Filed: 4/11/2024 8:56 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 )
)
vs. )
)
RICHARD M. ALLEN )

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ALLEN'S MOTION TO

SUPPRESS

Facts:
Defendant Allen was arrested in October of 2022 and immediately detained in the Carroll

County Jail. Allen was thereafter transferred to the White County Jail and ultimately charged
with two counts of felony murder. The charges were lodged against him on October 28, 2022.

On November 3rd, 2023, the Carroll County Sherifi' petitioned the Court for an order

transferring jurisdiction of Allen's custody from the Carroll County Shefifi to the Indiana

Department of Corrections ("IDOC"). On the same day, and without the formality of a hearing
on the Sheriff's request, Judge Benjamin Diener signed an Order ("Safekeeping Order")

transferring Allen's custody to the IDOC, without Allen or his legal representativesl having any

input into his pretrial detainment. Allen was then shipped ofi' to the Westville Correctional
Facility and placed in a maximum-security segregation unit referred to by prison officials as
((WCU'9,

The records suggest that just prior to his transfer to the WCU, Allen may have made a
brief stop at the Reception Diagnostic Center ("RDC") where some sort of intake procedure may
have taken place, but it does not appear that Allen underwent any formal mental health
assessment or testing to establish a baseline in terms of his mental health history or needs.

1
At the time the Court signed the Safekeeping Order, Allen had yet to be appointed counsel. In fact, Allen's Court
appointed Public Defenders, Rozzi and Baldwin, did not enter their appearances until November 14, 2022 and
therefore, Allen had no input as to his pre-trial detention circumstances. The record should also reflect that the
Safekeeping Order and all other exhibits referenced herein have been personally served on the court in the form of
a supplemental appendix.

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 From approximately November 15', 2022, through December of 2023, Allen remained
incarcerated in the WCU. Allen's attorneys are unaware of any other pre-trial detainee that has
ever been housed in the WCU in the history of the facility and most certainly not in the five or so
years preceding his placement?

Allen's attorneys have conducted depositions, watched video from Allen's cell and other
video from within the prison, reviewed prison records regarding Allen's detention, reviewed
Allen's medical and psychiatric records, and listened to audio interviews of prison inmates and
guards conducted by law enforcement 'officials. Through this process, Allen's attorneys have
learned that Allen has been accused of making incriminating statements to both inmates and

guards. Nearly all of these statements appear to have occurred between mid-March of 2023 and
June of 2023. During this time frame, there also exists medical/psychiatric records suggesting
that Allen was in a state of psychosis. (See attached Report of Treatment Review Committee
(TRC) Hearing).

Allen's defense team has learned that Allen was not only detained in an isolation cell in
WCU, but that prison officials chose to post inmates at Allen's cell door and required the inmates

to keep logs of all of Allen's actions, statements, and behaviors. This appears to have occurred
during all hours of the day and continued over the course of much of Allen's stay in the WCU.
These inmates, all of whom are convicted felons, were not only actively engaged in surveilling
Allen's activities, but were also communicating with him from time-to-time. Allen's attorneys
have also learned that at some point in early April of 2023, prison officials deliberately pulled the
inmates from Allen's cell door and replaced them with prison guards. Allen's attorneys have

learned that this appears to have been prompted by an inmate or inmates engaging Allen

regarding his pending charges and communicating Allen's thoughts and words to the families of
these inmates, thereby violating any sense of confidentiality that might exist within the walls of
the penitentiary.

2
Warden John Galipeau was deposed by the Defense on Friday, March 22, 2024, where he acknowledged he had
worked in the IDOC for 28 years and was the Warden at Westville for approximately 5 years leading up to Allen's
placement. Warden Galipeau acknowledged that during his entire tenure, he was unaware of any other
circumstance involving the pre—trial detention of a man who had not yet been convicted of a crime. (See attached
Galipeau depo transcript p. 24—26).

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 Most notably, Allen's living circumstances within the prison appear to have been

designed (whether intentionally or unintentionally) to expose him to some of the harshest

conditions that even the most heinous of convicted offenders have not endured. This coercive
environment was initially the product of Allen being detained in an observation cell used for
convicted inmates with suicidal ideations. This single cell, located in "A-pod", is one of

approximately sixty individual segregation cells, all containing felons convicted of crimes such
as burglary, robbery, child molestation and murder. (Galipeau depo p. I3). Each and every one
of these inmates had the ability to communicate with Allen, by yelling at him at all hours of the
day and night and by chastising him every time he was removed fi'om his cell for purposes of
recreation, showering, or other administrative reasons. Allen's attorneys have learned that he
was referred to as a "baby killer" and that he was the target of other similar accusations during
his stay in the WCU. (see attached statement of C/O Michael Roberts at 22:30 —
23 :00).

Prison records reflect that Allen was placed on "suicide watch" during the majority of his

stay at the WCU, including upon his initial detention in November of 2022. (see attached Adult
Mental Health Order of 11/3/22). This occurred despite the fact there were no underlying

findings to suggest he was suicidal. Allen's designation as "suicidal" subjected him to even
harsher circumstances than those of other offenders on the unit. For example, Allen's bed
consisted of a metal plate with a thin mattress, all of which was just a few inches from the

concrete floor. (Galipeau depo p. 55-56). Allen was issued an anti-suicide smock which covered
his body no better than that of the garment of a caveman. (see attached Adult Mental Health
Order of 11/3/22 and video #M2U00987). Allen's food was served to him through a cuff portal
and his dining habits involved him sitting on his bed or on the floor, as his cell was not equipped

with a table or a chair that would otherwise serve even as a rudimentary dining arrangement.

(Gahpeau p. 54-5 6). Allen's cell also contained a steel toilet and a sink; both in direct line—of-

sight of the inmates and guards assigned to his surveil. The toilet bowl was located
approximately 24 inches from his bed. (see video # M2U00987 at the 45—55 sec. mark). Allen's
attorneys learned that Allen was not only under constant surveillance, but that the lights
remained on in his cell for many days and nights. It is also true that due to his "suicide watch"

designation, he was afforded less or no recreation time and less of an opportunity for showers.
(see attached audio of C/O Timothy Weist at 3-4 min. mark). In essence, his suicide designation
was the cause for the removal of additional privileges, to the extent the word "privilege" even

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applies, which in turn further fostered an environment that led to the deterioration of Allen's
mental and physical health.3 In all, for nearly thirteen months at the WCU, Allen was deprived

of any social interaction, very little to no privacy, limited recreation time, and was left to

entertain himself.

Unfortunately, Allen's unusual detention circumstances would extend beyond the door of
his isolation cell. Whenever Allen was removed from the confines of his 12 x 8 steel and

concrete box (a/k/a "cell"), he was shackled with ankle cuffs, a belly chain, box cuffs on his

hands, and guided around by guards with a "lead", or what most people refer to as a "leash."

(Galz'peau depo pp. 55-5 6, 96, 160—161). As if this restriction of his basic freedom of movement
was not enough, prison ofiicials assigned a videographer to Allen to record his movements
around the prison, including when he would meet with his lawyers. (Galipeau depo pp 93 -94).

During all the meetings between Allen and his attorneys, he remained shackled (as referenced
above) making simple tasks difficult, such as taking a drink of water from a water bottle. Allen
would not be able to communicate as much as a hand gesture due to his shackled state. During
other meetings, prison officials placed a Video camera outside of a window in the visitation room
and required Allen to sit on a hard plastic chair directly in line with the video camera, which was

less than ten feet away. (Galipeau depo pp. 95-96).

Allen's highly unusual detention circumstance extended even to Visits with his wife.
During one visit, Allen was transported outside of the WCU to a building reserved for visitation
for those inmates in general population. Allen again, was shackled and confined during the

transport and ultimately re-robed into a green jumpsuit before seeing his wife. He was however,
unshackled during the visit. His embrace with his wife was controlled by prison protocol, which

permitted only a few brief seconds of contact despite the fact that Allen had not seen his wife for
the better part of six months. Allen was required to sit on the opposite side of the table from his
wife and had two prison guards stationed within ear-shot of each end of his table. They were left
with absolutely no privacy. The room was completely empty, except for his lawyers and a few
other prison guards who were also stationed within the building. This provided no background

noise, whatsoever, which might offer up some aspect of privacy as he and his wife tried to

3
Allen's intake records with the DOC reflect that he was 5'5" tall and 175 lbs at admission in November of 2022.
His weight by April of 2023 had dropped to below 135 lbs.

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communicate. And his restrictions did not end here. Allen and his wife were also denied the

simple concession of getting a drink of water during this Visit, despite the fact that there were a
number of vending machines and a water fountain within 10-20 feet from his table. (Galipeau

depo pp. 77-78).

Allen's unusual detention involves an even stranger set of circumstances. During the
course of their representation of Allen, his attorneys discovered the existence of dozens and
dozens of police reports, audio interviews and other investigative findings that centered on a

group of suspects associated with Pagan Norse spiritual/religious practices. These suspects
considered themselves "Odinists," all of which were referenced in the Frank's motion and
memorandum and second Frank's motion and memorandum previously filed with this Court.4

Allen incorporates herein, the details referenced in the Frank's filings rather than re-stating the
lengthy details in this memorandum. Allen's lawyers also discovered that at least two guards
assigned to his pod and/or his movements around the facility also held themselves out to be
afiiliated with the Pagan Norse God known as "Odin." (See Aflidavits ofJoshua Robinson and

Randy Jones). The Guards proudly displayed their Odinistic beliefs on their own prison
uniforms, despite the fact that such a display was in direct violation of their uniform policy.

(Galipeau depo pp. 97-109). And on at least one occasion, one of these guards tased Allen after
he was placed into his secured 8 x 12 cell because Allen refused to remove his hands from the

cuff-port in the door of his cell; a cuff—port that is barely large enough through which to slide a
meal tray. (see video #MZ U01] 3 6). Allen posed absolutely no risk to anyone at the time he was
tased.

Allen had also battled depression throughout most of his adult life. He was medicated
over the course of his life and in fact, had sought out therapeutic resources to treat and manage
his depression. (see pp. 4—5 ofINE).5 The IDOC gave very little consideration to Allen's
condition at the time of his intake and initial incarceration in the WCU, especially given the
unusual circumstances in which he was detained. It is also believed that Allen's medications

were administered in a less than consistent fashion while he was on the unit, all of which would

4
The facts and circumstances surround the possibility that these individuals, otherwise known as Odinists, are
specifically referenced in the Frank's motion and memo filed with this Court on September 18, 2023 and October 2,
2023.
Independent Neuropsychological Evaluation dated 3/31/24 offered up to the court in appendix form.
5

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have contributed to his inability to endure his living environment during his pre-trial detention at
the WCU.

Issue:

The issue in this case is whether the State violated Allen's Fifth and Sixth Amendment

Rights and Federal and State Due Process rights by detaining him in solitary confinement in a
maximum-security prison segregation unit while he was awaiting trial? Allen's statements were
involuntary and should be suppressed.

Rule:
Coercive police activity is a necessary predicate to a finding that a confession is

involuntary within the meaning of the Due Process Clause. Colorado v. Connellv, 479 U.S. 157

(1986). However, coercive police activity is not a necessary prerequisite to challenge the
voluntariness of a defendant's statement under Article l, Section 14 of the Indiana Constitution,
as there may be other elements that would tend to support a finding of involuntariness. State v.
Bligh, 2 N.E.3d 71 (Ind. Ct. App. 2013). The proper standard under the Indiana Constitution is
whether the confession was "freely self-determined and the product of a rational intellect and a
free will." Hurt v. State, 594 N.E.Zd 1212, 1218 (Ind. Ct. App. 1998). Thus, courts look to the
totality of the circumstances to determine if the confession was voluntary, taking into account
many factors, including: (1) whether the statement was made under a court order; (2) use of
police trickery; (3) threats or promises by police; (4) defendant's race, age, or disability; (5)
length of detention; (6) physical coercion; or (7) illegal police practices.

Analysis:
Notwithstanding the lower standard for showing involuntariness set by the Indiana
Constitution, it is indisputable that Allen's detention circumstances were manufactured by the
Carroll County Sheriff, purposefiJlly, and without the existence of any sense of due process, as
the Court signed the safekeeping order without requiring the State to establish the burden of

proof required by the statute. But this was just the beginning. Allen was then shipped off to
WCU and immediately placed on suicide watch in a detention cell where he had little to no
accommodations, not even those offered up to the other two thousand convicted inmates housed
across the prison yard. (see entiretjz ofGalzpeau depo). Almost simultaneous with Allen's

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isolation from human contact, prison "companions" were placed at his doorstep and tasked with
the duty of reporting his every move and recording his every word. (Galzpeau depo pp. 125-126).
The companions appear to have gone above and beyond this duty by communicating with Allen
about his case and even praying with him as he struggled to withstand the rigors of his
incarceration. (See audio statement of Guard Michael R0berts...minute 38:00). Their mere
presence at his doorstep is akin to Massiah v. United States, 377 U.S. 201 (1964), where police

obtained incriminating statements from a jailhouse informant who engaged the defendant in a

conversation and developed a relationship of trust and confidence with the defendant such that he
revealed incriminating information about the charged crime when counsel was not present. Id. at
203. The Court held that this was improper and suppressed the statements. Id. at 206, 207. This

trial court should do the same.

The trial court's decision regarding admissibility of a confession or incriminating

statement is controlled by determining from the totality of the circumstances whether the
statement was given voluntarily, rather than induced through violence, threats, coercion or other

improper influence so as to overcome the defendant's free will. Hartman v. State,_988 N.E.2d

785, 787—88 (Ind. 2013); see also Treadwaz, 924 N.E.2d 621, 635 (Ind. 2010); Griflzth v.

State 788 N.E.2d 835, 841 (Ind.2003)). Standard indicators for voluntariness include whether
the confession was freely self-determined, the product of a rational intellect and free will,
without compulsion or inducement of any sort, and whether the accused's will was overborne. Id.
at 841.

Here, Allen's free will was overcome by the forces of his environment, all of which were

placed upon him by the government and its actors. Allen, a man with bona fide pre-existing
mental health issues, was detained in an isolation cell, entirely isolated from any sense of

meaningful human contact, and then offered up the most basic amenities of life through a cuff
port (hole) in his door. He was reduced to sleeping on a mattress that was placed on top of a
steel plate just a few inches from the floor. This same mattress, and floor, also doubled as his

dining table because his cell had no such accommodation. His attire was reduced to nothing
more than a suicide smock covering only a portion of his body. Allen's healthiest
accommodations came in the form of recreation time not to exceed 4 hours per week. (Galipeau

depo p. 30). In this space, there was not enough room to jog or run, only an exercise bike and a

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pull-up bar. (Galipeau depo pp. 32-34). Allen's other "accommodation" would have been a
window slit that was inside his cell. His View of anything outside of the boundaries of the

penitentiary would have been impaired by the rusty chain link and razor wire of at least two
separate fences between him and any sense of freedom. To the extent Allen was ever allowed to
be removed from his cell, he was shackled at the ankles, wrists, further confined by a belly chain

and cuff port, and guided around the prison on a leash; all ideal ways to confine and control the

movements of a convicted killer or some other convict who in addition to his conviction, posed a
threat to himself or the prison staff. Allen, at 5 feet 5 inches tall and 173 lbs, soaking wet, and

with not one single criminal conviction on his rap sheet, met none of these conditions.6 (See
WC U suicide form of 11/8/22). As if this treatment wasn't enough, Allen was forced to endure
the intimaciesof his restraint systems even while he was meeting with his court appointed
lawyers inside the confines of the maximum-security segregation unit located inside of the
Westville Correctional Facility. And to add insult to injury, Allen's meetings with his attorneys
occurred while he had a video camera aimed at his face, recording sessions that should have been

afforded the most private of environments so as to protect the relationship between attorney and
client. All of this occurred while Allen's medications were being adjusted by the prison medical
team, the combination of which factors reduced him to nothing more than a human experiment.
Allen's free will was overcome.

Under the Indiana Constitution, the voluntariness of a confession must be proved beyond
a reasonable doubt, and in reviewing voluntariness, the courts look at the totality of

circumstances, reviewing all the evidence in the record rather than focusing only on the evidence

supporting the finding of voluntariness. Pruitt v. State, 834 N.E.2d 90, 114-15 (Ind. 2005).
Under the U.S. Constitution, the prosecution only has to prove by a preponderance of the
evidence that the confession was voluntary. Smith v. State, 689 N.E.2d 1238 (Ind. 1997); Egg
v. Twomey, 404 U.S. 477 (1972)). As explained below, the State cannot meet its burden of

showing voluntariness here, even applying the lower standard of preponderance. The federal
courts have a long history of regulating the admission of "confessions" that have been a product

Page 125, subsection "c." of the INA references Richard Allen's physical deterioration from 173 lbs on 11/8/22 to
6

130 lbs on 8/3/23.

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of state action that exploits the weak and compromised through interrogatory and custodial
pI'OCCSSeS.

In Blackburn State ofAlabama, 80 S..Ct. 274, 279-80 (1960), the United States

Supreme Court noted that it had recognized:

"[T]hat coercion can be mental as well as physical, and that the blood of the accused is
not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if
demonstration were needed, that the efficiency of the rack and the thumbscrew can be matched,

given the proper subject, by more sophisticated modes of 'persuasion.' A prolonged

interrogation of an accused who is ignorant of his rights and who has been cut ofi' from the moral
support of friends and relatives is not infrequently an effective technique of terror. Thus the
range of inquiry in this type of case must be broad, and this Court has insisted that the judgment
in each instance be based upon consideration of 'the totality of the circumstances.' (citation
omitted 1."

Allen's case falls within these federal parameters. In Blackburn, the Defendant had a

documented history of mental illness, having served in the military, which ultimately resulted in

his discharge because of a medical finding that he suffered from some fonn of psychosis. Id. at
200-201. He was in the process of being treated in the days and weeks leading up to the
commission of the crime and his ultimate apprehension. Id. at 201. After enduring an 8-10 hour

interrogation, Blackburn was given a prepared written statement with admissions offered up by
him in the course of the interrogation, and he ultimately signed the written statement two days
later. Id. at 204.

Here, Allen endured a longer, more sustained form of interrogation; one that lasted more
than five months before he was finally broken. Already suffering from a bona fide mental health

disorder, and then having been cut off from the moral support of his wife, mother, and daughter,

Allen was weakened to the point where he slipped into a state of psychosis plagued with grossly

disorganized, delusional, paranoid and highly dysfunctional behavior. (INE p. 124). These
behaviors were manifested through verbal confessions that he may have been drugged, verbal
confessions to the double homicide (inconsistent with known facts about the crime scene),

periods of not sleeping for days, paranoia, stripping off his clothes, drinking toilet water,
covering himself with and eating his own feces, and many other socially unacceptable behaviors.
(INE p. 124). On one occasion Allen "confessed" to "molesting [those] two young girls and

shooting them in the back." (see attached transcribed statement of inmate companion Lacy
Patton, Jr., p. 3, lines 16-1 7). On another occasion, he professed his sorrow for molesting Abby,

Libby and others which he specifically named. (C/O Michael Roberts statement between 15-16
min. mark). These facts are known to be falsities, none of which are supported by the autopsy
findings by Dr. Roland Kohr as to the cause of death of the girls and unsupported by the absence
of any evidence that either one of the girls were sexually assaulted near or before the time of
their deaths. (see attached autopsy reports re: Abigail Williams and Liberty German). At the
time Allen uttered these falsities, the State's actors were in the "ready position" with pen in hand,

documenting the entirety of Allen's mental and physical deterioration and actions stemming
therefrom. The infringements on Allen's legal rights didn't stop here. Inmate companions then

spread the "good word" of Allen's "confessions" to inmates in general population at Westville,
prompting these imnates to then share the information with their respective family members in
public. (see attached transcripts ofLacy Patton, Jr. (inmate) and Jason Elliott (inmate). Proof
of these leaks were ofiered up by the State in the form of audio recorded interviews and

accompanying transcripts and included in large volumes of discovery dumps received by the
Defense in the recent past. However, neither Allen nor his legal team are aware of any self-

reporting of said leaks by the State to the Defense, or by the State to the Court, despite the fact
that the State was aware of this information as early as May 12, 2023, when Patton and Elliot
were interviewed by law enforcement investigators. Allen's due process rights have been all but

ignored.

It is also established that the Fourteenth Amendment forbids 'fundamental unfairness in

the use of evidence whether true or false.' Lisenba v. People of State of California, 314 U.S. 219,
236, 62 S. Ct. 280, 290. As important as it is that persons who have committed crimes be
convicted, there are considerations that transcend the question of guilt or innocence. Thus, in
cases involving involuntary confessions, this Court enforces the strongly felt attitude of our

society that important human values are sacrificed where an agency of the government, in the
course of securing a conviction, wrings a confession out of an accused against his will. This

insistence upon putting the government to the task of proving guilt by means other than

inquisition was engendered by historical abuses which are quite familiar. See Chambers v. State

10
at Florida. supra, 309 U.S. at pages 235—238, 60 S. Ct. S. Ct. at pages 477, 478; Watts v. State

01 Indiana, supra, 338 U.S. at pages 54—55, 69 S. Ct. at page 1350. The truth or falsity of
Allen's statements are of no consequence to this analysis. Allen has been treated unlike any
other pre—trial detainee in Indiana in recent history. The methodology employed by the justice

system is one of first impression, and therefore, the circumstances created by this methodology
of any consideration of Allen's guilt or innocence. The system of pre-trial
should not be part

detention employed against Allen runs afoul of the Fifth and Sixth Amendments of the United

States Constitution, and Article 1 Section 14 of the Indiana Constitution. It is for these reasons,

any and all incriminating statements made by Allen while incarcerated should be suppressed.

Bra ylA I{
fiorney or
i# 365-09
enda
/
CERTIFICATE OF SERVICE
I certify that I have served a copy of this document by the Co nty e-filing system upon
the Carroll County Prosecutor's Office and Andrew J. Baldwin the ay of April, 2024.

Brad] A.R z #23365-09

HI IS, H LIS, ROZ & DEA
O Fourth Stre
6947

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