Brizzi's Decision Not To Put On Defense In Charlie White Case Based On His Doubts About Wife's Testimony

Arguments by the attorney representing former Secretary of State Charlie White in his petition for post-conviction relief resumed today in Hamilton Superior Court Judge Daniel Pfleging's courtroom with testimony from White's trial attorney, Carl Brizzi. In February, 2012, White was forced to give up his office after a jury found him guilty on six of seven vote fraud-related charges arising out of prosecutors' claims that he voted illegally once by casting a vote in the 2010 primary election in a precinct in which he didn't reside. White's attorney, Andrea Ciobanu, is arguing that White received ineffective counsel from Brizzi, the former Marion Co. Prosecutor. Ciobanu blames Brizzi's failure to put on a defense in the case by calling any witnesses as the main reason jurors found him guilty. For the first time today, we got a better picture of Brizzi's claimed rationale for closing his case without offering any witnesses or evidence in defense of his client.

Previously, Brizzi has maintained in public interviews that his strategy not to put on a defense was based on his belief that the prosecution had not met its burden in proving any of the charges against him, a tactic he says caught prosecutors off guard. Today, he told Judge Pfleging during his testimony that he had never made any firm decision until what, if any, witnesses he would call until the prosecution neared the end of its case against his client. Brizzi claimed that during a late-night meeting with White and his wife, Michelle White, that he began to question the truthfulness of the testimony that she had previously provided to the Indiana Recount Commission, where she testified that she and her husband did not reside together in the condominium he purchased a few months before their marriage until the couple tied the knot Memorial Day weekend after the May primary. Michelle testified that White spent much of his time on the road campaigning for Secretary of State, but that he slept in the basement of his ex-wife's home until they were married. White's ex-wife, Nicole Mills, buttressed her testimony during the Recount Commission proceedings.

Brizzi acknowledged that he had represented Michelle White during the Recount Commission as her pro bono counsel when she testified in support of her husband. During a tough late-night grilling of her during the trial, Brizzi claims that in an agitated and emotional state Michelle claimed Charlie didn't really "live there, live there" in reference to Nicole's home, which Brizzi characterized as a "confession" or "recantation" of her Recount Commission testimony. At that moment, Brizzi says his trial strategy began to change. He says that he came to the conclusion that the rules of professional conduct would not have allowed him to offer testimony from Michelle that he said he believed would be untruthful. When asked why he argued to jurors in his closing argument that White resided at his ex-wife's home during the time in question if he didn't believe Michelle, he responded that it was his duty to argue his client's case as best as he could to the jury.

Ciobanu questioned Brizzi's judgment for not spending any time prepping any of the witnesses he had listed on his final witness list prior to trial and questioned whether he ever had any intention of calling witnesses. Brizzi explained that it was not necessary for him to sit down and interview all potential witnesses prior to trial. He said that he typically speaks to witnesses shortly before or at the time of the trial.

At the beginning of his testimony, special prosecutor Dan Sigler, Sr. strenuously objected to any attempts by White's attorney to impeach Brizzi's testimony with testimony he gave last week in the civil case White has filed against Brizzi for legal malpractice. Sigler complained that White's attorney circumvented a deposition of Brizzi in the post-conviction relief proceeding by filing a civil lawsuit against him and deposing him in that matter instead without notice to him. Ciobanu shot back that Sigler had been made aware of the deposition and had been afforded the opportunity to attend the deposition but chose not to attend it. Judge Pflefging overruled Sigler's objection and permitted Brizzi to be examined on matters discussed in the deposition that were relevant to whether he had provided ineffective counsel.

One by one, Brizzi dismissed the value of calling witnesses. After dismissing Michelle's testimony as untrustworthy, he said he didn't want to call White's ex-wife, Nicole, because he believed that she was too corporate-like in her answers and jurors would wonder why she testified if White's wife didn't testify. He said that White's mother was "too emotional" to be an effective witness. He had ethical concerns that an expert witness that Brizzi says was retained by White and his father without his consultation, Ryan Harmon, a former Indiana State Police sergeant, would not be credible. Harmon was prepared to offer testimony based on his analysis of GPS data gathered from White's cell phone records that he said would prove that White spent most nights at his ex-wife's home during the period in question when he wasn't traveling throughout the state.

Brizzi said that he was concerned about information Sigler had shared with him before trial about a phone conversation that he said Harmon had recorded with a State Police investigator, whom had been relied upon by the prosecution, and whom Harmon had supposedly accused of being selected to conduct White's investigation as a favor to the governor and Sigler. According to the allegation, the State Police investigator was using the prosecution to angle for a promotion within the department. Brizzi said that the concerns shared with him by Sigler raised ethical challenges in offering him as a credible witness. He said that he concluded that Harmon's testimony would not be needed after he was satisfied that he had adequately discredited the expert testimony offered by the prosecution, a Sprint employee. Ciobanu pointed out that the prosecution had not identified Sprint employee Ray Clark as an expert witness until right before trial. Brizzi admitted that the late disclosure had initially caused him concern, and that he briefly considered seeking a continuance but that after he saw the evidence that he intended to offer and based upon his prior conversations with Harmon he said that he was comfortable with the state being allowed to offer the surprise, last-minute witness to their case.

Following a recess in this morning's testimony, Judge Pfleging had an admonition to everyone involved in the case whose emotions were running high. It was not immediately clear what had prompted the call for a side bar between the prosecution, White's attorney and Brizzi's attorney during a break that prompted the admonition from the judge. One court room observer saw an exchange occur during a break in today's proceeding between Brizzi and Harmon during which the witness claims that Brizzi was overheard to say that Harmon had better watch his back. Harmon, who had been seated in the courtroom at the beginning of today's proceeding, was asked to leave due to a separation of witness order issued by the judge.

Ciobanu also questioned Brizzi about whether he had considered seeking a continuance in the case due to his mother's failing health at the time of the trial and the distraction it was causing him. Brizzi acknowledged that a health care worker at St. Vincent's where his mother was being treated had made emergency calls to him about his mother near the time of the trial, but he said he later dismissed the health care worker as being a "chicken little" because he would find his mother doing fine when he rushed to be by her side after receiving a call from her. Brizzi's mother passed away this past May.

Brizzi's most critical testimony was about White himself being called as a witness. Brizzi said that after working for months prior to trial for hundreds of hours with White he concluded that he would do more harm for his case by testifying in his defense. Calling him as a witness would have been a "disaster" Brizzi claimed, although White did previously testify in his own behalf during his Recount Commission hearing without disastrous consequences. Brizzi criticized White for being too emotional and worked up with the prosecution team, claiming that White inappropriately stared down the prosecutors when they were in the same room and showed too much of an inclination to want to get into a fight with them. Brizzi had also suggested that the amount of money being spent on the case was of concern to his client, although Ciobanu needled him about incurring the added expense of renting office space across the street from the Hamilton Co. Courthouse for a three-month period for a trial that lasted only a few days especially for White's case.

White's attorney criticized Brizzi for relying upon jury nullification as a jury strategy, a characterization challenged by Sigler, who claimed there was nothing in the record to support a jury nullification strategy. Brizzi, however, conceded that during voir dire he had asked potential jurors whether they were sympathetic to the argument that it would be unfair to prosecute someone for a technical violation of the law that few people were prosecuted for breaking. As an example, Brizzi mentioned the example of prosecuting someone for betting small wagers while playing poker, which is technically illegal gambling. Ciobanu believes that Brizzi poisoned the jury pool from the outset by suggesting to them his belief that his client had broken a law that most people are never prosecuted for breaking. Ciobanu noted that the prosecution struck potential jurors who answered sympathetically to the question posed to them by Brizzi.

Perhaps the most damning admission from Brizzi during his testimony this morning came when he admitted that he mistakenly believed that evidence to which the prosecution and defense had stipulated prior to trial would be admissible had never been formerly tendered by him as evidence for the jury to consider. That included documentary evidence White offered to prove that he resided at the home of his ex-wife for the brief period during which he had abandoned the apartment in which he had been residing following his previous divorce but before he said that he moved into the condominium he purchased for him and Michelle to reside following their marriage. White claims that he did not immediately move into the condominium with Michelle because of her young children from a prior marriage who were residing there with her. Brizzi dismissed the significance of the omission, claiming the evidence broke both ways in that some of it could have been used by the prosecution to prove he had actually resided at the condominium. Nonetheless, the same evidence had been offered at his Recount Commission, which determined that he satisfied residency for voting purposes based upon the standards set out in statute and as interpreted in prior Supreme Court decisions.

There were also lengthy discussions during Brizz's testimony about instructions made to the jury. Brizzi agreed that he had worked with Jerry Bonnet, general counsel for the Secretary of State's office, prior to trial on jury instructions. He acknowledged that the instructions given to the jury did not include instructions Ciobanu argued were critical to allowing the jury to properly apply the law to the facts. Sigler contended those were issues decided by the judge and not left up to Brizzi alone, and that those issues had been preserved for White's appeal. Ciobanu faulted Brizzi for not arguing to the jury the correct legal standard for establishing residency for voting purposes and for not moving for a directed verdict if he believed that the prosecution's evidence did not support a conviction. Brizzi defended his actions, noting that he had filed motions prior to court based on those legal arguments, which were rejected by the trial court judge. This afternoon, White's attorney offered testimony from family members, including his ex-wife and mother, who believed they were going to be called as witnesses but were never called to testify by Brizzi during the trial.

UPDATED: After reviewing the tweeting by some of the mainstream media reporters who covered today's hearing, it only confirms my view that these reporters come to a story with preconceived notions and an agenda that heavily taints their reporting on all matters concerning Charlie White. Once these people have decided they don't like you because the establishment folks to whom they suck up tell them you're an outcast and must be treated as such, they will not report anything about you accurately or fairly. This is the sad state of affairs where we find ourselves with today's journalists. There is little distinction between fact reporters and opinion commentators. These people are incapable of discerning real corruption from fabricated outrage. This is why it's possible for a President today to commit crimes far worse than President Nixon imagined committing on his darkest days in office and not cause today's reporters who are supposed to represent the top news organizations in the country to even bat an eye.