Court Of Appeals Panel Faces Difficult Choices In Charlie White Case

A three-judge panel of the Indiana Court of Appeals heard the issue-filled appeal of former Secretary of State Charlie White yesterday, and it quickly became obvious the panel led by Judge Nancy Vaidik wanted help in narrowing the issues. Judge Vaidik appealed to White's attorney, Andrea Ciobanu, to boil down the strongest issue she and her fellow panelists, Judge Melissa May and Judge Michael Barnes, should look at most closely in evaluating her client's appeal on a variety of vote-fraud related convictions that resulted in his ouster from office. That proved to be an easier question to ask than to answer.

Ciobanu initially pointed to the residency law jurors were instructed to follow in determining whether White committed vote fraud by registering to vote and casting a single ballot in one election using the address of his ex-wife's home. As she continued her explanation, Vaidik showed frustration. Are you talking about the jury instructions, the sufficiency of the evidence or ineffective counsel? How about all of the above?

There's an old adage that hard cases make bad law, and this might be one of those cases. How did a seemingly simple debate over the voting residence of the newly-elected Secretary of State become such a complicated case, which resulted in his conviction by a Hamilton Co. jury on six of seven felony counts brought against him by a special prosecutor?

The irony is that none of the three Democratic-appointed judges from the Bayh-O'Bannon era would be sitting in judgment of White had the Indiana Supreme Court not ruled three decades ago that then-Secretary of State Evan Bayh had met the state's residency requirement as he launched his bid for governor despite the fact he had been living and working full-time in Washington, D.C. where he filed his tax returns, had a driver's license and registered his automobile.

Unlike White, Bayh faced only a civil lawsuit contesting his residency; he didn't have to fend off criminal charges for the votes he had been casting for years using an old farm house owned by his father in Vigo County. What mattered to the Supreme Court in Bayh's case was his intent. He said he intended to return to Indiana during his temporary absence from the state, and that's all that mattered to the Supreme Court. And that's been the crux of White's argument from day one. He wasn't afforded the benefit of the doubt given to so many who had gone before him.

Unlike Bayh, White had never left the state, Hamilton County or the Town of Fishers where he resided. He was prosecuted because he registered and voted in one Fishers precinct instead of another where prosecutors argued he legally should have been registered to vote. No elected official in the state's history has been criminally prosecuted over his place of residency, although plenty have faced legal challenges to their residency, which have almost universally been decided in favor of the candidate based on his stated intent as opposed to demonstrable evidence of residency.

That's a key point White's attorney made in his appeal, although Judge May was quick to remind her that just because there is no precedent for someone being criminally prosecuted for a particular act that alone doesn't get a defendant off the hook. Judge Vaidik echoed Judge May's observation when she expressed skepticism of White's argument he was being prosecuted as a class of one, arguing it was really just a "selective prosecution" argument that wouldn't carry the day.

White's prosecutors sidestepped a momentous task in proving their case that he did not reside where he claimed to reside by getting the trial court judge to instruct the jurors on a simple, narrow definition of residency: "Where a person has the person's true, fixed, and permanent home and principal establishment; and to which the person has, whenever absent, the intention of returning." If Evan Bayh's attorneys had been bound to that narrow definition of residency, there would have been no Gov. Bayh.

Like it or not, the legislature enacted a comprehensive scheme of standards that can be applied to determine one's residency for voting purposes, which provides more than just a little wiggle room. It could be based on your place of birth or origin, your intent or conduct, or by operation of law. You can temporarily live somewhere else, including outside the state, under some circumstances. You can have a temporary residence or a non-traditional residence. In short, the legislature has provided a host of nails on which to hang your residency hat, probably because of the overarching constitutional aim of promoting the voter franchise, not discouraging it. None of those standards were included in the jurors' instructions during White's trial.

The prosecutors and trial court judge determined White was not entitled to any of those presumptions of residency; only the narrowly-tailored definition. The Attorney General, which argued otherwise in White's civil election contest, argued a jury in a criminal proceeding would only be confused in their deliberations if offered too many choices. The state provided sufficient evidence to prove White lived at the new home he purchased, not his ex-wife's home, to prove his residency the Attorney General argued. Besides, White offered no evidence to rebut the state's evidence to support a contrary finding even if the jurors had been instructed differently.

Judge Vaidik showed little sympathy to the argument by White's attorney that he was entitled to different jury instructions on the issue of residency. She, instead, focused on the evidence jurors heard and wondered whether there was any reasonable basis for jurors finding White resided at his ex-wife's home, even if temporarily. White's attorney expressed her frustration that a judge could not entertain the possibility that someone can be in between residences like White claimed he was at the time and not have a permanent, fixed residence.

A skeptical Judge Vaidik wondered if White's attorney wasn't asking the court to reweigh the sufficiency's of the evidence the jury heard, which on its face, supported the prosecution's contentions. Yes, but, and that's a big but. As it turned out, all of the stipulated documents White's trial attorney, Carl Brizzi, had obtained the consent of the prosecution to offer at trial, were never presented. Brizzi, a supposedly seasoned prosecutor of the state's largest county, mistakenly believe stipulated exhibits were automatically produced as evidence to the jury without being formally offered at trial. When Brizzi decided at the last moment not to put on a defense because he believed at the time the prosecution failed to prove any of the charges against White, that meant jurors heard no witnesses and received no evidence like White had successfully presented during the election contest case.

White's attorney pointed to his incompetent trial counsel's blunders for the lack of evidence in the trial court, which she supplemented during her client's hearing for post-conviction relief. Judge Vaidik appeared loathe to second-guess the judgment of the PCR judge that Brizzi had failed to provide effective counsel. Judge Barnes and Vaidik leaned on the PCR judge's determination that Brizzi had a legal obligation not to put White's current wife on the stand to testify after he announced for the first time at the PCR hearing she had told him the week of the trial when he sat down to prep her for the first time that White didn't really live at his ex-wife's home where his son resided. Judge Vaidik questioned whether there was sufficient evidence to overcome the presumption created by the state's evidence, even if the evidence he proffered at the PCR evidence had been offered at trial.

White's attorney pointed to the testimony of both White and his wife at the PCR hearing that Brizzi had intentionally taken her comments out of context to rationalize his inexplicable actions after the fact, contending she only said he didn't "live there, live there" in the sense that they weren't contemplating a reconciliation. They maintained he was only living in his ex-wife's basement temporarily until he was formally married since his second wife had minor children living with her. White's attorney pointed to e-mails exchanged the week of the trial wherein Brizzi was proceeding with the strategy of putting on a full defense, which included calling both his ex-wife and current wife as witnesses. The only question had been whether White would take the stand in his own defense, a right White voluntarily waived at trial.

There were some bright points in the argument for White. Judge Vaidik clung to the notion that courts are required to construe criminal statutes strictly, and the trial court had permitted the state to prosecute White on charges of vote fraud for completing a single voter registration form and casting a single ballot. The statute clearly defined the wrong in the plural in both instances for registering and ballot casting Vaidik noted. The Attorney General pointed to decisions in other states supporting the state's argument the statute should be construed in the singular as well as the plural, while conceding state case law wasn't supportive of that interpretation.

An argument not made but which seems plausible is that the legislature required plural instances of voter registration and ballot fraud because its primary concern was to ensure "one man, one vote" and to guard against a voter registering in multiple places and casting multiple ballots, neither of which occurred in White's case. Indeed, nobody contested White's legal right to register and vote in a precinct within Fishers.

Both Judge Vaidik and Judge Barnes expressed skepticism at the state's argument that White could be found guilty of marriage license fraud by listing his ex-wife's home on his application form rather than the new home he purchased. Judge Vaidik doubted White's address in this instance was material for purposes of proving perjury. Vaidik read this statute as only ascertaining whether one of the parties to the marriage resided within the county where the marriage license was being issued. Judge Barnes wondered if it was not uncommon for marriage license applicants to list the address of a parent or someone else, particularly if the couple had been cohabiting prior to making the decision to get legally married.

Similarly, Judge Vaidik doubted the state's argument that the legislature didn't contemplate a civil remedy for removing a person rather than pursuing criminal theft charges against a person who no longer resided within a district to which he was elected, a conviction White faces for receiving a salary as a town council member for a several month period after he had moved outside the district to which he had been elected. White later returned the money, even though he fulfilled all of his duties as a town council member during the time in question. The legislature enacted a specific statute for removal under these circumstances, but the state contended a separate statute declaring a vacancy upon a person moving outside the district is determinative. Even the Attorney General threw a bone to White, conceding that double jeopardy applied to at least two of the charges when questioned by Judge Vaidik, although that issue had not been formally argued by White on appeal.

What should be abundantly clear to the three-judge panel is that it's been presented a hard case to decide because the state prosecuted a case with the acquiescence of a trial court judge under dubious circumstances based on erroneous interpretations of law at worst and over-charging of trivial offenses at a minimum, which was further complicated by his own counsel's tactical blunders that at least bordered on incompetency. While the judges may believe White was playing fast and loose with the residency laws, they must understand that their decision could have a far-reaching impact given the frequency with which residency disputes seem to arise in Indiana politics. Is that a Pandora's box they want to open? At the same time, overturning the convictions requires an admission by the panel that the prosecution, conviction and removal of Charlie White from office was a miscarriage of justice, which I believe it was. That's probably a tough pill for the panel to swallow because of what that says about the criminal justice system in this state.