DELPHI, Ind. — Attorneys for Delphi murders defendant Richard Allen want the judge presiding over his trial to step down, and they now have a new reason to seek her recusal: they plan to call her as a witness.
Tuesday morning, Allen’s public defenders filed a “notice of conflict” to Judge Frances Gull, informing her that they intend to call her as a witness during future court hearings.
They say testimony from Gull will be important to show that law enforcement has acted in bad faith, violating Allen’s constitutional rights.
Defense attorneys Andrew Baldwin, Brad Rozzi and Jennifer Auger claim the judge has direct knowledge that the Carroll County Sheriff’s Office lied when it failed to bring a prison inmate to court last summer to testify as a witness for Allen.
The sheriff’s office said in a June 14, 2023, report that Gull’s office advised Carroll County Sheriff Chief Deputy Tobe Leazenby “to leave [the inmate] there if he did not want to attend the court hearing.” The judge recently seemed to contradict that report, writing that the decision to not bring the inmate to court to testify “was not directed by the Court.”
Allen’s attorneys say the statement shows the judge had knowledge of “fabricated facts” submitted by the sheriff’s department that undermine the credibility of law enforcement and the judge’s claim that she can remain impartial.
The defense team now plans to call the judge as a witness to discuss that issue, so they say Gull should recuse herself from the case due to a conflict of interest. Because the judge is the appointed fact finder during a court hearing, it would be highly unusual for a judge to be called to testify, and to then judge her own credibility as a witness, according to 13News legal analyst Katie Jackson-Lindsay.
“I do think they can legitimately call her as a witness on the issue of the credibility on the person who authored the report, but she cannot be a witness and a fact finder on that particular issue at the same time,” said Lindsay-Jackson, who called the scenario “nuts.” “This is another Delphi-unique scenario. I’ve been practicing for 16 years and have never seen a judge opine on an issue that would lend themselves to being a witness on an issue of fact.”
The “notice of conflict” was part of a 21-page filing from Allen’s defense team responding to Gull’s recent order explaining why she will not recuse herself from the case. Allen’s lawyers asked her to step down, claiming that Gull has not been impartial. The judge responded in great detail, explaining why she will not recuse herself from the case and insisting that she has been and will continue to treat all sides fairly.
In Tuesday’s detailed response, the defense lawyers responded to the judge’s ruling, continuing to insist Gull has shown favor to the prosecutor and law enforcement, while demonstrating bias toward Allen and his attorneys. The defense team cited the following examples of her bias:
- Gull failed to inform the defense team that the sheriff’s office fabricated facts in a report filed in her court.
- The judge failed to admonish the sheriff’s office for allegedly fabricating facts.
- The judge continues to falsely accuse the defense team of improperly filing documents in manner that allowed the prosecutor to see information he is not allowed to view, when the filing error was actually due to a mistake by the court clerk’s office.
- Gull failed to admonish the Carroll County prosecutor for improperly reading sensitive court documents he is not permitted to view, but continues to criticize the defense team for less serious issues.
- The judge denied defense counsel’s requests for important hearings and motions.
- The judge has called the defense team “irrational and unreasonable” for stating they have never had a judge set a hard end-date for a trial.
- Gull shows favoritism to the prosecution, evidenced by her dramatically different responses to the state’s and defense’s requests for a brief recess during prior court hearings.
Throughout the document, the defense attorneys criticized Gull for misunderstanding and misapplying court rules, ratcheting up an ongoing dispute between the judge and the defense attorneys. They have both accused the other of being incompetent.
The defense team said they will likely request that TV cameras be permitted in the courtroom for all future hearings and at the upcoming trial for purposes of transparency and to better preserve the record, including to capture the judge’s “angry tone when addressing the defense versus how she speaks to the prosecution and also to visualize the Court’s disdainful facial expressions she makes toward the defense verses the prosecution.”
Allen’s attorneys say they filed Tuesday’s response to set the record straight following what they consider to be multiple erroneous statements made by the judge in her recent order and to preserve the record in case they need to take these issues to the state court of appeals.
They asked the judge to quickly reset a hearing date to determine whether Richard Allen will remain in prison while he awaits trial or if he can be moved to a county jail closer to Delphi.
Allen is charged with murdering teenagers Abby Williams and Libby German in Delphi in 2017. His trial was originally scheduled to begin in January 2024, but it has since been postponed to May and most recently to October while the judge and defense team continue to battle over motions and hearings.
German’s grandmother, Becky Patty, recently referred to the latest round of delays as a “circus.”