Johnson County judge denies motion to dismiss Delphi evidence leak case

A Johnson County judge denied a request to dismiss a charge for the man accused of leaking evidence in Delphi murders case.

Mitch Thomas Westerman, 41, is charged with conversion, a Class A misdemeanor. A former employee of Andrew Baldwin, one of the attorneys representing Delphi murders suspect Richard Allen, Westerman is accused of taking photos of crime scene photos that were left inside a conference room at Baldwin’s office. These photos were sent to someone else, eventually being shared by a third person to YouTube creators and podcasts, according to court documents.

Michael J. Kyle, Westerman’s attorney, filed a motion to dismiss the charge on Feb. 25. Johnson Superior 3 Judge Douglas Cummins ruled against that motion during a pretrial hearing Thursday morning.

In the motion to dismiss and in court Thursday, Kyle argued that the probable cause affidavit filed to charge Westerman was “defective” because it allegedly failed to state facts that constituted a criminal offense and must be dismissed. During Thursday’s hearing, Kyle said they were asking the court to rule Westerman’s alleged acts were not a crime.

“This conduct isn’t criminal,” Kyle said.

Lindsey Holden-Kay, the special prosecutor assigned from Bartholomew County to prosecute the case, disagreed in her response filed April 4 and in court Thursday. Among the items Holden-Kay cited in her response was that there were time restraints on when to file the motion to dismiss, with that date being no later than Feb. 10. The motion was filed on Feb. 25, “well outside” the time frame, so she asked for it to be denied, according to court documents.

Additionally, Holden-Kay wrote the motion should be denied because it was reportedly an “improper request” of the court as it asked the judge to prematurely weigh the facts of the prosecutor’s case. The affidavit filed served only to justify pretrial detention of Westerman, and was not the means “by which the defendant is charged,” court documents show.

The affidavit filed follows the “exact language” of the law and complies with other affidavits filed in Superior 3 in November 2023 — when Westerman’s charges were filed — alleging charges of conversion, Holden-Kay wrote. She reiterated this in court, adding that she filed the affidavit in the same way she has done before in her career.

Holden-Kay told Judge Cummins the question before him was whether the affidavit cited an offense. The answer was yes, she said.

Judge Cummins told Holden-Kay and Kyle he had spent some time reading through their filings, also doing some research because of the unique circumstances of the case. If he were to rule in Westerman’s favor, it would’ve required him to consider evidence that is not part of the Westerman case, he said.

This is why Judge Cummins ultimately agreed with prosecutors to deny the motion to dismiss “at this time,” he said. The determination was “beyond the scope” of the information he has in front of him for Westerman’s case, he said.

A jury trial for Westerman is set for June 25, though this date could be subject to change.