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Ex-IMPD officer claims juror misconduct, denied due process

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The former Indianapolis police officer convicted of killing one motorcyclist and injuring two others when he hit them while driving his patrol car in 2010 argues in his brief filed Wednesday that he is entitled to a new trial. David Bisard’s public defender raises three claims, including Bisard was denied his right to an impartial jury based on Internet research conducted by a juror.

Bisard was found guilty of seven counts, including Class B felony operating a motor vehicle with a BAC 0.15 or higher causing death, based on the crash that killed Eric Wells and injured Mary Mills and Kurt Weekly. The trial was moved to Allen County based on pre-trial publicity, and Allen Superior Judge John Surbeck sentenced Bisard to 16 years with three suspended. He filed his appeal in December 2013.

His attorney Victoria Bailey argues that Surbeck denied Bisard of his constitutional right to an impartial jury by failing to order a mistrial after learning that a juror had researched online information on blood alcohol testing and told the other jurors what he found. That juror was removed from the jury and the trial continued with the remaining jurors.

Bisard’s attorney also claims he was denied the due process right to present a defense to the state’s implication that he was a “tolerant drinker.” The state argued – and the trial court agreed – that Bisard could not present his evidence that he was not a tolerant drinker as of Aug. 6, 2010 – the date of the crash – without opening the door for the state to present evidence of Bisard’s 2013 arrest for drunken driving.

While on bail awaiting trial on the 2010 incident, Bisard was arrested in Indianapolis and charged with misdemeanor OWI and operating a vehicle with a BAC of 0.15 grams or greater. A blood draw after the accident revealed a BAC of 0.22. He pleaded guilty to Count 1 in February.

The brief also claims the trial court abused its discretion when it aggravated Bisard’s sentence upon a finding that he abused a position of trust.

Bisard is seeking a new trial, or if that motion is denied, then to reduce his sentence, claiming the mitigating factors – including his service as a Marine and police officer – outweigh the aggravating factors.
 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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