DELPHI, Ind. — A new motion filed by the prosecutor in the Delphi murders case has legal experts asking how he learned about a potential expert witness for the defense. Carroll County Prosecutor Nicholas McLeland is requesting access to Richard Allen's mental health records since he was moved to state prison awaiting trial.
The motion filed by the prosecutor Wednesday refers to the contents of a verified ex parte motion filed by the defense. But the prosecutor is not supposed to know what's in that motion.
As public defenders, Bradley Rozzi and Andrew Baldwin must ask special Judge Frances Gull to approve funding to consult with experts on building their defense strategy for Allen. Those requests come through private ex parte communication between the defense and the court only.
In a turn of events, the state filed a motion Friday morning to withdraw this motion.
But in the prosecutor’s motion for Allen’s mental health records, McLeland names a psychologist in the defense motion and quotes the defense motion.
"I'd be infuriated,” said Jim Brosnahan, a retired attorney who tried over 150 cases and is the author of "Justice at Trial." "I'd go to the court and I'd say, 'I want to know.' I want to know how this person knew that. If I were doing it with making no assumptions, I don't know how it got out. I just know that it got out, and I need to be advised as to who it was that gave him that information.”
"It definitely raised questions on how an ex parte motion would be available to a party or to the public,” said Michael Moore, assistant executive director of the Indiana Public Defender Council. “An ex parte motion is a motion that is filed under seal to the court, and only the court should have access to that motion."
Moore said this case points out the need for all Indiana counties to have state public defender funding through local or regional services that are independent of the judiciary.
"Public defenders should be able to work completely without the control and supervision of the judge, like the prosecutors do, because you can imagine how a person who's accused of a crime would feel if their attorney is beholden to a judge for payment,” Moore said. “This case screams why that's a problem."
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McLeland did not respond to a message asking him how he got the information from the ex parte motion. But all the parties are under a gag order.
Several attorneys 13News spoke with consider this a serious problem that could result in some type of sanctions for whoever leaked the information.
The defense has also filed a motion to extend the deadline for discovery.
Gull has set a March 18 hearing in Fort Wayne to consider several key issues leading up to the trial.
Allen is accused of killing Abigail Williams, 13, and Liberty German, 14, in February 2017.