Commission Hearing Reveal Boatloads of Reasonable Doubt About White Criminal Charges; Ethics Rules Require Special Prosecutors to Dismiss Case

On Monday, I watched the entire Recount Commission hearing on the eligibility of Secretary of State Charlie White to continue serving in office.  I have no doubt he will prevail on that issue which required the Democrats to show that he was not legally registered, a requirement to be Secretary of State.

Secretary of State Charlie White

As I noted in my blog, the Democrats had nothing but circumstantial evidence, i.e. documents, to suggest that White was residing at his condo instead of his ex-wife's house located at 7527 Broad Leaf Lane where he was registered. White on the other hand not only had documents to suggest he was residing at the Broad Leaf address, more importantly he had several witnesses, including the powerful testimony of his ex-wife that he was in fact living at her and her new husband's house.  The Whites also offered a perfectly understandable reason for the set up.  White's fiance, the now Michelle Quigley White did not want to live together before marriage and White and his ex-wife, Nicole White Mills, wanted him to spend as much time as possible with their son, which was difficult due to the state-wide campaign.  Spending the nights at the Broad Leaf house made sense.  I'd be shocked if White loses this issue at the Commission.  He should win 3-0, but given how politics works, I'm sure it will be 2-1, with the sole Democrat voting against.

But what about the criminal charges?  The testimony and exhibits introduced at the hearing are open to consideration by the prosecutors.  It turns out the concerns of Charlie White's attorneys about the 5th were misplaced; the evidence in fact calls into serious questions the legitimacy of the charges and raises questions why they were filed in the first place.  Let me also say, I'm one of the few attorneys out there who think that taking the 5th is often the worst thing to do when you have facts that will undermine a political vendetta against a public figure which is being conducted through the guise of a criminal prosecution.   For nine months Charlie White has been tried and convicted in the media.  Monday we learned for the first time facts that have never been reported that completely undermine the criminal charges.

STANDARD  OF PROOF:  Before looking at the particular charges, I need to remind readers that the standard is that the prosecution has to prove its case beyond a reasonable doubt.  This is a very difficult standard.  The evidence has to be such that there is basically no question, that the defendant must be guilty.  This is not the same standard for civil cases which is usually a preponderance of the evidence, a mere tipping of the scales.

Special Prosecutor Dan Sigler

When prosecutors use a grand jury to get an indictment, they can pick and choose which evidence to present.  It's almost a completely one-sided proceeding.  However, the prosecutors have an ethical duty under the Rules of Professional Conduct to not pursue charges they know do not have merit.   And once those prosecutors learn those charges are cloaked with reasonable doubt, they have an ethical duty to dismiss.  Now let's examine those charges in light of Monday's testimony.

COUNT 1. SUBMISSION OF A FALSE, FICTITIOUS OR FRAUDULENT REGISTRATION APPLICATION, A CLASS D FELONY.

BASIS FOR CHARGE:  This charge says that White by "knowingly or intentionally sending a voter registration change of address forms to the Hamilton county Board of Voter Registration representing his new address [as] 7527 Broad Leaf Lane, Fishes, Indiana, when he knew he was or would be living at 13086 Overview Drive, Fishers, Indiana, at the time of the next election (May Primary 2010))"

TESTIMONY AT COMMISSION HEARING:   White testified at the Commission hearing that he was in fact residing at 7527 Broad Leaf Lane.  His fiance, Michelle, confirmed that Charlie White was living at 7527 Broad Leaf Lane and not at the newly-purchased condo. The couple offered a very plausible explanation.  Michelle did not want them to live together at the condo until they were married and that in order to spend more time with his son when he was traveling around the state, it made sense for White to reside at his ex-wife, Nicole and her new husband's house while he was campaigning state-wide.  Nicole also testified that Charlie White was residing at her house and not the condo.  Nicole's husband was ready to testify the same way but was not called undoubtedly due to the overwhelming testimony on White's side.
LIKELY RESULT:  There is absolutely no question that, in light of the testimony of those four individuals, there is reasonable doubt, which would mean acquittal.

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COUNT 2.  PERJURY (LYING ON VOTER REGISTRATION FORM), A CLASS D FELONY

BASIS FOR CHARGE:  This charge says that White did "knowingly or intentionally making a false material statement under oath or affirmation knowing the statement to be false or not believing it to be true, to-wit: on his State Voter's Registration Change Form stating his residence was changing from 6994 Pintail Drive, Apartment 107, fishes, Indiana to 7527 Broad Leaf Lane, Fishers, Indiana, when in fact at the time of making said statement he was residing at 13086 Overview Drive, Fishers, Indiana."

TESTIMONY AT COMMISSION HEARING:  See above.

LIKELY RESULT:  For the same reason cited above, there is reasonable doubt and thus acquittal.

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COUNT 3.  FRAUD ON A FINANCIAL INSTITUTION, CLASS C FELONY

BASIS FOR CHARGE:  This charge says that White "did commit the offense of Fraud on a Financial institution, to-wit: by knowingly or intentionally executing or attempting to execute a scheme or artifice to obtain money, funds or other property owned by or under the custody or control of a State or federally chartered or federally insured financial institution by means of false or fraudulent pretenses, representation or promises, to wit: representing in a real estate closing transaction that he intended to reside at 13086 Overview Drive, Fishers, Indiana within (30) days of February 26, 2010, and said misrepresentation was material to the said Charlie P. White obtaining the loan and more favorable interest rate."

TESTIMONY AT COMMISSION HEARING:  Charlie White testified at the hearing that they fully intended to get married and move into the condo at the time of the closing, but things got delayed due to the state-wide campaign.  His now wife testified the same way.  As a former title insurance company attorney who has has conducted scores of closings, I know all about that occupancy affidavit.  It is INTENT to occupy at the time you sign it. 

LIKELY RESULT:  Because the White's have direct testimony that they intended to occupy the residence within 30 days (and they have no willing victim), this charge has reasonable doubt and thus most probably acquittal.

NOTE: I would point out that the prosecutors concocted this charge, the lender, the supposed "victim" they are defending, has not complained that I know of. I would also point out that this is a contradictory charge...here the prosecutors are actually claiming White was living at his ex-wife's house and not the condo, facts contrary to their allegations in the voter fraud and perjury charges. Talk about throwing mud at the wall to see what sticks. Further, as a former state regulator who witnessed mortgage fraud and consistently failed to get prosecutors and the Attorney General's Office to do anything about it, I find it is offensive that the prosecutors would file this phony charge.

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COUNT 4.  VOTING IN OTHER PRECINCT, CLASS D FELONY

BASIS FOR CHARGE:  This charge is that Charlie D. White did commit the offense of Voting in Other Precinct, to-wit:  Knowingly or intentionally voting in Delaware Township Precinct 12 indicating his residence was 7527 Broad Leaf Lane, Fishers, Indiana, when in fact he resided at the time at 13086 Overview Drive, Unit 5-B, Fishers, Indiana, which is located in Fishers Fall Creek Township Precinct 5.

TESTIMONY AT COMMISSION HEARING:  See outline as to testimony at to Count 1.

LIKELY RESULT:  Reasonable doubt and, thus, acquittal.

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COUNT 5.  VOTING IN OTHER PRECINCT, CLASS D FELONY

BASIS FOR CHARGE:  The allegation is that White "did commit the offense of Voting in Other Precinct, to-wit: knowingly or intentionally voting in Delaware Township Precinct 12 indicating his residence was 7527 Broad Leaf Lane, Fishers, Indiana, when in fact he resided at the time at 13086 Overview Drive, Unit 5-B, Fishers, Indiana, which is located in Fishers Fall Creek Township Precinct 5."

TESTIMONY AT COMMISSION HEARING:  See testimony with regard to Count 1.

LIKELY RESULT:  Reasonable doubt and, thus, acquittal.


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COUNT 6.  PERJURY (ON MARRIAGE APPLICATION), CLASS D FELONY

BASIS FOR CHARGE:  This charge rests on the allegation that Charlie P. White id commit the offense of Perjury, to-wit: knowingly or intentionally making a false statement under oath or affirmation, knowing the statement to be false or not believing it to be true, to-wit: stating on his marriage license application to the Hamilton County Clerk's Office and made under affirmation of the truth thereof, that his residence was 7527 Broad Leaf Lane, Fishers, Indiana when it was 13086 Overview Drive, 5B, Fishers, Indiana.

TESTIMONY AT COMMISSION HEARING:  This charge once again depends on proving, beyond a reasonable doubt, that White was residing at his condo.  He has four witnesses, himself included, who are going to testify that he was residing at 7527 Broad Leaf Lane, exactly what is on his marriage license.  The only thing the prosecutors have are documents, circumstantial evidence to suggest this is not true.

LIKELY RESULT:  Reasonable doubt and, thus, acquittal.


It should be emphasized at this point that Counts 1, 2, 4, 5 and 6 all depend on the prosecutors proving beyond a reasonable doubt hat White was living at his condo and not at Broad Leaf Lane house.  The Democrats failed to produce a single witness to cotradict these four witnesses.  They offered only circumstantial evidence, which is apparently the only thing the prosecutors relied on to file the charges.

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COUNT 7.  THEFT, CLASS D FELONY

BASIS FOR CHARGE:  This allegation is that White "did commit the offense of Theft, to-wit: knowing or intentionally exerting unauthorized control over the property of the Town of fishers, Indian, with the intent to deprive the Town of fishers of any part of the value and use, to-wit: taking his pay as a Council member for Fishers Council District 2 during the period of approximately November 5, 2009 through September 28, 2010, when he did not reside in said Fishers Town council district."

TESTIMONY AT COMMISSION HEARING:  White testified about the unusual set up of Fishers Town Council, an arrangement apparently unique for municipal bodies in Indiana. In Fishers, councilors have to live in particular districts to run, but they are at-large, they appear on the ballot of Fishers.  White stated that because of this arrangement he wasn't aware of exactly where the district lines were.  In addition, the lines had moved substantially over the years due to population growth.  White also noted that he had a a legal opinion that district residency only applied  to when you are initially elected and he further cited to another board member who moved out and served for 3 years on the Fishers Town Council.  White testified that the Fishers attorney, Doug Church told him that he did nothing wrong and not to return his pay.  White however did.

LIKELY RESULT:  This is a charge the judge should dismiss outright.  The prosecution has to show more than White wasn't eligible to serve, an assertion by the way that is already in question due to the unique nature of the Fishers Town Council districts.   The prosecution needs to show that Charlie White accepted pay for work he did not perform for the far-fetched "theft" theory to hold up.   I would further point out that as long as he is on the Town Council, it would have been a violation of very strict labor laws for the Town to not pay Charlie White.  If he's not eligible to serve, that means he gets removed, it doesn't mean you don't have an obligation to pay him, a fact which apparently Doug Church understands but the prosecutors don't.

While this charge is the most outrageous of all of the charges, I would point out that it is the one charge most easily pled down to a misdemeanor to give the prosecutors a face-saving way of "convicting" White while dismissing the six other charges.  The misdemeanor conviction would leave White in office. 

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PROSECUTORS JOHN DOWD AND DAN SIGLER NOW HAVE AN ETHICAL DUTY TO DISMISS CRIMINAL CASE AGAINST CHARLIE WHITE IN LIGHT OF COMMISSION TESTIMONY

I would point to Rule 3.8(a) of the Rules of Professional Conduct: The prosecutor in a criminal case shall (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

Look closely at the rule.  It doesn't just apply to the initial filing of criminal charges.  It applies throughout the proceedings.   While "probable cause" and "[lack of] reasonable doubt" aren't quite the same thing, I think it is safe to say that if prosecutors file charges and then learn of evidence that cast overwhelming doubt about their ability to prove those charges at trial, they have an ethical duty to dismiss those charges.

The evidence that came out during the Commission hearing points to the fact that Special Prosecutors John Dowd and Dan Sisler have no chance of convicting Charlie White on the seven counts in front of a jury.  They need to follow Rule 3.8(a) and dismiss the charges.  If they choose to continue to pursue these now obviously flimsy charges, serious questions need to be asked about Dowd and Sigler's motivation and their initial reason for filing the charges.  At this point it has gone beyond the undeniable selective prosecution of the laws.  It is starting to look exactly like a political prosecution brought by a coalition of Democrats and some Republicans who want Charlie White replaced by someone of their own choosing, people who apparently have no problem using the criminal laws of this state to pursue that political goal.