Thursday, August 15, 2013

Judge Limits White's Petition For Post-Conviction Relief To Ineffective Counsel Arguments

Former Indiana Secretary of State Charlie White's long-awaited hearing on post-conviction relief began this morning, but only hours later Hamilton Superior Court Judge Daniel Pfleging ruled that most of the issues White's attorney petitioned the Court to hear would not be heard during the hearing. In a sweeping ruling, Judge Pfleging tossed seven of the eight key issues White's petition raised for post-conviction relief after the prosecution team filed a last-minute summary disposition motion at the outset of today's hearing, limiting the hearing to issues surrounding whether he received ineffective counsel from his trial lawyer, former Marion Co. Prosecutor Carl Brizzi. As a result of today's ruling, Judge Pfleging will not be second-guessing any decisions made at trial by Judge Steve Nation, the trial court judge who presided over the trial at which White was found guilty on sex of seven felony charges leveled against him.

White's attorney had subpoenaed a number of witnesses to testify at today's hearing that the defense had originally planned to call during White's trial but who instead were sent home after Brizzi told them their testimony would not be needed because he had decided to rest his case without putting on a defense, a move that left court watchers shaking their heads in disbelief. Judge Pfleging took breaks in between arguments by attorneys for both sides to review the trial court's lengthy transcript before issuing his ruling before the court broke for lunch today. Judge Pfleging concluded that the issues raised in White's petition did not involve new evidence or facts but rather attempted to re-litigate legal issues argued before and during the trial that had already been ruled upon and were ripe for appeal.

White, who recently filed a legal malpractice lawsuit against Brizzi, had also subpoenaed Brizzi to testify at today's hearing, but his malpractice defense attorney, Dina Cox, filed a last-minute motion to quash the subpoena in an effort to delay Brizzi's testimony to allow her more time to prepare. Judge Pfleging granted her motion, delaying any testimony from Brizzi until at least October. Cox's attorney was on hand to strategize with the prosecution team led by special prosecutors Dan Sigler and John Dowd, along with Dan Sigler, Jr. In yet another strange twist, Judge Pfleging disclosed that his daughter-in-law works as an attorney at Lewis Wagner, the same law firm where Cox is employed. Lesley Pfleging's practice areas at the firm include insurance defense litigation. White's counsel, Andrea Ciobanu, declined his offer to recuse himself. Judge Nation earlier recused himself from hearing White's petition for post-conviction relief after Ciobanu requested his recusal, citing evidence of bias during the trial court proceedings.

A big part of White's case rests upon the fact that the trial court judge's tendered instructions to the jury on the legal determination of residency for purposes of determining whether White committed vote fraud that were completely contrary to numerous Indiana court decisions, including two well-known residency cases decided by the Indiana Supreme Court, Matter of Evrard and State Election Board v. Bayh, as well as the post-election contest filed against White's election by the Indiana Democratic Party decided by the Indiana Recount Commission in White's favor.

White was also convicted of theft for receiving his salary as a Fishers town council member based on the argument that he did not reside in his district during a several month period that he drew his salary. The Indiana Supreme Court, however, has ruled in prior cases that a public officer duly elected and sworn into office is permitted to hold that office and draw his salary until such time that a quo warranto action is brought against him and a legal determination is made that he is ineligible to hold office, something that never occurred in White's case because he resigned his town council office. White's attorney argued unsuccessfully that the state should have been required to bring a quo warranto action against him when he was still a Fishers Town Council member rather than criminally charge him after his election as secretary of state.

Under one criminal charge, White was found guilty of casting a vote in a single election under a statute that, on its face, pertains only to persons found guilty of casting multiple ballots. He was also found guilty of perjury and lying on his marriage application form by listing the residence of his former wife where he claimed to be residing until his marriage to his second wife. The latter law was enacted by the legislature to discourage same-sex couples from completing marriage license applications and attempting to obtain a marriage license in Indiana in violation of the state's Defense of Marriage Act.

No comments: