CARROLL COUNTY, Ind.WXIN
) — Lawyers representing the man accused 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, last weekthree weeks after Richard Allen was arrested and charged with two counts of murder, ask that the 50-year-old Delphi man be released, “on his own recognition or in the alternative to set a reasonable bail.”
“(T)he defense has received and reviewed the probable cause affidavit that, as of the time of the filing of this motion, has been sealed,” reads the motion, filed one day before Allen Superior Judge Fran Gull is slated to hear arguments on whether to maintain the seal on the document that led to Allen’s arrest. “(N)either the proof of guilt is evident, not the presumption of guilt strong.”
The motion asks for a dance hearing.
Allen was arrested Oct. 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 full explanation.
In announcing Allen’s arrest Oct. 31, McLeland indicated that the investigation into the killings remains open.
Indiana State Police Superintendent Doug Carter recently told Nexstar’s WXIN that the affidavit “stands on its own” and the investigation would not be compromised with its release.
“I think the State might be trying to protect someone,” said Robert Turner, an attorney who is not connected to the Delphi case but began practicing law after his retirement as an Indianapolis Police deputy chief of investigations and public safety director. ”It has to be something more than identifying a witness. It has to be a danger or threat.
“Or it might simply be some information that might be embarrassing.”
Dan Byron, an attorney representing Indiana news 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 Act, the public interest is best served by the release of the PC.
Turner said McLeland will have to convince Gull otherwise if his requested seal on the affidavit is to be maintained.
“What the public policy is is open records,” he said. “That’s the policy, so, that’s a bad argument. He has to argue why that policy should not be followed by the court and there has to be some overriding interest that’s above the Open Records law. That’s what he has to argue. Threat to someone’s life. Other investigations that might identify other suspects who might flee. It has to be pretty important to override the law that says it’s open records.”
At this point the public, and perhaps Allen and his attorneys, do not know on what basis the prosecutor convinced Diener, who recuse himself from the case, to seal the affidavit, and both sides may be limited on what arguments they can put forward in open court both for and against McLeland’s original motion.
“Obviously, the parties are going to be handicapped in what they can say even in the argument because they might reveal some information that might be critical or confidential there, too,” Turner said. “The court has to see that there’s a problem here and there’s some public interest that overrides the Open Records law.”
Gull would have the option to let the Motion to Seal stand, release the affidavit or direct McLeland to redact certain sensitive information and publish the document.
“The judge could say, ‘While I do understand that you’re seeking to protect the identity of a person, offer me a redacted version of the PC that might exclude all necessary information of the person’s identity,’” Turner said. ”The state can’t withhold evidence, so whatever they present in terms of a redacted probable cause is gonna have to be sure to include all necessary evidence while maybe protecting a person.”
Other issues that may be raised 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 attorneys 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 the late assignment of public defenders last week might impact Allen’s speedy trial constitutional right.
”In order to have a gag order that’s effective, you have to be able to access information and usually the people who can do that the prosecutor, the defense counsel, anybody that’s working with those two parties and any witnesses that might be questioned by those ,” he said. They should not expect him without a counsel to expect a speedy trial. They should at least let him have counsel before he makes a decision about the path of his trial.”