DELPHI, Ind. — When troopers at the Indiana State Police post in Lafayette slapped handcuffs on Richard Allen and told him he was under arrest for the killings of two girls abducted from the Monon High Bridge east of Delphi in February of 2017, the clock started ticking on the Carroll County man’s constitutional rights of presumed innocence.
An initial hearing two days later without the presence of a lawyer, moves from the Carroll County Jail to the White County Jail to the Indiana Department of Correction for his own safety and the almost unheard-of sealing of the Probable Cause Affidavit detailing the case against Allen could give the defendant’s eventual legal counsel an opening to challenge the charges lodged against his client.
“All of that in conjunction or combination is extremely rare,” said Judge Dan Henke of Fishers City Court who is not connected to the case but served previously as a public defender and a deputy prosecutor. ”There’s a constitutional presumption to access, to public access, to the courts.”
While the focus this past week has been on the efforts of media outlets to seek the charging information under Indiana’s Open Records Act, Henke said Allen has a more pressing constitutional right to be fully briefed on the allegations that led to his arrest as set out under Court Rules.
“Under those rules, it’s also pretty much called for that those cases get unsealed when the warrant is served and the defendant’s arrested,” said Henke. ”The post-arrest sealing of information to a defendant who is already arrested is pretty rare…but if as a result of his detention without notifying him of the nature of the charges or him having an attorney or even being able to argue that could be prevented from getting an attorney from being moved around so much incommunicado, if there was additional evidence that was procured against him subsequent to his arrest, I would see an attorney would make a motion to suppress that evidence.”
Allen Superior Judge Fran Gull was assigned by the Indiana Supreme Court to oversee the case once Carroll Circuit Judge Benjamin Diener recused himself, citing the overwhelming media attention and concerns about his personal safety and security at the county courthouse in downtown Delphi.
Henke said a decision whether to overrule Diener’s ruling on the sealing of the PC and the status of Allen’s legal counsel may be the first items on Gull’s agenda now that she has inherited the case.
Allen told Judge Diener at his initial hearing Oct. 28 that he intended to hire his own attorney and faces a Nov. 17 deadline to so inform the Court.
”Its not uncommon that at an initial hearing that the first reaction that a defendant might have would be, ‘I want to hire an attorney,’” said Henke, “but given the fact that he’s been moved out of the county jail to a couple of different locations indicates he may not have access to counsel in order to go retain one. He may also not have funds necessary to retain private counsel because the retainer on this case would probably be quite substantial.”
Before bowing out of the case, Diener set a Nov. 22 hearing on whether to unseal the PC against Allen.
”He has a right to know the nature of the charges against him,” said Henke. ”He has a right to know what the evidence is that’s going to be presented or the basis for holding him in detention. Since he does not have an attorney, typically the State is not going to hand over the information to him as a personal defendant. But as soon as he gets an attorney, the first thing the attorney is gonna want to know is, ‘Why are you holding my client?’”
Judge Henke said Allen and the State also face a 30-day deadline to file a motion to seek a change of venue if either side feels the defendant can’t receive a fair trial and potentially faces a biased jury in Carroll County.
”And then you get into a whole bunch of logistical issues as to, where does the case go, who hears it, who follows it, a whole host of issues that surround change of venue in a criminal case,” said Henke who noted that pre-trial media coverage in Fort Wayne may preclude the relocation of the proceedings to Judge Gull’s home courtroom. ”There are provisions under the change of venue rules that would allow Judge Gull in Ft. Wayne to grant a change of venue to, say if they have to go to Evansville or New Albany to get an unbiased jury, she could still continue with the case as a special judge.”
Such decisions would likely need to be made within a month as Allen’s speedy trial rights dictate that he has a pre-trial hearing Jan. 13 and a jury trial March 20 of next year, though Henke doubts if that schedule will be maintained.
”A case of this nature it would not surprise me that that’s not going to be the trial date,” he said. “The defense counsel will need time to prepare particularly if the State’s been preparing its case for some period of time against Mr. Allen, an attorney or attorneys would need time to catch up with that, and there’s going to be time needed to determine where the case is going to be tried and things of that nature.”
Allen is charged with two counts of felony murder in which aggravators could include kidnapping, child molesting or child sex trafficking, factors that could be considered by the Carroll County Prosecutor on whether to pursue the death penalty for the murders of Abby and Libby.
A felony murder charge can also be lodged against a defendant who may not have actually committed the killings but participated in the events that led up to the deaths.
Prosecutor Nicholas McLeland has indicated that investigators will continue to develop their case against Allen and potentially follow leads to other suspects while the details of the PC remained sealed.
