Sunday, June 19, 2011

Pardon Me For Saying It, But Charlie White Has Rights Too

It seems the mainstream media and wannabe legal analysts in this state are scoffing at Charlie White's reluctance to give testimony in the Recount Commission proceedings scheduled to take place this Tuesday. Both Marion Co. Circuit Court Judge Louis Rosenberg and the Indiana Supreme Court have refused White's attorney's motion to stay the Recount Commission proceedings until the criminal case pending against him has been concluded. Their motion rests on the not inconsequential constitutional right all American citizens have under the Fifth Amendment against self-incrimination. Given the choice, White really has no choice but to invoke this Fifth Amendment right as long as the outrageous criminal charges brought against him by an out-of-control special prosecutor are permitted to go forward.

You can study the records of criminal cases in Indiana and you will never find anyone who has been charged with a felony voter fraud charge based on what the special prosecutor has accused him of doing. White was a legally registered voter entitled to vote in elections conducted in Hamilton County. Nobody has ever been charged with a felony because they voted in a one precinct versus another precinct within the same jurisdiction where there was absolutely no intent to cast a vote to alter the outcome of a race that was on the ballot. In every election conducted every year in this state, people vote in precincts in which they are not currently residing because of a failure to correctly update registered voting addresses to accurately reflect where they are presently living. Nobody in the history of the state of Indiana has every been charged with a felony for that omission.

You can study the criminal records of this state and you will never find a case where where a person has been charged with committing a felony based upon the address they provided when filling out a marriage application. And you will also never find a case where a person has been charged with felony mortgage fraud charges based on the allegation the special prosecutor has made against White, particularly in the absence of any proof that the home he purchased was to be used as anything but a principal residence.White owned no other residence at the time, and had not rented the home to another person indicating it was purchased for use as rental property. To say the special prosecutor's felony charges against White is an outrageous exercise of prosecutorial discretion is an understatement to say the very least. In a federal proceeding, White would have likely been granted a stay based on federal court decisions in this area. It is disturbing that that our own state courts are refusing to stay the civil proceeding against White until after the criminal case has been concluded, particularly since it will effectively determine whether White can continue serving in the office to which he has been elected.

The fact of the matter is that criminal defendants all the time request a stay of civil proceedings against them where criminal charges are threatened or pending against them. This is the general rule in a case like White's where the pending criminal charges against him overlap substantially with the allegations contained in the eligibility complaint against him and, more importantly, where the defendant in the civil proceeding has already been indicted in the criminal case. In this case, the civil case in being allowed to proceed on highly specious grounds. It is disturbing that the civil proceeding is allowed to continue and White expected to testify given the criminal charges already brought against him essentially are the same as those he faces in the Recount Commission proceeding.

It is an outrage that this proceeding has even been allowed to go forward. The Recount Commission properly dismissed the action last year, notwithstanding Judge Rosenberg's ruling to the contrary. There is no case in Indiana history declaring a person registered to vote in Indiana ineligible to hold the office to which he was elected based on whether he or she cast a vote in the correct precinct, particularly where the issue had no relevance to whether the person resided in the jurisdiction of the office to which he was seeking. Nobody contests the fact that Charlie White resided at all times in Indiana. The Indiana Constitution does not even require a person to be a resident of the state of Indiana to serve as Secretary of State, let alone require he be a registered voter in the state. Accepting the statutory requirement he has to be a registered voter, it is uncontested that White was and is a registered voter of this state. The only question is whether the county voting records reflected the address at which he should have been registered to vote at the time he sought his party's nomination at the state convention. You can jump up and down and scream all you want, but that's the only issue involved here.

Most importantly, however, is the fact that the Democratic Party deliberately waited until after the election was over and their candidate was trounced at the polls before filing a contest against his eligibility. In all cases on point, Indiana courts have determined that the failure to raise an issue of eligibility timely effectively waives the right to assert the challenge, particularly since whatever ineligibility raised in their complaint ceased to exist by the time voters went to the polls in November. I find it very interesting how people who profess to be such defenders of the Constitution and the individual rights of citizens have so little regard for both in the case of Charlie White. There absolutely was no election fraud that took place in last year's election that resulted in the election of Charlie White. Whether you like him or not, election fraud never occurred. He was duly elected by the voters of this state, and that's all that should count.

UPDATE: Judge Louis Rosenberg ruled this morning that anything White testifies to at the Recount Commission hearing scheduled for tomorrow may be used against him in his criminal trial in denying a request by White's attorney for use immunity. If White wants to avail himself of the rights all American citizens have under the Fifth Amendment, he has no choice but to raise the Fifth Amendment tomorrow and refuse to answer questions asked of him. The people who claim to be big supporters of civil liberties will all exoriate him to no end, but he has no other choice if his attorney is advising him properly.

15 comments:

Jeff Cox said...

As I understand it, White did not vote from his own house, but instead voted from his ex-wife's house, to keep his seat on the Fishers town council. His new house was outside the district, his ex-wife's house was not. That's motive. That's also injury; the people of White's council district would have someone representing them who did not live in the district as he should. That's a pretty important part of this case and why the prosecutor is right to bring it.

The fact is that this crime has been prosecuted in the past, namely in East Chicago and Schererville. No one prominent has been prosecuted because no one prominent has been nearly as brazen as White was here.

Advance Indiana said...

Jeff, Fishers Town Council members are elected at large even though there are districts. There have been many instances of town council members being elected from a specific district and moving without any consequence. The council has even periodically altered the boundaries of districts in between normal redistricting cycles to accommodate some councilors who moved out of their districts. Contrary to the false allegation of Ann DeLaney on Indiana Week In Review, White did not draw health insurance benefits on the council and retained the position to draw those benefits. That was a flat out lie from a woman who was caught red-handed offering state jobs to state legislators in exchange for votes. She should have been prosecuted for felony violations by then-Prosecutor Steve Goldsmith, but he owed her a favor for helping take out his predecessor by helping build a criminal case against him for giving a job to a man in exchange for sex favors as leverage for forcing him to give up the office. You don't know what the hell you're talking about with respect to the Lake Co. cases. They did not involve what is alleged here. They were people who lived outside the voting jurisdiction who were registering and voting illegally in a municipality in order to affect the outcome of a municipal election. When more people were elected in Indianapolis from a school board district than was permitted by the state law and someone challenged a person's eligibility to hold the office, the courts said, uuhh, no big deal. They chose to support the voters' choice over a statute that limited how many people could live in the same district and serve on the board. Gov. Daniels lives in a new mansion in Carmel that he built when he ran for governor but has registered to vote at the governor's residence. He does not reside there, and the State Police will testify under oath to that fact. Do I think he should be brought up on felony vote fraud charges? No. Evan Bayh claims a dumpy $58,000 condo on the city's northwestside as his primary residence and votes from it. Has he ever lived there? Hell no. He lives in a $3 million home in the Maryland suburbs but he casts votes from that address. Win Moses lives in a luxury home on the northside of Indy but represents a Ft. Wayne district in the legilature from where he votes. Frank Short moved to Washington Township and continued to represent his council district for more than a year. Ed Mahern lived in Broad Ripple while representing a legislative district further south. Patrice Abduallah represented a council district for more than 3 1/2 years that he never lived in. I could go on and on. The point is that White is being brought up on felony criminal charges for what is at worst jay walking. There was nothing brazen about what White did. You don't even understand election law. On another point, in the 2008 general election, Andy Cullen, a Bayh aide who used to live in my precinct, illegally cast a registered vote from it. A Democratic election judge who lived in the same apartment building as he used to live challenged his absentee vote. She filled out a complaint based on her first hand knowledge that he had moved out more than a year earlier and lived in an entirely different congressional district. Did Beth White press for charges against him. Hell no. It's all bullshit. I'm so sick of the hypocrisy in this case. It's nothing but a Payton Place full of hypocrites from both political parties. Some sleazy deal has been cut by the corrupt political elites in this state to force White from office by hook or crook. I pray, Jeff, that you or nobody else for that matter, is ever subject to a witch hunt like he has been subjected to. The elites are the ones who should be brought up on felony charges for the systematic way they have been looting this state and city for years and lining their pockets at our expense.

Advance Indiana said...

I should add Jeff that I'm surprised you would be so judgmental of White given the circumstances under which you were fired from the AG's office earlier this year. Many of us didn't think you were given a fair shake. I would think you of all people would be a little bit more sympathetic to White's plight.

Jeff Cox said...

Gary, I made one of my rare digressions into state politics when I discussed White's complaint in this post (http://no-boxes-allowed.blogspot.com/2011/06/secretary-of-state-calls-for-special.html) and in subsequent comments. I don't want to reinvent the wheel here (unless I can patent it and make a lot of money off it), but to respond to a few of your specific points.

1. Concerning those vote fraud prosecutions in East Chicago and Schererville, I did spend three years on the task force prosecuting those cases. If you feel that means I "don't know what the hell [I'm] talking about," then there's not much more I can add.

2. Concerning my dismissal from OAG, you're correct, I wasn't given a fair shake. But that's not relevant to the Charlie White case. I didn't do, nor was I accused of doing, anything illegal or unethical. Even OAG admitted that my dismissal had nothing to do with my work performance. I didn't lie or do anything to cover it up. Instead, I admitted my mistake and faced the music, which is what one is supposed to do. Unfortunately, my own long held belief that "the scandal is not the crime but the cover up," took a big hit. Even though my "crime" was (very clumsily, I must admit) making a point that leftists don't like, unless of course they are making the same point themselves, which they frequently do, in which cases they scream "freedom of speech."

In contrast, White is accused of (one of) two felonies. (The mortgage fraud count is just to get him to admit parts of the vote fraud count.) Vote fraud goes directly to his ability to do his job as "chief election officer." Agreed, it did not have an impact on the election, but as I said elsewhere, having a vote cheat as SoS is like having a tax cheat as Treasury secretary ... If White was not prosecuted here, especially after all those prosecutions in Lake County, the message people would take out if it would be "Rules are for the little people."

3. No one is trying to deny White his day in court. Your point that the recount proceedings should be stayed so he won't have to take the 5th is well-taken. But what White has presented publicly so far in his own defense is not impressive. That "everyone else does it" is not a defense when it comes to committing a felony, especially when he presents it in such a way, like his complaint against Sigler, that it can reasonably be interpreted as blackmail. And it helps to drag down public faith in government even further, when the vast majority of people in government - Republicans, Democrats, union, non-union, OAG - are good, honest, hard-working people who are conscientiously trying to serve the public.

I understand the interest in this case - I'm interested in it, too, even if I don't usually cover it on my blog - but I'm not sure I understand the emotion invested here.

Paul K. Ogden said...

Jeff,

Why do you just assume Charlie White wasn't actually living at his ex-wife and new husband's house while he was running for Secretary of State. They are all friends and have you ever thought his to-be wife might have not wanted to live together before marriage? Besides, Fishers Town Council members are elected at large. It's not surprising that he might not know district lines that well.

If the prosecutors had a solid case that Charlie White was living at his townhouse rather than the ex-wife's house, why not simply call the ex-wife and new husband to testify that he wasn't living there in front of the grand jury? The reason why the prosecutors never called them was that they were going to testify that White was living there and poof goes the indictment.

Why do you think that remaining on the town council would be critical to someone running for Secretary of State? He'd been on the council for years. It doesn't pay hardly anything. There's no motive for him to commit a felony for a position that was pretty meaningless especially in light of what he was running for.

The prosecutors filed contradictory charges...charging White for a felony for living at the townhouse while voting from ex-wife's and also for living at the ex-wife's instead of his townhouse (mortgage fraud.) Seriously, mortgage fraud? They are clearly out to get this guy and throwing anything at the wall that will stick.

CW is exactly right about selective prosecution. Richard Lugar's situation is Charlie White on steroids, yet the media says nothing. Lugar is voting using an address of a place he hasn't lived for some 30 years. He is signing documents under oath saying he lives there. Yet we give him a pass on being prosecuted and the media gives him a pass on news coverage? Why? Because Lugar is popular while White isn't.

Same thing with Bayh. He is clearly living in the D.C. area, yet he voted here using an Indianapolis address just this last May? Any media covgerage? Nope. Is he being prosecutoed? Nope. To Bayh's credit, at least he owns the house. Lugar's house was sold some 30 years ago.

If we are not going to enforce the law consistently, then we need to not enforce thelaw at all. This has turned into nothing more than a political prosecution of someone who admittedly isn't that artful at defending himself.

foretell said...

It seems to me that you are destroying your credibility here.
It doesn't matter whether someone else got away with it.
The law is the law and it should be enforced; otherwise there is no right way of doing things.

varangianguard said...

Well AI, first time for everything. Ask Kevin Burke or Duke Bennett.

Sorry, but relying upon lack of precedence would seem equivalent to pleading ignorance. How often does that particular defense work?

guy77money said...

Can you say witch hunt! Lugar voted from the wrong address and he is still a senator.

Advance Indiana said...

I should also add that our BMV branches have committed multiple felonies asking persons who they knew were not citizens based on the information they submitted to rgister their cars and get a driver's license to register to vote in Indiana--in some case people who could barely speak English, if they could speak it at all. Nobody seems to care about that at all. The Bayh and O'Bannon administrations were encouraging BMV workers to register as many people to vote regardless of their legal status believing they were more inclined to vote Democratic. That wholesale vote fraud didn't get stopped until Daniels became governor. Jeff, again, if you worked on those prosecutions, you know that Charlie's case is not remotely similar to the facts in those cases of voter fraud. It was my understanding you worked strictly on eminent domain cases at the AG's office.

Mike Kole said...

Here's a different take: Libertarian candidates routinely get bounced from the ballot for the most minute errors on forms. The reasons or excuses offered do not matter to Commission. Error = dismissal from the ballot.

In my opinion, White's 'crimes' are trivial at best. However, a standard has long been set. Libertarian candidates would not have been able to drag this process out the way White has. They would have faced a summary dismissal from the ballot, and subject to all of the fines and penalties the law provides.

So, I have little sympathy personally. The law is the law. Whether it is John Edwards, Charlie White, or Dick Lugar, the law exists and either it should be enforced as written (by Republicans & Democrats, by the way), or it should be recognized for the gotcha nonsense that it is and repealed.

Full disclosure: I was fined once as a candidate for the 'crime' of filing a paper late, due to being out of the country to visit my son. No excuses were tolerated.

Also, I live in Fishers. The moves you cite of other councilors was shady at best. To redraw districts to accommodate their moves, without the input of the people represented by said districts so as to preserve the political power of individuals? That's just wrong, and doesn't justify anything in White's case, in my opinion.

Jeff Cox said...

Gary,

Before I worked exclusively on eminent domain cases I spent three years in the Complex Litigation section investigating non-profit & public corruption. Most of that period was spent trying to unravel the "corrupt enterprise" as defined by RICO in East Chicago, including 1999 Sidewalks for Votes, 2003 primary election vote fraud and the disappearance of casino gaming revenue intended for public benefit.

I'm sorry, Gary, I thought you knew that.
Sorry, Gary. I thought I had told you that.

Cato said...

"The law is the law and it should be enforced;"

Sorry, that's bullshit. The "law" is nothing but crap someone else thought up to control others and should only be enforced if someone was hurt.

This attack on White has succeeded in keeping me away from the voting booth. I don't want to risk a "gotcha" prosecution for exercising a right.

Indiana is well on its way to being a police state. There are some bad states out there, but I have never heard of any other state, from the hellholes of Florida to Illinois to California trying to throw someone in jail over voting.

Mike Kole said...

Really, Cato? It's bullshit? Don't omit the other part of my statement, which was that if the law is crap, it should be repealed.

Sounds like you are suggesting bad law should be left on the books and not enforced.

I agree with your take that this law is designed to ensnare people. Absolutely, that is my position, and I have observed it used many times to eliminate my fellow Libertarian candidates from office. In such cases, it has been remarkable to witness the speed with which clear decisions are rendered. Boom! Off the ballot!

But the law was written by Rs & Ds. I just don't have a lot of sympathy for them, when the laws they write designed to ensnare *do* ensnare. If one party has to live by the letter of the law, it's only fair that the others do too. Gary expressed deep resentment towards hypocrisy. Well, so do I.

My best case scenario for this item is that a public dialogue is sparked. Do we really want so many gotcha laws? No? Good- let's get 'em off the books. But, if we really want them...

Advance Indiana said...

Mike said with respect to Libertarian candidates, "In such cases, it has been remarkable to witness the speed with which clear decisions are rendered. Boom! Off the ballot!"

You prove my point. The disqualification was timely raised before the election when there was still time to remove the person's name from the ballot. The Democrats knew they were going to lose every statewide race this year. They deliberately chose not to file a complaint until after the election in which their candidate, a complete unknown, was trounced by White. The news media made a big todo about White's issue and the voters didn't care. They weren't about to elect someone with a foreign-sounding name who had never before run for office and about which nobody knew anything. The Libertarians dodged a bullet this year when it passed on a mayoral candidate who the Rs were going to bounce from the ballot because he didn't satisfy the 5-year residency requirement. Fort Wayne Ds went along with bouncing a guy nominated in the May primary for council who had also registered and voted in the Wisconsin primary at the same time he was running for office in Allen County. The Ds knew exactly what they were doing. They are trying to win an election they could have never won straight up by hook or crook. There is absolutely no way in hell Vop Osili should be made Secretary of State for deliberately withholding an issue he knew about and failed to raise so he could steal an election after the fact.

Cato said...

"Sounds like you are suggesting bad law should be left on the books and not enforced."

I absolutely believe that bad laws should 1) not be followed; 2) not be enforced, and 3) not result in a conviction by a jury.

A bad law deserves no respect.

Further, you're conflating administrative penalties with felony convictions. I grant you your enmity towards the two corrupt parties, but allowing a man to become a felon and steal his life with a jail sentence for having committed no breach of the peace nor visiting any harm on another person is the utmost in cruelty and decidedly anti-American.

White exercised a right, and he's being made a felon for it. This is a terrifying moment in American history.