, you know, for your client

45:50

who has not received nearly the

45:52

same type of

45:54

media coverage?

45:55

When you have a situation where

45:58

the defense attorneys in this case are not

46:00

establishing a substantive record and

46:02

not

46:03

citing substantively, Is that

46:05

can we read into that?

46:05

Is that a sign they might be swamped by this

46:08

massive case? Or could we

46:10

is there some other

46:11

explanations that

46:11

you can

46:14

think of?

46:14

No. I just I I personally wouldn't read too

46:16

much into it. You know, the one thing

46:19

that I can say, you know,

46:21

that it was critical

46:23

of

46:24

is, you know,

46:25

just the the timing of the motion itself, I

46:27

think it came maybe

46:30

about three or four

46:31

hours

46:31

before the deadline of

46:34

that motion. Do, you know, the first

46:35

motion that they had filed was the petition

46:37

for bail. They were

46:39

me as counsel you

46:42

know, my priority would have been for the change of venue

46:44

to get that motion

46:46

filed. And then I

46:49

would have I would have put in the time for

46:51

to supplement it because you you may run into

46:53

a circumstance like

46:55

this. You know, where where

46:58

the court doesn't necessarily have a formal evidentiary

47:00

hearing on your motion ine just

47:02

makes a ruling from the bench right then and

47:04

right

47:04

there.

47:04

Ine don't

47:06

wanna read too much into it. I mean, they could ine expected just given

47:09

the media attention associated with this case that it

47:11

would be granted, it wouldn't

47:13

really be

47:14

contested. But, you know, it's

47:16

all the more reason

47:17

to make a record. And then, you know, you

47:19

mentioned that although you

47:22

under stand judge GOL's ruling, you know, you you disagree with

47:24

it by, you know, the the aspect of

47:26

leaving it within Carroll County to a certain

47:28

ine.

47:31

Ine for you, would there

47:31

been another solution that would

47:34

have possibly been, you

47:36

know,

47:36

the best

47:37

of all worlds, essentially?

47:40

Well, for me, I I just

47:42

think the the best solution is

47:44

simply just a full change

47:47

of venue. The logistics of this case are gonna be

47:50

difficult regardless of whether

47:52

you take

47:52

in a jury from a different county and

47:54

bring them to Carroll County or go

47:58

down to another county ine

48:00

you have to bring all the witnesses down

48:01

there. You know, court

48:04

has a lot more

48:07

I think there's a lot

48:10

more control over witnesses and

48:12

so forth. They're invested

48:14

in the case. They want to see

48:17

a fair trial, go through, and

48:19

I think they're more willing to abide

48:21

by any orders and so forth and

48:24

will be more

48:25

responsive. I just think it's can be

48:27

very

48:27

difficult in terms of bringing the

48:28

jury up here and and making

48:30

sure

48:31

that there's

48:31

no outside influence.

48:35

I guess the

48:35

immediate issue defense attorneys and the

48:38

prosecution is facing

48:40

at this time is how

48:42

to select which county to

48:45

pull the juries from.

48:48

What

48:48

sort of factors do you imagine the defense

48:50

would be considering when they're trying to

48:53

find that county? I think they're

48:55

going to want something with a diverse population, a larger

48:58

metropolitan

48:59

area, and something that

49:02

is far in a way

49:04

from Carroll

49:05

County. You know, I

49:06

can, if you want me to kind of what I

49:09

think a good prospective county ine, you

49:11

know, I think

49:11

Vanderburgh County would be

49:14

a pretty suitable county that being where

49:16

Evansville is at. I

49:19

think it's eighth, it's at least top ten in

49:21

population in

49:22

Ine, all counties.

49:24

It's the southwest

49:25

corner of the state. It's kind

49:27

of its own, you know, it is its own

49:29

metro

49:29

area. It's

49:30

about a four hour drive or

49:33

just under that from Delphi

49:35

to

49:35

Evansville. know, I

49:36

think that's a suitable county in my

49:38

opinion. It's always a county that I

49:40

look to

49:41

on these issues. Ine, know,

49:44

as I mentioned, I think

49:46

Andrew Baldwin's experience will come

49:48

into play. You know, I'm sure he's

49:50

taking cases there before ine

49:53

you know, if I'm defense counsel, I'm I'm probably

49:55

also reaching out to the Indiana

49:57

Public Defender Council for their insights

49:59

as

49:59

well. I'd probably reach

50:02

out

50:02

to you

50:03

know, really experienced criminal defense attorneys in certain

50:05

counties and kind of gauge what their

50:07

perspective

50:07

is on

50:08

on prospective jurors as well.

50:12

That certainly makes sense. And ine when you do

50:14

look at the defense motion for changing

50:16

venue when they're asking for, you know,

50:18

a hundred and fifty miles,

50:20

really ine only major city that falls within those

50:23

parameters is Evansville. I I wouldn't be

50:25

surprised ine they had their eyes on

50:27

Evansville as well.

50:29

I agree. I

50:30

mean, it's it is ultimately, I

50:34

think, one of

50:35

the prime counties when it when

50:37

it comes to a change of

50:39

venue just given its location

50:42

and its large

50:44

population?

50:45

One element that was sort of

50:48

interesting in the most recent hearing was you had judge

50:50

Gall and the prosecutor

50:53

sort of indicating that

50:55

they thought that a March trial was somewhat ambitious.

50:58

But when asked, the defense

51:00

attorneys sort

51:02

of said that they would maybe perhaps

51:04

address that at the February bond hearing. And I'm

51:06

curious, you do you make anything out

51:08

of the fact that they the

51:11

fence has not said at this time,

51:13

yes, we

51:14

wave our right to speedy trial. You know,

51:16

we'll have to push this back.

51:19

I don't read too much into

51:21

it at all. I think

51:23

defense kinda knows where where

51:25

it'll be at. Anyways, ine that March date

51:27

isn't suitable. The the only thing that I can

51:30

say is

51:32

maybe they're they're

51:34

trying to push, you know, for the state to formally move

51:37

to continue. In Indiana, we

51:39

have

51:39

what's known as criminal

51:42

rule four. That

51:44

means that, you

51:45

know, the date that something is filed, it

51:47

must be tried within one

51:50

year. But

51:51

there are certain continuances that don't

51:54

run against that one

51:56

year? In other

51:57

words, if you and

51:59

if the defense

52:00

ine this

52:03

the prosecutor Greenlee to

52:05

continue the day that wouldn't run against

52:08

that one year. If defense

52:10

moves to continue, that would not

52:12

run against that one

52:14

year. But if it's a state movie

52:16

to ine, then that

52:18

would run against that one

52:19

year. Right now, as

52:22

it stands,

52:24

you

52:24

know, the clock is ine against the state on

52:26

that

52:27

one year

52:28

ine frame. So I think it's ine

52:30

only thing that I could

52:31

think

52:31

of is it's just to

52:33

try to put the time on

52:35

the state? That makes a lot of

52:37

sense. And that

52:40

actually is the extent of our questions for you. I'm curious,

52:42

is there anything, any aspect of this

52:44

that we didn't ask about or that

52:46

you wanted to go more in-depth on?

52:49

Ine. That's it. Thank

52:51

you so much. And we're talking

52:52

in later,

52:53

I'm sure. We wanna

52:55

thank Shay

52:55

again for speaking

52:58

with us. Ine as a reminder, if you want to follow him for more

53:00

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53:04

defender

53:05

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53:12

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53:14

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