INDIANAPOLIS (WISH) Former Indiana Secretary of State Charlie White was ‘caught off guard’ when his attorney failed to present what he saw as critical evidence at his 2012 trial, his new attorney told a state appeals court Tuesday.
Attorney Andrea Ciobanu argued before the Indiana Court of Appeals that White’s defense from former Marion County Prosecutor Carl Brizzi was inadequate, leading to his conviction of six felony counts of voter fraud, theft and perjury. He was sentenced to one year of home detention, and removed from office.
“There was no offer of proof of anything (by Brizzi),” Ciobanu told the three judge panel. “He paid his attorney a lot of money to prepare for this trial. It was supposed to be a three week trial. He spent a lot of money on it. There was no case presented whatsoever.”
Brizzi should have called White to the stand, along with his ex-wife and current wife, she argued. He also should have presented mail sent to him at his ex-wife’s home on the East side of Fishers, where his son was also living, as evidence at trial. That, she said, would have proved White’s claim that he was also living there at the time.
But, Chief Judge Nancy Vaidik was quick to question those arguments, saying a lower appeals court had already dismissed them as moot.
“The court believed Mr. Brizzi’s testimony when he said he could not have put the ex-wife on the stand, because the ex-wife admitted during pre-trial preparation that Mr. White was not living with his ex-wife,” Vaidik responded. “The judge said: I believe attorney Brizzi. Isn’t that the end of the inquiry, at least with regard to the ex-wife’s testimony?”
The panel also questioned Ciobanu’s claim that the decision not to put White on the stand was Brizzi’s call.
“Mr White said: I agree with my attorney’s decision for me not to testify,” said Judge Michael Barnes. “Isn’t that right?”
“Yes,” Ciobanu admitted, before being told she was out of time for arguments.
“Much of what we’ve heard today, and what they argued in their brief, were really requests to reweigh the evidence,” responded the state’s attorney, Justin Roebel. “The relevant facts here have already been found by a jury and by the post conviction court, and this court does not reweigh those facts.”
“The facts have kind of been determined,” agreed Judge Barnes. “That’s not to say they’ve been correctly determined. But, they have been determined. So, it’s very difficult for this panel, or any panel of an appellate court to say–they got it all wrong, we’re going back to square one here.”
That didn’t stop Ciobanu from seeking to have those facts reopened for new interpretation.
Her additional arguments to the panel included allegations that the state did not present sufficient evidence that White was actually living in a townhouse on the city’s west side with his then fiancé. That new residence, referred to as the ‘Overview home,’ during Tuesday’s hearing, was outside the boundaries of the district White represented on the Fishers Town Council.
Ciobanu also argued that the jury had not been instructed that it could regard White’s ex-wife’s residence as a ‘temporary residence’ or ‘non-traditional residence’ because his son was living there.
But, her strongest argument, she told the panel, was that the state law regarding theft was not properly applied by prosecutors when they contended that White continued to take his Council salary while not residing in the district he claimed to.
“That’s not what happened here,” she told the panel. “There’s nobody else claiming they’re entitled to that money. And, the council didn’t want it back. And, the council didn’t file anything to remove him, because he was doing his job for the prior 10 years.”
That argument sparked a sharp rebuke from Judge Barnes.
“Here’s a hint,” he said, interrupting. “Move along off that argument. We get it.”
The panel spent much of its time questioning Roebel over the legislative intent of state law regarding the casting of false ballots, and whether White’s convictions for both it and for voter fraud represent double jeopardy.
“They may be,” Roebel told the panel. “But, that’s not part of their appeal.”
The panel agreed to take the arguments under consideration and issue a decision “as soon as possible.” In the meantime, White’s conviction remains stayed by a lower court in Hamilton County.
White has also filed a separate civil lawsuit against Brizzi, claiming legal malpractice and other distress due to inadequate representation at trial. That case is also on hold pending the outcome of White’s appeal.