State: Bisard conviction should be upheld

David Bisard (WISH Photo)

INDIANAPOLIS (WISH) – Indiana’s Attorney General asked a state appeals court Tuesday to uphold the conviction of David Bisard, according to court filings obtained by I-Team 8.

The request comes after the former IMPD Officer claimed he was denied due process while on trial on charges that he drove his squad car while drunk and caused a fatal crash.

Bisard was convicted in November 2013 in connection with the August 2010 crash that injured Kurt Weekly and Mary Mills and killed 30-year-old Eric Wells. Allen County Judge John Surbeck, Jr. sentenced Bisard to 16 years in prison, with three years suspended for probation. He also has to undergo substance abuse counseling while in prison.

Bisard appealed the conviction in January, then asked an appeals court for a new trial in July. That filing cites three grounds for appeal:

  • That Bisard was deprived of due process and denied the right to present a defense
  • That Judge Surbeck abused his discretion by denying Bisard’s motion for a mistrial
  • That Judge Surbeck abused his discretion by citing “breach of the public trust” as an aggravating factor at sentencing

In the filing, Bisard’s attorneys claim his right to due process was violated because he was not given ample opportunity to present evidence refuting the state’s claim that he was a “tolerant drinker.”

In the State’s response, filed Tuesday and obtained by I-Team 8, Deputy Attorney General Cynthia Ploughe refutes that argument, claiming Bisard was allowed to present “considerable evidence from multiple witnesses…who noted no signs of intoxication at the time of the incident.”

“Had Defendant presented the two dozen witnesses who, he claimed, would say that he was not a heavy drinker, that evidence would have opened the door to evidence that Defendant had been arrested and charged for a subsequent act of operating a vehicle while intoxicated,” Ploughe wrote.

Bisard pleaded guilty in February to that second drunk driving charge stemming from a second operating while intoxicated arrest in Lawrence last year. He was ordered to serve one year on probation.

In their appeal filing, Bisard’s attorneys also claim Judge Surbeck should have declared a mistrial after one of the jurors admitted to researching blood alcohol testing on the Internet, then shared that research with other jurors.

“The juror who committed the misconduct was properly removed from the panel,” wrote Ploughe in the State’s response. “Furthermore, the court took careful steps to question each of the remaining jurors regarding the level of taint from the misconduct. The court found no resulting taint.”

Even if the court had found jurors to be tainted, such misconduct would not have harmed Bisard’s case, Ploughe argued.

“The information learned from the excused juror’s misconduct would seem to cast doubt on the accurary or validity of the State’s blood test procedures,” she wrote in Tuesday’s filing. “Thus, if the jurors were aware of it, that information could have only aided Defendant by supporting his own defense. It would not have harmed him.”

Finally, Bisard’s appeal claims the judge should not have classified “abuse of police power and breech of public trust” as aggravating factors in the case. Ploughe’s disagreement on that charge got to the point quickly.

“Defendant was a veteran police officer, was on duty, was in uniform, was driving a marked police car, had a very high blood alcohol content, was violating general orders by responding to a non-emergency dispatch at a high rate of speed, and approached a busy intersection in complete disregard for the safety of other motorists,” she wrote in Tuesday’s response. “Each of these factors violated the trust that society places in police officers.”

“When convicted offenders appeal their convictions or sentences, the Attorney General’s Office represents the prosecution on appeal,” said Attorney General’s spokesman Bryan Corbin. “In this case, the State’s position is this defendant received a fair trial and his criminal convictions should not be overturned.”

Bisard, who was declared indigent by the judge, is now represented by the Marion County Public Defender’s Office. His attorney declined to comment on the State’s filing Tuesday.

No date has been set yet for an appeals hearing in the case.

Below is the State’s full appeal response.

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