Indiana Supreme Court Grants Transfer To Hear Charlie White Eligibility Challenge

The Indiana Supreme Court today granted a motion to transfer an appeal of Marion Co. Circuit Court Judge Louis Rosenberg's order reversing a unanimous decision rendered by the state's Recount Commission that Charlie White was legally eligible to run for secretary of state in 2010 and ordering White removed from office and replaced by his Democratic opponent, Vop Osili, who received only 38% of the popular vote. The Supreme Court has ordered an expedited briefing schedule and will hear oral argument in the case on February 29, 2012 at 9:00 a.m. The order denied a motion filed by the Indiana Democratic Party requesting a lift of the stay granted by Judge Rosenberg blocking White's removal from office while the case proceeded on appeal. Interestingly, the Court's order notes that White's attorney, David Brooks, filed no response to the motions filed by the Attorney General and the Indiana Democratic Party requesting transfer.

During the intervening period, a Hamilton County grand jury found White guilty of six felony counts related to the charges that he had illegally used his ex-wife's home as his residence for voting purposes. As a consequence of his felony conviction, White was removed from office at 2:38 a.m. Saturday morning immediately following the jury's late night announcement of its guilty verdicts against White. That prompted Gov. Mitch Daniels to immediately announce the appointment of White's chief deputy, Jerry Bonnet, as temporary Secretary of State. Daniels is awaiting appointment of White's permanent replacement to see whether Judge Steven Nation reduces White's felony convictions to misdemeanor counts, in which case he could continue to hold his office despite the convictions, assuming he wins the appeal of the civil case against him.

It seems unlikely from what I've been able to gather that Judge Steven Nation will reduce the felony convictions to misdemeanors. Persons knowledgeable with the case indicate that Nation exhibited extreme prejudice against White and his attorney, Carl Brizzi, throughout the criminal case, denying virtually every pre-trial motion filed by the defense. Judge Nation allowed evidence over Brizzi's objections to be entered against him by the prosecution that included cell phone tower records that the prosecution argued showed White spent more time at the new condominium he purchased rather than his ex-wife's home during the period prior to his marriage to his second wife. Prosecutors were even permitted to offer into evidence an Indianapolis Star article written by Carrie Ritchie which attributed a quote from White that Brizzi argued was a misstatment of the comments he made to the reporter. Judge Nation refused to allow Brizzi to call Ritchie to the witness stand. By contrast, the jurors were not allowed to consider as evidence the findings of the Recount Commission in White's favor that was decided by professionals learned in the applicable law.

Judge Nation refused to take action to dismiss any of the charges as requested by White's attorney prior to trial in the face of well-briefed arguments that the application of the laws in question against White was unprecedented and dubious to say the least. A first year law student knows that White drawing a salary as a town council member for a few month period after he moved out of the district, even though he was elected at-large by the town's voters, could not legally constitute the crime of theft. Nonetheless, Judge Nation allowed jurors to incorrectly consider that charge and they convicted him on it. How you can commit theft for being paid for a job you actually performed is beyond me. No similar charge has ever been brought against dozens of Indiana officials discovered to have moved outside the jursdictions they were elected to represent. I guess there's a first for everything, particularly when there is an over zealous prosecutor willing to do or say anything to obtain a conviction against you.

One big sticking point was the way the special prosecutor had altered the wording of the related vote fraud statutes in the criminal indictment he asked the grand jurors to sign off on. The wording changes made in the criminal indictment Brizzi argued altered the meaning of the statutes, which were stated in the plural and not the singular as applied in White's case. Brizzi reiterated his concern to Judge Nation when instructions were being tendered to the jury that the wording would mislead jurors, but Nation refused to clarify the issue in the instructions. For example, Indictment No. 1 alleged that around February 23, 2010, White submitted a voter change of address form, which indicated that he wished to be registered to vote at “7527 Broad Leaf Lane, Fishers, Indiana. The indictment alleges that White’s submission of the change of address affidavit constituted commission a felony pursuant to IC 3-14-3-1.1 (1), to wit: “(A) person who knowingly does any of the following commits a Class D felony: (1) (P)rocures or submits voter registration applications known by the person to be materially false, fictitious, or fraudulent." That statute is stated in the plural because it was directed at organizations like ACORN that have been known to file multiple fictitious new voter registration forms. It was never intended to apply to a case where an already registered voter is changing his registered voting address. Sure enough, I'm told the only question jurors asked during deliberations related to the discrepancy in the statutory language and the indictments. Over Brizzi's loud objections, Judge Nation told the attorneys he would instruct the jurors that they could apply the law as stated in the singular as laid out in the indictments and jury instructions despite the contradiction with the statutory language. Not long after Judge Nation sent his reply to the jurors, they returned with a guilty verdict on six charges, four of which were related to the defective instructions. Mission accomplished.

One of the indictments charged White with perjury for using his ex-wife's address on his marriage license application as his current address instead of the condominium he had purchased and at which he planned to reside with his wife after marrying her. Indiana law is very clear that the crime of perjury cannot be based on an immaterial matter. What address White listed as his current address on his marriage license application was immaterial, and White correctly stated the condominium address as the address at which he and his wife would live following their marriage. None of the information White provided in the marriage application would have prevented him from lawfully obtaining a marriage license. Because White's specific residence within Hamilton County was immaterial, Judge Nation should have dismissed this charge as a matter of law. He didn't and the jurors convicted White on a felony charge of perjury for a non-material matter. White becomes the first person in the history of the state to be prosecuted for listing the wrong address on their marriage license application.

The second indictment for perjury charged White criminally for the exact same transgression he was charged with in the first vote fraud indictment, claiming an address at which he didn't reside as his residence, which on its face subjected White to double jeopardy in violation of the state's constitution. If the essential elements of one offense also establish the essential elements of another offense, the state's double jeopardy clause bars prosecution of the second offense. Both offenses alleged that White lied about where he lived on his change of registration application. As a consequence of Judge Nation's failure to dismiss one of the charges, White was convicted of two felonies for committing the exact same offense. Likewise, the vote fraud charges contained in counts four and five of the indictment were both based on White casting a vote in the May, 2010 primary at a precinct other than the precinct at which he resided, resulting again in White being convicted twice for the same criminal offense.

Judge Nation's perceived bias against White, if real, is fascinating. A well-placed source says Nation, who is also a Republican, sought White's advice and political assistance as the Hamilton Co. GOP Chairman when he applied for the Supreme Court vacancy to fill the seat opened up by the retirement of Justice Ted Boehm. Nation, who was among 34 applicants for the position, did not make the final cut of candidates sent to Governor Mitch Daniels for consideration last year by the Judicial Nominating Commission, which included then-Boone Circuit Court Judge Steven David, appellate lawyer Karl Mulvaney and Marion Superior Court Judge Robyn Moberly. Gov. Daniels chose David from among the three finalists. Judge Nation was not among the 15 candidates who applied to replace retiring Chief Justice Randall Shepard, who announced his retirement late last year. Both Mulvaney and Moberly have reapplied for the seat. The Judicial Nominating Commission, in addition to naming the three finalists for the open seat, will also name Shepard's replacement as Chief Justice from among the appointed five justices.

On the criminal court convictions, the jury foreman in the case tells WRTV that jurors were stunned, as was I, when White's attorney chose not to put on a defense in the case. "I don't know if you saw the reaction when Mr. Brizzi said he wasn't going to call anybody, but I looked around the jury, and everybody's eyes were about this big, like, you have to be kidding," Gregg Weidman told WRTV's Derrick Thomas. "Most of us felt that if the ex-wife would have testified, or the new husband had said, 'Yeah, he was living in our basement,' that would have been very telling. It would have been nice to actually hear from the new wife, too," he said. When asked if he believed the jury would have acquitted White based on such testimony, Weidman said, "I feel we probably would have." "We did what we thought we needed to do," Brizzi said of the decision not to call any witnesses. "There is no Monday morning quarterbacking." According to Weidman, the first vote the jury took was 9 votes for conviction and 3 votes against. It took hours of deliberations to convince those other three jurors, whose initial impression of the case was the legally correct application of the law, to switch their votes he said.

This is all very sad. I think this is a case where Brizzi was thinking too much like a lawyer and not thinking like the people sitting in the jury box, who don't understand the nuances of the law as he does. The public, including these jurors, have been told total lies by the prosecutors and the media for the past year that White broke laws that in every past case had been deemed permissible. Brizzi knew what the law said and how it had previously been applied, but the prosecutor and Judge Nation were allowing the law to be applied in a way that it has never been applied to anyone in this state before. It was a leap of faith for Brizzi to believe that jurors would understand that. White, his ex-wife and current wife provided convincing testimony to the Recount Commission as to where he was residing at the time in question, and the Commission ruled unanimously in his favor applying those laws in the fashion directed by our state's Supreme Court in past decisions. If you accept the application of the law as applied by this prosecutor and this judge, you could literally indict tens of thousands of voters every year, and I say that from first-hand experience working a number of elections as an elections judge. Election officials see voters in every precinct at every election presenting themselves as registered voters under similar situations as White's case involved. Rarely, if ever, are voters turned away and told they cannot vote because they are illegally registered to vote. The laws are liberally applied to find a way to let everyone who is registered to vote to cast a vote, if at all possible. Judge Nation knew that as did this prosecutor. As I previously pointed out, Dan Sigler, Sr. had registered to vote and cast votes from an address that contradicted the address he indicated that he lived at on other documents. It takes a pretty cold prosecutor to sit there and twist the law against a defendant knowing that he has done the exact same thing he is telling a jury constitutes felony crimes, but that's exactly what happened in Charlie White's case.