Speaker 1 Hey, put this out on the internet versus Kevin's, Speaker 2 As far as we know at Speaker 3 The murder sheet, we spend so much time digging into crime too. So popping out so many, the meal into Speaker 1 The microwave. Speaker 3 So I'm episodes head to factor. Yeah, Speaker 2 I think 50% off. Speaker 1 So contempt would've had to mean, like, I tell Kevin, Hey, put this out on the internet, versus Kevin sneaking in and taking a document without my knowledge. Speaker 2 Yeah, I think it's a protective order. And a lawyer says, Hey, go put this out on the internet. Um, that's, uh, yeah, I think that would be a problem. Speaker 1 Um, one thing I wanted to raise with you, we talked a little bit prior to this conversation, but just about the standard of gross negligence. Um, what that means is that a standard in a, in a legal setting? What are your thoughts on that as far as you know, how it's being used in this situation? Speaker 2 Uh, I, you know, it, it, it isn't the standard. And if the judge thought that the lawyers were being ineffective within the meaning of, of, of Sixth Amendment, one thing she could have done is, uh, appointed a lawyer to consult with Mr. Allen, uh, to make sure that, and, and informed him of the circumstances, make sure that he was fully informed, and, and Mr. Allen could have decided whether he wanted to go forward with the lawyers he had. I, I have to say that, uh, you know, to drill down a little bit on, on the facts, uh, one of the cases we did involved the judge that's called Lewis Visa Techie in the seventh, or it's a 2021 case, and a public defender of hers got up at a sentencing hearing where, uh, his client, Roger Lewis was facing 135 years for two murders, and he said nothing. Speaker 2 He introduced, the client, said, I, he'd like to say a few words, A lawyer did nothing sentencing hearing, and Judge Gu did nothing at the sentencing hearing except sentencing Roger Lewis to 35 years. She did not get rid of the lawyer getting, and she did not get in front of, uh, she did not get in touch with, uh, the chief public defender in Allen County and say, you really need to get somebody else in here. And I actually sort of raised this with a couple of trial judges, and I said, you know, I, I didn't specify who it was, but I, I said, you know, if you faced this situation, what would you do? Oh, I'd get a hold of a, I've got a new PD in there. Um, and I continued the hearing if I had to, you know, when, when the judge with her, and, and so Louis v Techie said, yeah, uh, this is a case under the United States to be chronic, where, um, yeah, he had a lawyer there, but it was equal to having no lawyer. Speaker 2 Um, and so it, it, it, it would've been a natural place to inquire, uh, at least, well, have you prepared Mr. Lewis for this statement? The record shows that he hadn't, and this was after, by the way, the lawyer had thrown the client under the bus in closing argument call, you know, putting him in a boat with a bunch of other witnesses, just saying, oh, these are all including his client, really bad people. My sense is that the, again, the optics, I, I, I hate motives and I, I don't know why anybody does anything. People, human beings are complicated. Um, I know that the, there's a thing, even know at Occam's Razors, there's a thing called Lin's razor. Speaker 2 And Lin's Razor says, never ascribed to malice. What can adequately be explained by negligence or incompetence? And, you know, I don't know why people are doing what they're doing, but, you know, and I know that, um, over on Defense Diaries, there was a suggestion that this all happened to slow things down because the judge and the prosecutor weren't ready. I, I, I don't know if that's the case. It is interesting, at least that Speaker 1 I'd be interested about where the source is for that. Well, Speaker 2 I think, I think it's, I think it, well, I think it was just inference. I don't think it was a source in the process. And, you know, I don't know why the, there's a thing even know what CCAs razors, there's a thing called Lin's razor. Lin's razor says, never ascribed to malice. What can adequately be explained by negligence or incompetence? And, you know, I don't know why people are doing what they're doing, but, you know, and I know that, um, over around Defense Diaries, there was a suggestion that this all happened to slow things down because the judge and the prosecutor weren't ready. I, I, I don't know if that's the case. It is interesting, at least that Speaker 1 I'd be interested about where the source is for that. Well, I Speaker 2 Think, I think it's, I think it, well, I think it was just inference. I, I don't think it was a source. I think it was an inference from Judge Galt, uh, use the name again, the judge having said that, she hadn't read all of the Frank's memo and had hadn't read all the Frank's memo. I think she said, hadn't looked at any of the attached exhibits. I'm not sure what the inference that the prosecutor, uh, where the inference came from with the prosecutor wouldn't be ready. But, you know, going back to the optic bit, you've got a judge who's, at least originally most of the stuff is back. I, I, i, I, I can't keep track. So in the first original action, challenging the, the treatment of the public records, I can't keep track. Speaker 2 I, you know, Maggie Smith did a terrific job on Jesse Cook, and forget whether Kara Winky was on that first one as well. Speaker 2 But you have a judge who suddenly out of nowhere had the Frank's memo disappeared. I, I, I have no idea why she did that. Somehow she thought it was inappropriate. I don't, I, I don't know what I mean. Lawyers talked to courts through motion and they talked to the prosecution. Defense lawyers talked to the prosecution through motions. There was this, nothing had been ordered seal. Um, the prosecutor came back with a response saying that, uh, I mean, one line in the response was that there were things in it that were unprofessional. Well, he didn't identify anything that was unprofessional. It was actually, as I think David Hennessy's already pointed out, uh, practically a work of Frank, it was practically a work of art. Speaker 2 I mean, it really, I mean, you could, if they have the evidence to back it up. I mean, I don't think, I mean, these are incredibly experienced trial lawyers. They're not, they're not making allegations they have no evidence for. And if they are, that's a problem. Speaker 1 I have a question, um, from, you know, you speak with other attorneys just kind of in, in, in the community. Do you feel that it was regarded as a work of art from people you've spoken with just about this? Speaker 2 Yeah, I looked at it. I thought it was amazing, an amazing piece of work. I mean, uh, and, and it took hours and hours and hours and, you know, you can argue about whether you needed to go through each, but I mean, what is it, there's a section of it. It's a little bit like the, uh, it's a little bit like the, uh, history of Waterloo and that keeps popping up in lane. Is it Rob? But the, the whole step by step, how many, how many different things whoever committed these murders would've had to do. You know, you can T-L-D-T-L-D-R, but um, yeah, we got the idea. It takes, you know, 81 steps to, to do this. And it couldn't have been done at the time. Speaker 2 But, you know, it was thorough, it was complete, it was detailed. The prosecution wants to prove that it's nonsense, let them have at it. Speaker 2 But there, there was nothing in there that was unprofessional. They, they, they did not publish the, the, they, they file is confidential. The, the supporting documents. It was an, it was a completely professional job. Um, and you, you look at the, you know, the reaction again, you know, it's just optics. It's not motives, but one in, it just looks bad because that, that, does anybody seriously think that these lawyers would've been disqualified if there had been no Franks memo? I don't know. But it seems like, it seems like it's the Frank's memo that's, that's running this and, and that the, the disclosures might even be an excuse, but yeah, Speaker 4 The judge said Frank's stuff wasn't part of it. One thing she did say was that we, we talked about how lawyers talked to each other and the court through filings, and one thing the judge did say was that she felt there were some basically lying by the defense attorneys in some of their motions, particularly the safekeeping motion. And so I'm curious, how is that sort of thing handled and how should a court determine the difference between what some people might say is lying, other people might say is zealous advocacy? Speaker 2 Well, I don't think lying is zeus's advocacy, but the fact that she believed the warden, and my understanding is that the warden didn't show up. He, he just filed an a, basically the prosecution just filed an affidavit. Um, oh, he was at the hearing. Oh, he was at the safekeeping hearing. Okay. Okay. He, well, the judge, the judge is free to believe the warden and, and not believe that that, but the fact that somebody believes somebody else and not the other side doesn't mean the other side is lying. Um, I, I don't think, and you know, the standard's probably gonna be preponderance of the evidence. I mean, you know, part of the, you know, bad optics of this too though, are not transferring rega to, to Cass County when it, when, guess what, uh, the lawyers had arranged for that to happen. Speaker 2 The prosecutor had no objection. I mean, why didn't that happen? I don't know. Seemed, seemed like everybody, everybody who needed to be on board with that was, except for I guess the judge. Speaker 4 Well, I guess one of the major issues here, we, we've been talking about some of the side issues. One of the major issues is the importance of a defendant to have not only counsel, but counsel of his choice. So I wonder if you could talk about why that is important and what, in your view, some of the consequences are if a defendant does not have counsel of his choice? Speaker 2 Well, there's a case from, uh, 2006, I believe it's, it's, uh, United States versus Gonzalez Lopez from the United States Supreme Court. And the Sixth Amendment gives you the right to counsel of choice. And they really, that case really says that there are only two circumstances in which you're not entitled counsel of choice. Um, one of those is if your lawyer's not a lawyer, uh, in the jurisdiction. And the other, uh, is if your lawyer has an actual conflict of interest. I, I can see, and, and I, I can see a, a couple of other possible situations where you might not be entitled to counsel of choice. Speaker 2 I think one is the, is the Louis Visa techie situation where the lawyer's gotten up and said nothing. But I think you've got to in before, before you get rid of the lawyer, I think you have to inquire of the fund, you know, do you want this lawyer performing this way? Speaker 2 And, and there, and, and there's a, there's a case, Florida v Nixon, it's a, it's a Ginsburg opinion, which says basically if the client either actually sends to a strategy or doesn't oppose it after it's been communicated to him or her, that's not an effective system. I mean, um, I mean that they, they, they ratified that strategy. So, you know, in the Lewis Visa's a techie setting, if the judge is simply actually going off the record, even on the record, inquired about whether, you know, any investigation had been done, medication investigation had been done, or actually just asked Mr. Lewis if he was satisfied with what Mr. What the lawyer involved was doing, that probably would've been enough. But otherwise, the, the, the other situation in which you might not be entitled to counsel of choice is, again, if you've got something approaching, I dunno, contempt, but I'm not even sure contempt gets rid of the lawyer. Speaker 2 I dunno what you do. If you have criminal contempt, uh, direct criminal contempt judge sentences, you, I think the limit six months, the judge sentences you to six months in jail for the, for the criminal contempt. And they can't, obviously it's hard to represent somebody from jail or criminal contempt, but I I, I really don't see any other situations as long as the client wants the lawyer or lawyers. Gonzalez Lopez says it's structural error, which means you don't have to, you can't look at the prejudice. It would be all hypothetical. You don't know what one set of lawyers would do. And you know, I think Judge Ga, uh, I keep using the name, you Speaker 1 Probably edit that out Speaker 2 <laugh>. That's okay. You don't have to edit that. Um, that's kind of funny, I think. But <laugh>, um, I've had a few run-ins with this particular judge over the years, what was I gonna say? I was gonna say, oh, the Judge Gaul, and Judge Gaul said that, uh, she was concerned about Mr. Allen's right to a fair trial. She didn't say anything about effective as she only talked about fair trial and the Due Pro. And, and, and, and Gonzalez Lopez actually talks about this, the due process clause gives you the right to a fair trial, but the Sixth Amendment has specific provisions that implement that. Speaker 2 The judge never found that anything, any of the lawyers had done amounted to ineffective assistant. And I, I think without that, I don't think you can remove lawyers. That is to say, as I think in the reply and the second original action, I think it would amount to, if, if the lawyers remain removed, it would be a free trial. Speaker 2 It's been Down's been denied. Council of choice, it's structural error. The trial itself without council of choice is the constitutional violation game over. Now, you can get into a really interesting council of choice aspect in this case comes in two flavors. First when they've been removed and when the lawyers have been removed. Um, they were public defenders being paid, uh, by Carroll County. And it's a slightly different question whether once a public defender's been appointed, whether you have the right to, whether Rick has the right to those lawyers once appointed. I think, I think he does. Speaker 2 There, there, there, certainly, there's a, I think one of the cases cited in the original, uh, action papers is a District of Columbia case. And I think once the lawyers are appointed, but it's especially problematic in, in Indiana where the, the appointments are often by judges. In fact, I mean, the judge in this case, I believe appointed Andy Baldwin, and then I think Andy Baldwin got Mr. Ozzy in as well. But you can't have what the lawyers are doing for their client. The defendant depend on the judge's opinion of their performance. I mean, a, a absent something that's, you know, plainly ineffective assistance on its face. Speaker 1 Actually, just so our listeners know and, and have a sense of that, what would that even look like? Ineffective? You mentioned, you know, somebody, you know, this attorney didn't even speak up for his client or even, you know, threw him under the bus as you mentioned. But, um, what sort of things would kind of fall into that category? Speaker 2 Not much actually, because a Strickland v Washington sort of a leaving case since 1984 on an effective assistant says there, there are a wide range of ways a lawyer can represent a client from defend a client. I, I think you'd have to run into cases like coy, I think it's, versus Alabama, where the lawyer actually gets up and admits its client's guilt. Well, it's part of a strategy, but the client had al well, it was a death penalty case, and the idea was to admit guilt, admit guilt. So you go into the penalty phase and it's, and, and it's actually not, not a, a terrible strategy. Um, I think it's one that's, I'm not, I don't do capital work, but, uh, I think it's a fairly common thing. Speaker 2 But apparently the client said specifically, do not do that. And, you know, if I were the judge sitting on a capital trial in light of McCoy, once the lawyer had done that, uh, I would sort of go back in chambers with the, uh, could we take a break here and, um, go back in chambers and ask the lawyer, did your client say doing that was okay? Speaker 2 If it's, we'll just move on. And if not, I'm gonna have to declare a mistrial. Uh, but it ha it would have to be something extreme like that. I mean, it, it, it, it something, I it's almost unimaginable. And, and I have to say, and, and, and you know, Louis v's a techie, the judge might be able to assume, right? Stickland says, you know, we assume that lawyers represent their clients confidently. So, you know, maybe it wasn't a mistake, uh, not intervening. And, and in, in that case, because she could have assumed that, you know, Mr. Lewis had been prepared to make the statement, I might wanna inquire, but I I I, I expect that there, there's a wide range, uh, justice, there's a wide range of ways to represent a client. Speaker 2 There, there is a very wide range of ways to, uh, competently judge. So I, I I'm not, Speaker 4 One thing I'm curious about is, is we talk about the Sixth Amendment right to counsel and, and such, and of course, the Sixth Amendment, uh, federal rights. If the Indiana Supreme Court doesn't rule on this case in favor of Alan and his attorneys, does this at some point become a federal case? Speaker 2 Uh, one of the reasons I've come a little place down the hill, off the hill from the high down from the high police talk, is the, to express my hope that it very, very, uh, sincerely held hope that it does not, um, become a federal case. But that said, uh, I thought it might be useful to think about the possible outcomes in, in the second original action in the Supreme Court. The, the records case is interesting, but, uh, it ultimately doesn't affect LAN's trial. So what could happen, everybody's gone. The judge is gone, the lawyers are gone, the, the, the former lawyers are gone. Speaker 2 Uh, I don't know whether that means the current lawyers stay or whether it goes possibly to the state public defender for appointment of counsel, which is certainly something that can be done under Carroll County's, uh, public defender plan. So that's one possibility. Uh, the other possibility is judge stays, but the lawyers are gone. Third possibility is the lawyers stay and the judge is gone. And I think it unlikely that you're gonna have the fourth possibility that the former lawyers come back and the judge stay, just don't <laugh>. That Speaker 1 Would be a dirty hot mess. <laugh>, Speaker 2 That's not gonna happen. So the one thing, so if you look down these possibilities, the one thing, but there is no federal claim in the original action for removing the judge. It's just under the, there's no claim of. So the due process clause gives you the right to fair trial in front of an unbiased judge, but there is no claim of actual bias in, in, in the second original action as I read it. That's all under the Canon's judicial conduct and, and sort of state law. But the, the Council of choice claim is not going to go away. And if everybody's gone, doesn't work. Speaker 2 And with that, at least from the habeas lawyers perspective, uh, the only real resolution of this case that that is going to be legally portable is the judge has gone and the former lawyers are back. And it's an open question whether the former lawyers are back as public defenders or whether they're back as pro bono counsel. Speaker 2 I don't, I dunno. And there is, if, if, if the former lawyers are not reinstated either as public defenders or as pro bono counsel, yeah, there's a habeas case we had, there's a, there's a statute 28 SC 2241, it's the basic habeas statute. It says you can apply for writ of habeas corpus, uh, if you're being held in violation of constitution or laws of the United States. So it has to be a federal claim. And you know, with most habeas cases, you have to wait till the trial's over. But, and, and, and there's a case out there called younger V Harris that, that says it's a Supreme Court case and US Supreme Court case, and it says basically that federal courts should slap out of state trial. Speaker 2 But there's a very well recognized exception to that, and that's double jeopardy claims. Now, I've seen one case that says that the only recognized exception, um, and the idea is that with a double jeopardy claim, you shouldn't have to wait till the trial's over because it is the trial itself. Speaker 2 It is the constitutional violation. You know, normally if you have, you know, confrontation clause violation, you're not allowed to confront the witness against you. You don't know about that, that ha ha you don't know about that happening until the trial's over. But where you're given Gonzalez Lopez and given that, that it's structural error to be denied counsel of choice, that you don't look at the prejudice and the rationale applying to double jeopardy claims ought to apply with a denial council of choice. And by the way, there's also, it's not just denial of council of choice one, it's, it's raised as council of choice in, in the original action pleadings. But there's a little thing also mentioned in Strickland called state interference with council and boy, do we have state interference with council here. Speaker 2 And can you elaborate on that and what you feel is the state interference in this case? Speaker 2 Well, where the state is, you know, the judge there, there's a, there's a case written by Chief Justice Rush called Becker V State what she says the state is the state. Well, yeah, I mean, the judge is the state, and I think there are cases out there saying that state interference has to actually be either from the judge or because of the statute. And I think we got state inter where you tell the lawyers to stop working on a case a week before you're figuring out what's happening and then you remove the lawyers. I think you got state interference with counsel here. Uh, we can argue. And others, I think a lot of people out there, all kinds of attendances about whether the removal was justified and what a terrible thing. Speaker 2 I mean, as far as I can tell, I think over the defense diaries say they, they've said sort of the same thing. This leak is a nothing burger. Nobody's got it as far as we know. I mean, it's not just at whatever there, there's been no fallout from it except for to the lawyers. There's been no fallout to Rick Allen. When you Speaker 1 Say no one's got it, what do you mean by by that Speaker 2 I mean, it, it hasn't been out. I, I mean, some small handful of people may have seen whatever those pictures were that were taken in, in, in, in the lawyer's office. I, I haven't, I guess you all have, but I haven't. Speaker 1 Um, well, one image was published all over Facebook and Twitter, but Okay, but other than that, the most, the worst ones for our knowledge have not been published on the, on internet as they call it, <laugh> at the very least. Speaker 2 Okay, well, there's one out there. Um, you know, i i I don't know that there's any indication that's been damaging to, to Mr. Allen's defense. Obviously the, the lawyers and, and Mr. Allen, the former lawyers and Mr. Allen himself don't think that there's been any particular damage and they want to soldier on. Uh, and so what would happen if the lawyers might happen? And, you know, it depends on what Mr. Allen wants, and it depends on, uh, what might happen is you'd have to file, uh, one would have to file a habeas petition probably in the northern district of Indiana asking for a preliminary injunction to stop the state trial. Speaker 2 And, you know, it'd be more delay. And what the writ would look like would be something like, uh, either release Mr. Allen or give him back his counsel of choice, and they don't give him back his counsel of choice. Speaker 2 And I dunno, the who, who, who, the, who, who would be the who as, as an <laugh> is an interesting question. So, but if they didn't do that and they released him, then they could re, the state could rearrest him and we're doing it all over again. I mean, habeas is an extremely blunt instrument. I mean, if there weren't this really clear cut counsel of choice question, I wouldn't even be thinking about it. I mean, ha habeas relief is, is is really generally for really bad violations of federal law that the state courts have failed to do anything about. Speaker 4 Uh, one thing I'm curious about, we've gotten some questions about this, is that the judge and the Attorney General made an argument in their filings that basically I'm simplifying the court doesn't need to, to even reach the substance. There are procedural errors. These things shouldn't have been filed before the Supreme Court first. And I was just wondering if you had any, uh, insights and opinions on whether or not it was appropriate to bring this before the Supreme Court when they did? Speaker 2 Absolutely. Um, I mean, there's a, so, you know, I think in the, in Mr. Allen's reply, which Mark Lehman, Kara Winkey, a couple of really brilliant lawyers, did an, an appeal would've taken a while, even an expedited appeal. And that's a judge that the judge had certified the question for interlocutory appeal, um, I think we're outta time now for interlocutory appeal, actually, but, you know, we're asking for disqualification of the judge. And, and by the way, when removal of the lawyer's structural error, in your opinion, and by the way, the Supreme Court has exclusive jurisdiction over the regulation of lawyers. Boy, it sure looks like an appeal would be inadequate even if you could get one. Speaker 2 And I think I, I truly think that the judge was under a duty not to remove the lawyer. You know, again, it comes into, you know, two stages. Even if you don't like the pd, if she could remove them as public defenders, I don't think she could remove them when they showed up. Again, that's just saying, well, I don't, I don't like the way you lawyer. Speaker 1 One thing I'm gonna ask you to do, which is a super annoying question, I know, but, um, you know, if you have a little crystal ball there, you talked about the different outcomes that we could see here. You know, everyone's removed, nobody's removed, uh, some people are removed, others aren't. But do you feel that there's a, you know, likely outcome here as far as you see it? Or is it still pretty up in the air for you? Speaker 2 You know, I, I have, so I, what I'm gonna say is I, lemme preface it by saying, um, I haven't drunk the defense Kool-Aid as it were. Um, I mean, one thing about doing cous work is as I tell my students, uh, you gotta figure out all the ways you can lose before you can even think about winning. And, uh, I was a Deputy Attorney general for most of a year, 87 and oh in the Appeals division. So, you know, I'm, I'm, I'm not, I'm not just your old defense lawyer pushing, pushing the defense out here, but I don't see why were the Indiana Supreme Court. I wouldn't wanna see this case again, at least not on these issues. And the only way that happened is if you get rid of the judge. Speaker 2 This just goes on and on. If you don't state the lawyers, I think now that's up to, you know, that would be up to Rick Allen in the end. Speaker 2 Uh, you know, maybe if Judge Gull stays and the lawyers are removed, he won't wanna pursue it any further. Just get on with things. Dunno. Uh, but if I were the Indiana Supreme Court, I think given what the judge has done with the record, uh, I think certainly wish the judge, well, I know she's been ill recently. Maybe she's better. I don't know how serious it was. There's a, you know, he has a defense, he has defense lawyers who know the case. I mean, justice just pragmatically, if you're the Indiana Supreme Court, you don't wanna see this again. You wanna get this thing going, get rid of the judge and get the lawyers back again. Whether they come back as PDs or pro bono counsel, I don't know, I, I can see them saying, judge stays in the lawyers go. Speaker 2 But I think that's a problem. Speaker 1 And then is there, we breeze through all of our questions. I'm looking at the list. Um, is there anything we didn't ask you about or that you wanted to clarify more, or that you really think people should walk away from this conversation kind of maybe thinking about? Speaker 2 Yeah. Well, as I tell my students, you know, criminal defense is a group effort. And, and, and if you look at, you know, the group involved here, uh, I mean Maggie Smith and Jesse Cook and on the first original action, I think there were others, Karen Winneke may have been on that, um, David Hennessy, I mean Rick Allen's lawyers themselves, um, Andy Baldwin and Brad Rozi, uh, second original action, mark Lehman and Farrah Winneke, again, Joel Humum and the Public Defender, Indiana Public Defender Council on the Amicus Brief. These are all just really amazing lawyers who have stepped up and put in hours and hours and hours and hours that were without getting, getting paid to fix something. Speaker 1 Awesome. Well, listen, Michael, thank you so much for your time and insight. We really appreciate you coming on giving the habeas perspective, giving, giving some of the perspective on, you know, what the consequences to this pretty important event could be. Speaker 2 Uh, yeah, we'll see. It's uh, you know, it's why we play the games, right? I mean, and we look forward to talking with you again I think Speaker 1 Next week. Yeah, I'm really excited about that. Speaker 2 Yeah, it's gonna be fun talking about the class. I look forward to it too. Thank you for the time. Speaker 1 We wanna thank Michael for sharing his time.