Wednesday, June 29, 2011

Will the Charlie White Criminal Prosecutors Look for a Face-Saving Misdemeanor Deal?

Secretary of State Charlie White
It's been amusing listening to the talking heads in the aftermath of the 3-0 Election Commission decision in favor of Charlie White.  The Indianapolis Star this morning opined that White's legal problems are still a "distraction" and concluded as a negative that White had already been convicted in the court of public opinion.  Apparently the Star is unwilling to accept any blame for that conviction which was based in no small part to its foolish rush to judgment on White before even hearing the other side.

Meanwhile Jim Shella, political analyst for WISH-TV, was the only political pundit I listened to who thought the fact that a Democrat appointed by the Democratic State Chairman who brought the case voted with the Republicans was meaningless.  Shella says prosecutors, unlike the Democrats, have had more time to develop smoking gun evidence that could convict Charlie White.  On Abdul's radio program this morning, Shella took a backhanded shot at Democratic attorney Karen Celestino-Horseman, suggesting that one of the reasons she failed in presenting the case was that she is not a prosecutor, which of course ignores the fact that she is a talented litigator and the case before the Commission wasn't a prosecution.  While I think she was a bit abrasive in her approach which I think isn't helpful, Celestino-Horseman otherwise did an outstanding job presenting the case. She just didn't have any direct evidence to prove her case while Charlie White did.  In the end, an attorney is only as good as his or her case.

Apparently the whole problem that a criminal conviction requires proof beyond a reasonable doubt, a very high standard, is lost on Shella.  Even if the prosecution came up with the neighbor who saw White going in and out of the condo (Shella's so-called smoking gun), the fact still is White has four witnesses placing him as residing at his ex-wife's house.  In particular, the fact White's ex-wife confirms that fact is a devastating blow to any conviction.  People on the jury are going to think as an ex, she of all people wouldn't support White if he were lying. I can't imagine how they're going to completely discredit the ex-wife's testimony to meet the reasonable doubt standard.

My guess is the prosecutors never dreamed they would have to try the case.  I think they believed that  if they threw enough felonies at Charlie White, they could get him to leave office in exchange for dropping the charges.  That fact is driven home by three of the charges that were completely gratuitous and didn't involve victims who complained to prosecutors:  mortgage fraud, perjury for lying on the marriage application by using the ex-wife's address, and "theft" for accepting pay for being on the Fishers Town Board, while supposedly being unable because he moved out of his district.

Special Prosecutor Dan Sigler
The prosecutors went out of their way to develop those charges.  My guess is they were motivated to give themselves more leverage in ultimately negotiating a plea deal with White, leverage beyond the more voter fraud type allegations that make up the other four felony charges.  The mortgage fraud charge in particular requires proof of an opposite set of facts - that White was living at the ex-wife's house instead of the condo - than what is alleged in the four voter fraud type charges and the supposed perjury relating to the marriage application.  That charge though also requires a showing that it was White's intention at the time of signing the affdiavit to NOT to occupy the condo he bought within 30 days, a nearly impossible thing to show.  White's already testified that he intended to move in the condo and that was delayed due to the state wide campaign and not having time to get married.

My guess is that, in light of the evidence before the Commission and the 3-0 finding, the two prosecutors, John Dowd and Dan Sigler, now realize they are out a limb.  That sound they hear is White sawing off that limb.  I believe they will want to cut a deal rather than go to trial with what appears increasingly to be a badly losing hand.  My guess is they'll start looking for a plea that drops all the felonies in exchange for a misdemeanor conviction or two, a way for the prosecutors to save face while arguing that the problem is that the law is vague and the legislature needs to clarify the law.  With only a misdemeanor, White would stay in office.


Eric Rasmusen said...

Would Mr. White be well advised to take a misdemeanor deal? His enemies can then truthfully say he was convicted. And hte reasonalbe doubt standard is very tough--- even without live witnesses, a battle of documents wouldn't result in guilt from a typical jury, would it?

Mr. White might, if it's legal (which it should be!) tell the prosecutors that if they try him and lose he'll make sure hte voters remember that in the next election.

Quesiton: is it legal for a defendant to tell the prosecutor that unless charges are dropped he will donte $20,000 to the county prosecutor's opponent in the next election?

Cato said...

White can't afford a misdemeanor, as taking that deal would still subject him punishment by the Supreme Court.

Further, is the crime a felony or a misdemeanor? Or are we just making this up as we go along?

If they can't nail you for a felony means that you didn't commit the serious crime that they accused you of committing. Not being guilty of a felony does not mean that they are still entitled to tag you as a lesser form of criminal.

If I didn't kill Paul Ogden does not mean I should be a misdemeanant for spitting on the sidewalk.

There is this sick mentality infecting this once-free country that believes that the state, once having tried to bite you, is entitled to get something on which to feed prior to stopping the attack.