Richard Allen Memo Regarding Possible Disqualifications or Sanctionspdf
Richard Allen Memo Regarding Possible Disqualifications or Sanctionspdf
and Article 1 Section 13 rights of the Accused. Continuity of counsel is critical for adequate
representation. Article 1 Section 12 of the Indiana Constitution must also be given consideration.
Mr. Allen has developed a strong and trusting bond with Mr. Baldwin. Disqualification of either
of his court appointed attorneys would greatly prejudice his right to counsel and a timely trial.
See Barham v. State, 641 N.E.2d 79 (Ind. App. 1994) involving an Accused’s right to
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused
shall ... have the assistance of counsel for his defense." U.S. Const., Amendment
VI. The right to counsel of choice has been described as an "essential component"
of the Sixth Amendment right to counsel, U.S. v. Nichols (1988), 10th Cir., 841
F.2d 1485, 1501
Id.
The authority to remove appointed counsel is limited and has resulted in reversals in
other jurisdictions. See McKinnon v. State, 526 P.2d 18 (Alaska 1974); Smith v. Superior Court of
Los Angeles County, 68 Cal.2d 547, 68 Cal.Rptr. 1, 440 P.2d 65 (1968); Harling v. United States,
387 A.2d 1101 (D.C.1978); People v. Johnson, 215 Mich.App. 658, 547 N.W.2d 65 (1996),
appeal granted in part, 453 Mich. 901, 554 N.W.2d 321 (1996), appeal dismissed, 560 N.W.2d
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638 (Mich.1997); People v. Durfee, 215 Mich.App. 677, 547 N.W.2d 344 (1996); In Re Welfare
"A trial court may not remove a defendant's counsel merely over a disagreement
regarding the conduct of defense counsel. Harling v. United States, 387 A.2d
1101, 1105 (D.C.App.1978)." …. "Accordingly, the trial court improperly
removed court-appointed counsel with no authority to do so."
People v. Johnson, 215 Mich.App. 658, 547 N.W.2d 65 (Mich. App. 1996)
People v. Durfee, 215 Mich.App. 677, 547 N.W.2d 344 (Mich. App. 1996)
of a court’s order. Most if not all cases concerning disqualification of counsel involve conflicts of
interest. There is no case allowing disqualification when an individual not part of the attorney’s
office or staff surreptitiously purloins information from the attorney and disseminates it without
Furthermore, any sanction first requires proof of knowing, willful or intentional conduct, as
do the Rules of Professional Conduct. Here the attorney’s trust and office were violated without
his knowledge. Rule 1.6, IRPC requires disclosure by an attorney, not someone that purloined
information without the attorney’s knowledge. Commentary 16 to that rule states: “A lawyer
must act competently to safeguard information relating to the representation of a client against
inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the
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representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and
Attorney Baldwin did nothing wrong. He was snookered and abused. See Hanna v. State,
714 N.E.2d 1162 (Ind. App. 1999) which reversed the conviction because the trial court
erroneously disqualified counsel when the Accused had waived any perceived conflict.
We note at the outset that defense counsel was disqualified in response to the
State's motion and not in response to a defense request for substitute counsel.
Where it is the government which moves to disqualify defense counsel, the
burden is on the government to show that any infringement on the defendant's
choice of counsel is justified. United States v. Diozzi, 807 F.2d 10, 16 (1st
Cir.1986). Diozzi cited Flanagan v. United States, 465 U.S. 259, 268-69, 104
S.Ct. 1051, 79 L.Ed.2d 288 (1984), for the proposition that the Sixth
Amendment right to counsel of choice reflects a constitutional protection of
the defendant's free choice independent of the concern for the objective
fairness of the proceedings.
Id.
The trial court reconsidered its earlier ruling and granted a continuance. While
it denied the defense attorneys' request to withdraw, it sua sponte removed
them from the case because of the "insulting and absolutely improper" remarks
about the court in their motion to reconsider. R. at 80. The court appointed two
new attorneys to represent Jones and ordered that the removed attorneys turn
over their case file to new counsel by April 13. The trial court also referred the
motion to reconsider to the Disciplinary Commission.
State ex. Rel. Jones v. Knox Superior Court No. 1, 728 N.E.2d 133 (Ind. 2000).
The Knox Court also stated that”
This Court is generally of the view that a trial court is limited in its authority to
remove a criminal defendant's court-appointed counsel. However, the Court
finds it unnecessary to explicate the parameters of that authority here. This is
because Carnahan and Dillon here affirmatively requested that they be allowed
to withdraw as Jones's counsel if the relief they sought was not provided. R. at
43.
State ex. Rel. Jones v. Knox Superior Court No. 1, 728 N.E.2d 133 (Ind. 2000).
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The issue before the Court is a horrible tragedy created by persons not related to the
defense of Mr. Allen. There were three disseminators, one of which committed suicide after the
It should be considered that nothing has been disclosed that won’t be disclosed at trial or
hearings. It should also be considered that there have been volumes of information disseminated
by law enforcement and/or others not at all linked to the defense team.
Mr. Baldwin trusted a friend to respect his office space. He was betrayed. Since that
transgression Mr. Baldwin has kept all Delphi-related items locked in a room or a locked
fireproof file cabinet. Furthermore, defense counsel has put together a plan for curative action in
which no items will be left unattended for even a second in any unlocked room. When any
documents or item from the case is needed for preparing the case, the person using the
documents or items will either (1) lock the door behind them when they leave, even for a lunch
break or bathroom break; or (2) return those documents or items to the room dedicated to the
As Mr. Rozzi indicated there are vast amounts of trial preparation materials and it would
be a set back to the defense have to relocate them. Under these circumstances Mr. Baldwin has
Should the Court believe there should be some sanction the Court could order to 24 hours
Respectfully Submitted,
/s/David R. Hennessy
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served upon all counsel
of record at the time of filing.
/s/ DAVID R. HENNESSY
DAVID R. HENNESSY
Attorney at Law
9335 Promontory Circle
Indianapolis, IN 46236
(317) 636-6160
Attorney No. 8216-49
[email protected]