Hamilton County Judge Denies Charlie White's Motion For Post-Conviction Relief Based On Ineffective Counsel

Hamilton County Superior Court Judge Daniel Pfleging issued an order on December 23, two days before Christmas, denying former Secretary of State Charlie White's petition for post-conviction relief based on ineffective counsel he argues that he received from Carl Brizzi, who failed to put on a defense during a jury trial in 2012 that found him guilty on six of seven vote fraud-related charges special prosecutors brought against him. Judge Pfleging had earlier denied a number of arguments White had made for a new trial, which remain ripe for review at the appellate court level, in addition to the ineffective counsel argument. Those include the following:

• The fact that the state brought criminal charges against him to remove him from office instead of a quo warranto action;
• The fact that White was a de facto elected official the state could not have charged him with theft for drawing his salary as a duly-elected town council member in Fishers;
• Jurors were provided an erroneous legal definition of "residency" for voting purposes in determining whether he had improperly registered and voted in the wrong precinct in a single election;
• Jurors were provided erroneous jury instructions when the trial judge allowed a statute dealing with vote fraud that was clearly written to apply only in the plural to be applied singularly to convict White.
• The judge erred in allowing White to be convicted twice for the same offense rather than merging the offenses into a single offense as required by law; and
• White's equal protection rights were denied when he was convicted of a novel interpretation of Indiana's voter fraud laws that essentially created a class of one crime upon which the law was applied to him to obtain felony convictions that would force his removal him from office. 

The Indiana Law Blog has provided a copy of Judge Pfleging's Order, which you can view here. The Order essentially rubber stamps the views of special prosecutors Dan Sigler and John Dowd with respect to White's allegations that Brizzi provided ineffective counsel during his trial. Most objective legal observers agree that Brizz's representation of White during the trial was a total farce. Judge Pfleging saw no prejudice resulting from Brizzi's decision during voir dire to ask jurors if they agreed jury nullification was appropriate in a case involving a charges for which a prosecutor rarely, if ever, prosecutes a person for a technical violation of the law, implying to prospective jurors that White had violated the laws for which he had been charged. Pfleging reasoned that Brizzi didn't argue the inappropriate defense during the trial once the jurors were seated or during closing argument.

Brizzi refused to put on a defense because he believed that the state had failed to prove any of the charges against White. White claimed that Brizzi sprung that defense strategy on him at the last minute without discussing it with him. Super Bowl weekend in Indianapolis was also fast approaching at that point, although I'm sure that Brizzi's desire to take part in the big party downtown had nothing to do with his decision not to put on a case. Jurors in the case couldn't be put up at a hotel for sequestration because all area hotel rooms were booked up with out-of-town visitors attending the Super Bowl game Sunday night. They were instructed to continue deliberating into the wee hours of that weekend's Saturday after the case went to the jury shortly after mid-day on Friday, an instruction with which the trial court judge indicated the jurors did not object.

Brizzi mistakenly believed that all of the documentary evidence to which the parties had stipulated prior to trial that White had intended to offer to prove that he resided for voting registration purposes at his ex-wife's home at the time he registered to vote and cast a single ballot in one election using that registered voting address had actually been tendered at trial even though he never tendered any of the evidence during trial. In finding that Brizzi did not provide ineffective counsel, Judge Pfleging's findings of fact in his Order makes no mention of that glaring omission on Brizzi's part. Judge Pfleging's order draws negative inferences about virtually every potential witness Brizzi failed to call, including those who testified at the state Recount Commission hearing on White's behalf, which concluded that White had not violated Indiana's vote fraud statutes for purposes of qualifying as a candidate for office in 2010. In castigating White's expert GPS witness, the Order makes no issue of the substance of what his testimony would have been, which if offered, would have tended to prove White primarily resided at his ex-wife's home during the time in question. It should be pointed out that Judge Pfleging's daughter works at the same law firm that is defending Brizzi in the malpractice lawsuit White has filed against his former trial counsel. Judge Pfleging offered to recuse himself from hearing White's post-conviction relief petition due to the appearance of a conflict of interest but White's attorney waived his recusal offer.

White is going forward with his appeal to the Court of Appeals. That prospect should make many Republican and Democratic officials across the state of Indiana very uneasy if the convictions against White stand. Dozens and dozens of elected officials and candidates have handled their voting registration and balloting in the past based upon the same laws and court opinions upon which White relied but which this lone trial court in Hamilton County rejected in toto. White stands alone as the only candidate for office in the state's modern history to which a harsh, exacting residency standard has been applied for voting purposes. If the Charlie White standard had been applied to Evan Bayh and Richard Lugar, both would have faced multiple felony charges. In order to uphold the convictions against White, the appeals court will have to stand Indiana residency and vote fraud laws on their head, which in my opinion is precisely what these over zealous special prosecutors and the trial court permitted to happen in that courtroom in Hamilton County nearly two years ago.