An attorney for former Secretary of State Charlie White faced tough questioning Tuesday from Indiana's three-judge appeals court during White's latest bid to overturn the voter fraud convictions that forced him from office.
Chief Judge Nancy Vaidik interrupted attorney Andrea Ciobanu only seconds after the attorney began her oral arguments and asked Ciobanu what her "strongest argument" was in White's appeal of his convictions on six felony counts.
Ciobanu said her most substantial argument in seeking to overturn White's 2012 convictions is that the trial court in Hamilton County failed to apply Indiana's residency statute "at all" as his case played out. She said that left White unable to convey to jurors where his actual place of residence was as they heard evidence and eventually convicted him on three counts of voter fraud, two counts of perjury and one count of theft.
"I think it's difficult for the jury to make that decision based on the evidence they were presented and the limited information they were given and the misapplication of the law," Ciobanu told the appeals court.
White, a Republican, was automatically removed from his statewide office in February 2012 after a jury convicted him. The six counts included using his ex-wife's Fishers home as his voting address in 2010 — four years after their divorce — while campaigning for secretary of state as he served on a suburban Indianapolis town council.
Prosecutors said White lived in a townhouse outside his council district with his then-fiancee, but was still receiving his council salary and was still voting in his old precinct.
Both Vaidik and Judge Michael Barnes expressed skepticism with Ciobanu's contention that White could claim his ex-wife's address as his own because their son was living with her at that residence and his son was his "immediate family."
"So we're supposed to impute his residence where his son was living, that's your argument?" Barnes asked.
White argued in his 2013 petition asking another Hamilton County judge to vacate his felony convictions that his trial attorney, Carl Brizzi, had provided incompetent counsel by failing to call any witnesses in his defense. White also did not testify on his own behalf.
That judge rejected White's bid to overturn his convictions in December 2013, and ordered White to begin serving his sentence of a year of home confinement. White's sentence was later put on hold while he appeals his convictions.
Vaidik questioned White's contention of ineffective counsel. She said the judge who heard his petition for post-conviction relief believed Brizzi's testimony that several witnesses he could have called had credibility problems and that he could not have put White's ex-wife on the stand because she had said White was no longer living with her at their former home.
"We don't second guess. We don't say 'Judge, you made the wrong credibility determination,'" Vaidik told Ciobanu.
Under questioning, Vaidik got Indiana's deputy attorney general, Justin Roebel, to concede during his oral arguments that White's convictions on at least two of the six counts — of casting a fraudulent ballot and voting in the wrong precinct — might constitute double-jeopardy.
"They do seem to be based on the same act," Roebel said.
After White's conviction and removal from office, then-Gov. Mitch Daniels appointed Republican Connie Lawson to replace White, whose term was scheduled to run through December. Lawson won election last month to a four-year term as Indiana's chief elections officer.
Following Tuesday's hearing, Vaidik said the court would consider the attorneys' arguments and court filings on what she called "this very difficult case."