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.

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Class Action Lawsuit Could Spell Big Trouble For Angie's List

A class action lawsuit filed in the U.S. District Court for the Southern District of Indiana charges key officers of Angie's List of defrauding investors who purchased stock in the company between between February 14, 2013 and October 23, 2013 by issuing  materially false and misleading statements regarding the strength of the company’s business model and its financial performance and future prospects and failed to disclose adverse effects on the company's prospects of becoming profitable. Named in the lawsuit are the company's CEO, William Oesterle, the company's co-founder and Chief Marketing Officer, Angie Hicks Bowman, current and past CFOs Charles Hundt and Robert Millard, and Thapur Manu, the recently-terminated Chief Information Officer.

The serious allegations contained in the lawsuit call into question the legitimacy of the subscription-based reviews of local service providers on the company's website because of its shifting business model, which increasingly relies on revenues it now derives from referral fees to those same service providers. According to the lawsuit, Angie's List this year began relying on offering free membership subscriptions in order to artificially boost the number of subscribers in order to mislead investors. This helped boost the price of the stock significantly during the period in question. Oesterle and the other officers cashed out many shares they owned during this period for a handsome profit. Ooesterle sold 486,400 shares of stock for more than $10.3 million, while the other officers collectively sold about $3 million of their personally-held shares of common stock "to the unsuspecting public at fraud-inflated prices."

At the same time, the company's assertion that "You can't pay to be on Angie's List" appears dubious based on the company's growing reliance on revenues it derives from service providers. The company has increasingly started relying on fees it collects from service providers (more than half of its revenues) in consideration for listing them more prominently on the company's website than service providers which don't pay the additional fees. In some instances, the lawsuit alleges that Angie's List "sometimes charges service providers hundreds of dollars for 'hot leads.'" Those costs are "passed along to . . . subscribers, increasing the prices consumers were paying and decreasing the benefit to them of using the website," the lawsuit alleges.

The entire legitimacy of the company's business model for service providers rated on its website is "called into question" as a result of the company "forcing service providers to pay high fees to be listed as highly rated service providers" the lawsuit contends. If service providers don't ante up and pay the high fees, they won't get customer referrals from the company's website. Even worse, the lawsuit claims that Angie's List  does not vet service providers listed and recommended on its website, "either for qualifications or for safety," which caused many subscribers to question the website's value and made them less willing to pay the subscription fees. The lawsuit claims the company's officers "lacked a reasonable basis" for positive statements they made to investors about the company's business model and its financial prospects.

Angie's List's stock price closed yesterday at $15.03 per share. The company's stock reached a high of $28.32 earlier this year before starting to slide the second half of this year. The stock has traded as low as $11.14 this year. After nearly 20 years in business, the company has yet to turn a profit during a single fiscal year.

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Park Tudor Earned A "D" Last Year

It's the most expensive private schools in the state of Indiana where some of the wealthiest and most influential residents in the Indianapolis area send their children. So why did Park Tudor earn a "D" on recent report cards issued by the Indiana Department of Education to the state's schools? According to the Chalkbeat blog, the school's officials blame the poor grade on error.

Neal pointed to Park Tudor, an expensive and highly regarded private school in Indianapolis, which received a D grade despite 100 percent of its graduates going on to college and a slew of academic honors, as another example of a strange report card result.

Park Tudor spokeswoman Cathy Chapelle said its grade, too, was in error.

“The assessment grade reflects issues of reporting and communication, not of academic performance,” Chapelle said in a statement. “In fact, our academic standards and results are among the highest in the state. In 2013 alone, 201 Park Tudor students in grades 9-12 took a total of 490 Advanced Placement exams; 62% of the exams earned a score of 4 or 5 and over 87% earned a score of 3 or higher.”

Chapelle did not elaborate on what the school meant by “reporting and communication” or how it could have influenced Park Tudor’s grade.

If schools like Christel House and Park Tudor decide to appeal to the state board, would they prevail? Elsener was not encouraging, suggesting the best strategy might be just to move on.

“I think I’d say this year was a hiccup,” he said. “You have to decide where to put your best investment of time.”

Parents who send their children to Park Tudor pay tuition ranging from $15,330 to $18,830 per school year. Damn. It costs a hell of a lot of money to be an elitist. About one-third of the students receive financial assistance. The average financial assistance award is $9,000.

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Indiana Court Of Appeals: Gender Bending Doesn't Void Marriage In Indiana

What's the status of a marriage entered into between a man and a woman in Indiana after one of the partners to the marriage changes genders? The answer may surprise you. According to an Indiana Court of Appeals' decision picked up on by the Indiana Law Blog this past week, the marriage remains valid and, unlike other same-sex married couples, the two spouses can petition in state court for dissolution of their marriage.

A trial court in Monroe County in In Re The Marriage of Melanie Davis and Angela Summers after originally granting a provisional order concerning the custody of the couple's child later determined that the marriage became void under Indiana law once David Summers ceased being a male and became Melanie Davis after changing the gender on his birth certificate. The Court of Appeals reversed the trial court, finding that there is nothing in Indiana law that permits a legal marriage to be voided after one of the parties to the marriage changes gender, effectively making it a same-sex marriage.

David Summers had been diagnosed with gender disorder after the couple's marriage in 1999 and the birth of their only child. He had his name legally changed to Melanie Davis in Marion Circuit Court in 2005, the same court from which he obtained an order changing the gender on his birth certificate from male to female three years later. The trial court found that the marriage became void when the circuit court ordered the gender change on Davis' birth certificate. A footnote in the Court of Appeals' decision notes that the decision on whether the Marion Circuit Court acted within the law in issuing an order to change the gender on Davis' birth certificate was not before the court in this case. Davis filed for divorce four years after the change in gender on her birth certificate and seven years after her change in name. The trial court, in denying the petition for dissolution petition, found that because the marriage became void once both parties became female, it lacked jurisdiction to dissolve it.

The trial court relied on the second part of Indiana's Defense of Marriage Act, which provides that "a marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized." The Court of Appeals, rejected this reading of the statute, holding that it does not void a marriage that was initially valid in Indiana "simply because one of the parties to the marriage has changed his or her gender."

To conclude that the parties' marriage somehow became void when the gender was changed on Davis' birth certificate would permit David to effectively abandon her own child, even though the parties were validly married at the time of the child's birth and even though Davis is the child's father. It would also leave the parties' child without the protection afforded by Indiana's dissolution statutes with regard to parenting time and child support.

In summary, under the specific facts and circumstances before us in this case, a marriage between a man and a woman that was valid when it was entered into does not automatically become void when one of the parties has his or her birth certificate amended to indicate a change of gender. The statute prohibiting same-sex marriages does not apply to the particular set of circumstances in this case because the parties did not enter into a same-sex marriage in Indiana or into a same-sex marriage that was solemnized in another state. In addition, a marriage such as the one at issue here is not listed among those marriages declared void ab initio under applicable Indiana statutes, and would be improper to interpret the statute otherwise. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

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Big Surprise, Pay-To-Play Consultant Picks Airport Site As Most Suited Site For Criminal Justice Complex

Only in the corrupt pay-to-play world in which the City of Indianapolis conducts business could a consultant produce at taxpayers' expense a report claiming that the most suited site for building a half-billion dollar criminal justice complex would be next to the Indianapolis International Airport right on the county line on the far west side next to Hendricks County. That's precisely what the Star's Jon Murray is reporting that a useless report prepared by CB Richard Ellis is recommending.

That site is on the northwest corner of airport property — a stone’s throw from the Hendricks County line.

Although it is designated as the “preferred site,” scoring highest among 14 properties considered in a preliminary evaluation by real estate firm CBRE, the airport location already has critics.

Chief among them are several Marion Superior Court judges.

In short, they say it’s too far from Downtown and too inaccessible by existing public transit. Judge Mark Stoner, who presides over a major-felony court, envisions the danger posed by victims, witnesses, defendants and jurors from overlapping cases riding in the same bus to the outlying airport site from transfer points Downtown.

There is much to like in an airport site because the land already is tax-exempt and readily available, but Stoner says another issue should take precedence.

“This is a constitutional issue for us,” Stoner said. It’s about “the public’s right to have ready access to the court system.”

Other judges who have voiced worry about the airport site include Becky Pierson-Treacy, James Osborn and Circuit Judge Louis Rosenberg.

As soon as Mayor Greg Ballard recently announced this plan to rely entirely on a private developer to build, operate and maintain a massive new criminal justice system that envisioned moving the entire criminal justice apparatus out of downtown Indianapolis to a new location, I knew that this project was being driven entirely by one law firm that controls every major decision made in the mayor's office and one private contractor with whom Sheriff John Layton has become a bit too cozy.

Sheriff Layton let the cat out of the bag when he mouthed off to reporters that a site near the airport was preferable because it would make it more accessible for federal inmates who the federal government would pay to house at the jail, which could help offset costs for running the jail. The current private operator of Marion Co. Jail II, Corrections Corporation of America, which is expected to bid on the project, currently houses some federal inmates and immigration detainees at that jail under contract with the feds. Barnes & Thornburg, which is paid to advise Mayor Ballard and for all practical purposes exercises total control over his administration, also represents CCA regarding its current contract with the county to operate Jail II.

It is sickening beyond belief that our taxpayer dollars were used to pay money to a politically-connected consultant to produce a bogus report to stack the deck in favor of the private developer the downtown mafia has already decided behind closed doors is going to win this half-billion dollar project. This is the same consultant that the City agreed to pay at least a million bucks to assist it in relocating a downtown fire station, IFD headquarters and the Firefighter's Credit Union from their current location on Mass Avenue. The consultant came up with a site in Lockerbie owned by developer Joe Whitsett, who had previously committed to the neighborhood to build a suitable residential development on the parcel. The neighborhood exploded in outrage upon learning of the change in plans, and it was clear during a meeting with the neighborhood that this high-paid consultant had performed zero due diligence in picking that site other than to accommodate a backroom deal the Mayor's Office was trying to make with the developer regardless of what the neighborhood thought.

After much teeth gnashing, the Mayor's Office moved to Plan B to relocate the IFD headquarters and fire station to the site of the Red Cross, which had to be paid to relocate to a new site on Meridian Street, and the credit union had to be paid to relocate to another site near College and Mass Avenue, a move that will cost taxpayers more than double the original projected costs, keeping in mind the only reason for the deal in the first place was to free up a prime piece of land on Mass Ave for development by another pay-to-play developer to be partially funded by the city's taxpayers. None of these deals have anything to do with what's in the best interest of the public; they're always about what's going to make the most money for the pay-to-play developers who've paid off the politicians.

By moving the criminal justice complex out of downtown, the Mayor's Office will kill four birds with one stone. With the completion of the Eskanazi Hospital project, the pay-to-play contractors are demanding a large new public works project to perpetuate their racket. The project itself can be rigged to favor the private developer the Mayor's Office has already decided in consultation with the law firm client that is driving the project. The large payments to be made for decades to come assures a steady stream of money flowing into the downtown racket that benefits from the project. By moving the criminal justice complex outside of downtown, prime parcels of land housing the two jails and the Sheriff's Department can be redeveloped, naturally with taxpayer subsidies, to make even more money for the pay-to-play developers. And finally, by moving the criminal justice system out of the downtown area, the downtown mafia hopes that it can clear out what it views as the blight created by low-income whites and minorities who make up a disproportionate share of criminal offenders.

Mayor Ballard claims that the reason it makes sense to rely on a private developer to build, operate and maintain the new criminal justice system is because it can be accomplished without raising taxes. That's a claim that is not sustainable over time because anyone with a brain can figure out that undertaking the project in this fashion will cost taxpayers a lot more money over time. Radio talk show host Amos Brown did some simple math in his latest column to make this point:

Two years ago, a group analyzed what it would take to build a facility like this and they came up with an outrageous estimate of $500 million. Lucas Oil Stadium cost $750 million. So do they want us to believe this combination of courtrooms, jails and office space would cost almost as much as that stadium?

On “Afternoons with Amos,” Lotter said the sheriff and other government agencies currently spend some $19 million yearly on rent. Over a 30-year lease that comes to some $570 million.

But if the cost of constructing the new justice center is $500 million, that doesn’t include interest payments on the debt the private entity would have to obtain to build the facility. And it doesn’t include the 15 to 20 percent profit margin the private developer would charge to make their money on the deal.

Lotter’s rent projections are far too low.

Brown also raises in his column a valid concern about the negative economic impact moving the entire criminal justice complex out of downtown will have on area businesses. All the freed up space in the City-County Building will allow other employees to be consolidated into the building, resulting in more vacant commercial property downtown, which already has a high vacancy rate of 20%. Law firms, bail bond companies and other businesses located downtown only because that's where the criminal justice complex is currently located might also relocate out of downtown if the criminal justice complex is no longer located there. And of course, a central location for the criminal justice system makes it the best location for those it serves, but that's the least of the concerns of those pushing this project for their own self-serving ends.

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Department Of Education Releases A To F Grades For State's Schools

The Department of Education released the A to F accountability grades for the state's schools today for the 2012-13 school year, and the grades indicate that statewide schools are performing better than the previous year. More than two-thirds (67%) of the state's schools received an A or B grade. That's up from 62% the previous school year. Even better, the percentage of schools earning a D or F grade fell from 20% to 16%. “These grades are a credit to the hard work of students, teachers, and families,” said Sarah O’Brien, District 4 representative to the board.  “It’s encouraging to see our schools make continued gains in student academic performance.”

Radio talk show host Amos Brown broke down the numbers for Indianapolis schools and, like the statewide results, he found improvement in the overall grades, although the city's charter schools fared worse than the previous year. Brown found 28 schools in the city receiving a failing grade, which is down from 36 the previous year. The number of failing charter schools in the city jumped to 7 from 4. The list of failing charter schools includes the Christel House Academy, which was the source of controversy that led to former Supt. of Education Tony Bennett's ouster from his new job in charge of Florida's schools after it was revealed that he changed last year's grading to improve the schools grade from a "C" to an "A." The Gulen-affiliated Indiana Math & Science Academy received a failing grade compared to the "B" grade it earned the previous school year.

Overall, six charter schools earned an "A" compared to fourteen earning a "D" (7) or "F"(7). Four of the failing charter schools in Indianapolis includes those administered by the Mayor's Office, while two are administered by Ball State University. Overall, six of the charter schools administered by the Mayor's Office earned an "A" compared to eight that earned a "D" or "F." Ball State's best charter school only earned a "C", while three earned a "D" in addition to the two earning an "F." Brown also found that the failing IPS schools taken over by Mayor Greg Ballard's Charter School Office (Arlington, Howe, Manuel and Emma Donnan) all received failing grades.

According to Chalkbeat, Christel Academy officials are blaming testing errors last spring for the school's failing grade this year. CEO Carey Dahncke claimed that 90% of the students who passed state tests the previous year but failed the most recent test were among the students bounced offline while the test was being administered. “That was the common element,” he said. “It is due to the testing disruptions.” The school's appeal of its failing grade was turned down by the state. Click here to use Chalkbeat's search engine to find out how schools across the state fared.

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Ballard Blames Council For City's Lower Bond Rating

This week, S&P lowered the City of Indianapolis' bond rating two notches from AAA to AA. If you read the rating announcement, you understand why the rating was lowered. Firstly, S&P has adopted new standards for analyzing GO bond ratings for municipalities. Applying the new standards, the rating agency found the debt level being carried by the city was too high based on available revenues to pay its debt obligations.

According to the Indianapolis Star, Mayor Ballard reacted to the lowered bond rating by blaming the Democratic-controlled council for its failure to raise property taxes by eliminating the homestead property tax credit, which would have made a negligible difference in the city's financial situation. To piece together its latest budget for 2014, the city is tapping one-time sources to balance the budget.

What Ballard doesn't explain, which is largely the reason the city's bond rating has been lowered, is that he has continued the municipal financing scheme of expanding the areas of the city's tax base that are within a TIF district, thereby starving other municipal services of funding needed for basic operations. The growing tax revenues diverted into the TIF districts, now approaching 15% of the property tax base, are used to leverage more borrowing to finance more publicly-subsidized private development undertaken by contributors to Mayor Ballard's campaign committee. City-County Council President Maggie Lewis released a statement in response to Mayor Ballard's criticism of the council, which appears to recognize the role TIFs have played in worsening the city's credit worthiness.

“We are disappointed that Mayor Ballard would lay the blame for city’s credit rating downgrade at the feet of the City-County Council, particularly after we worked so closely with him to craft a budget that passed with bipartisan support.  For the last six years, Mayor Ballard has neglected to adequately finance and staff public safety in our city, and our citizens have been forced to deal with the consequences of his inaction every day.  Protecting our citizens is our number one priority, and Mayor Ballard signed off on this bipartisan plan with the 2014 budget.  Rather than revise the past, I, along with other Councillors, have been working on a new set of polices that will make the use of Tax Increment Financing in our city more transparent, disciplined, and responsible, as well as leading a study commission to identify public safety funding and staffing needs for the long term.   Working together on these kind of initiatives is the way forward.” 

I wish Lewis had put her words to action when Councilor Brian Mahern was pushing for TIF reforms and to put a break on establishing even more TIF districts after the council went to the trouble of having a report prepared that demonstrated the long-term havoc TIF districts were wreaking on the city's finances. If the council had listened to him, it would have never expanded the downtown TIF district and created the near-northside TIF district that ripped a new, giant-sized hole in the city's property tax base.

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