Election Recount Commission Unanimously Rules in Favor of Charlie White; Finding Calls Into Question Whether Prosecutors Can Prove Case "Beyond a Reasonable Doubt"

Secretary of State Charlie White

Today, the Indiana Election Commission voted 3-0 that Charlie White was an eligible voter and thus eligible to be elected Secretary of State. All along the Democrats tried to suggest that the two Republicans on the Commission would cast politically-tainted votes for Charlie White, despite the evidence.   But in the end the Democrats' case against White was so poor that they ended up losing the vote of Democratic commission member, Bernard "Buddy" Pylitt, who had previously served as a judge on the Hamilton County Superior Court.  I'm hearing Democrats now complain that Pylitt did not let politics play a role in his vote.

Although the legal issue decided by the Commission is slightly different than the legal issues raised in five of the seven criminal indictments, they rest on the exact same set of facts. With regard to the Commission, the legal issue is whether White was an eligible voter and thus eligible to be elected Secretary of State.  To prove this they tried to show that White was not residing at his ex-wife's home on Broad Leaf Lane in Fishers as he had claimed, but rather was living at the condo he had purchased. 

The Democrats though had nothing to present at the Commission hearing but circumstantial evidence, i.e. documents, to suggest White was living at the condo.  White meanwhile had circumstantial evidence, also documents, as well as three witnesses (four if you want to county the ex-wife's new husband who wasn't called) who testified he was living exactly where he was registered at, namely the Broad Leaf residence.

Democratic Election Commission
Member Bernard "Buddy" Pylitt

Five of the seven criminal charges require the prosecutors to prove beyond a reasonable doubt that White was living at the condo and not at the Broad Leaf house.  Pray tell, if this showing can't be made in the Commission hearing where the burden of proof is only a preponderance of the evidence, how are the prosecutors going to get a unanimous group of 12 jurors to find beyond a reasonable doubt that White was not living at the ex-wife's house?  The prosecutors, after all, will be offering the same circumstantial evidence which proved to be a unanimous loser for the Democrats before the Commission.

If those five charges are dismissed, which the prosecutors I believe have an ethical duty to do at this point, that would only leave two charges - mortgage fraud and theft.  Mortgage fraud requires proving the opposite...that White was living at his ex-wife's house instead of the condo.  But the mortgage fraud case is based on the occupancy affidavit, a document in which the borrower pledges to occupy the property in exchange for a lower interest rate.

The problem with this charge is that all White has to do is show he intended to occupy within 30 days when he signed the affidavit. The fact he didn't end up occupying within 30 days doesn't matter.  It is based on intent.  White testified at the hearing that he intended to get married and move into the condo but the marriage, and the move, got delayed.  This charge is so difficult for the prosecutors to prove, without direct evidence mind you, it surely will fail.

That leaves only the theft charge, the notion that White thieved public money by accepting his salary while on the Fishers Town Council even though he had moved out of the district.  There are a lot of problems with this charge.  White also testified he didn't know exactly where the district lines were and didn't realize he had moved out of the district when he moved to the interim apartment where he registered before moving his registration to his ex-wife's house.  While that might sound incredible for someone who was county chairman, the fact is Fishers has a unique election scheme in which members have to live in certain districts to run, but they are elected at-large, voted on by everyone who lives in Fishers.

But the big problem with this charge is that there simply is no allegation that White didn't do the work of a Fishers town council member.  It is only "theft" if in fact he took money for work he didn't perform, a mighty steep hill to prove with respect to an elected official.  The facts simply don't support a theft charge and it should be dismissed.  Ironically this is a charge that might get pled down to a misdemeanor to give the prosecutors some face-saving measure to get a conviction, yet let White off on all the felony charges so he stays in office.

Today's events prove a near fatal blow not only to Democrats, but also to some Republicans who wanted White out of office so his position could be filled by Governor Daniels.   There are also folks in the media, such as WISH-TV's Jim Shella, who have taken great enjoyment at watching White twist in the media, accused of multiple felonies while at the same time told by his attorneys not to fight back in the media.  

Almost all defense attorneys will advise you that when charged with a crime...clam up and don't say anything.  But Charlie White is no Average Joe.  His life is being played out in the media, and his reputation means everything to him.  He had a defense to the charges but chose to offer no defense, or clumsily present bits of that defense when his attorneys weren't around.  I think White's instincts to fight back publicly were right, even if his delivery wasn't always the best.

The Democrats, the aforementioned Republicans, as well as Shella and his media buddies, are about to sit down for a dinner of crow because White is on his way to getting exonerated.