Filed: 10/21/2024 3:01 AM

Carroll Circuit Court

Carroll County, Indiana

1 STATE OF INDIANA ) IN THE CARROLL COUNTY CIRCUIT COURT

)SS
COUNTY OF CARROLL ) CAUSE NO. 08C01-2210-MR-000001
2

3 STATE OF INDIANA,
MOTION FOR LEAVE TO INTERVENE AND
4 Plaintiff, FOR PUBLIC ACCESS TO COURT
vs. RECORDS
5
RICHARD M. ALLEN,
6
Defendant.
7

8 Andrea Burkhart, pro se, as a member of the public at large, respectfully submits

9 this Motion for Leave to Intervene and for Public Access to Court Records in the above-

10 captioned cause. In support, Mrs. Burkhart states the following:

11 1. I am an attorney licensed in Washington and Oregon and a legal

12 commentator on a variety of internet-based platforms. At the time of this

13 writing, I have over 89,000 subscribers on YouTube, over 67,000 subscribers

14 on X, formerly Twitter, and over 1400 subscribers on Substack, where I

15 provide legal analysis and reporting on high-profile cases, including the

16 subject cause, the prosecution of Richard Allen for the murders of Abigail

17 Williams and Liberty German. Tens of thousands of viewers are watching my

18 coverage of this trial and rely on me for detailed information about the trial

19 proceedings, as well as my interpretations and opinions about what is

20 transpiring. I am not an employee or representative of a traditional press

21 outlet such as a newspaper, television station, or wire service, and therefore

22 do not qualify as “media” within the meaning of Indiana Judicial Conduct Rule

23 2.17, Comment 2 or Indiana Code § 34-46-4-1.

MOTION TO INTERVENE AND FOR PUBLIC ACCESS

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1 2. Despite overwhelming public interest in this case, this court has repeatedly

2 denied requests to broadcast this trial to the public, entering orders denying

3 broadcast requests on October 27, 2023 and May 16, 2024. The court also

4 denied a request by news media to record court proceedings by order dated

5 September 11, 2024. Finally, the court denied a request for recording of court

6 proceedings by WISH-TV by order dated October 16, 2024.

7 3. Trial in the above-captioned matter began on October 14, 2024 with jury

8 selection in Allen County, Indiana. The trial has advanced to the presentation

9 of evidence beginning on Friday, October 18, 2024.

10 4. Because the orders denying broadcasting and recording of the proceedings

11 limit the scope and quality of information publicly available about what is

12 occurring during the trial, I have traveled approximately 2,000 miles to be able

13 to attend and report on the trial.

14 5. As a result of the trial’s inaccessibility to public view, numerous members of

15 the public and the media have likewise traveled to the small community of

16 Delphi, Indiana, in an effort to witness the trial in person. With the court’s

17 allocation of reserved seats to the families of the victims, the defense, and the

18 media, there are 24 seats in the courtroom available to the public. Far more

19 members of the public wish to attend than the courtroom can accommodate,

20 which has resulted in long queues outside the courthouse beginning as soon

21 as the preceding night. For example, when opening statements were

22 scheduled to be presented on Friday, October 18, 2024, I arrived at

23 approximately 3:30 a.m. and was already approximately number 22 in line for

MOTION TO INTERVENE AND FOR PUBLIC ACCESS

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1 admission. I have been further informed and believe that members of the

2 local community who have been personally affected by the crime and would

3 like to attend the trial are discouraged from doing so because of the crowds.

4 6. I am aware that Rule 5 of the Indiana Rules of Criminal Procedure requires

5 the trial court to maintain an electronic recording or stenographic record of all

6 oral evidence and testimony, rulings admitting or rejecting evidence,

7 objections, and any other oral matters occurring during the proceeding. The

8 rule requires either a printed transcript or the electronic recording to be

9 produced and maintained as a court record for fifty-five years in felony cases,

10 such as the present matter. Under Rule 3(B) of the Indiana Rules on Access

11 to Court Records, such transcription or recording constitutes a “case record”

12 because it is an item created or maintained by a Court in connection with a

13 particular case, and a case record is a “court record” under Rule 3(A).

14 7. Furthermore, under Rule 3(F) of the Indiana Rules on Access to Court

15 Proceedings, “public access” includes the ability to both inspect and copy a

16 court record. Accordingly, public access is denied if the court does not permit

17 the public to obtain a copy of the transcript or audio recording of trial

18 proceedings.

19 8. I am further aware that under Rule 4 of the Indiana Rules on Access to Court

20 Records, court records are accessible to the public subject to specific

21 exceptions enumerated in Rule 5 that do not apply to the transcription or

22 recordings of the present trial. Under Rule 4(d), while the court may manage

23 access to the audio recording of proceedings to avoid substantial interference

MOTION TO INTERVENE AND FOR PUBLIC ACCESS

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1 with the resources or normal operation of the court, this provision may not

2 operate to deny to any person the right to access a court record.

3 9. By this motion, I am requesting copies of the transcription or audio recording

4 of each day of the trial proceeding in this matter beginning October 14, 2024

5 and continuing until its conclusion with a verdict or other resolution.

6 Recognizing that providing the copies will require the use of court time and

7 resources, I am happy to receive the copies in digital format through an

8 electronic medium such as e-mail or through a cloud-based information

9 storage provider such as Dropbox or Google Drive. Alternatively, I would be

10 happy to provide thumb drives to the court upon which the digital files can be

11 copied. Based on my experience in obtaining and transmitting court records

12 in various formats in multiple jurisdictions, I believe that this would impose

13 only a minimal burden on court staff as it would require little more than

14 dragging and dropping the digital file already created to the storage medium

15 and notifying me that the file is available to be picked up.

16 10. I am aware that Rule 2.17 of the Indiana Judicial Conduct Rules affords the

17 court discretion in deciding whether to allow the independent recording or

18 photographing of the courtroom and the broadcasting, televising, or digital

19 streaming of the trial, and I am not requesting to revisit or reconsider the

20 court’s orders denying the media’s requests to allow cameras into the

21 courtroom. However, I believe that permitting the public to witness the trial

22 through the transcription or audio recordings of the proceedings will decrease

23 the distractions in the courtroom and improve the dignity of the proceedings

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1 consistent with Rule 2.17(3)(a) by decreasing demand for access to the

2 courtroom, and will further alleviate the burden on the court and the

3 community resulting from competition for the limited public seating that is

4 necessary for direct access to information about the trial. This will further

5 benefit the community by freeing up the limited courtroom seating for those

6 local residents who have been traumatized by this crime and for whom

7 personal attendance at the trial would be healing.

8 11. With the commencement of the evidentiary phase of trial, the court has

9 admitted several exhibits proffered by the State and the defense. On October

10 1, 2024, a coalition of news media organizations filed a motion to inspect the

11 public trial exhibits. By order dated October 16, 2024, this court granted

12 permission to the media to view the trial exhibits at the conclusion of each trial

13 day for fifteen (15) minutes. The order makes no provision for any member of

14 the public to view the exhibits on the same terms as the access granted to the

15 media.

16 12. During the trial, paper exhibits have been published to the jury by simply

17 handing them the exhibit or copies of it to review. These exhibits cannot be

18 seen by the public seated in the gallery of the courtroom. Digital exhibits

19 have been published on a large screen that is oriented to face the jury box.

20 This screen has not been visible to some of the seats in the gallery.

21 Consequently, the only way for the members of the public attending the trial

22 to be assured of their ability to view the exhibits that have been introduced is

23 through public access similar to that afforded to the media attendees.

MOTION TO INTERVENE AND FOR PUBLIC ACCESS

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1 13. I was present in the courtroom at the conclusion of the trial day on October

2 18, 2024, and observed that the proceeding for viewing the exhibits was to

3 place the exhibits on a table in front of the jury box and invite the media into

4 the well to view them for the allotted time period.

5 14. I am informed and believe that a member of the public attempted to enter the

6 well to view the trial exhibits on Saturday, October 19, 2024 at the conclusion

7 of the trial day on the same terms as the media and was prohibited from

8 doing so by this court, which ordered this individual to leave.

9 15. The Indiana Rules on Access to Court Records establish no basis for

10 distinguishing between the media and the public in affording access to public

11 records. See generally Rule 2(A) (“All persons have access to Court Records

12 as provided in this rule ….”). Likewise, “It has generally been held that the

13 First Amendment does not guarantee the press a constitutional right of

14 special access to information not available to the public generally.” Pell v.

15 Procunier, 417 U.S. 817, 833 (1974) (quoting Branzburg v. Hayes, 408 U.S.

16 665, 684 (1972)). The First Amendment right of access to criminal trials is a

17 right held by the public, not the media. See generally Richmond Newspapers,

18 Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Ct.,

19 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct., 464 U.S. 501

20 (1984); Waller v. Georgia, 467 U.S. 39, 47 (1984).

21 16. It is my intention and desire to view the exhibits under the same conditions as

22 those afforded to the media. My doing so imposes no additional burden on

23 the court as I would simply enter the well to view the exhibits the same as

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1 members of the media are allowed to do. This court’s prior exclusion of a

2 member of the public from the same viewing opportunity deters me from

3 doing so out of fear that I will be banned from the courtroom and prevented

4 from continuing to report on the events of the trial.

5 17. By this motion, I am requesting to modify the court’s October 16, 2024 order

6 to permit members of the public who have obtained seats allocated to the

7 public for that trial day to view the exhibits on the same terms and under the

8 same conditions as the access afforded to the media.

9 18. I have reviewed the Published Order Denying Writ of Mandamus and

10 Prohibition filed by the Supreme Court of Indiana on December 11, 2023

11 under Supreme Court case number 23S-OR-302. That proceeding

12 concerned the omission of court records from the chronological case

13 summary in the present cause. While ruling that the petition was moot

14 because, subsequent to the petition’s filing, this court restored the omitted

15 items to the chronological case summary and made them publicly accessible,

16 the Supreme Court nevertheless reviewed the requirements to seal court

17 records from public access, stating in conclusion, “We expect all Indiana

18 courts to comply with these rules.”

19 19. In the present matter, the entire case has not been sealed pursuant to Rule

20 5(A) and the requested materials – audio recordings or transcriptions of the

21 trial proceedings required under Criminal Procedure Rule 5 and the exhibits

22 admitted at trial – do not fall under any of the enumerated documents that

23 may be sealed pursuant to Rule 5(B) of the Indiana Rules on Access to Court

MOTION TO INTERVENE AND FOR PUBLIC ACCESS

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1 Records. Consequently, the materials may only be withheld from public

2 access after following the notice and hearing procedure required by Rule 6

3 and based upon findings that:

4 (1) The public interest will be substantially served by prohibiting access;

5 (2) Access or dissemination of the Court Record will create a significant

6 risk of substantial harm to the requestor, other persons or the general

7 public; or

8 (3) A substantial prejudicial effect to on-going proceedings cannot be

9 avoided without prohibiting Public Access.

10 No such proceeding has occurred in the present case and, in any event, the

11 required findings cannot be made because both the trial proceedings and the

12 exhibits are already available to the media and the public in attendance.

13 20. I respectfully submit that this request must be granted under the applicable

14 rules cited herein and the Supreme Court’s order. I further submit that this

15 request is consistent with the “strong societal reasons for allowing public

16 access to court records” recognized by the Commentary to Rule 1 of the

17 Indiana Rules on Access to Court Records and the Supreme Court’s order.

18

19 Wherefore, based on the foregoing, the court is respectfully requested to enter

20 an order providing as follows:

21 1. Granting the motion to intervene for the limited purpose of requesting public

22 access to court records in the present cause;

23

MOTION TO INTERVENE AND FOR PUBLIC ACCESS

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1 2. Directing the court reporter or clerk of the court to provide a digital copy of the

2 transcript or electronic recording of the trial proceedings each day by e-mail,

3 cloud-based storage medium, or a thumb drive provided for that purpose; and

4 3. Allowing members of the public who are present in the courtroom each trial day

5 to view the trial exhibits on equal footing with the access afforded to the media

6 under the court’s October 16, 2024 order.

7
Respectfully submitted this ____ day of October, 2024.
8

10 /s/ Andrea Burkhart

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1 CERTIFICATE OF SERVICE

2 I hereby certify that the foregoing document complies with the

3 requirements of Trial Rule 5(G) with regard to information excluded from public

4 record by administrative rule 9(G). I further certify that a copy of the foregoing

5 has been provided to the following by IEFS on October 20, 2024:

6 Nicholas McLeland

7 Andrew Baldwin

8 Bradley Rozzi

9 Jennifer Auger

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12 /s/ Andrea Burkhart

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MOTION TO INTERVENE AND FOR PUBLIC ACCESS

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