According to Richard Allen's reply brief, Indiana investigators interviewed an alternative suspect in the Delphi murders, then allegedly recorded over the tape of that interview. His weapon was never collected. His phone was never searched. And at trial, the judge ruled that presenting him as an alternative suspect was speculative.

The defense's response to that ruling is a question. How is anything speculative if nobody bothered to investigate it?

That is one of three factual problems sitting inside the appellate record that Indiana's response brief refuses to engage with directly. The other two are a van timeline contradicted by FBI cell data and surveillance footage, and a confession in which Allen told his prison psychiatrist he shot Abby Williams and Libby German — when the medical examiner concluded the girls were killed with a blade.

Defense attorney Bob Motta joins Tony Brueski for Part One of a three-part panel on the procedural-versus-factual collision driving the Delphi appeal. They walk through why Indiana built its appellate strategy around harmless error and procedural waiver instead of disputing the underlying record. They explain why the recorded-over interview is more dangerous in an appeal than it was at trial. They get into the selective admission of Allen's jailhouse calls — one heard by the jury, two excluded, including the call in which Allen asks his own father how much longer he can stay lucid.

Three judges are reading the full record now. The State spent the appellate brief telling them not to look too closely. Whether three judges with the power to ask any question take that suggestion is the entire ballgame.

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