On 7 July Richard Allen's defense attorneys made an arcane legal move, invoking Indiana Trial Rule 53.1 (the "lazy judge" rule), in an attempt to have Judge Gull removed from the case, for delaying in ruling on motions. The premise of IN 53.1 is that if a motion requires a judgment or a hearing has not been addressed within thirty days, the defendant has the right to have the cause removed from the presiding judge.

The ethos behind IN 53.1 is the fair execution of justice. Justice delayed is justice denied, and that is the basis for this powerful tool which ensures justice is timely.

The motions which not ruled on are the defense's Franks motions, which are powerful, because if successful the case can be thrown out. Franks motions attack the evidential root by which someone becomes a defendant.

When the defense filed their "lazy judge" praecipe on 7 July there was a flurry of online chatter about what would happen. Going by the letter of IN 53.1, and a detailed look at the motions that were cited, it looked like the case might get a new judge. 

On 19 July Justin Forkner - the Indiana Office of Judicial Administration official who gets to decide if there has been a relevant delay in ruling on a motion - published his finding. Forkner found that Judge Gull did delay ruling on defense's 9 April Franks motion (which I'll refer to as the "Latest Franks motion"). 

However, he also found that Allen had waived his IN 53.1 right by filing, on 18 June, a subsequent motion titled "Accused's Response to This Court's May 31, 2024 'Order or Judgment of the Court', and Notice of Conflict" (which I'll refer to as the "Resetting motion"). 

Justin said no.

By Forkner's interpretation, the thirty-day clock which was started by the Latest Franks motion was reset by the filing of the Resetting motion. He interprets the Resetting motion to be so central to what was being asked of the court in the Latest Franks motion that it nullifies the right provided by IN 53.1.

The Resetting motion, however, was about one thing only: Judge Gull's bias. It wasn't about the contents of the Franks, or anything else you might consider foundational to Indiana v Richard M Allen. Is that relevant? Yes, it is, and here's why.

Forkner - who remember is not a judge - cited a piece of Indiana case law, Board of Medical Registration and Examination v Turner 168 N.E.2d 193, 195 (Ind. 1960) (which I'll refer to as "Board of Medical Registration and Examination") as his legal rationale, quoting (where it references Rule 1-13, understand that Rule 1-13 was the predecessor rule to IN 53.1):

"[...] it is well settled that a party cannot claim the benefit of Rule 1-13 when by his conduct has has consented or waived his right to claim it."

He then goes on to tell us that in more recent case law - State Koppe v Cass Circuit Court (Ind. 2000) - the Indiana Supreme Court added the following footnote:

"Similarly, the benefit of Trial Rules 53.1 or 53.2 may be waived where the deadline for a ruling has passed, but rather than filing a praecipe to withdraw the cause, a party files pleadings or otherwise takes voluntary action of record inconsistent with that party's right to invoke those rules."

In legal rulings, and in legislation, words hold power, and their strict interpretation sometimes hinges on a single word, and why that word was chosen. 

What does "may be" mean to you? The Oxford Dictionary defines the verb "may" as:

"used to say that something is possible

  • That may or may not be true.
  • He may have (= perhaps he has) missed his train.
  • They may well win.
  • There is a range of programs on the market which may be described as design aids."

To me this is ambiguous enough to leave space for "may not". Something may or may not be. If the Indiana Supreme Court wanted that footnote to be an absolute bar on subsequent-action waiver of IN 53.1, they would have used "is", not "may be". Appellate courts don't misuse words, because doing so introduces risk of misinterpretation.

The problem is there is nowhere for Richard Allen to go with Forkner's interpretation of the law. Indiana apparently has a serious due process issue, and a messy mish-mash of officials making quasi-judicial decisions that cannot be reviewed.

Due process is a fundamental right in any legal system. It means that up to a point, any decision impacting one's legal rights must be challengeable. 

Ultra vires is an interesting legal term, meaning "beyond the powers", as in when an official acts beyond their powers. Ultra vires is the legal basis for judicial review, whereby someone asks a court to review the actions of an official. In the case of Allen's "lazy judge" attempt, his attorneys might argue that Justin Forkner is merely an official and has acted "beyond his powers" in his interpretation of the law, that they'd prefer a judge to clarify whether Allen's Resetting motion really should be considered a subsequent-action waiver to the rights inherent in IN 53.1.

Perhaps in that footnote, the Indiana Supreme Court foresaw a situation where there might be some subsequent-action that doesn't contradict the intent to enforce rights inherent in IN 53.1. Perhaps they - by using "may be" instead of "is" - wanted to maintain some judicial discretion over such decisions in future.

However, the way the Indiana Office of Judicial Administration was created, of which Forkner is the chief official, means that it is an arm of the Indiana Supreme Court itself (via §33-24-6 of the Indiana Code). It might be uncomfortable, or very unusual, for an attorney to ask that court to review its own actions. It may be that nobody has attempted before.

How can such a due process black hole be left unaddressed just because it's unusual, though? For Richard Allen, and everyone else in Indiana, it shouldn't. Quasi-judicial officials who are non-reviewable is the stuff of tyrannical legal regimes, where a faceless person not vested with judicial responsibilities and accountability can determine the fate of individuals facing the full might of the state.

Novelty is how law progresses. Novelty on the part of the Indiana Supreme Court has created this due process black hole, perhaps novelty on the part of Indiana attorneys is the only way to correct it.