Richard M. Allen. (Image via mugshot.)
As Richard M. Allen, 50, of Delphi, Indiana sits in jail without bond, the details remain sealed as to why the authorities came to suspect him in connection with the Delphi Murders.
Indiana law appears to allow authorities relatively broad discretion — and multiple ways — to seal criminal case files. Those mechanisms are worth noting given the dearth of publicly available information in the case.
The killings of two young teenage girls, Abigail “Abby” Williams, 13, and Liberty “Libby” German, 14, near an abandoned railroad trestle on Feb. 13, 2017, finally led to Allen’s arrest, an assemblage of local law enforcement authorities and a local prosecutor announced on Monday morning. Allen is charged with two counts of murder, the state police said.
Carroll County Prosecutor Nicholas McLeland said Monday that both a probable cause document and a charging information remain sealed and likely would remain so for at least about a month.
McLeland admitted that his request to keep the file sealed was “unusual.”
“The nature of this case has some extra scrutiny with it,” McLeland said. “There will be a public hearing on whether or not those records are going to remain sealed.”
“It’s about protecting the integrity of this case,” McLeland continued. “I want to have an opportunity at some point — to have an opportunity in court — to explain the evidence and for that not to be tarnished or tainted.”
McLeland didn’t fully explain how or why court records may remain sealed in Indiana, but state court administrative rules fill in some of those blanks. The task of understanding the machinery at play in Allen’s case, however, is shrouded in mystery: McLeland’s office has not responded to very narrow requests by Law&Crime for a citation to the particular rule employed to seal the records, and the Clerk of Court’s office said it has literally nothing on the matter. The latter said any material would be made available on an Indiana court system database once it was public. No information about the case is currently available on that system as of the date and time of this report.
Generally speaking, “[a]ll persons have access” to Indiana court records under the relevant rules, and an official comment contained within the rules states that the “objective” of the rules is to “provide maximum public accessibility.”
However, several exceptions appear in Rule 5, Rule 6, and under Indiana’s “Access to Public Records Act.”
Rule 5 Exceptions
Rule 5 of Indiana’s Rules of Court contains several mechanisms for sealing or closing records. Most are mundane, usual, and self-explanatory. For instance, social security and bank account numbers, the names of child witnesses, and visual depictions of sexual offenses are not publicly available. Materials connected to a mental health review of a defendant are also closed records, but the Delphi Murders case likely has not yet reached that stage.
Two broad exceptions stand out: Rule 5(A)(5) and Rule 5(B)(7). The first applies to entire categories of cases:
(5) Entire cases that exclusively pertain to investigative requests and process unrelated to a pending criminal proceeding, including but not limited to search warrants, subpoenas ad testificandum [for oral testimony], subpoenas duces tecum [for items, usually documents], and other investigative requests.
The second applies to specific individual cases:
(7) Records in a pending matter that pertain to permissible ex parte proceedings, post-charging investigatory requests for process, or requests for in camera review, and that have been ordered confidential by the trial judge.
Ex parte proceedings involve just one side in a case and usually occur in civil matters where one party asks for a preliminary injunction in an emergency situation. “In camera review” occurs when a judge considers documents in private. Usually that applies to material which contains highly sensitive private matters (e.g., trade secrets or communications covered by attorney-client privilege). So, those exceptions likely don’t apply to the Delphi Murders case.
When read in tandem, however, the rules allow courts to seal “investigative requests” and “investigative requests for process” — and Law&Crime is unable to find any Indiana case law to define precisely what those terms contemplate.
It’s possible another rule — Rule 5(E)(1) — could be at play. That rule allows records to be sealed when an arrest warrant is sought, but it also contains strict limits on how long the seal is allowed to remain in effect:
(E) Court Records That Shall Be Temporarily Excluded From Public Access.
(1) The following shall be excluded from Public Access and no notice of exclusion from Public Access is required: Entire criminal cases when a request to exclude Case Records from Public Access is filed contemporaneously with a request for an arrest warrant. When this request is made, the request and the Court Record will be rendered confidential until the Court rules on the request.
(a) When probable cause to justify issuance of an arrest warrant has been established, the Case Records shall be publicly accessible unless the judge determines that the facts presented in the request for exclusion from Public Access support a reasonable belief that public disclosure will increase the risk of flight by the defendant, create an undue risk of harm to the community or a law enforcement officer, or jeopardize an on-going criminal investigation.
(b) An order excluding Public Access issued under this subsection shall expire immediately upon the arrest of the defendant.
The known facts in the Delphi Murders case suggest many of these issues are at play, but the rule says that any seal contemplated under this section expires “immediately” when a defendant is arrested. Here, that has happened: one defendant is under arrest. The big question is whether another defendant is named on the same charging instruments who has not yet been arrested. In federal court, when that happens, a redacted or partial indictment is released immediately under the rules followed in the federal system. Assuming Indiana follows similar rules, it’s unlikely another defendant is named on the same charging instruments as Richard Allen.
Rule 6 Exceptions
Another rule — and likely the one being followed in the Allen case — allows the sealing of court records “in extraordinary circumstances.” The core of that rule reads as follows:
Rule 6: Excluding Other Court Records From Public Access.
(A) In extraordinary circumstances, a Court Record that otherwise would be publicly accessible may be excluded from Public Access by a Court having jurisdiction over the record. A verified written request to prohibit Public Access to a Court Record may be made by any person affected by the release of the Court Record. The request shall demonstrate that:
(1) The public interest will be substantially served by prohibiting access;
(2) Access or dissemination of the Court Record will create a significant risk of substantial harm to the requestor, other persons or the general public; or
(3) A substantial prejudicial effect to on-going proceedings cannot be avoided without prohibiting Public Access.
When this request is made, the request and the Court Record will be rendered confidential for a reasonable period of time until the Court rules on the request.
The rule contemplates that the “request” (a document or a transcript of an oral argument) may also be sealed along with the actual documents to which the “request” pertains. That seems to track with what’s occurring in the Allen case: again, the local Clerk of Court’s office told Law&Crime by telephone that its office has literally nothing whatsoever on the public docket in the matter.
Again, more mystery.
The applicable records remain sealed until a “public hearing” is held. Following that hearing, a judge “may” continue to keep the records sealed, but only after explaining the rationale for such a move:
(D) Written Order. Following a hearing, a Court may grant a request to prohibit Public Access by a written order that:
(1) States the reasons for granting the request;
(2) Finds the requestor has demonstrated by clear and convincing evidence that any one or more of the requirements of Rule 6(A) have been satisfied;
(3) Balances the Public Access interests served by this rule and the grounds demonstrated by the requestor; and
(4) Uses the least restrictive means and duration when prohibiting access.
Indiana Access to Public Records Act
The Act itself — which is a statute, not a court rule — contains specific provisions for criminal proceedings, but they facially apply to proceedings (viz. court hearings) and not actual documents.
“Criminal proceedings are presumptively open to attendance by the general public,” the Act states. “No court may order the exclusion of the general public from any criminal proceeding, or part of a criminal proceeding, unless it first affords the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.”
The remaining provisions are not dissimilar from Rule 6: proceedings are presumptively open, but they can be closed so long as a hearing on said closure is held.
Other sections of the Act allow criminal investigation records to be withheld by a police agency if they might “impede or compromise an ongoing law enforcement investigation or result in danger to an individual’s safety, including the safety of a law enforcement officer or a confidential source,” or if they would “reveal information that would have a reasonable likelihood of threatening public safety.” That section of the Act applies to records requested straight from a police agency and not once they’ve been filed in court, but the ideas are analogous.
Still other sections of the Act explain what must happen if actual court “records” — or “judicial public record[s]” are sealed. The Act clarifies that the public record “does not include a record submitted to a court for the sole purpose of determining whether the record should be sealed.” That apparently remains secret, just as Rule 6 (above) seems to suggest.
The statute explains that a hearing must be held “at a date and time established by the court,” notice of which “shall be posted at a place designated for posting notices in the courthouse,” to ferret out the rationale for closing the record. The parties to the litigation and the general public “must be permitted to testify and submit written briefs” about the possibility of keeping the record closed or open. The judge must then determine, by a preponderance of evidence, whether the general policy of openness just be overridden if all of the following conditions are met:
(1) a public interest will be secured by sealing the record;
(2) dissemination of the information contained in the record will create a serious and imminent danger to that public interest;
(3) any prejudicial effect created by dissemination of the information cannot be avoided by any reasonable method other than sealing the record;
(4) there is a substantial probability that sealing the record will be effective in protecting the public interest against the perceived danger; and
(5) it is reasonably necessary for the record to remain sealed for a period of time.
“Sealed records shall be unsealed at the earliest possible time after the circumstances necessitating the sealing of the records no longer exist,” the statute says.
Professional Responsibility
The recalcitrance of the local constabulary — especially the prosecutor — to say more about the case also makes sense. Indiana’s Rules of Professional Conduct forbid lawyers from making out-of-court statements that create a “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
Like most states, Indiana’s rule contains several exceptions, including the perfunctory facts of the arrest itself, the identity of the person arrested, and for “information contained in a public record.” Naturally, that exception does not apply in the Delphi Murders case because the records are not yet public. However, generally speaking, arrests are the ultimate deprival of liberty by the government, and American law generally contemplates that information about arrests be swiftly disclosed to the public upon demand. The Rules of Professional Conduct comport with that doctrine.
The professional conduct rules also generally forbid attorneys from discussing outside of court the possibility of a plea agreement, the “existence or contents of any confession, admission, or statement given by a defendant,” the results of any tests, the “identity or nature of physical evidence expected to be presented,” and — of course — “any opinion as to the guilt or innocence of a defendant or suspect.” These matters are ultimately for the jury to decide.
What We Do Know
An emotional Indiana State Police Superintendent Doug Carter on Monday called the investigation “long term and complex,” but he and an assemblage of other law enforcement and prosecutorial officials refused to discuss any evidence in the case.
Carter, acknowledging the abrasion at play when the constitutional rights of the free clash with the constitutional rights of the accused, thanked reporters for relentless attention on the case — even when doing so led to frustration with the process, the authorities, and with him personally. He said a “very methodical” investigation would “ensure that if any other person had any involvement with these murders in any way, that person or persons will be held accountable.”
“This investigation is far from complete, and we will not jeopardize its integrity by releasing or discussing documents or information before the appropriate time,” he reiterated.
“Remember, we’re not done,” the state’s top cop said yet again while imploring the public to continue to share relevant tips.
Just as clearly as Carter tried to establish clear lines between the concepts of accusation, proof, and conviction, the Carroll County Sheriff Tobe Leazenby erased them while speaking on Monday.
“I believe in a God of justice and righteousness,” Leazenby said. “Today, I believe that same God has provided us with justice for Abby and Libby.”
The sheriff’s comments echo those of other departments who have from time to time claimed that an arrest delivers “justice.” The latter, by all respectable measures of due process, is delivered by a neutral jury of one’s peers — not by an arrest.
Carroll County Prosecutor McLeland did not immediately correct the sheriff but implored several times that Allen was presumed innocent unless and until a jury convicts him. Such admonishments are required under the aforementioned Rules of Professional Conduct, and McLeland was careful to recite them several times so as not to secure a visit from disciplinary authorities.
McLeland said a judge found probable cause for Allen’s arrest but repeated that the investigation was “ongoing” and asked for tips about “any other person.”
Taken as a whole, the lack of detail has roiled at least a few attorneys in Indiana who agreed that the process was rare. It also raised questions about whether another suspect or suspects may be at large.
Allen is scheduled for a pretrial hearing on Jan. 13, 2023 at 9 a.m., according to McLeland. A jury trial is currently scheduled to commence on the morning of March 20, 2023.
It is unclear if Allen has a defense attorney because the case file remains sealed.
On a projection screen above, the officials asked for relevant tips via email at [email protected] or via phone at (765) 822-3535.
Have a tip we should know? [email protected]
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