CARROLL COUNTY, Indiana (WXIN
) — Lawyers representing the accused man of killing Abby Williams and Libby German near the Monon High Bridge on the banks of Deer Creek east of Delphi in the winter of 2017 have filed a motion seeking bail for their client.
Attorneys Bradley Rozzi and Andrew Baldwin, named last weekthree weeks after Richard Allen was arrested and charged with two counts of murder, call for the 50-year-old Delphi man to be released, “at his own risk or as an alternative to setting reasonable bail.”
“(The) defense has received and reviewed the affidavit of probable cause which, at the time of the filing of this motion, has been sealed,” reads the motion, filed a day before Allen’s Chief Judge Fran Gull , listen to the arguments. about whether to keep the seal on the document that led to Allen’s arrest. “(N)o the proof of guilt is evident, nor the strong presumption of guilt.”
The motion calls for a bond hearing.
Allen was arrested on October 26 and his initial hearing was held without public notice two days later when Circuit Judge Benjamin Diener granted a motion by prosecutor Nicholas McLeland to seal the affidavit without a full explanation.
Announcing Allen’s arrest on October 31, McLeland indicated that the investigation into the murders remains open.
Indiana State Police Superintendent Doug Carter said recently Nexstar’s WXIN that the affidavit “stands on its own” and that the investigation would not be jeopardized by its publication.
“I think the state might be trying to protect someone,” said Robert Turner, a lawyer unrelated to the Delphi case but who began practicing law after retiring as deputy chief of investigations and director of public safety at the Indianapolis Police. “It has to be more than just identifying a witness. It has to be a danger or a threat.
“Or it could just be some information that could be embarrassing.”
Dan Byron, an attorney representing the Indiana media, told WXIN that he filed a motion with the court today and is prepared to argue Tuesday morning that, under Indiana’s Open Records Law, the publication of the PC best serves the public interest.
Turner said McLeland will have to convince Gull otherwise if the stamp requested on the affidavit is to be kept.
“Public policy is to open registries,” he said. “That’s the policy, so that’s a bad argument. You have to argue why the court should not follow that policy and there has to be some overriding interest that overrides the open records law. That is what you have to argue. Threat to someone’s life. Other investigations that could identify other suspects who could be on the run. It must be very important to annul the law that says that they are open records.”
At this point, the public, and perhaps Allen and his lawyers, do not know on what basis the prosecutor convinced Diener, who he challenged himself of the case, to seal the affidavit, and both parties may be limited in the arguments they can present in open court both for and against McLeland’s original motion.
“Obviously, the parties will have difficulty in what they can say, even in the discussion, because they could also reveal information that could be critical or confidential,” Turner said. “The court has to see that there is a problem here and that there is some public interest that overrides the Open Records law.”
Gull would have the option of leaving the Motion to Seal standing, publishing the affidavit, or directing McLeland to remove certain confidential information and publish the document.
“The judge could say, ‘While I understand you’re trying to protect a person’s identity, please offer me a redacted version of the PC that could exclude all necessary information about the person’s identity,’” Turner said. “The state can’t withhold evidence, so anything they put forward in terms of redacted probable cause is going to have to make sure they include all the necessary evidence while protecting a person.”
Other issues that may come up during Tuesday’s hearing could include a request for a gag order to prohibit public comment on the case or a motion by Allen’s lawyers to protect their client’s right to a speedy trial within 70 days.
Turner explained who might be covered by a gag order and why last week’s late assignment of public defenders could affect Allen’s constitutional right to speedy trial.
“To have a gag order that is effective, you need to be able to access the information, and usually the people who can access it: the prosecutor, the defense attorney, anyone who works with those two parties, and any witnesses who might to be questioned by those,” he said. “They shouldn’t expect him without a lawyer to wait for a speedy trial. They should at least allow him to have a lawyer before he makes a decision about the path of his trial.”