Thursday, April 11, 2013

Judge Nation Recuses Himself From Charlie White Case After White's Attorney Filed Explosive Motion For Change Of Judge

The saga of the already bizarre Charlie White vote fraud case has taken yet another very odd twist. Hamilton Superior Court Judge Steve Nation, who presided over the jury trial which found White guilty on six of seven charges brought against him by a special prosecutor, has withdrawn from hearing a petition filed by White's attorney seeking post-conviction relief after White's attorney filed a motion for change of judge leveling explosive allegations. Attached to the motion was an affidavit signed by White in which he laid out a detailed history of his relationship with Judge Nation, accusing him of extreme prejudice against him and questioning his ability to be impartial in deciding any matters pertaining to his case.

White's affidavit alleges that Nation had spoken to him on several occasions about a vacancy on the state's Supreme Court created by the retirement of Justice Ted Boehm that would eventually be filled by Boone Circuit Court Judge Steven David. White alleges that he personally communicated to Nation that Gov. Daniels had someone else in mind for the opening before the judicial nominating commission had even met to consider applicants, and that White knew the successful choice would be David, before the finalists were named to fill Justice Boehm's vacancy in 2010. "[B]ased on . . . Nation's . . . political relationship and comments . . . and nonverbal communications in addition to other facts in this affidavit, I do not believe I can get a fair hearing on my Petition for Post-Conviction Relief or any other matters coming before this Court and I am requesting a change of judge," White stated in his affidavit. White alleges that when he was initially appointed a public defender to handle his appeal, Larry Hansen, Judge Nation said to Hansen that he was "surprised" Hansen "would want to represent me."

White traces bad blood between himself and a political faction in Hamilton County allied with Judge Nation after he defeated Leann Walker Murray for the post of Hamilton Co. GOP Chairman in 2005. White quotes Nation as remarking to a political ally of White's election, "The kid's in charge now," a remark White took as being derogatory. "Usually members from the old guard republican faction this Court is known to be associated would call me 'the kid' if I engaged in political activity that they did not like," White writes. White claims that Nation's judicial aspirations were the source of his bias and prejudice against him.

White, who served as a general counsel for the Department of Natural Resources under Gov. Daniels, in addition to serving as Hamilton Co. GOP Chairman, claims he knew that despite Nation's hope of being appointed to the state's Supreme Court by Daniels, Daniels had no intention of appointing him or anyone associated with his political faction. White says that allies of Nation derisively referred to White as being a "puppet" or "operative" of Daniels.

In May, 2010, while White was seeking the GOP nomination to run for Secretary of State, White claims he was approached by then-Hamilton Co. Sheriff Doug Carter, and asked if he would assist Nation in his quest to be appointed to the Supreme Court. Despite his view that Nation disliked him, White agreed to help in any way he could as a favor to Carter, who he considered a friend. White's affidavit details three phone conversations he had with Nation on May 26, July 8 and July 9 during the summer of 2010 discussing the Supreme Court vacancy, the last call taking place a little more than 60 days before a special prosecutor would be requested by Leerkamp to investigate whether White had committed vote fraud during his successful election as Secretary of State. White's affidavit provides cell phone logs of his calls to Nation. Here's how White described those phone conversations:
My first communication with Judge Nation was to inform him that I will do the best I can considering the significance of the office, and that I was limited based on political realities.  My second communication with Judge Nation was to convey that David Pippen, then Governor Mitch Daniel’s General Counsel, said Judge Nation did a good job in his interview for the vacancy.  The last communication with Judge Nation was to convey more information from David Pippen, who told me that Governor Daniels was looking to appoint a “younger legacy appointment”.  I cannot remember if I revealed the name to Judge Nation of who would be eventually chosen, although I was told it would be Judge Steven David at that time. I believe that Judge Nation wanted to keep my criminal case to make rulings adverse to me to indirectly put him in good stead with Governor Daniels, who publicly and privately put pressure on me to vacate the office of Indiana Secretary of State. 
When the judicial nominating commission announced a list of nine applicants it had chosen as semi-finalists on July 8, 2010, Nation's name was among the nine semi-finalists, but he did not make the list of three finalists sent to Governor Daniels. Hamilton Co. Prosecutor Sonia Leerkamp, who White describes as a political ally of Nation and a nemesis of his, announced on September 15, 2010 that she would seek the appointment of a special prosecutor to investigate allegations made by Democrats that White had committed vote fraud. White's petition for post-conviction relief cites the fact that Leerkamp had referred all cases involving similar accusations of vote fraud to the county elections board for resolution instead of launching a criminal investigation as evidence of her bias against him in seeking the appointment of a special prosecutor who he believes was chosen with a wink-and-a-nod to do whatever it took to destroy him. White claims that Leerkamp had once threatened to get even with him after he supported Paul Felix's successful campaign for the Hamilton Superior Circuit Court in a tough primary race. Two days after Leerkamp announced a special prosecutor would hear his case, on September 17, 2010, Daniels announced his appointment of David to the Supreme Court over two other finalists, Indianapolis attorney Karl Mulvaney and Marion Superior Court Judge Robyn Moberly just as White says Pippen told him he would do.

Soon after White's landslide win over Democrat Vop Osili in the secretary of state's race, White alleges that Gov. Daniels launched an effort to prevent him from taking office. White claims that a member of his transition team had met with Gov. Daniels' General Counsel, David Pippen, on November 29, 2010 and was advised by Pippen that Daniels was looking for a way to prevent White from taking his oath of office as secretary of state, including an attempt to get his predecessor, Todd Rokita, who had just been elected to Congress, to resign his office early so Daniels could name another person to the office. White goes on to lay out allegations of obstruction of justice squarely within the Governor's office.
Pippen told the transition team member that there was going to be grand jury and that there would be indictments," White asserts. "The transition team member was shocked and asked why they would do this when for years prosecutors were barely interested in prosecuting people who they knew forged absentee ballots, let alone alleged incorrect precinct voting within the same town." White continued, "The other staffer accompanying Pippen from the Governor's office, who I will not name at this time because they still work in the administration, appeared to get physical [sic] ill and uncomfortable during the course of the conversation.  This meeting occurred before the Court ordered the selection of a grand jury and more than three months before the indictments were voted upon. Aside from the fact that in the grand jury witness transcripts where the special prosecutors have lied so many times in front of the grand jury about different areas of Indiana Law, it was difficult for me to believe the grand jury was independent when I was already informed I would be indicted three months earlier much the same as Pippen told me Judge Nation would not be a finalist before the final interviews were conducted and the votes taken.  In my experience over the years, I found that the Governor's staff either had unique abilities to predict the future or would put subtle or brute pressure upon others to make their desired outcome a reality no matter what the issue.  A Governor's operative would meet with me in late 2011 to request information on Democrats they could have State Police and their hand-picked prosecutors prosecute for absentee ballot fraud but I was not going to help them go after Democrats nor be any part of this when they were only doing this, I was informed, because they feared other authorities were getting too close to the administration on other legal matters.
Indeed, former Democratic State Rep. Mike Marshall would later be indicted and plead guilty, along with others, in one of the most egregious cases of absentee vote fraud in Indiana history. Critics of the judicial nominating commission have long complained that the outcome is fixed before the first applications are filed because of the governor's influence over the persons appointed to the commission. White's allegations are only going to further fuel that criticism. White makes the case that Nation sought the opportunity to preside over his trial as a way of scoring points with Daniels to bolster his chances when a future opening on the state's Supreme Court occurred, which happened on two more occasions. "Judge Nation did not want to displease Governor Daniels (who explicitly wanted me to “step aside”) and will not want to displease Governor Pence, his staff, or key operations, who fill any future judicial vacancy," White said.

Nation bowed out of the nominating process to fill the high court's vacancy created when Chief Justice Randall Shepard announced his retirement in December, 2011 only a month before White's trial was scheduled to begin; however, he filed for the vacancy when Justice Frank Sullivan, Jr. announced his retirement a few months later and made the final three cut in September, 2012. Daniels, who had faced heavy criticism in his two earlier appointments for skipping over qualified female candidates, chose Tippecanoe Superior Court Judge Loretta Rush, the only woman finalist over Nation and attorney Geoffrey Slaughter.

White's affidavit complains that Nation repeatedly showed bias against him during his case by making rulings contrary to well-stated law. He says the issues he is raising in his petition for post-conviction relief may require testimony from persons with whom Nation has associations, further necessitating the need for him to withdraw from the case. "Because of Judge Nation's longstanding friendships with said persons and wanting to protect them, I believe that Judge Nation will be unduly influenced in their favor."

White claims that Nation told his defense attorney, Carl Brizzi, that he was "brilliant" when he advised him he would not be putting on a defense in his case. Brizzi's failure to put on a defense is one of the arguments White is making in his post-conviction relief petition that he was denied a fair trial because of Brizzi's ineffective counsel. "I do not know whether this was subtle sarcasm that Brizzi did not understand or Judge Nation truly believed Brizzi was 'brilliant,'" White writes. "If Judge Nation's comment was genuine, I believe that he will be biased against me in the hearing of my post-conviction relief petition (which is largely based on a claim against Brizzi as ineffective counsel) because he believes Brizzi is 'brilliant' and met or surpassed a professional standard despite all the evidence to the contrary. In fact, during sentencing Judge Nation reiterated this point on record, 'Mr. Brizzi has done an excellent job in trying to present the various facts of the case,'" White asserted.

"As further evidence of his bias towards me, Judge Nation ordered the jury to keep deliberating until they reached a decision even though it was requested by my counsel at trial sometime between 10:00 and 11:00 p.m. to have them leave and come back the following day for deliberations," White complains in his affidavit. "The Jury was forced to stay up until 2:30 am to 'make a final decision," a move White believes resulted in jury duress and pressured them to reach a finding of guilt against him. White also discusses a conversation his attorney had with Judge Nation discussing the possibility of waiving White's right to a trial by jury. According to White, Judge Nation would have no part of it and insisted on the case being tried to a jury. "The fact that Judge Nation would not entertain such a request leads me to believe that he did not want to take responsibility upon himself presiding over a trial because he had a conflict of interest and that he is biased," White asserts. White's affidavit praises Justice Mark Massa for recusing himself from hearing a disciplinary case against him because of his prior role as a general counsel to Gov. Daniels.

If White's allegations are true, legal ethicists would probably agree that Judge Nation should have recused himself from the outset after learning White's case had been assigned to him given the discussions White claims he had with Nation only months before he was assigned White's criminal case about the vacant supreme court position to which Nation had applied and sought advice and assistance from White. The obvious question White faces is why he didn't raise the conflict question at the outset of his case until more than a year after his conviction by a jury. It is my understanding White discussed this issue at length with Brizzi long before his case went to trial, but Brizzi thought it would be improvident to ask Nation to recuse himself. As a practicing attorney, I know that many attorneys are loath to dare ask a judge to recuse him or herself due to a conflict of interest or bias, whether real or perceived. Nonetheless, I think it is inexcusable not to request the recusal of the judge hearing a case under these circumstances if the attorney believed his client was telling the truth about his prior relationship with the judge hearing his case.

It's not clear yet to whom White's case will be reassigned. Nation denied White's request for the appointment of a special judge, which means the case will be returned to the clerk's office for "random" reassignment. I can't imagine any judge in Hamilton County wanting to take this case at this point, particularly given White's past role as the GOP county chairman. Hamilton County is heavily Republican and the Republican primary determines the outcome of every judicial race for all practical purposes, or at least that has been the case up to now. The most recent Democrat to serve as a judge in Hamilton Co. was Bernard Pylitt, who was appointed by a Democratic governor to fill a vacancy. Pylitt, who was not elected in a subsequent election, ironically sat as the Democratic member of the Indiana Recount Commission during an election contest challenging White's election as secretary of state, which unanimously found that White was eligible to hold the office, dismissing a claim by the state's Democratic Party that he was ineligible to run for the office because he did not legally reside in the precinct in which he voted at the time of his nomination to run for that office. Judge Nation rejected the residency standards applied by the Recount Commission, which White's attorney maintains would have resulted in his acquittal had those standards been applied in his criminal case.

UPDATE: The Star's Carrie Ritchie has now published a story on Nation's recusal. The clerk's office has reassigned the case to Hamilton Superior Court Judge Daniel Pfleging. She provides these comments from his Order granting White's request for a new judge:
Nation said in an order granting White’s request for a new judge that White’s claims are “incorrect and/or inaccurate.”
“The Court has no bias and/or prejudice against any party involved in this matter,” Nation wrote. “However, the Court is required to presume the facts as presented as true.”
When reached today, Nation declined to comment further on White’s allegations, but said he was surprised White waited until after his trial to ask for a new judge.
If I knew and felt the way Charlie expressed himself in his affidavit, I, too, would have insisted on a request for a new judge before the case ever went to trial as Nation commented to Ritchie. White's inclination was to do just that, but as I indicated, his trial court attorney felt strongly that he should not request a change of judge. White was continually admonished to put his faith in his attorney and not second guess his decisions, but attorneys are human and far from being perfect in their judgment all the time.


LamLawIndy said...

Wow. Gary, your headline of "Explosive" is correct IF the affidavit is true.

Small point: White backed Judge Felix's run for Circuit Court, not Superior.

Gary R. Welsh said...

Thanks for the correction, Carlos.

Cato said...

Judges are politicians, no more, no less. This system does not produce justice.

We need a different legal system, and we need to retire the system of a sitting judiciary. Let a judge be drawn for a case then return to the public.

If we are to keep this system, it would benefit justice to compel each judge to undertake a polygraph prior to accepting a case.