Defense suffers setbacks as judge rules on key motions in Bisard case

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Allen Superior Judge John Surbeck issued a set of rulings that constitute more setbacks for suspended Indianapolis Metropolitan police officer David Bisard, accused of reckless homicide as the result of a 2010 on-duty crash.

Surbeck denied a defense motion to suppress the blood alcohol test results from a second vial of blood taken from the officer the day he ran down three motorcyclists and killed one on the city’s northeast side.

The results of Blood Vial II nearly match the results of Blood Vial I.

The first vial reportedly shows that Bisard’s blood alcohol level was 0.19, more than twice the legal limit to drive when he struck motorcyclist Eric Wells at an East 56th Street stoplight on August 6, 2010.

Bisard denies drinking before the crash at 11:21 a.m. while on a non-emergency run.

Tests show he was driving at approximately 70 miles per hour and typing on his mobile data terminal previous to the collision.

Judge Surbeck announced last week that Blood Vial I would be permitted into evidence.

Defense attorney John Kautzman spent several hours during a Wednesday hearing in Judge Surbeck’s courtroom presenting evidence that he claims shows Blood Vial II was mishandled by IMPD investigators, property room clerks and a Department of Public Safety deputy director.

Surbeck ruled today that Blood Vial II, which reportedly tested at 0.18 BAC and confirmed the presence of Bisard’s DNA, can also be admissible in the trial which begins Oct. 14.

The judge also refused a defense motion to sequester the jury, finding that Ft. Wayne has not been saturated with pre-trial publicity as Indianapolis has.

Surbeck also quashed an attempt to introduce tapes and transcripts of secretly recorded conversations between lead prosecutor Denise Robinson and investigators working for then-Public Safety Director Frank Straub.

Former Deputy Director Ellen Corcella and Sgt. Dawn Higgins of the Special Investigative Unit assigned under Straub secretly recorded Robinson twice in the spring of 2012, once on the phone and again in the conference room of the Marion County Prosecutors Office.

Prosecutor Terry Curry wouldn’t speculate as to the motivation for Straub’s top deputy and a criminal investigator to tape his prosecutor beyond, “CYA,” or, an attempt to confirm the prosecution’s version of the movements of Blood Vial II.

On April 17, 2012, it was announced Police Chief Paul Ciesielski would step down after it was discovered that the second Bisard blood vial had been moved without direction of the investigators or the prosecutor to the IMPD Property Room Annex at the police academy.

While Blood Vial I was kept refrigerated, Blood Vial II sat at room temperature on a shelf for five months.

Kautzman has argued, unsuccessfully, that the collection of Bisard’s blood was flawed and the results of the tests on the second vial should be discarded as unreliable.

Four times in the last week Kautzman has been denied in motions favorable to his client with the judge promising to soon release more decisions on the approximately 20 motions filed in late July.

While the defense spent several hours at a motions hearing last week attacking the credibility, training and procedures in handling the blood evidence, and the prosecution has alluded to alleged special treatment Bisard received from fellow officers. Surbeck warned both sides that his courtroom would not be turned into a forum for a debate on the competency of IMPD.

Surbeck said that would be an argument that could be waged at another time in Indianapolis.

The judge said he expects to seat a jury within a day and a half with first witnesses called the third day of the trial.

As his defense options narrow, Kautzman could be inclined to call Straub and Corcella as witnesses to grill them on their knowledge of the handling of the blood vials and internal investigations into the case.

On April 16, 2012, one day before the blood vial transfer became public knowledge, Corcella, Higgins and Det. Michelle Rusk of SIU entered the IMPD Property Room and examined Blood Vial II seemingly in violation of a judge’s order.

Det. Kevin Wethington testified last week that he accompanied Corcella, at her insistence, to the property room again three days later to view the blood vial envelope a second time.

Wethington also said that he was told by Corcella to remove the Bisard investigation files from the office of IMPD’s Internal Affairs Unit and turn those files over to Sgt. Higgins for review. Wethington also testified that he overheard lead Bisard investigator Sgt. Doug Heustis read his Miranda rights during an internal investigation into the handling of Blood Vial II.

The detective said he was told by Corcella to capture Heustis’ emails from the previous two months and turn those over to the deputy director.

Wethington said, over his strong objections, he was also ordered by Straub to download the emails of former Chief Ciesielski.

Those emails have never been shared with other investigators, according to Wethington.

Those investigations are problematic, sources tell Fox 59 News, because they blur the lines between the SIU criminal investigation and any IAD administrative probe.

In administrative investigations, officers are required to answer questions while subjects of criminal inquiries can refuse by invoking their constitutional right to remain silent.

Criminal investigators are not permitted access to administrative interviews as apparently was done when Sgt. Higgins and Deputy Director Corcella reportedly reviewed the IAD Bisard file.

Dr. Frank Straub announced his resignation as public safety director ten days after the blood vial revelations in late April of 2012, but was allowed by Mayor Greg Ballard to serve another 90 days while his replacement was found.

At the time Straub announced he was rooting out “30-40-50 years” of police corruption.

Those claims were never verified.

Sources indicate Straub undertook a shredding operation to cleanse his office of documents, files and contracts. This shredding campaign, along with the spying on the prosecutor, former police chief and lead Bisard investigator, occurred under the direction of Corcella and Straub.

Corcella came to the Department of Public Safety in January of 2012. Previously, she was legal counsel at the Hoosier Lottery and oversaw the Marion County Grand Jury for Prosecutor Carl Brizzi.

It was while she monitored the grand jury that Corcella met Ryan Vaughn, Mayor Ballard’s current chief of staff.

While he had been working behind the scenes with the mayor’s office following his resignation from the city county council, Vaughn, an attorney with the firm Barnes & Thornburg, was named the chief of staff in May 2012, a week after he played a significant role in the resignation of Straub.

Corcella, Vaughn’s former mentor, would have been present in Straub’s office throughout the summer of 2012, when sources tell Fox 59 News that the shredding operation was conducted.

At that time Corcella also regularly attended meetings of city department directors chaired by Vaughn. Corcella was fired by current Deputy Public Safety Director Val Washington earlier this year.

The man who replaced Straub, Troy Riggs, has been reconstructing DPS files to determine how the department found itself tens of millions of dollars in debt while paying for consultant contracts, out-of-town training, office remodeling, the Regional Operations Center and an investigation into its Special Investigations Unit.

Earlier this year Riggs placed SIU alongside IAD under the command of Police Chief Rick Hite, telling Fox 59 News that the chief needs to monitor investigations within his department unless the chief himself would be under investigation.

A spokesman for IMPD tells Fox 59 News that Hite is aware of the allegations of spying done by metro detectives working under the direction of Straub and is, “gathering facts,” on the case.

Straub is currently the police chief in Spokane, Wash., where he refused comment on last week’s courtroom revelations.

Straub, who was handpicked by Mayor Ballard to reorganize DPS and IMPD in December 2009, refused previous attempts to make himself available for depositions in Indianapolis in three civil lawsuits filed by a trio of commanders who were demoted for their roles in the Bisard case.

This past spring the city of Indianapolis paid each officer $70,000 to settle the cases.

Kautzman has not indicated to the court whether he intends to call Corcella and Straub as witnesses.