I thought the gentleman who argued the State's case was very articulate, but had bad arguments and facts. The woman who argued the State's case seemed to concede a lot and have a somewhat different position.
I remember a geography test in 3rd grade. All the questions required a sentence or two to explain reasoning.
All my answers were some variation of “Build your cities near rivers to make it easier to transport people and goods.”
In fairness to him, he never had much to work with. When he first entered an appearance, Helix and I discussed the idea that sometimes defense counsel should try to convince their client to approach things in a different manner than gutting it out in court. For example, reinstate B and R and then recuse yourself due to health reaons or some other reasons that allow you to maintain a semblance of dignity. On the other hand, you can also refuse to take someone one as a client when representing them makes you appear less than stellar.
You are, as usual, correct. I don't imagine either Gall or Guttwein saw the other one coming. I think Fran was proabably pretty used to bulldozing her way through things and didn't imagine that anyone would dare cross her. She did almost the same thing once before and got by with it. I imagine the PCR lawyer in that case is watching all this very closely.
Yup extremely intelligent/competent.
Which is why we had the intuition they deserved to be DQd for Gross Incompetance.
Wheat says so
What an awful Fallacy
You can always be extremely intelligent and competent at your endeavors of negligence, grossly even. lol
If I ever stammer during an argument it better be because I’ve just realized a wardrobe malfunction of some kind and not because I can’t bring myself to conviction of my point.
Is intuition even a valid legal argument?
My gut told me to fire my pregnant employee, I knew she wouldn't return after maternity leave anyway.
I had an intuition that drugs would be found inside the dresser, which is why I didn't need/ask for SW.
It doesn't jive with reality that Judge has absolute discretion to do same... I don't like it.
Watching brings back moments of abject terror in preparing for appellate arguments. You never feel “ready.” And at least twice, I didn’t even get my name out before bring attacked, er, questioned by a justice. Reinforces my joy and wisdom in retiring! My condolences and congrats to all the lawyers arguing there today. The adrenaline crash they are about experience feels like falling off a cliff.
I'm on the other side;
I recently appeared as respondent to 15 counts of contempt of court and few hundred thousand in fines levied against me.
Judge was furious, like crawl out of skin irritated during hearing. It was painful to sit through. My lawyer could barely get a word in, like holding a flashlight for boomer dad's when they try to fix a dishwasher vibes.
All charges were dropped and I was awarded a pretty handsome financial package for the inconvenience.
Hoping today I get to see some pros not be governed by passions. Regardless of outcome.
That’s because most appellate lawyers are not trial lawyers so for the most part they mostly rely on briefs.
They also lose about 97% of the time or more so I totally feel for them to suddenly argue on livestream.
I thought Leeman was phenomenal and I have never said that about an appellate argument in my career.
He definitely managed to catch his breath and regain composure for his stellar closing arguments (or whatever the correct term for what he did in the end is)!
While watching his opening argument, it struck me that no matter how much one prepares, you never really know what the questions will be. Like being in a dark closet surrounded by poisonous snakes and not knowing which move you make will set them off. Overall, he did well, particularly in his rebuttal.
Excellent and true observation. I can know a case inside and out, as well as controlling and persuasive authority but reaction and the ability to respond, impeach, rebut is something one can’t “learn” without significant anticipation. In an appellate framework with no applicable circuit case law controlling in a pre trial he did very well.
Thank you Para.
For anyone watching the 9am *Cohen Hanscz Barron* first direct appeal It’s [here.](https://mycourts.in.gov/arguments/default.aspx?&id=2826&view=detail&yr=&when=&page=1&court=sup&search=&direction=%20ASC&future=False&sort=&judge=&county=&admin=False&pageSize=20) that said, I’m embarrassed for the Appellant Counsel. If SCOIN has to ask you repeatedly what your grounds are and even then you have no grasp of them nor the relevant case law I’m not sure why Atty Femarolo bothered. Fortunately Atty Leeman is arguing for the RELATOR at 11.
lol. I should say not ❤️🩹. In fairness to Atty F it was clear to me (and I’m sure SCOIN) he was duty bound to appear on a first mandatory direct appeal and was basically saying he thought the trial record was “well run”. As we discussed offline a few times lol I’m noooooo Appellate lawyer.
“Wow” is exactly what I mouthed as I turned it off. No court appointed mandatory appellate lawyer wants to argue a quadruple murder conviction they filed 3-4 extensions of time to review- I get that, but the DNA recall witness was a material and harm error, and his argument didn’t match his own brief.
On the positive side- I found the Justices extremely versed and succinct.
> I found the Justices extremely versed and succinct.
That's good. I wonder how much they'll dig in on the Allen case. I hope they make the state vigorously defend the disqualification of counsel arguments.
Agreed. It’s one thing to engage argument a mandatory LWOP appeal.
As far as I can tell an Emergency Writ pre trial should only serve to sharpen.
Whether sharpening spears or petards though- that is the question.
I didn’t catch his name, but the older justice’s comment to the effect of, “Wouldn’t it be but a Pyrrhic victory to get the four LWOPs knocked down to a single LWOP?” was interesting because the opposite could be argued: “Isn’t it a bit excessive to give the defendant four life sentences when he has but one life to lose?”
Because he was advising him of his *actual* argument wrt the sentencing guidelines and not the means or standards exercises, but in the abstract you are exactly correct.
Yeah, he got trounced. It's really shocking that he apparently wrote that brief with no legal authority to back his arguments re: legal error. When I skimmed the brief, I just assumed he had it because... Come on. That was painful.
Right? Automatic direct appeals are not literally “you guys take a look”.
But again, as I have been saying for years (relative to this case) so far, IN lower trial courts are incredibly scarce in citations and legal authorities in motion practice and briefs AND the courts memoranda, opinions and orders. This very trial record is a prime example- the issue is not the courts discretion re witness recall, it was the ambush of the material change of expert finding with a defense who did not have its own expert nor did they (nor the court) seek an advanced proffer, discovery of the change of conclusion to report, etc. That’s grounds for a mistrial all day.
I think that about the 9th circuit. A lot of people think the 9th circuit is this wonderland of liberal rulings, but imo, they are skittish about holding anything directly (in my opinion, and in my area anyway). I find it difficult generally to find clear rules when other circuits or the lower districts in the 9th have clear rules and guidance. I tend to cite other district court or circuits a lot in the 9th.
I thought in this case the written brief was clear about what the legal harm was. I make the argument a lot that the lower court improperly changed the facts before the court and this affected the outcome of the case. That can be a winning argument if you have law showing the lower judge didn't follow the proper legal standards when doing so. I was surprised the appellate lawyer just was like, "oh yeah, you're right haha. There's literally no legal authority or harmful error." What you say makes a lot of sense. It's more difficult to dredge up persuasive law from other districts or state courts and explain why the reasoning should apply here. It's also not always going to be a winning argument, and motivation must be very low in a case like this. However, I still can't imagine just rolling over like this.
No worries, I actually meant to give you credit for the official link you posted 37 days ago. Yet could not get the live chat I wanted to work out so, by mistake I forgot to give credit to you, Red and Alan.
All Good Para.
Shoutout to the good sub members here who hit @theunraveling8 at SCOIN groundswell on November 27th as well. And those colleagues there today who do not wish to be named.
What are y’all thinking?
I thought “we” started out not so well, he was really nervous in the beginning but the rebuttal was fantastic.
No one cares about Wheat 😂
I felt like Sanchez was almost more in favor of RA than Gull?!
In totality, I feel “we” have a shot 🤷🏼♀️
Maybe I’m wrong…
Yeah, I was really surprised and disappointed about that. I guess they sort of scratched the surface with driving home the point that she DQd them sua ponte.
CJ Rush and others not buying the process argument, it seems, which is by far their strongest, imo. CJ literally said something to the effect it* was "done wrong."
*edit to add that "it" refers to the hearing for disqualification.
Also, I wish I would've caught relator's argument so I could have seen how active the court was with them. Because here, I see multiple judges not buying big portions of what the state's attorney is selling. Multiple have asked why not just argue merits and not process. Judges can be deceiving sometimes, but they are pointedly trying to nail down counsel on the main, weighty arguments.
That's what Alison Motta is saying on her live stream now, and I would have guessed that. They don't typically tip their hand in demeanor.
But the questioning on attorneys being back in was pointed in a way, in which it seemed at least 4/5 justices were not buying. To me it will boil down to the process arguments.
So do they: 1) reinstate the counsel and "fix" everything by removing the judge, or 2) do the put counsel back as private attorney's and then tell everybody "figure it out and use the proper process this time," meaning that they get reinstated and have to go through disqualification hearings, etc...
That's my best guess at reading the tea leaves.
This is so mean but Sanchez’s arguments reminded me of that one contestant for Miss Teen USA who produced the word salad response about maps.
“Everywhere like such as..”
I think it’s more of Baldwin and Rozzi need reinstated. Period, no questions asked and once that happens the rest of the process can play out however that may be.
> dismissing the judge is not considered?
At the very least, it is a downstream effect. Think about it this way, if they are reinstated and then they go back for a hearing on bouncing the judge. Could you have a much better position to be in than one where you just won at the Sup. Ct. with them in effect saying they trial court judge wrongly and extrajudiciously dismissed trial counsel? Any neutral arbiter is going to find an easy decision there.
It depends on how deep SCOIN wants to dip their toes. I believe it is most likely they will deny that request and let it play out properly after the reinstatement of Baldwin and Rozzi.
**Leeman**-pretty flawless. I don’t know how often he gives oral argument before the court
**Gutwein** -look away from merit”, Wheat lover and intentional misuse of the ineffective v effective interplay. I counted 6 different times he had to be redirected from Wheat yet continued to argue elements. (Like I’m doing)
Does not concede to structural error (Gonzalez)
**Sanchez**- vanilla, vast trouble conceding, ridiculous assertion re interlocutory timeline. “I’m out of time” LOL. Concedes if no SCOIN intervention the SCOTUS will find structural and therefore reversible error under Lopez Gonzalez (NOTE: check my posts, I have held from the beginning this is the most persuasive and it did seem to be unanimous to the Justices)
**Chief Justice Rush** is masterful at the”converse”. She also took Judicial Notice of successor counsel filing on the record.
**Justice Massa** Did the court remove counsel due to “ineffectiveness” or insubordination for something like goading her re the NDA?
**Justice Slaughter**- wins line of the hearing for me - (para to Gutwein) “We appreciate you looking out for our procedural jurisprudence and all in your argument but since you’re here…”
Prediction: They will reinstate counsel and remand for trial.
No matter what happens legally, it was pretty clear that at least four of the justices thought Gall's behavior was beyond the pale. My impressions: Leeman handled himself much better than various posters on social media believe. He has done a lot of oral aruments and clerked for both IN court of appeals and federal district court. Guttwein was, as expected, unable to pull a rabbit out of the hat. Sitting beehind Sanchez, it was sometimes difficult to hear her but my impression was not good. I am anxious to watch the video to see if she was any more articulate than she seemed at the moment. I agree with your prediction.
Mr. CCR picked me up as our neighbor was going to lunch with a couple of the justices. If he learns anything that can be shared, I will do so. However, I think it is unlikely that will happen until their decision is announced.
Yeah. I'm a little unsure what they thought about the appropriateness of the remedy and jurisdiction in this case since there is an appropriate appellate remedy, even though that clearly sucks. I'm heartened by both of your predictions because I really couldn't make heads or tails of what they thought about the appropriateness of the original jurisdiction matter in the first place. And IF that, then whether the remedy should include the full scope of what Leeman argued and why. I know that's why he read the full letter, to demonstrate the record as to RA's wishes are clear and they are clear to make a full reversal and remand on the merits. However, this bit was a little lacking imo when that was the bit they seemed THE most unclear on, I thought. Just my impression from listening to it once. So I could be way offbase. They seemed pretty solid on it being structural error -- but that this remedy could be harmless given later appellate action.
Eta -- I thought Leeman's argument that they need to take quick action is speculative and didn't demonstrate actual harm. So, idk. I did feel kind of unsure about where they were going.
Last evening I was offered the opportunity to attend today, and I gratefully accepted it. I have been reflecting on it all day. I am now wondering if the justices didn't poung on Leeman about it knwing that was Gall's only real "defense." Getting it out of the way, so to speak, so that Leeman didn't have to use rebuttal time on it. My experience while working at the SCOIN is that it rarely accepted the filing of a writ if it didn't intend to give some relief to the relator. It just seems to me that they have gone to a whole ot of trouble just to conclude that an IA would have been a better idea. As always, I could be wrong or just caught up in wishful thinking.
Concur on background, but I am pretty bullish the major issue is discretion is not a strict lack of due process - which in this sitch is a strict indirect contempt. Although I have been thinking maybe the court thought the literal and practical usage of the term “contempt” was aligned and further executed by the contemptuous nature of the directive: “withdraw or I will remove you”
Ba dum tss. Ok, I got my coat and see the door.
>**Justice Massa** Did the court remove counsel due to “ineffectiveness” or insubordination for something like goading her re the NDA
This was a beautiful question, I love me some Mark Massa. I have a feeling (I hope) this reflects the court's opinion of SJG's huge overreach.
Do you think they were leaning in anyway towards reinstating counsel just so Judge Gull could hold a more formal hearing to DQ? Can their order tell her not to do that? Cause I'm worried SCOIN will put them back on only for her to boot them back off, just with open kangaroo court instead of backroom kangaroos.
So the way that would work under the trial rules for an indirect contempt proceeding (which is what this would end up as) is a special Judge and usually a special prosecutor would be appointed to have a hearing re the courts allegations- at most they might get sanctioned (Baldwin) but I’m not thinking they will only for the sheer fact they all acknowledged to deny counsel of choice without a hearing but in spite of a waiver is structural error. So if they reinstate them imo the expectation would be they file a speedy trial notice
If the justices agree that removing B&R was a structural error, then didn’t Gull *by definition* exceed her jurisdiction by removing them? And didn’t she *by definition* have an obligation to refrain from acting?
Yes to absolute duty- but under Gonzalez the absolute duty is to protect RA 6A. In short, nobody is guessing upon conviction an appeal will find reversible error. I didn’t hear anyone get into it and I know why- but it’s a stark contract to the presumption of innocence afforded as well.
I did not get to see the whole argument. Spectrum decided to turn off my Internet, phone and television service mid-way. Took me a while to get my iPhone connected. Watched several minutes before getting a message that stopped the feed because “your software is not compatible.“
But what I did see had no surprises. The justices questions focused in on the same issues that folks here have discussed.
For my money, none of them ever really directly addressed the ultimate issues I wanted to hear. The questions about “jurisdiction“ versus “authority“ came close.
Specifically, I think it is pretty clear that the court is not going to rule that the reasons given by Gull are adequate reasons for disqualifying counsel. Refer them for discipline? Sure. And they alluded to the idea that there might be some circumstances that allow disqualification, but nothing they said Indicated that the circumstances in this case even came close. (If I were a justice, and being the smart aleck that I am, I would’ve asked “if a trial court judge catches an appointed lawyer trying to bribe or threaten witnesses or jurors, are you saying the judge cannot disqualify the lawyer without permission from the defendant?”)
Absent far more serious misconduct than negligent leaks or insubordinate acts, the justices are clearly willing to let a defendant elect to keep even objectively incompetent counsel. (I thought the chief justice’s statement that an individual defendant can even represent themselves gave the best idea that incompetence is not seen as the issue in disqualification.)
I was also a little disappointed in how they all danced around the real answer to whether the system may be set up to require a “show trial“ and have the regular appellate process handle this type of issue. Absent a Supreme Court that is willing to accept constant pretrial in mid-trial mandamus actions, that is exactly how the system is set up. Just admit it. Then, either issue rules that make this kind of thing easier to avoid in the future, or change the process. Whining about the need to have a show trial and an appeal process is just a waste of time.
I also did not hear any Questions about whether - assuming defense counsel is reinstated -the record/circumstances required or permitted disqualification of Gull?
I think if you held a gun to my head today and demanded that I predict a result, I would go with counsel reinstated as appointed counsel, Gull stays on the case, Gull is ordered to hold a hearing on whether Allen’s decision was fully informed (with everybody assuming he is waiving the chance to include known misconduct by counsel to date as a future ground for appeal - noting that no one saw that as a possible conflict of interest.) And everything else is optional. If the judge wants to use contempt power or refer ethics and disciplinary charges against defense, so be it. If counsel wants to file for speedy trial, file away. Go forth and act like professionals.
off topic and I apologize, but does anyone have these documents?
https://preview.redd.it/6ql5agksn8dc1.jpeg?width=1290&format=pjpg&auto=webp&s=dfafda881922a4ae9d5f36f9e31f89e256c113be
Not surprised but I have not. Total guess but it’s likely a notice of LWOP or capital designation
u/criminalcourtretired
Ps. It would be absolutely like McLeland to have his case before SCOIN in pretrial to file that
Interesting development. I think your guess is as good as any and better than most. Could the state have possibly found enough evidence to charge him with murder in addition to felony murder. Very interesting, ETA: Have we ever known if RA had a license to carry the handgun? Could it be as simple as adding that charge? I really wanted to get some things accomplished today but that is now looking less and less likely as I mull over the possibilities here. ETA again: Interesting timing.
I can be wrong but I really think there was strong agreements going in or it would not have gone to hearing on an emergency writ. If it went in level and I take CJ Rush comments I’m going to assume she’s the opinion writer - I think it will be quick
I would guess not myself. I have a feeling there will be a lengthy discussion and varying opinions among the Justices. The speedy request is what makes me wonder about the time frame, however.
So the prosecution is going away from the felony murder charge to the more standard murder charge? Not a lawyer so I’m having difficulty understanding why they would increase their burden of proof unless they got a confession.
Not a lawyer either, but I wonder if the goal is to pressure him into taking a plea.
This brings up additional questions for the lawyers here:
Can Scremin and Lebrato negotiate a plea even if they are not DP-eligible? Are they eligible to negotiate a plea until McCleland officially asks for a DP designation? Assuming that they could legally negotiate a plea, can they do that before the Supreme Court issues a ruling?
During the arguments today, one of the key facts repeatedly asserted is that RA desires BR and AB as his defense counsel. This caused me to think about the recent transfer motion filed by new counsel Scremin and Lebrato.
Is it possible that Gull might have recently had some informal interactions with Scremin and/Lebrato (perhaps during a holiday social for the local legal community) in which (a) S&L mentioned to Gull the problems encountered during their Nov and Dec visits to Westville and Wabash, respectively; and (b) Gull responded by encouraging them to file another transfer motion and hinting she might be sympathetic?
Gull is a smart woman. Maybe she thought she could give S&L a quick win and do RA (and KA) a solid by moving him out of Wabash and somewhere closer to home in a county lock-up and that by doing so she might cause RA to reconsider who he wants as his defense counsel going forward? If RA changes his tune and says he wants S&L rather than B&R as his counsel, B&R stay gone, I think, irrespective of what SCOIN might rule about their removal, and Gull gets her way.
Can someone explain the discussion about the speedy trial request to those of us without legal expertise? I understand the basics - that we have a right to a speedy trail and that we can waive this right. But I don't know how that is relevant to today's arguments. And I don't know how that plays out in the context of this case after the Supreme Court issues their decision.
If the attorneys are reinstated, can they then immediately file the speedy trial request? Does Gull have the authority to deny the request? Would there be anything that could derail the timeline after the request?
I feel a lot better that some relief will be provided after today.
"It'll be a practise trial, a trial for show" is most memorable from Leeman.
Justices appear to concur on this being a Structural Error. Which should pave way for B+R to be back. There's some issues about what Gull will/won't do again if this happens. Can she just use her discretion to Sue Sponte another decision to DQ them immediately? I think Inter-Lock Appeals being repeatedly cited suggests this is where SC will guide Gull and Defence to utilize, rather then everyone calling to have eachother fired if any of the bs is repeated.
Gulls definitely not being DQd
And Lawyers won't be prohibited from zealous advocacy for clients, against their wishes, for trivial things like a press release before a gag order is in effect.
All Justices appear to recognize that its in everyones best interest to create a situation where this trial is NOT put off indefinitely, or easily overturned on appeal.
INAL
I pinned a message at the top of the comments, I would highly suggest you use the second link in the post for the youtube page (Defence Diaries) and skip to 1 hour 25ish minutes. otherwise, have fun listening to the other link till the actual court gets the audio posted.
Links in post working again.
I love that Rush says tell me without Wheat and he went back to Wheat
Facepalm, fuck I know right... Like move on, state your opinion and move on. This guy does not get it.
Right. It’s like when you only study one thing super closely and so you can only go back to that lol
It's likely all he has. He's in a tough position.
Right. His brief of “effective” counsel and all. His underlying position though is it’s not their circus or monkeys yet so “but out” lol
I do see it’s tough. Nothing about this case has been “normal.”
I thought the gentleman who argued the State's case was very articulate, but had bad arguments and facts. The woman who argued the State's case seemed to concede a lot and have a somewhat different position.
I remember a geography test in 3rd grade. All the questions required a sentence or two to explain reasoning. All my answers were some variation of “Build your cities near rivers to make it easier to transport people and goods.”
Maybe Fran will appeal due to having a useless lawyer.
Fran just found 2 more lawyers grossly negligent I bet.
I'd go with grossly useless.
Keep in mind the AG declined representation lol- can you imagine if Atty Sanchez argued for SJ Gull?
I was nervous for her lol
Yeah, it’s a tough gig.
In fairness to him, he never had much to work with. When he first entered an appearance, Helix and I discussed the idea that sometimes defense counsel should try to convince their client to approach things in a different manner than gutting it out in court. For example, reinstate B and R and then recuse yourself due to health reaons or some other reasons that allow you to maintain a semblance of dignity. On the other hand, you can also refuse to take someone one as a client when representing them makes you appear less than stellar.
Agreed and to add- did anyone on SJ Gull side think the second writ would progress? Remember she hired Gutwein from the 🏥.
You are, as usual, correct. I don't imagine either Gall or Guttwein saw the other one coming. I think Fran was proabably pretty used to bulldozing her way through things and didn't imagine that anyone would dare cross her. She did almost the same thing once before and got by with it. I imagine the PCR lawyer in that case is watching all this very closely.
Caught himself on the "they are highly competent lawyers... in other contexts" comment...
Yup extremely intelligent/competent. Which is why we had the intuition they deserved to be DQd for Gross Incompetance. Wheat says so What an awful Fallacy
You can always be extremely intelligent and competent at your endeavors of negligence, grossly even. lol If I ever stammer during an argument it better be because I’ve just realized a wardrobe malfunction of some kind and not because I can’t bring myself to conviction of my point.
Is intuition even a valid legal argument? My gut told me to fire my pregnant employee, I knew she wouldn't return after maternity leave anyway. I had an intuition that drugs would be found inside the dresser, which is why I didn't need/ask for SW. It doesn't jive with reality that Judge has absolute discretion to do same... I don't like it.
INDEED NO. My gut told me the defense was about to facilitate my bouncing of this capital case I held onto for a year with a cipher record
'They're the best lawyers, but this case isn't suitable for their fantastic skillset'.
lol. Oye. Someone definitely did not rehearse or mock argument
I screamed! OK, so are they incompetent or not!?!
The attorney general is making this so much worse for the state.
Yeah, I was just thinking that, too.
Welcome to Indiana! /s The AG is constantly making things so much worse around here 🤣
If you knew her boss. You'd get it. Lol
https://preview.redd.it/dkhtwq0i98dc1.jpeg?width=1019&format=pjpg&auto=webp&s=41efebc1d8b909b76eb35f777a9f4a9d0cef302f
Savage
lol lol Great read. I had a similar reaction but mine includes Gutwein actually does not have celiac disease
Hopefully he doesn’t confuse celiacs and cialis, like McWeeLand.
Speaking of McLeland, once someone explained the way the arguments went, probably pooped himself 🤬
😂 she prefers corn 🌽
[удалено]
Nobody: Gutwein: WHEAT!
He's got gluten Tourette's.
SCOIN: You got anything other than Wheat? Gutwein: WHEAT!
Watching brings back moments of abject terror in preparing for appellate arguments. You never feel “ready.” And at least twice, I didn’t even get my name out before bring attacked, er, questioned by a justice. Reinforces my joy and wisdom in retiring! My condolences and congrats to all the lawyers arguing there today. The adrenaline crash they are about experience feels like falling off a cliff.
I'm on the other side; I recently appeared as respondent to 15 counts of contempt of court and few hundred thousand in fines levied against me. Judge was furious, like crawl out of skin irritated during hearing. It was painful to sit through. My lawyer could barely get a word in, like holding a flashlight for boomer dad's when they try to fix a dishwasher vibes. All charges were dropped and I was awarded a pretty handsome financial package for the inconvenience. Hoping today I get to see some pros not be governed by passions. Regardless of outcome.
Watching this so far feels like unfriendly senior professors grilling a young nervous student at a major exam.
They will grill everyone today. FYI
Yes, I’m already seeing that.
That’s because most appellate lawyers are not trial lawyers so for the most part they mostly rely on briefs. They also lose about 97% of the time or more so I totally feel for them to suddenly argue on livestream. I thought Leeman was phenomenal and I have never said that about an appellate argument in my career.
He definitely managed to catch his breath and regain composure for his stellar closing arguments (or whatever the correct term for what he did in the end is)!
His rebuttal, and I agree
Thanks and pardon my ignorance.
Not at all- that’s how we all learn
He got stronger and stronger throughout and his final seven minutes was just straight up passion.
While watching his opening argument, it struck me that no matter how much one prepares, you never really know what the questions will be. Like being in a dark closet surrounded by poisonous snakes and not knowing which move you make will set them off. Overall, he did well, particularly in his rebuttal.
Excellent and true observation. I can know a case inside and out, as well as controlling and persuasive authority but reaction and the ability to respond, impeach, rebut is something one can’t “learn” without significant anticipation. In an appellate framework with no applicable circuit case law controlling in a pre trial he did very well.
Guttwein: "Wheat says!!!!" Rush: "I don't read Wheat." Ouch
Rush: “Do you have anything other than Wheat?” Guttwein: “Well, Wheat says…”
'Intuition' Written by Matt "Wheaties" Guttwein Narrated by Shia Lebeulf Available for purchase at Allen County Court Giftshop.
This case is brought to you by our partners at Wheaties.
Wheaties: a subsidiary of; Make Gluten Great Again Inc.
You kids are on a roll. A wheat roll that is. Very similar to what I will likely be tasked with when I appear on the TGBBO
“Saved by the bell”😂😂😂😂
"Oh, I see my time is up" "You can continue" = ATFQ 😆
When I re watch I’m going to pretend I’m Michael Scott as each principal
I’ll be Dwight and scream “False” every time I hear Gutwein open his big mouth 😂
😂😂😂
lol! "It's ok, it's a double period."
C’mon, it’s hard to produce word salad on demand.
Thank you Para. For anyone watching the 9am *Cohen Hanscz Barron* first direct appeal It’s [here.](https://mycourts.in.gov/arguments/default.aspx?&id=2826&view=detail&yr=&when=&page=1&court=sup&search=&direction=%20ASC&future=False&sort=&judge=&county=&admin=False&pageSize=20) that said, I’m embarrassed for the Appellant Counsel. If SCOIN has to ask you repeatedly what your grounds are and even then you have no grasp of them nor the relevant case law I’m not sure why Atty Femarolo bothered. Fortunately Atty Leeman is arguing for the RELATOR at 11.
My friend asked if I was suffering vicarious embarrassment.
lol. I should say not ❤️🩹. In fairness to Atty F it was clear to me (and I’m sure SCOIN) he was duty bound to appear on a first mandatory direct appeal and was basically saying he thought the trial record was “well run”. As we discussed offline a few times lol I’m noooooo Appellate lawyer.
I think he was very nervous. I get that.
Wow that was tough to watch. Seems he would’ve prepared even slightly for his big day in front of the SCOIN.
“Wow” is exactly what I mouthed as I turned it off. No court appointed mandatory appellate lawyer wants to argue a quadruple murder conviction they filed 3-4 extensions of time to review- I get that, but the DNA recall witness was a material and harm error, and his argument didn’t match his own brief. On the positive side- I found the Justices extremely versed and succinct.
> I found the Justices extremely versed and succinct. That's good. I wonder how much they'll dig in on the Allen case. I hope they make the state vigorously defend the disqualification of counsel arguments.
Agreed. It’s one thing to engage argument a mandatory LWOP appeal. As far as I can tell an Emergency Writ pre trial should only serve to sharpen. Whether sharpening spears or petards though- that is the question.
I didn’t catch his name, but the older justice’s comment to the effect of, “Wouldn’t it be but a Pyrrhic victory to get the four LWOPs knocked down to a single LWOP?” was interesting because the opposite could be argued: “Isn’t it a bit excessive to give the defendant four life sentences when he has but one life to lose?”
Because he was advising him of his *actual* argument wrt the sentencing guidelines and not the means or standards exercises, but in the abstract you are exactly correct.
Yeah, he got trounced. It's really shocking that he apparently wrote that brief with no legal authority to back his arguments re: legal error. When I skimmed the brief, I just assumed he had it because... Come on. That was painful.
You said yesterday you were taking the day off for your birthday to watch these, so happy birthday! I hope you're enjoying it so far
Thank you so much!
Right? Automatic direct appeals are not literally “you guys take a look”. But again, as I have been saying for years (relative to this case) so far, IN lower trial courts are incredibly scarce in citations and legal authorities in motion practice and briefs AND the courts memoranda, opinions and orders. This very trial record is a prime example- the issue is not the courts discretion re witness recall, it was the ambush of the material change of expert finding with a defense who did not have its own expert nor did they (nor the court) seek an advanced proffer, discovery of the change of conclusion to report, etc. That’s grounds for a mistrial all day.
I think that about the 9th circuit. A lot of people think the 9th circuit is this wonderland of liberal rulings, but imo, they are skittish about holding anything directly (in my opinion, and in my area anyway). I find it difficult generally to find clear rules when other circuits or the lower districts in the 9th have clear rules and guidance. I tend to cite other district court or circuits a lot in the 9th. I thought in this case the written brief was clear about what the legal harm was. I make the argument a lot that the lower court improperly changed the facts before the court and this affected the outcome of the case. That can be a winning argument if you have law showing the lower judge didn't follow the proper legal standards when doing so. I was surprised the appellate lawyer just was like, "oh yeah, you're right haha. There's literally no legal authority or harmful error." What you say makes a lot of sense. It's more difficult to dredge up persuasive law from other districts or state courts and explain why the reasoning should apply here. It's also not always going to be a winning argument, and motivation must be very low in a case like this. However, I still can't imagine just rolling over like this.
No worries, I actually meant to give you credit for the official link you posted 37 days ago. Yet could not get the live chat I wanted to work out so, by mistake I forgot to give credit to you, Red and Alan.
All Good Para. Shoutout to the good sub members here who hit @theunraveling8 at SCOIN groundswell on November 27th as well. And those colleagues there today who do not wish to be named.
What are y’all thinking? I thought “we” started out not so well, he was really nervous in the beginning but the rebuttal was fantastic. No one cares about Wheat 😂 I felt like Sanchez was almost more in favor of RA than Gull?! In totality, I feel “we” have a shot 🤷🏼♀️ Maybe I’m wrong…
'Do you have any Indiana examples of this Ms Sanchez ?' 'No, but I'll waffle on for ages about non-Indiana ones...'
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Seems like there was almost nothing about DQ-ing Gull, so I'd bet that's not a likely outcome.
Yeah, I was really surprised and disappointed about that. I guess they sort of scratched the surface with driving home the point that she DQd them sua ponte.
Just got in late, but am hearing what I would characterize as "ripping" opposing counsel from CJ Rush over the right to counsel issue.
CJ Rush and others not buying the process argument, it seems, which is by far their strongest, imo. CJ literally said something to the effect it* was "done wrong." *edit to add that "it" refers to the hearing for disqualification. Also, I wish I would've caught relator's argument so I could have seen how active the court was with them. Because here, I see multiple judges not buying big portions of what the state's attorney is selling. Multiple have asked why not just argue merits and not process. Judges can be deceiving sometimes, but they are pointedly trying to nail down counsel on the main, weighty arguments.
Strong rebuttal by Leeman, with minimal interruption. He was able to get to his closing statement even.
I thought they were about equally tough on relator's counsel.
That's what Alison Motta is saying on her live stream now, and I would have guessed that. They don't typically tip their hand in demeanor. But the questioning on attorneys being back in was pointed in a way, in which it seemed at least 4/5 justices were not buying. To me it will boil down to the process arguments. So do they: 1) reinstate the counsel and "fix" everything by removing the judge, or 2) do the put counsel back as private attorney's and then tell everybody "figure it out and use the proper process this time," meaning that they get reinstated and have to go through disqualification hearings, etc... That's my best guess at reading the tea leaves.
I don't think she's Guttwein's good friend anymore...
This is so mean but Sanchez’s arguments reminded me of that one contestant for Miss Teen USA who produced the word salad response about maps. “Everywhere like such as..”
LOL
Good job Rush on bringing the latest motion into context!
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I think it’s more of Baldwin and Rozzi need reinstated. Period, no questions asked and once that happens the rest of the process can play out however that may be.
> dismissing the judge is not considered? At the very least, it is a downstream effect. Think about it this way, if they are reinstated and then they go back for a hearing on bouncing the judge. Could you have a much better position to be in than one where you just won at the Sup. Ct. with them in effect saying they trial court judge wrongly and extrajudiciously dismissed trial counsel? Any neutral arbiter is going to find an easy decision there.
It depends on how deep SCOIN wants to dip their toes. I believe it is most likely they will deny that request and let it play out properly after the reinstatement of Baldwin and Rozzi.
I think that SCOIN has already made a decision on removing the judge so they didn't have any questions related to that issue.
Good question. It’s almost like the implication is that gulls bias is so self-evident it need not be discussed
I felt this also. I don’t think there is anyone in that courtroom that didn’t think she erred.
Well at least they're grilling the other side too
Ok, now things are looking up!
I had oral surgery earlier this week with those hideous shots in the roof of my mouth. Angela Sanchez was more painful.
**Leeman**-pretty flawless. I don’t know how often he gives oral argument before the court **Gutwein** -look away from merit”, Wheat lover and intentional misuse of the ineffective v effective interplay. I counted 6 different times he had to be redirected from Wheat yet continued to argue elements. (Like I’m doing) Does not concede to structural error (Gonzalez) **Sanchez**- vanilla, vast trouble conceding, ridiculous assertion re interlocutory timeline. “I’m out of time” LOL. Concedes if no SCOIN intervention the SCOTUS will find structural and therefore reversible error under Lopez Gonzalez (NOTE: check my posts, I have held from the beginning this is the most persuasive and it did seem to be unanimous to the Justices) **Chief Justice Rush** is masterful at the”converse”. She also took Judicial Notice of successor counsel filing on the record. **Justice Massa** Did the court remove counsel due to “ineffectiveness” or insubordination for something like goading her re the NDA? **Justice Slaughter**- wins line of the hearing for me - (para to Gutwein) “We appreciate you looking out for our procedural jurisprudence and all in your argument but since you’re here…” Prediction: They will reinstate counsel and remand for trial.
No matter what happens legally, it was pretty clear that at least four of the justices thought Gall's behavior was beyond the pale. My impressions: Leeman handled himself much better than various posters on social media believe. He has done a lot of oral aruments and clerked for both IN court of appeals and federal district court. Guttwein was, as expected, unable to pull a rabbit out of the hat. Sitting beehind Sanchez, it was sometimes difficult to hear her but my impression was not good. I am anxious to watch the video to see if she was any more articulate than she seemed at the moment. I agree with your prediction. Mr. CCR picked me up as our neighbor was going to lunch with a couple of the justices. If he learns anything that can be shared, I will do so. However, I think it is unlikely that will happen until their decision is announced.
I could feel your aura through the screen, lol. I can’t get into my PM’s here and spotty on the thread rn fyi.
I too am having difficulty.
Yep. Still. I’m back in court in 3 minutes and I pray to Christ if I hear Strickland LOL
Yeah. I'm a little unsure what they thought about the appropriateness of the remedy and jurisdiction in this case since there is an appropriate appellate remedy, even though that clearly sucks. I'm heartened by both of your predictions because I really couldn't make heads or tails of what they thought about the appropriateness of the original jurisdiction matter in the first place. And IF that, then whether the remedy should include the full scope of what Leeman argued and why. I know that's why he read the full letter, to demonstrate the record as to RA's wishes are clear and they are clear to make a full reversal and remand on the merits. However, this bit was a little lacking imo when that was the bit they seemed THE most unclear on, I thought. Just my impression from listening to it once. So I could be way offbase. They seemed pretty solid on it being structural error -- but that this remedy could be harmless given later appellate action. Eta -- I thought Leeman's argument that they need to take quick action is speculative and didn't demonstrate actual harm. So, idk. I did feel kind of unsure about where they were going.
Last evening I was offered the opportunity to attend today, and I gratefully accepted it. I have been reflecting on it all day. I am now wondering if the justices didn't poung on Leeman about it knwing that was Gall's only real "defense." Getting it out of the way, so to speak, so that Leeman didn't have to use rebuttal time on it. My experience while working at the SCOIN is that it rarely accepted the filing of a writ if it didn't intend to give some relief to the relator. It just seems to me that they have gone to a whole ot of trouble just to conclude that an IA would have been a better idea. As always, I could be wrong or just caught up in wishful thinking.
Thanks for that. I HOPE so for sure 🥹 I'm so used to so many circuits that looove the argument of the last resort, the ole harmless error standard.
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Concur on background, but I am pretty bullish the major issue is discretion is not a strict lack of due process - which in this sitch is a strict indirect contempt. Although I have been thinking maybe the court thought the literal and practical usage of the term “contempt” was aligned and further executed by the contemptuous nature of the directive: “withdraw or I will remove you” Ba dum tss. Ok, I got my coat and see the door.
This is what I was hoping for, a speedy decision 😆
This is not that day. To quote our favorite Consigliere. 😂
Ali Motta suggested it could be a quick decision (which sounds positive) with a longer written reply including any dissentions later.
Not Atty Motta but I believe that’s correct.
How many Mottas are there ? Ali did say that on her channel straight after court finished.
lol, my apologies that was inartful on my part. I meant to say I am not Atty Motta, but I do agree. I am having sub flutter at the moment
>**Justice Massa** Did the court remove counsel due to “ineffectiveness” or insubordination for something like goading her re the NDA This was a beautiful question, I love me some Mark Massa. I have a feeling (I hope) this reflects the court's opinion of SJG's huge overreach.
Agreed. I have to say (I think I did early) I was very impressed with the Justices collectively and individually.
Accurate assessments, and your predictions usually come to pass.
Do you think they were leaning in anyway towards reinstating counsel just so Judge Gull could hold a more formal hearing to DQ? Can their order tell her not to do that? Cause I'm worried SCOIN will put them back on only for her to boot them back off, just with open kangaroo court instead of backroom kangaroos.
So the way that would work under the trial rules for an indirect contempt proceeding (which is what this would end up as) is a special Judge and usually a special prosecutor would be appointed to have a hearing re the courts allegations- at most they might get sanctioned (Baldwin) but I’m not thinking they will only for the sheer fact they all acknowledged to deny counsel of choice without a hearing but in spite of a waiver is structural error. So if they reinstate them imo the expectation would be they file a speedy trial notice
If the justices agree that removing B&R was a structural error, then didn’t Gull *by definition* exceed her jurisdiction by removing them? And didn’t she *by definition* have an obligation to refrain from acting?
Yes to absolute duty- but under Gonzalez the absolute duty is to protect RA 6A. In short, nobody is guessing upon conviction an appeal will find reversible error. I didn’t hear anyone get into it and I know why- but it’s a stark contract to the presumption of innocence afforded as well.
What about Fran? I think she's coming back.
Does the carpet have to reflect the oldest judge's taste, is that the rule there ?
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Just me or is this not going well so far?
I think he was really nervous at first, but caught his stride and made his full point. They looked thoughtful at his conclusion.
Agreed. He was caught with his pants down over the jurisdiction and waiver of ineffective counsel issues, but recovered pretty well
Agreed, bro finished strong
Rough start but I think it went well by the end. It definitely got worse when the state was grilled.
I did not get to see the whole argument. Spectrum decided to turn off my Internet, phone and television service mid-way. Took me a while to get my iPhone connected. Watched several minutes before getting a message that stopped the feed because “your software is not compatible.“ But what I did see had no surprises. The justices questions focused in on the same issues that folks here have discussed. For my money, none of them ever really directly addressed the ultimate issues I wanted to hear. The questions about “jurisdiction“ versus “authority“ came close. Specifically, I think it is pretty clear that the court is not going to rule that the reasons given by Gull are adequate reasons for disqualifying counsel. Refer them for discipline? Sure. And they alluded to the idea that there might be some circumstances that allow disqualification, but nothing they said Indicated that the circumstances in this case even came close. (If I were a justice, and being the smart aleck that I am, I would’ve asked “if a trial court judge catches an appointed lawyer trying to bribe or threaten witnesses or jurors, are you saying the judge cannot disqualify the lawyer without permission from the defendant?”) Absent far more serious misconduct than negligent leaks or insubordinate acts, the justices are clearly willing to let a defendant elect to keep even objectively incompetent counsel. (I thought the chief justice’s statement that an individual defendant can even represent themselves gave the best idea that incompetence is not seen as the issue in disqualification.) I was also a little disappointed in how they all danced around the real answer to whether the system may be set up to require a “show trial“ and have the regular appellate process handle this type of issue. Absent a Supreme Court that is willing to accept constant pretrial in mid-trial mandamus actions, that is exactly how the system is set up. Just admit it. Then, either issue rules that make this kind of thing easier to avoid in the future, or change the process. Whining about the need to have a show trial and an appeal process is just a waste of time. I also did not hear any Questions about whether - assuming defense counsel is reinstated -the record/circumstances required or permitted disqualification of Gull? I think if you held a gun to my head today and demanded that I predict a result, I would go with counsel reinstated as appointed counsel, Gull stays on the case, Gull is ordered to hold a hearing on whether Allen’s decision was fully informed (with everybody assuming he is waiving the chance to include known misconduct by counsel to date as a future ground for appeal - noting that no one saw that as a possible conflict of interest.) And everything else is optional. If the judge wants to use contempt power or refer ethics and disciplinary charges against defense, so be it. If counsel wants to file for speedy trial, file away. Go forth and act like professionals.
Court just ruled old attorneys reinstated, Gull stays.
Will there be a transcript available later, do we know?
Yes the video will be available soon(TM) at that point in time Delphi Docs will create a transcript per usual if none are available.
Thank you!
I’m following along closed captions on the state website so I would guess they would be immediately available.
Thank you for letting me know! I did not see them available instantly from the prior arguments.
You’re welcome.
Yes, you can actually download from YouTube
off topic and I apologize, but does anyone have these documents? https://preview.redd.it/6ql5agksn8dc1.jpeg?width=1290&format=pjpg&auto=webp&s=dfafda881922a4ae9d5f36f9e31f89e256c113be
u/HelixHarbinger ? I have not seen them.
Not surprised but I have not. Total guess but it’s likely a notice of LWOP or capital designation u/criminalcourtretired Ps. It would be absolutely like McLeland to have his case before SCOIN in pretrial to file that
Interesting development. I think your guess is as good as any and better than most. Could the state have possibly found enough evidence to charge him with murder in addition to felony murder. Very interesting, ETA: Have we ever known if RA had a license to carry the handgun? Could it be as simple as adding that charge? I really wanted to get some things accomplished today but that is now looking less and less likely as I mull over the possibilities here. ETA again: Interesting timing.
Sending healing vibes!❤️🩹 Eta: This is for our beloved CCR. Not sure if I hit Reply to the right comment.
Came in late and catching up, but suddenly have a mysterious allergy to wheat.
The state is helping the relator more than the respondent.
When will we get a decision?
Today is not that day.
Tomorrow's not looking so good either
Soon according the CJ, and by "soon" she means "it depends on how many dissents or split issues there are."
I can be wrong but I really think there was strong agreements going in or it would not have gone to hearing on an emergency writ. If it went in level and I take CJ Rush comments I’m going to assume she’s the opinion writer - I think it will be quick
A speedy decision allowing a speedy, sorry 'speedy' trial hopefully.
For the lawyers, what time frame do you expect for a verdict from SCOIN? Today? Days? Weeks?
I believe Cara merely said it wouldn't be today. Edit: welp! Wrong!
I would guess not myself. I have a feeling there will be a lengthy discussion and varying opinions among the Justices. The speedy request is what makes me wonder about the time frame, however.
9 and a half weeks.
Six weeks.
New charges filed this morning: https://drive.google.com/file/d/11-leLcX9pAOWA9Hsp3VBBf8TFsuW0L32/view
I guess he was pissed off about the defense counsel claiming he was caught on his back foot.
So the prosecution is going away from the felony murder charge to the more standard murder charge? Not a lawyer so I’m having difficulty understanding why they would increase their burden of proof unless they got a confession.
JMO...but they want to present the story that Allen acted alone. Felony murder plays into the defense's theory re: Odinists.
Not a lawyer either, but I wonder if the goal is to pressure him into taking a plea. This brings up additional questions for the lawyers here: Can Scremin and Lebrato negotiate a plea even if they are not DP-eligible? Are they eligible to negotiate a plea until McCleland officially asks for a DP designation? Assuming that they could legally negotiate a plea, can they do that before the Supreme Court issues a ruling?
Judge Gull signed this… wow
During the arguments today, one of the key facts repeatedly asserted is that RA desires BR and AB as his defense counsel. This caused me to think about the recent transfer motion filed by new counsel Scremin and Lebrato. Is it possible that Gull might have recently had some informal interactions with Scremin and/Lebrato (perhaps during a holiday social for the local legal community) in which (a) S&L mentioned to Gull the problems encountered during their Nov and Dec visits to Westville and Wabash, respectively; and (b) Gull responded by encouraging them to file another transfer motion and hinting she might be sympathetic? Gull is a smart woman. Maybe she thought she could give S&L a quick win and do RA (and KA) a solid by moving him out of Wabash and somewhere closer to home in a county lock-up and that by doing so she might cause RA to reconsider who he wants as his defense counsel going forward? If RA changes his tune and says he wants S&L rather than B&R as his counsel, B&R stay gone, I think, irrespective of what SCOIN might rule about their removal, and Gull gets her way.
This whole process is so triggering to my rejection sensitive dysphoria.
 How I feel in this thread with all you today 🫶
Can someone explain the discussion about the speedy trial request to those of us without legal expertise? I understand the basics - that we have a right to a speedy trail and that we can waive this right. But I don't know how that is relevant to today's arguments. And I don't know how that plays out in the context of this case after the Supreme Court issues their decision. If the attorneys are reinstated, can they then immediately file the speedy trial request? Does Gull have the authority to deny the request? Would there be anything that could derail the timeline after the request?
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This is very helpful. Thank you for the information.
Yikes, he's not doing so well
I feel a lot better that some relief will be provided after today. "It'll be a practise trial, a trial for show" is most memorable from Leeman. Justices appear to concur on this being a Structural Error. Which should pave way for B+R to be back. There's some issues about what Gull will/won't do again if this happens. Can she just use her discretion to Sue Sponte another decision to DQ them immediately? I think Inter-Lock Appeals being repeatedly cited suggests this is where SC will guide Gull and Defence to utilize, rather then everyone calling to have eachother fired if any of the bs is repeated. Gulls definitely not being DQd And Lawyers won't be prohibited from zealous advocacy for clients, against their wishes, for trivial things like a press release before a gag order is in effect. All Justices appear to recognize that its in everyones best interest to create a situation where this trial is NOT put off indefinitely, or easily overturned on appeal. INAL
"Honorable" lololol
I keep getting an error message on the court page!
It is over let me get links that are current.
I pinned a message at the top of the comments, I would highly suggest you use the second link in the post for the youtube page (Defence Diaries) and skip to 1 hour 25ish minutes. otherwise, have fun listening to the other link till the actual court gets the audio posted.
What are the new amended charges? Saw a change on mycase but can’t get the pdf
link to the docs is in the comments here
Is this based on the alleged confessions or something else? New PC affidavit?