The Defense Will Argue Allen's Delphi Case In Person. Indiana Won't.

If three judges at the Indiana Court of Appeals rule the search of Richard Allen's home was unconstitutional, Indiana cannot use the .40-caliber pistol again. Not in this case. Not in a retrial. Not ever.

That is the consequence sitting underneath the search warrant issue in the Delphi appeal. It is also the reason the de novo standard of review on that issue matters so much. De novo means the appellate panel owes no deference to Special Judge Fran Gull. They review the warrant afresh, as if no court had ever looked at it before. That is one of the few flaws in this case that cannot be cured by deference, by waiver, or by the harmless error framework the State has built its appellate brief around.

And that is the forced choice three judges now have in front of them. Rule on the warrant and collapse the State's most important piece of physical evidence. Rule on a narrower ground and dodge that landmine, knowing the State will use any narrower ruling to walk Allen straight back into a retrial where the pistol still gets to come in.

Defense attorney Bob Motta joins Tony Brueski for Part Three of a three-part panel on where the Richard Allen appeal actually stands. They walk through the strategic geometry sitting in front of the panel. They get into the motion for oral arguments — filed by the defense, not joined by the State — and what that asymmetry says about which side feels good about its written record. They sit with the practical reality of an appellate panel that has all the power it needs to take this conviction apart at a structural level.

Three judges. One warrant. A decision that could rewrite the entire case.

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This publication contains commentary and opinion based on publicly available information. All individuals are presumed innocent until proven guilty in a court of law. Nothing published here should be taken as a statement of fact, health or legal advice.


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