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    Richard Allen Memo Regarding Possible Disqualifications or Sanctionspdf

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    Matt Blac inc.
    The document is a memorandum regarding possible disqualification or sanctions of defense counsel in the criminal case of State of Indiana v. Richard Allen. It argues that disqualifying or sanctioning defense counsel would prejudice the defendant's constitutional right to counsel and a timely trial. It notes that counsel was not at fault for confidential documents being disclosed, as they were surreptitiously taken without counsel's knowledge. The memorandum proposes curative measures to prevent further unauthorized access or disclosure of case materials as an alternative to disqualification or sanctions. It concludes by requesting a sanction of 24 hours without compensation if the court believes a sanction is warranted.

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    Richard Allen Memo Regarding Possible Disqualifications or Sanctionspdf

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    Matt Blac inc.
    241 views5 pages
    The document is a memorandum regarding possible disqualification or sanctions of defense counsel in the criminal case of State of Indiana v. Richard Allen. It argues that disqualifying or sanctioning defense counsel would prejudice the defendant's constitutional right to counsel and a timely trial. It notes that counsel was not at fault for confidential documents being disclosed, as they were surreptitiously taken without counsel's knowledge. The memorandum proposes curative measures to prevent further unauthorized access or disclosure of case materials as an alternative to disqualification or sanctions. It concludes by requesting a sanction of 24 hours without compensation if the court believes a sanction is warranted.

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    The document is a memorandum regarding possible disqualification or sanctions of defense counsel in the criminal case of State of Indiana v. Richard Allen. It argues that disqualifying or sanctioning defense counsel would prejudice the defendant's constitutional right to counsel and a timely trial. It notes that counsel was not at fault for confidential documents being disclosed, as they were surreptitiously taken without counsel's knowledge. The memorandum proposes curative measures to prevent further unauthorized access or disclosure of case materials as an alternative to disqualification or sanctions. It concludes by requesting a sanction of 24 hours without compensation if the court believes a sanction is warranted.

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as pdf or txt
    241 views5 pages

    Richard Allen Memo Regarding Possible Disqualifications or Sanctionspdf

    Uploaded by

    Matt Blac inc.
    The document is a memorandum regarding possible disqualification or sanctions of defense counsel in the criminal case of State of Indiana v. Richard Allen. It argues that disqualifying or sanctioning defense counsel would prejudice the defendant's constitutional right to counsel and a timely trial. It notes that counsel was not at fault for confidential documents being disclosed, as they were surreptitiously taken without counsel's knowledge. The memorandum proposes curative measures to prevent further unauthorized access or disclosure of case materials as an alternative to disqualification or sanctions. It concludes by requesting a sanction of 24 hours without compensation if the court believes a sanction is warranted.

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    of 5

    Filed: 10/19/2023 10:07 AM

    Carroll Circuit Court


    Carroll County, Indiana

    STATE OF INDIANA ) IN THE CARROLL CIRCUIT COURT


    )SS:
    COUNTY OF CARROLL) CAUSE NO. 08C01-2210-MR-000001
    )
    STATE OF INDIANA )
    )
    v. )
    )
    RICHARD ALLEN )

    MEMORANDUM REGARDING POSSIBLE DISQUALIFICATION OR SANCTIONS


    Any issues or concerns regarding representation should be focused on the 6th Amendment

    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

    counsel of choice. Barham involved private counsel.

    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

    1
    638 (Mich.1997); People v. Durfee, 215 Mich.App. 677, 547 N.W.2d 344 (1996); In Re Welfare

    of M.R.S., 400 N.W.2d 147 (Minn.App.1987).

    "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)

    A court may remove a defendant's attorney on the basis of gross


    incompetence, physical incapacity, or contumacious conduct. People v.
    Arquette, 202 Mich.App. 227, 231, 507 N.W.2d 824 (1993). In the present
    case, Judge Penzien did not remove Hess for gross incompetence, physical
    incapacity, or contumacious conduct. Rather, it appears from the order of July
    9, 1993, that Hess was removed for conduct allegedly committed in other
    cases or outside the courtroom. As we concluded in People v. Johnson, 451
    Mich. 115, 545 N.W.2d 637 (1996), Judge Penzien had no authority to
    remove defendant's court-appointed counsel.

    People v. Durfee, 215 Mich.App. 677, 547 N.W.2d 344 (Mich. App. 1996)

    Disqualification of counsel is an extreme remedy for any alleged or perceived violation

    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

    permission or the attorney’s knowledge.

    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

    2
    representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and

    5.3.” The disseminators, do not fit that definition.

    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).

    3
    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

    law enforcement investigation began.

    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

    Delphi case and lock the door.

    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

    taken sufficient curative action.

    Should the Court believe there should be some sanction the Court could order to 24 hours

    of representation without compensation.

    Respectfully Submitted,

    /s/David R. Hennessy

    4
    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]

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