Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
The Indiana Supreme Court is explaining its reasoning for reinstating the defense team of the man accused in the 2017 Delphi murder case, crafting a new rule for determining when a judge can remove a court-appointed attorney.
The court’s Thursday opinion comes after the justices last month reinstated Brad Rozzi and Andrew Baldwin as counsel for Richard Allen.
“In short, we reinstated Baldwin and Rozzi as Allen’s court‐appointed counsel because the trial court did not find that their disqualification was a necessary last resort after weighing the prejudice to Allen,” Justice Derek Molter wrote. “We denied Allen’s request for a trial within seventy days because he did not make that request in the trial court. And we denied Allen’s request to replace the special judge because he did not overcome our presumption of impartiality by identifying facts showing clearly that the special judge is biased or prejudiced.”
The case dates back almost seven years to Feb. 13, 2017, when teenage girls Abigail Williams and Liberty German were killed in Delphi. Five years later, Allen was arrested and charged with their murder.
The trial judge moved Allen to the Department of Correction for his safety while he awaited trial, then recused himself from the case. Special Judge Frances Gull was then appointed, and because Allen couldn’t afford an attorney, she appointed Baldwin and Rozzi to represent him.
A year later, Gull lost faith in the attorneys’ ability to represent Allen effectively and ultimately disqualified them.
A leak of confidential case materials, including crime scene photos, triggered the disqualification.
Mitchell Westerman, who was one of Baldwin’s friends and a former employee, visited Baldwin’s office in August 2023 and secretly copied discovery materials and photos, which he then distributed to others.
After discovering the leak, Baldwin and Rozzi notified the special judge and the prosecutor on Oct. 6. They also explained that after Westerman told Baldwin on Oct. 9 what he had done, Baldwin and Rozzi relayed the information to the prosecutor the next day.
Two days later, the prosecutor emailed defense counsel and the special judge informing them that the individual to whom Westerman allegedly provided the materials died by suicide hours after refusing to answer questions from an Indiana State Police detective investigating the leak.
Gull responded expressing her concern with Allen’s defense being compromised. She then directed defense counsel to stop working on the case until she could discuss the recent developments with the parties during an Oct. 19 hearing.
In the meantime, Allen wrote a letter to Gull informing her that he had discussed the leak with Rozzi and the impact it could have on his defense, but that he wanted both Baldwin and Rozzi to continue representing him.
Counsel on both sides met with Gull in her chambers just before the Oct. 19 hearing to discuss the court’s expectations for the hearing. During the meeting, Gull informed Baldwin and Rozzi that they had demonstrated “gross negligence and incompetence” and conveyed that she had concerns about their representation of Allen.
Based on her concerns, she informed them that she had decided to disqualify them. She offered them the opportunity to save face by withdrawing from the case so that she wouldn’t have to go into a public hearing and read a statement she prepared explaining why she believed they were grossly negligent and ineffective.
Allen wasn’t present for that discussion, but after briefly speaking with Baldwin and Rozzi, he relayed through them his objection to the court’s disqualification.
Still, they agreed to withdraw over Allen’s objection. Gull accepted their withdrawal and conducted a brief public hearing without them, where she stated that there was an “unexpected turn of events.”
But after having a few days to reconsider and discuss it further with Allen, defense counsel changed their minds.
Neither Baldwin nor Rozzi ever filed a written motion to withdraw as required by Trial Rule 3.1(H). Instead, Rozzi filed a verified notice of continuing representation, notifying the court that he would not be moving to withdraw and would continue representing Allen.
Rozzi also filed a motion to disqualify on Allen’s behalf, arguing that Gull was biased and should recuse herself.
The trial court struck both filings and ordered the clerk to remove them from the record because Rozzi was no longer counsel of record. Gull also appointed two new public defenders to represent Allen.
Baldwin then filed a motion to reconsider.
Baldwin and Rozzi both entered new appearances as Allen’s privately retained pro bono counsel.
Following a hearing on Oct. 31, the trial court entered an order stating that Gull had previously found gross negligence by Baldwin and Rozzi in their representation of Allen and that nothing had changed. Gull then disqualified them, affirmed the appointment of new public defenders and continued the trial date to Oct. 15, 2024.
In November 2023, Allen petitioned the high court for a writ of mandamus by original action to reinstate Baldwin and Rozzi, order his trial to begin within 70 days after writ is issued and replace Gull.
The high court heard oral arguments in State ex rel. Richard Allen v. Carroll Circuit Court and the Honorable Frances C. Gull, Special Judge, 23S‐OR‐311, on Jan. 18.
Just hours after hearing oral arguments, the justices reinstated Allen’s court-appointed counsel but denied all other requests in a short order.
That order said the court would issue a subsequent opinion explaining its reasoning, which the justices did on Thursday.
First, Molter, writing for the majority, concluded that Allen’s request to reinstate his original court-appointed counsel presented extraordinary circumstances warranting relief.
“… (W)hether as a product of a defendant’s right to due process or the right to counsel, the bottom line is this: a trial court cannot disqualify court‐appointed counsel over the objection of both the defendant and appointed counsel unless (a) disqualification is a last resort; (b) disqualification is necessary to protect the defendant’s constitutional rights, to ensure the proceedings are conducted fairly and within our profession’s ethical standards, or to ensure the orderly and efficient administration of justice; and (c) those interests outweigh the prejudice to the defendant,” Molter wrote.
“… And our concern that disqualifying counsel introduced structural error — at least as it relates to disqualifying them as privately‐retained pro bono counsel — presents further extraordinary circumstances that prompt us to exercise our jurisdiction now to preserve the integrity of the trial proceedings going forward,” he continued.
Here, disqualification was not a last resort, the court held.
“… (T)he record does not reflect the special judge disqualified counsel only as a last resort after balancing her effective‐ assistance‐of‐counsel concerns against the prejudice to Allen that would result from substituting counsel,” Molter wrote.
But as for Allen’s other requests, the court determined that none of them presented extraordinary circumstances warranting relief.
“No doubt, that adverse ruling was significant. But nothing in the record suggests the special judge’s decision emerged from bias or prejudice against Allen,” Molter wrote. “Just the opposite, the special judge explained she disqualified counsel because she was trying to protect Allen’s right to the effective assistance of counsel. And we don’t minimize her concern; she faced a significant dilemma given her conclusion that defense counsel were no longer effective.”
Molter also worked through various what-if scenarios.
For example, if Gull had left counsel in place and Allen was convicted, the conviction might have been vacated through post-conviction proceedings based on ineffective assistance of counsel. Or, if Gull disqualified counsel and Allen was convicted, then the convictions might have been vacated because she infringed on his right to continuity or choice of counsel.
The court acknowledged that Gull was in a “tough spot either way.”
“Though we’ve determined the record does not support her disqualification decision, we reach that conclusion with the benefit of weeks to consider the issue; thorough briefing and oral argument from excellent appellate attorneys; and the benefit of five justices and their staffs poring over the record, authorities, and arguments,” Molter wrote. “The special judge did not have those luxuries.”
Finally, the court wrote that Gull “hit defense counsel’s eject button instead of the case’s lockdown button,” but she was right to attempt to get the situation under control quickly. Her efforts did not reflect any bias or prejudice.
Petitions for rehearing or motions to reconsider will not allowed.
Chief Justice Loretta Rush and Justices Mark Mass and Christopher Goff concurred with the opinion.
In a separate opinion, Justice Geoffrey Slaughter concurred with the majority that Allen’s request to replace Gull and order a trial within 70 days should be denied. However, he disagreed with the conclusion to reinstate his court-appointed counsel.
“My objection has less to do with the Court’s legal analysis than with its bottom-line issuance of a writ, given the procedural posture in which the issue of attorney disqualification comes to us,” Slaughter wrote. “Had this issue arisen in an interlocutory appeal or after a final judgment, I would be more open to Allen’s argument that the trial court erred in threatening to disqualify his trial counsel after finding them grossly negligent and incompetent. But that is not the posture of this case.”
Slaughter wrote that Gull did not violate an absolute duty in dismissing court-appointed counsel because Allen did not have an unquestioned right to keep them.
“On the merits, I do not necessarily quarrel with the rule the Court announces today. It appears to strike a reasonable balance between the competing interests of a criminal defendant’s right to counsel and a judge’s duty to ensure the defendant receives a fair trial,” he wrote. “My beef, rather, is with our after-the-fact application of this newly minted rule to award mandamus relief against Judge Gull, who did not have the benefit of our rule when she acted.”
Slaughter concluded that the court “mudd(ied) our own jurisprudence in this important area,” and invited future deviation from its own rules.
“In my view, these institutional costs far outweigh the benefits to Allen,” he wrote.
Please enable JavaScript to view this content.