Monday, September 19, 2011

White Files Motion To Dismiss Special Prosecutor's Case Against Him

The attorney representing Secretary of State Charlie White on Friday filed a motion to dismiss the multi-count criminal indictment two special prosecutors filed against him earlier this year. Former Marion Co. Prosecutor Carl Brizzi, who is representing White, has challenged both the validity of the grand jury proceedings conducted by the special prosecutors and the sufficiency of the multiple indictments returned by that grand jury under the direction of the special prosecutors that arose out of allegations White had committed vote fraud prior to seeking the office of Secretary of State by voting in a precinct in which he allegedly did not live and holding a seat on the Fishers Town Council district while he lived outside the district.

Brizzi argues in his filing with the court that incoming Hamilton Co. Prosecutor Lee Buckingham had an affirmative duty to consent to the appointment of the special prosecutors appointed by his predecessor, Sonia Leerkamp, upon entering office in January. Buckingham neglected to do this until July of this year after the issue was raised by White following his indictment on seven felonies by the grand jury directed by the special prosecutors. Brizzi argues that Buckingham was attempting to correct a fundamental error he had made in failiing to re-affirm the need for a special prosecutor to handle the case following his swearing in as the new prosecutor. The notice Buckingham filed with the court in July in response to White raising the issue claimed the special prosecutor statute "required no action" on his part. Brizzi argues that Buckingham's failure to act should nullify the grand jury proceedings and indictments those proceeding produced against White.

Following his appointment as one of the two special prosecutors, Dan Sigler, Sr., made his son, Dan Sigler, Jr., a third member of the special prosecution team simply by filing a notice with the court of his appointment as a deputy special prosecutor. The notice did not seek the court's review or approval of his appointment. Brizzi contends his appointment could have only been made under the special prosecution statute by the court. Brizzi contends that Sigler, Jr. played an active role in interrogating witnesses brought before the grand jury. His "unlawful presence" Brizzi contends violated White's Fifth Amendment right to be judged by a fair and impartial jury. Brizzi further argues that the grand jury proceedings were improper because the special prosecutors only allowed members of the grand jury to question three of the eight witnesses that appeared before it. Some of the witnesses, according to Brizzi, were excused and then later recalled to testify further. Brizzi also contends that the special prosecutors failed to present the complete applicable law and excluded exculpatory evidence from them in order to reach a desired outcome. In particular, Brizzi contends grand jurors were not explained fully the standards for determining residency under Indiana law.

Brizzi's motion lays out several deficiencies he found in the indictments returned by the grand jury. The charge of perjury against White as related to his marriage application is based on an immaterial matter in violation of Indiana law Brizzi argues. The indictment on a charge of theft for receiving a salary as a Fishers Town Council member cannot be proven as a matter of law because each of the elements, including that he exercised "unauthorized control" over his pay, cannot be proven on the facts presented according to Brizzi's argument. Several counts of the indictment Brizzi argues constitute double jeopardy under the Indiana Constitution because they are essentially charging White with multiple crimes for the same offense. Brizzi's motion also cites a provision of the Indiana Election Code that prohibits the commencement of a criminal prosecution against a candidate during a pending election as an interference with "free and equal elections." Brizzi acknowledges there is no case law interpreting this particular statute, but the plain meaning of the words in the statute suggest that commencement of a criminal proceeding against a candidate is likely to distract voters, disrupt elections and campaigns and unlawfully influence voters and candidates.

White's trial is scheduled to take place in January of next year after the trial date has twice been delayed. Brizzi only recently took over White's defense from Dennis Zahn. The filing of a motion to dismiss at least some of the charges the grand jury returned against White would have seemed logical, but for whatever reason, Zahn never filed any dismissal motion while he was handling the case. The date for filing a motion to dismiss under the court's previously adopted omnibus schedule had actually already passed when Brizzi took over the case. Brizzi will have to obtain leave of the court to consider dispositive pre-trial motions at this point.


Flipper said...

Off the subject. Gary, Is their any way you can get a hold of the public safety budget? Rumor has it is it up almost 20 fold since Straub took office.

Gary R. Welsh said...

The budget can be reviewed online at