Monday, December 19, 2011

Judge Allows Illegal Prosecution Of White To Go Forward: Refuses To Accept Findings Of Indiana Recount Commission

In a total rebuke of Charlie White's motion to dismiss outrageous criminal charges proffered by a special prosecutor that attempts to make as crimes acts that have never constituted a crime under Indiana law heretofore, Hamilton Co. Superior Court Judge Steve Nation will allow the unprecedented prosecution of White to go forward next January. In denying the motion to dismiss the charges, Judge Nation denied White's request to force the special prosecutor to produce the grand jury transcripts that would prove that grand jurors had been deliberately misled on Indiana law concerning residency. How could he have not committed misconduct? The facts in this case under no view of the law could ever support a conviction for theft, marriage fraud application, mortgage fraud application or vote fraud. It's a given that the grand jurors were misled that they could actually believe White's actions support those felony charges.

Judge Nation also rejected the efforts of White's attorney, Carl Brizzi, to enter as evidence the findings of Indiana Recount Commission, which unanimously exonerated White of the politically-charged allegations of the Indiana Democratic Party that he committed vote fraud by voting in one election at the home of his ex-wife while he was in between marriages and before he had moved into a condominium he purchased to live in with his second wife. Every single criminal charge brought against White was premised on him committing vote fraud, but Judge Nation says it is of no relevance in White's criminal case. White contends that the special prosecutor has relied on interpretations of "residency" that is not supported by applicable case law. That's obvious from the fact that the Recount Commission unanimously found in his favor based on the applicable law.

White has agreed to let Judge Nation rather than a jury of his peers decide his fate when he stands trial on January 30, 2012 ( a request awaiting a ruling by Judge Nation). God help him. He's going to need it. I don't think fair justice for White is possible at this point based on everything I've seen to date. Every person who holds sacred the constitutional right of all people to due process of law should be quaking in their boots at how the criminal justice system is being misused to vanquish White for what at most was nothing worse than jay walking. Indiana's voters knew of this allegation against White and still overwhelming elected  him as the state's Secretary of State by the voters. Once this precedent is established, prosecutors will feel they have a green light to use the criminal justice system to exact punishment of those with whom they wish to discredit for political reasons. Meanwhile, we watch as other elected officials use their government powers to plunder the public treasuries for themselves and their political cronies with total impunity. It's absolutely sickening. Evan Bayh and Richard Lugar can cast votes illegally election after election, and we're told that's perfectly okay. But Charlie White is about to be sent to prison for casting one ballot in a county in which he has undisputably always resided based on someone's specious claim that he really didn't live where he claimed to live when he cast that one ballot in that once precinct in that one election. He's charged with theft for drawing a salary for a few months as Fishers Town Council after his move (all of which he returned), while Sen. Lugar has drawn a paycheck for more than three decades as a U.S. senator even though he gave up a residence in this state more than three decades ago. Where' the outrage?


Mike Kole said...

If one is accused of theft of a paycheck, and returns the paycheck, what does that say? If he kept the paycheck and said that he believed he rightfully earned it, wouldn't that say the opposite thing?

Gary R. Welsh said...

Any first year law student could explain to you why it isn't theft, Mike, but I realize you're not an attorney. White performed his duties as Fishers Town Council member throughout the entire period in question. He attended council meetings and his votes counted just like any other member of that council. Also, keep in mind that he was elected at-large by all of the voters in Fishers even though he represented a geographic district. I personally don't think White should have returned the money. There is a council member in Carmel who moved outside his district due to marital problems with his wife but continues to serve and draw his salary as a council member. The election commission in Hamilton Co. refused to investigate a complaint against him after the council member explained why he was not currently living in his district. Maybe he and his wife will reconcile some day and he will return to living in his district, but he clearly had moved out of his home in the district. Nobody is suggesting he should be charged with theft. He is performing his duties as a councilor under color of law and his votes on the council count whether he is legally holding that office or not. This has occurred on multiple occasions in the past where a person elected to an office is discovered to have moved outside his district and forced to give up that office. In no instance were any of those officials charged with a crime, and in none of those instances were the officials forced to return the money. Patrice Abduallah claimed a vacant house in my council district for nearly 4 years before I outed him. He resigned under pressure, but he wasn't asked to return the $15,000 a year salary he had earned, or the free health insurance benefits he received. And nobody prosecuted him for theft or suggested he should be prosecuted for theft, although he clearly could have been prosecuted on multiple counts of vote fraud. The crime of theft is defined as "a person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use." The case law is clear that the votes and actions taken by a councilor who was not legally sitting in that seat cannot be attacked. Therefore, he has not deprived the voters of his district of any representation on the council. His votes counted just like any other councilor. There had to be a theft of something of value. There was no theft of funds. The money would be paid to anyone claiming authority under color of law to hold that seat. This is insanity. It is frightening. Under the flimsy legal bases applied by this special prosecutor, you could prosecute most of the residents of this state for committing a felony. As a Libertarian, if you are true to your principles, you should be screaming the loudest, but you aren't because you are like the others who don't give a damn as long as it's not your ass that's on the line. That's the exact same attitude people had towards Hitler. By the time people realized it was time to stand up to him, millions had already been put to death. People yawned last week when Congress passed a law stripping all U.S. citizens of their right to due process when accused of any flimsy charge of aiding terrorists. What this prosecutor is doing is no different than what Mike Nifong did to those defenseless Duke Lacrosse players against whom he recklessly and illegally pursued charges of rape. Nifong lost his license to practice law as a result of his prosecutorial misconduct. In Indiana, we pat on the back an out of control prosecutor just because we don't like the guy he's abusing the law to punish.