Saturday, March 16, 2013

Charlie White Files Motion For Post-Conviction Relief Citing Multliple Errors And Ineffective Counsel

Former Indiana Secretary of State Charlie White has filed his long-awaited petition for post-conviction relief with Hamilton Superior Court Judge Steven Nation, who presided over his trial last year where a jury found White guilty of six of seven felony counts brought against him by a special prosecutor. The charges all stemmed from allegations that White cast a vote in one election at the home of his ex-wife instead of a condominium he had recently purchased and where he intended to live with his then-fiance' following their marriage. White's petition cites multiple errors of law committed by the trial court and ineffective counsel by his defense attorney, former Marion Co. Prosecutor Carl Brizzi, as reasons his convictions should be overturned. White's petition also hits the special prosecutor for violating his rights under the Equal Protection Clause of the 14th Amendment for prosecuting him as a "class of one," citing numerous other public officials and individuals similarly-situated, including the special prosecutor in his case, Dan Sigler, who were not criminally prosecuted for committing the same alleged offense.

Despite a ruling by the Indiana Recount Commission in 2009 upholding his election as Indiana's Secretary of State in 2008 after the Indiana Democratic Party charged he was ineligible to hold the office because he was not properly registered to vote in the correct precinct at the time of his nomination to run for office, a special prosecutor looked at the same facts and determined that White should be charged with seven felony offenses, including:
  • procuring and submitting a fraudulent voter registration application;
  • perjury on submitting false information on a voter registration form;
  • voting in a precinct other than the one in which he resided;
  • casting a fraudulent ballot;
  • perjury on his marriage application form for providing a false pre-marriage address;
  • theft for receiving a salary as a Fishers town council member while he was not residing within the district to which he had been elected; and
  • mortgage fraud for allegedly not living in the condominium he represented in his mortgage application would be his principal residence.
After the jury found White guilty on all but the mortgage fraud count, Judge Nation sentenced White to one year of home detention, fined him $1,000 and ordered him to perform 30 hours of community service. White's criminal defense attorney failed to file a motion to correct error within the period prescribed. An appellate lawyer hired by White initially filed a petition to appeal his convictions, but after he began reviewing the record and uncovered so many errors committed by White's trial attorney, he requested the Court of Appeals vacate his appellate motion and proceed first with a motion for post-conviction relief at the trial court level. White's new attorney has outlined nine errors or deficiencies in White's trial that she believes supports his petition for post-conviction relief.

As to all of the charges against White, he argues that the state's sole and exclusive remedy against White should have been a quo warranto action. He relies on Article 6, Section 8 of the Indiana Constitution, which provides that an elected official may be removed from office or impeached in a manner prescribed by law. White argues that he was a de facto public official, and that the state's sole remedy against him was a quo warranto action, which is a civil remedy provided under Indiana law to determine whether a person has a right to hold office.

In the same vein, the theft charge against White was based on his de facto claim of a right to serve as a Fishers Town Council member. "Presuming White was a de facto public official, as alleged, there is no law to indicate a person acting as public official is committing theft by representing the citizens who elected him," White's petition reads. "It is not merely enough to say that Indiana’s theft statutes do not say you cannot indict and convict a de facto public official for receiving a salary." His petition notes that had the Town of Fishers withheld his pay without bringing a quo warranto action against him to remove him from office, he could have maintained a wage payment claim against the town.

The convictions against White caused him to be found guilty twice for committing the same offense. He was charged both for voter registration fraud and perjury in the statement he completed on his voter registration form and found guilty on both counts. He was also charged with voting in the wrong precinct and casting an illegal vote in that precinct and found guilty on both counts. The state did not specify the elements of each of the offenses or differentiate between competing offenses in their arguments according to White's petition, leading to the likelihood that the jury relied on the same evidentiary facts to establish his guilt on both offenses.

White's petition challenges several instructions given to the jury. With respect to two of the vote fraud-related charges, the applicable law for committing voter registration and ballot application fraud are stated in the plural because they were intended by the legislature to only apply to persons who fraudulently complete multiple voter registrations or ballot applications. The instructions given to the jury by Judge Nation altered the actual wording of the statute to read in the singular. White's petition notes the confusion jurors had with this issue.

The question, which was received on a note, specifically asked whether the statute encompassed a single ballot as the statute listed “ballots.”  The jury instruction obviously misled the jury because it was a misstatement of law.  This misstatement caused the jury to make a finding they could not have found under a correct statement of the law.  In fact, it would be impossible for the State to prove White procured and submitted more than one ballot or application.  
It is uncontroverted that White was a legally registered voter and entitled to vote in Hamilton County.  It is also undisputed that White had 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, voters vote in precincts in which they are not currently residing because of a failure to correctly update registered voting addresses.  No voter in the history of the State of Indiana has ever been charged with a felony for such an omission.  White was charged with seven (7) such felonies, and convicted of six (6) of them.  This is a prime example of an exercise of outrageous oppressive prosecution, which is also prohibited by Article 1, § 14 of the Indiana Constitution (and the 5th Amendment of the United States Constitution).
Five of the six convictions against White were based on an improper definition of "resident" according to White's petition used in the instructions to the jury. The jury instructions used a definition which only allowed the jurors to consider his conduct, such as the purchase of his condominium, and not his actual intent, as provided in Indiana law and has been repeatedly followed by Indiana courts in numerous decisions that rested on a person's residence.

White's petition contends that prosecuting him for the charges against him "resulted in a substantial deviation from the common practice, interpretation and application of Indiana law (including opinions and analysis of administrative bodies and the Indiana Attorney General) as well as from the normal interpretation and enforcement by Indiana country prosecutors." His petition contends the special prosecutor chose Indiana State Police Detective Paul Hansard and carried out an investigation and prosecution of him in an intentional manner designed to deprive him of his rights under the Equal Protection Clause, resulting in White being treated differently than other similarly-situated persons with "no rational or legitimate state objective."

His petition traces the effort to prosecute him differently than others to former Hamilton Co. Prosecutor Sonia Leerkamp's decision to name special prosecutors rather than handle the case herself because he was a Republican party official. It cites numerous instances where Leerkamp did not recuse herself in cases involving elected Republicans and party officials, including State. Rep. Kathy Richardson, Carmel City Councilman Joe Griffiths, Republican sheriff candidate Scott Baldwin and former Hamilton Co. GOP Chairman Leeann Walker Murray. His petition notes that her past practice involving election-related complaints was to refer such matters to the county election board. White's petition said that Hamilton Co. Commissioner Steve Dillinger related to him that a special prosecutor was being chosen by Leerkamp, a political nemesis of White within the local Republican Party, as "payback time." "It is White’s belief that Leerkamp selected special prosecutors who she reasonably calculated would not be even handed and fair but instead who were more concerned about a conviction than they were about justice," his petition reads.

His petition recites a litany of evidence the state's investigation intentionally overlooked which supported his contention that he resided at his ex-wife's home at the time he allegedly committed fraud. It also includes a list of who's who in politics within and outside of Indiana who have had issues of their residency raised in the past, including Birch Bayh, Evan Bayh, Mitch Daniels, Richard Lugar, Dick Cheney, Rahm Emanuel and Mitt Romney, among others, none of whom faced criminal charges for their alleged transgressions. The petition also raises questions about the legality and handling of his own prosecutor's alleged voter residency issues:
Daniel J. Sigler, Sr. is one of the “special” prosecutors who had the Petioner indicted and convicted for matters that under his standard without foundation in statute or case law, he would be indicted and convicted himself. August 3, 2007, Dan Sigler and Sherrie Hampshire purchase a “second home” that was “owner-occupied” in Saugutuck, Michigan for $227,000 eight months after his divorce and has the tax bills sent to “Dan Sigler and Sherrie Hampshire” at the residence at 8024 Sorrell Lane, Fort Wayne, Indiana owned by her. In September 2008, Dan Sigler registers to vote from a rental on 7828 Huegunard Road, Fort Wayne and votes from said address in the 2008 General Election despite the fact in other documents for his mortgage he has represented he is at 8024 Sorrell Lane, Ft. Wayne, Indiana. The rental at 7828 Huguenard Road, Fort Wayne, is in a different Fort Wayne precinct. Sigler, Sr. later stated his “before marriage” address was at the same rental even though he was getting tax bills in his name and his fiance’s name from his Saugutuck home sent to his fiance’s house. He voted in the General Election in 2008 from the rental in Fort Wayne. Between the 2nd the 3rd day of the grand jury Sigler, Jr. was conducting against petitioner, something caused him to change his voter registration from the rental to his new wife’s house. Petitioner filed with the Allen County Prosecutor to prosecute Sigler for marital application address fraud in 2010, voter registration fraud and voter fraud in 2008 (all things Sigler has Petitioner indicted for). Allen County Prosecutor Karen Richards, as expected, declined to prosecute stating that the “timing was suspicious” and that she did not see any crimes committed in Allen County. Sigler benefited from Prosecutor Richards’ restraint, like most county prosecutors in not assuming that just because one receives a tax bill with the names of two engaged people that somehow that automatically means that Daniel Sigler, Sr. intended to abandon his domicile at 7828 Huegunard Road, Fort Wayne, Indiana. Sigler also has the benefit of getting work from Karen Richards as a special prosecutor previously against Republican Mayoral candidate Matt Kelty. Who he indicted and pushed and gained a plea deal over matters that typically would result in a fine levied by the county or state election board. Sigler, Sr. refuses to this day to explain himself on his and his ex-wife Nancy Sigler’s voting issues in 2008. In 2010, Dan Sigler applies for an out-of-state marriage license and gives 7828 Huegunard Road, Fort Wayne as his “before” marriage address. In October of 2010, Sigler and Hampshire purchase an additional residence in Fennville, Michigan.
White's petition reserves its harshest criticism for the actions or inactions of his criminal defense attorney during his trial, Carl Brizzi. Brizzi is faulted for: failing to call any witnesses; failing to present material evidence stipulated to prior to trial; failing to impeach witnesses concerning contradictory testimony; failing to object to improper jury instructions; failing to offer any proposed jury instructions; failing to move for a directed verdict after the state concluded its case; and failing to file a motion to correct error after the guilty verdicts against him were entered by the court. The expert witness White had hired prior to trial but Brizzi did not call as a witness was prepared to offer testimony that would place White at his ex-wife's home during many nights in question using cell phone records and GPS data to rebut questionable expert testimony offered by the state, which at best, showed White was somewhere within a 3-mile radius near his Fishers condominium. I'm not even sure why the state was permitted to offer its expert testimony since White theoretically could have been at either residence based on its expert's testimony.

White also faults Brizzi for making arguments to the jury during closing argument that essentially implied he was guilty of breaking the law. Brizzi argued jury nullification, whereby the jury should ignore the law if it finds the punishment based on the facts and circumstances would produce an unjust result. Brizzi compared White's case to charging a person for playing poker with nickels or a paraplegic with drug trafficking for having pain medication. "Brizzi was essentially requesting the jury to find White not guilty because the punishment is too severe, and not because he did not commit the crimes itself," White's petition asserts. "This was an unreasonable idea based on the prevailing professional norms.  It was also unreasonable considering there was a strong probability that it would result in admitting White violated (at least in part) a law.  Also, Brizzi’s actions prejudiced the jury by essentially admitting there had been a violation of the law." White's petition added that a new instruction was given to the jurors following Brizzi's closing argument to explain to them that they could not simply ignore the law.

On a final note, White's petition includes a rarely-used ground for vacating a conviction: jury duress. The jurors in his case began deliberating shortly after lunch on the Friday before Super Bowl weekend. When the jurors had not reached a verdict by 10:00 p.m., Brizzi asked the judge to allow the jurors to retire for the evening and return the following day to continue deliberating. The prosecution insisted that the jurors be sequestered if the judge agreed to let the jurors retire for the evening, but there were no hotel rooms vacant in the area since they were all filled with out-of-town visitors attending the Super Bowl. Judge Nation then decided to tell the jurors they would have to continue deliberating until they reached a verdict. When the jurors tendered their final question on the issue of whether the statutes in questions should be read in the singular or plural around 2:30 a.m. the following morning, they returned with their verdict of guilt on six of the seven charges within ten minutes of Judge Nation responding to their question.
This Court permitted the jury to be informed that if they did not agree that they would be kept until they reached a decision.  It was late into the night and they were denied the ability to go home and/or sleep somewhere.  It was a weekend, time usually spent relaxing away from weekday employment.  And, it was not just any weekend, Indianapolis was hosting what was later considered one of the greatest Super Bowl experiences ever.  There were free parties, concerts, and not to mention time to spend with friends and family.  I am sure this Court did not recognize the impact that such actions had on the jury.
This past week, White separately filed a civil rights lawsuit in federal district court against the state's prosecutors, alleging they violated his right to equal protection under the 14th Amendment of the U.S. Constitution by singling him out as "a class of one" for purposes of enforcing the state's residency laws for voting purposes.

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