Filed: 11/6/2023 9:35 AM

23S-OR-00311

IN THE
INDIANA SUPREME COURT
CASE NO. ____________

STATE OF INDIANA ON THE )

RELATION OF RICHARD ALLEN, )
)
Relator, )
v. ) CAUSE NO. 08C01-2210-MR-000001
)
THE CARROLL CIRCUIT COURT )
and THE HONORABLE FRANCES )
C. GULL, SPECIAL JUDGE, )
)
Respondents. )

VERIFIED PETITION FOR WRIT OF MANDAMUS

Mark K. Leeman, #29109-09

LEEMAN LAW OFFICE
412 East Broadway
Logansport, Indiana 46947
574-722-3881

Cara Schaefer Wieneke, #24374-49

WIENEKE LAW OFFICE, LLC
P.O. Box 368
Brooklyn, Indiana 46111
PH (317) 331-8293
E-mail: cara.wieneke@gmail.com

Attorneys for Relator Richard Allen

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 In February 2017, Abigail Williams and Liberty German, two teenaged girls

from Delphi, were murdered. Since then, the case has drawn more attention than

perhaps any other case in Indiana history.

So it seemed like the world was watching when in October 2022 the State

announced that it had arrested Richard (Rick) Allen for the girls’ murders. In a

matter of just days, Rick was taken into custody, moved to the D.O.C. for his own

safety, and appointed a special judge from another county.

The trial court appointed Andrew Baldwin and Brad Rozzi as Rick’s public

defenders. For the next year, Rick’s attorneys have zealously advocated on Rick’s

behalf through exceptional circumstances:

• A gag order that was misapplied to pleadings filed in court;

• A protective order in a case involving thousands of discovery items;

• A client who lost nearly half his body weight and began exhibiting symptoms

of psychosis while enduring unduly restrictive conditions of confinement; and

• Intense media attention, exacerbated by a lack of access to the court records.

Despite these challenges, Rick and his counsel made a strategic decision to be

prepared to go to trial in January 2024. They formulated a defense of third-party

guilt. And they filed several substantive motions in pursuit of their trial strategy.

In early October, counsel informed the court that Rick was ready for trial in

January 2024. Two days later, the court instructed Attorneys Baldwin and Rozzi to

cease working on Rick’s case amid discovery that an acquaintance of Attorney

Baldwin secretly photographed and leaked to media a few pieces of discovery from

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the case.

Attorneys Baldwin and Rozzi were removed as Rick’s counsel. Rick’s new

attorneys sought a lengthy continuance of the trial and admitted they did not know

when they would be ready to proceed.

Despite the exceptional circumstances, Rick has never wavered on this:

Attorneys Baldwin and Rozzi are his counsel of choice. At every opportunity, he has

reaffirmed to the court that he wants them to remain as his counsel.

FACTS SUPPORTING THE PETITION

1. After Rick was charged with two counts of murder, he was arrested and

placed in the DOC for safekeeping, a special judge was appointed on his case, and

he was assigned two public defenders, Andrew Baldwin and Brad Rozzi. [Original

Action Record of Proceedings (“R”) Volume 1, 5-7, 41].

2. Attorneys Baldwin and Rozzi were very skilled attorneys with a combined

50 years of criminal trial experience.

3. Shortly after their appearance, Rick’s lawyers issued a press release

affirming Rick’s innocence when the charging information and probable cause

affidavit were released to the public. [R1, 11, 46-48]. In response, the court entered

a gag order. [R1, 11].

4. The court also entered a protective order, prohibiting the parties from

divulging or otherwise granting access to the discovery relevant to this case. [R1,

50-51].

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 5. In the 11 months Attorneys Baldwin and Rozzi represented Rick, they had

two leaks of discovery material occur. The first instance was inadvertent: Attorney

Baldwin mistakenly sent a discovery log to a third party. Attorney Baldwin

discovered his mistake later that day and rectified the matter. [R1, 242]. The second

incident occurred after a close friend of Attorney Baldwin secretly photographed a

few items of discovery and leaked them to others, all without Attorney Baldwin’s

knowledge. [R1, 215, 225; R2, 34].

6. Another challenge trial counsel faced was Rick’s confinement in the DOC.

The overly restrictive conditions Rick was subjected to led to a rapid decline in his

physical and mental health. [R1, 53-57]. During the course of their representation,

counsel filed motions with the trial court seeking to transfer Rick to another facility.

[R1, 53-61, 205-12]. To date, Rick remains in the same facility and under the same

conditions of confinement.

7. Yet throughout this, Rick and his attorneys adopted a trial strategy of

seeking a speedy trial. [R2, 37]. They also formulated a detailed defense suggesting

third-party guilt. [See R1, 68-203].

8. They began pursuing this trial strategy and defense by filing a number of

substantive pretrial motions, including the following:

• A motion to suppress evidence, which will require a lengthy hearing involving

multiple witnesses and exhibits, [R1, 20];

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 • A motion in limine regarding the reliability of the firearm/toolmark

comparison evidence, which will also require an evidentiary hearing with

multiple experts, [R1, 21]; and

• A motion requesting a hearing under Franks v. Delaware, 438 U.S. 154

(1978), which was accompanied by a lengthy memorandum and hundreds of

pages of exhibits delivered to the court for its review, [R1, 26, 68-203].

9. They also prepared a motion for speedy trial, which they planned to file in

early November to confirm the January 2024 trial date. [R2, 37]. During a

telephone conference between the parties and the court, Rick’s attorneys informed

the court that they were going to trial in January 2024. [R2, 37].

10. Shortly after that telephone conference, the parties learned that some

photographs had been taken and disseminated to the media of several discovery

items. [R1, 225]. After some investigation, it was discovered that the leak occurred

at Attorney Baldwin’s office when a former employee surreptitiously accessed the

discovery items and disseminated them, all without counsel’s knowledge. [R1, 215;

R2, 34].

11. Thereafter, both the State and the court discussed removing Attorneys

Baldwin and Rozzi as Rick’s counsel. [R2, 37]. Rick informed the court in writing

that he was aware of the leak and still wished to have Attorneys Baldwin and Rozzi

as his chosen counsel, but the court told counsel to cease working on the case until a

hearing could be held. [R1, 221, 223].

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 12. In an in-chambers proceeding held on October 19, 2023, the court told

Rick’s attorneys that she believed they had engaged in “gross negligence,” and that

they could either withdraw from the case or be removed as Rick’s counsel during the

televised hearing in open court. [R1, 228, 242-43].

13. Attorneys Baldwin and Rozzi met with Rick and decided, in order to avoid

prejudicing Rick’s defense and tainting the jury pool, they would withdraw as his

attorneys. [R1, 231]. However, they told the court their withdrawal was

involuntary, as they believed they were given no other choice by the court. [R1,

231].

14. Attorneys Baldwin and Rozzi left the courthouse, and Rick was

immediately transported back to the DOC at the court’s direction. [R2, 6]. At the

hearing held in open court, the court noted the “unexpected turn of events” that

were “outside of our control,” and informed the public that Rick’s attorneys had

withdrawn their appearance as his counsel. [R2, 6-7].

15. After the hearing, Rick’s counsel notified the court that they had not

formally withdrawn as Rick’s counsel, and that they were seeking the judge’s

recusal to rectify the prejudice Rick had suffered as a result of the court’s actions.

[R1, 227-31, 239-46; R2, 10-11]. They also reasserted Rick’s desire to proceed to trial

in January 2024. [R1, 230].

16. The court ordered the clerk to remove Rick’s filings from the record, and it

appointed two new attorneys to represent Rick. [R1, 33].

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 17. To preserve Rick’s chosen trial strategy, Attorneys Baldwin and Rozzi

entered their appearance as Rick’s private counsel. [R2, 16-19]. In their

appearances, they reasserted their position that they had been improperly removed

as Rick’s chosen counsel, and that they were entering their appearances pro bono in

order to preserve Rick’s right to a speedy and fair trial with counsel of his choice.

[R2, 16-19].

18. At a hearing held on October 31, 2023, the court removed Attorneys

Baldwin and Rozzi as counsel, over Rick’s objection. [R2, 26]. The court noted its

“grave concerns” about their representation and said it could not allow them to

represent Rick. [R2, 26].

19. Thereafter, the new attorneys appointed to Rick’s case admitted they

could not tell the court with any certainty when they would be prepared for trial

given the massive amount of discovery, but they agreed to continue the trial to

October 2024. [R2, 26-28]. The court also noted that once new counsel had time to

review the case, they could decide whether to adopt the pleadings filed as part of

Rick’s trial strategy and defense, or abandon them in favor of their own. [R2, 28].

20. The day after Attorneys Baldwin and Rozzi were removed from Rick’s

case, undersigned counsel contacted the court reporter to make arrangements to

prepare an expedited transcript of the relevant proceedings to file this original

action.

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JURISDICTIONAL STATEMENTS AND ORIGINAL ACTION STANDARDS

21. This Court has jurisdiction over this Petition as an original action. See

Ind. Original Action Rule 1(A).

22. This application has been made expeditiously after the jurisdiction of the

respondent court became an issue.

23. As developed below and in the accompanying brief, the respondent court

has exceeded its jurisdiction in its removal of Rick’s counsel of choice. See State ex

rel. Commons v. Pera, 987 N.E.2d 1074, 1076 (Ind. 2013) (“Writs of mandamus and

prohibition will be issued only where the trial court has an absolute duty to act or

refrain from acting.”); State ex rel. Seal v. Madison Superior Court No. 3, 909

N.E.2d 994, 995 (Ind. 2009) (noting writ of mandamus will issue where trial court

has “failed to perform a clear, absolute, and imperative duty imposed by law.”).

24. As explained below and in the accompanying brief, the denial of this

petition will result in extreme hardship and the remedy available by appeal will be

wholly inadequate.

25. Rule 2(A) of the Rules of Procedure for Original Actions contains a

required condition precedent that the subject matter of the original action must be

raised and ruled on by the trial court prior to the filing of an original action. As will

be explained more fully below and in the accompanying brief, the subject matter of

this action was raised below in at least one motion alleging the trial court lacked

jurisdiction to act in the manner in which it did. The trial court ruled on the motion.

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 GROUNDS FOR WRIT OF MANDAMUS

26. Original actions provide extraordinary remedies and, “will be issued only

where the trial court has an absolute duty to act or refrain from acting.” State ex rel.

Commons v. Pera, 987 N.E.2d 1074, 1076 (Ind. 2013). Writs are appropriate for

cases that strike at the heart of the “public trust in the integrity of the judicial

process.” State ex rel. Kirtz v. Delaware Circuit Court No. 5, 916 N.E.2d 658, 662

(Ind. 2009). This case meets these standards.

27. On many occasions, this Court has relied upon its original jurisdiction to

address claims such as this one, where attorneys have been (or should have been)

disqualified. See State ex rel. Meyers v. Tippecanoe County Court, 432 N.E.2d 1377

(Ind. 1982); State ex rel. Kirtz v. Delaware Circuit Court No. 5, 916 N.E.2d 658 (Ind.

2009); State ex rel. Sendak v. Marion County Superior Court, 373 N.E.2d 145 (Ind.

1978); State ex rel. Jones v. Knox Superior Court No. 1, 728 N.E.2d 133 (Ind. 2000).

28. And courts across the country regularly issue extraordinary writs in

criminal cases to reinstate defense attorneys who have been removed from cases for

conduct the trial court found upsetting or negligent. See State v. Huskey, 82 S.W.3d

297, 311 (Tenn. Crim. App. 2002) (extraordinary appeal granted when lawyer

removed from case for filing repeated boilerplate motions); Smith v. Superior Ct. of

Los Angeles County, 440 P.2d 65, 75 (Sup. Ct. Cal. 1968) (writ of mandamus issued

where lawyer removed for subjective incompetence and ignorance of the law);

Stearnes v. Clinton, 780 S.W.2d 216, 223 (Tex. Crim. App. 1989) (writ of mandamus

appropriate when lawyer removed from case for conducting witness interviews that

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upset the judge); Buntion v. Harmon, 827 S.W.2d 945 (Tex. Crim. App. 1992) (writ

of mandamus appropriate where lawyer removed because judge had personal belief

that an alternative public defender would be better); Finkelstein v. State, 574 So. 2d

1164, 1168 (Fla. Dist. Ct. App. 1991) (mandating lawyer reinstated following

removal for conduct that upset the judge); see also Harling v. U.S., 387 A.2d 1101

(D.C. 1978).

29. A criminal defendant in Indiana has a federal and state constitutional

right not only to counsel, but to counsel of his choice. See U.S. Const., amend. VI;

Ind. Const. Art. 1, § 13; Harling v. United States, 387 A.2d 1101, 1105 (D.C. 1978)

(citing Powell v. Alabama, 287 U.S. 45, 53 (1932)).

30. The attorney-client relationship, once established, is inviolate. McKinnon

v. State, 526 P.2d 18, 22 (Alaska 1974). This is true regardless of whether the

attorney was retained by the client or appointed as a public defender. Smith, 440

P.2d at 74.

31. A conviction attained when a court unreasonably interferes with an

accused’s right to counsel “cannot stand, irrespective of whether the defendant has

been prejudiced.” U.S. v. Collins, 920 F.2d 619, 625 (10th Cir. 1990), cert. denied; see

also United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (judicial interference

with a defendant’s right to counsel “is not subject to harmless-error analysis.”).

32. There are only two situations where a trial court can sever the attorney-

client relationship. Wheat v. U.S., 486 U.S. 153, 159 (1988). First, a person may be

removed as counsel from a case where the person is not a member of the state bar.

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Id.

33. Second, an attorney may be removed as counsel when the representation

presents an actual conflict of interest. Id.; see also T.C.H., 714 N.E.2d 1162 (Ind. Ct.

App. 1999). In this situation, however, courts must be careful not to remove counsel

where the government has created a conflict to prevent the defendant from having

competent counsel. Wheat, 486 U.S. at 159.

34. A trial court has no authority to remove an attorney over a “[m]ere

disagreement as to the conduct of the defense.” Harling v. United States, 387 A.2d

1101 (D.C. 1978). See also State ex rel. Jones, 728 N.E.2d 133 (“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.”).

35. Moreover, before a lawyer may be removed as counsel, the court should

“exhaust other possible remedies,” such as censure, referral to the disciplinary

commission, or contempt proceedings. Huskey, 82 S.W.3d at 307-10.

36. The process for removing an attorney in the two narrow situations noted

above can only be done after notice and the opportunity for the defendant to be

heard in open court on the matter of his counsel. See id. at 309. (“[I]t was

inappropriate for the trial court to remove counsel summarily without a hearing or

prior warning of the court's concerns.”).

37. Neither of the narrow situations that allow for removal of counsel existed

in this case. Attorneys Baldwin and Rozzi are active members of the Indiana bar

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and are in good standing. [R2, 36]. No conflict of interest was even alleged between

Rick and his attorneys.

38. Rather, the alleged acts of “gross negligence” the court cited to remove

Attorneys Baldwin and Rozzi were either a mere disagreement with their zealous

defense tactics or concerns about the unintended release of some discovery material.

Yet the discovery “leaks” did not create a conflict of interest or otherwise have any

effect on the relationship between Rick and his attorneys. Moreover, trial counsel

took additional steps to ensure another unintended release would not occur. [See

R1, 236].

39. The trial court held no hearing before removal of counsel, depriving Rick

and his attorneys of the opportunity to be heard on the matter. The court also did

not attempt to exhaust alternative remedies before permanently severing the

attorney-client relationship, even though Attorneys Baldwin and Rozzi suggested a

remedy in the event the court was considering removal. [See R1, 236].

40. In sum, once Attorneys Baldwin and Rozzi were appointed and became

Rick’s counsel, the court lacked any authority under these circumstances to sever

that relationship. See McKinnon, 526 P.2d at 22.

41. This Court should grant emergency relief and temporarily stay the

proceedings below until a permanent writ is issued. Without a stay and quick

resolution of this action, new counsel may withdraw the motions filed by Attorneys

Baldwin and Rozzi, or the court may summarily rule on them.

42. This Court should grant emergency relief and immediately reinstate

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Attorneys Baldwin and Rozzi as Rick’s attorneys. Each day Attorneys Rozzi and

Baldwin are off the case, Rick’s trial strategy is placed in grave peril, and his

remedy on appeal is nonexistent. No appealable judgment has issued in the case

and, even if it had, Attorney Rozzi and Baldwin’s appearances have been rejected

such that they cannot perfect an appeal in any event. Instead, the trial court

continues to conduct proceedings at which Rick’s rights will be affected—and the

course of his ongoing trial strategy will be determined—without the benefit of his

chosen counsel. The exercise of this Court’s original jurisdiction is appropriate.

43. This Court should also order Rick’s trial to commence within 70 days of

the issuance of a writ. Rick and his attorneys developed a speedy trial strategy and

planned to confirm the January date by filing a speedy trial request in early

November. [R2, 37]. The new attorneys appointed to Rick’s case have already asked

and received a new trial date in October 2024. [R2, 26-28]. They have also indicated

they cannot be certain they will not need another continuance to prepare for trial.

[R2, 26-28].

44. Finally, this Court should remove the special judge assigned to this case

and order appointment of a new special judge. Indiana Judicial Conduct Rule 2.11

requires a judge to disqualify herself “in any proceeding in which the judge’s

impartiality might reasonably be questioned, including . . . circumstances [where] . .

. the judge has a bias or prejudice concerning a party or a party’s lawyer . . . .” Ind.

Judicial Conduct Rule 2.11(A)(1). Here, the judge believed counsel was grossly

negligent and expressed “grave concerns” about their representation. [R2, 26]. She

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emphatically stated to Rick that she could not allow them to be his attorneys, given

her concerns. [R2, 26].

45. The international media attention this case has received suggests that for

many people following the case, this may be their first time observing an Indiana

court proceeding. Rick had a carefully formulated trial strategy and a detailed

defense suggesting third-party guilt. The substantive pretrial motions he has filed

to further his strategy and pursue his defense have yet to be ruled on. Going

forward, the public will question the judge’s impartiality with respect to her rulings.

To restore the public’s trust in the integrity of the judicial process in this high-

profile case, a new special judge should be appointed.

STATEMENT OF PRECISE RELIEF SOUGHT

Relator respectfully requests that Permanent Writ of Mandamus be issued:

1. Mandating that the trial court reinstate Attorneys Baldwin and Rozzi as
Rick’s court-appointed counsel;

2. Mandating that the trial court order Rick’s trial to commence within 70
days from the issuance of the writ; and

3. Mandating that the special judge be removed from Rick’s case and a new
special judge be appointed.

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 VERIFICATION

I verify under penalties of perjury that the foregoing statements are true and

correct to the best of my knowledge.

Respectfully submitted,

/s/ Mark Leeman

Mark K. Leeman, #29109-09
LEEMAN LAW OFFICE
412 East Broadway
Logansport, Indiana 46947
574-722-3881

/s/ Cara Schaefer Wieneke

Cara Schaefer Wieneke, #24374-49
WIENEKE LAW OFFICE, LLC
P.O. Box 368
Brooklyn, Indiana 46111
PH (317) 331-8293
E-mail: cara.wieneke@gmail.com

Attorneys for Relator Richard Allen

VERIFIED STATEMENT OF WORD COUNT

Pursuant to Rule 3(B) of the Indiana Rules of Procedure for Original Actions,

undersigned counsel certifies that the foregoing contains fewer than 4,200 words,

exclusive of the items listed in Appellate Rule 44(C), as counted by the word

processing system used to prepare the Brief (MS Word).

/s/ Cara Schaefer Wieneke

Cara Schaefer Wieneke, #24374-49
WIENEKE LAW OFFICE, LLC
P.O. Box 368
Brooklyn, Indiana 46111
PH (317) 331-8293
E-mail: cara.wieneke@gmail.com

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 CERTIFICATE OF FILING AND SERVICE

Pursuant to Rule 2(D) of the Indiana Rules of Procedure for Original Actions, the

foregoing was electronically filed using IEFS and on November 6, 2023 was served

upon the following through IEFS and via electronic mail at the noted e-mail

address:

The Honorable Frances C. Gull, Special Judge

Carroll Circuit Court
101 W Main St #206
Delphi, IN 46923
Frances.Gull@allensuperiorcourt.us

Robert Cliff Scremin

116 E Berry St, Suite 1200
Fort Wayne, IN 46802
robert@robertscreminlaw.com

William Santino Lebrato

116 E Berry St, Suite 500
Fort Wayne, IN 46802
william.lebrato@co.allen.in.us

Nicholas Charles McLeland

101 W. Main St., Suite 204
Delphi, IN 46923
nmcleland@carrollcountyprosecutor.com

Theodore Rokita
Indiana Attorney General
efile@atg.in.gov

/s/ Cara Schaefer Wieneke

Cara Schaefer Wieneke, #24374-49
WIENEKE LAW OFFICE, LLC
P.O. Box 368
Brooklyn, Indiana 46111
PH (317) 331-8293
E-mail: cara.wieneke@gmail.com

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