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Court determines no mistrial in Bisard case despite juror’s violation Monday

FORT WAYNE, Ind.– At 10:43 a.m. Monday, more than three years after a fatal crash in Indianapolis and 90 minutes after Judge John Surbeck announced that a juror did unauthorized research into blood alcohol testing protocols, the jury in the David Bisard case entered a Fort Wayne courtroom and entered the final phase of determining if the Indianapolis Metropolitan Police Department officer was guilty in the fatal drunk driving death of motorcyclist Eric Wells.

For nearly two hours the case against Bisard, who is suspended and currently jailed due to a second drunk driving arrest, teetered on the edge of mistrial as Judge Surbeck, the prosecution, the defense and the jurors convinced themselves that an impartial deliberation was possible despite the violation of the court’s orders by juror no. 12, known to his fellow panel members as “Mike.”

Once court was reconvened, Judge Surbeck read jury instructions that laid out nine specific charges against Bisard, ranging from causing death while driving drunk to criminal recklessness which the prosecutor has defined as driving too fast for the lunchtime conditions present on East 56th Street on August 6, 2010, when the officer’s IMPD patrol car slammed into three motorcyclists at a stoplight at Brendon Way South Drive, killing Wells and injuring two others.

The instructions give jurors leeway in determining if Bisard was driving recklessly despite his assignment as a police officer responding to what he determined was a potentially dangerous search for a wanted drug suspect.

One of Judge Surbeck’s instructions advised jurors of state law indicating that police officers may exceed the speed limit but only in a safe manner to not endanger life and property.

Crash reconstruction experts estimated Bisard’s car was traveling at 76 miles per hour in a 40 mile per hour speed zone seconds before the crash.

The judge said that jurors must not read anything into Bisard’s refusal to testify in his defense yet he must be held to the same levels, not more or less, than any member of the general public.

At 11:00 a.m. deputy prosecutor Mark Hollingsworth addressed the jury.

He suggested the panel break the counts filed against Bisard into three sections:  the count of driving drunk and causing death with a blood alcohol level above .15%; the lesser drunk driving counts causing injuries to Kurt Weekly and Mary Mills; and, criminal recklessness which pertain to driving too fast for the conditions.

Hollingsworth said the tragedy of August 6th began with a report that Terrance Malone, a wanted drug suspect, was reported in the vicinity of 42nd Street and Priscilla Avenue on Indianapolis’ northside.

Malone hadn’t been spotted by police. He wasn’t fleeing or resisting.

Officer David Bisard, K17, a canine officer, voluntarily assigned himself to back up the potential search for Malone.

“A marijuana warrant is not an emergency,” said the prosecutor.

Hollingsworth showed the jurors an aerial view of the crash intersection and recounted several drivers who watched the accident occur or spotted Bisard walking around the crash scene with arms folded and answering, “Yes,” when asked if everything was okay.

The prosecutor asked if that was the sign of an intoxicated man stunned by the enormity of his actions.

Hollingsworth sat in the witness box as he described the brain injury to Weekly, “Does he act like a man with a master’s degree?”, and Mills whom he described as, “broken to pieces.”

“Mr. Wells was a living human being before being killed by the defendant,” said Hollingsworth as he described the victim’s death by, “internal decapitation.”

George Burt, another motorcyclist, described his survival by a matter of mere inches as he sat in the traffic lane next to Wells and heard Bisard’s siren coming up from behind.

“They did exactly what they were supposed to do. They stayed put,” said Hollingsworth who quoted Burt as saying, “the tornado hit,” and the three bike riders were cast about by the crash.

Hollingsworth said Bisard emerged from his wrecked car and asked Burt if the bikers had heard his siren.

“What were they supposed to do?” asked the prosecutor, who said Bisard did not help the victims until other IMPD officers arrived at the scene.

When those officers arrived, Hollingsworth admitted, they didn’t smell the odor of alcohol but rather the anti-freeze from the wrecked vehicle.

Major John Conley said Bisard’s eyes were red. Assistant Chief Darryl Pierce said Bisard admitted looking at his in-car computer as he approached the intersection.

“Is that a sign of intoxication,” said Hollingsworth citing bad driving judgement. “Absolutely.”

Hollingsworth described the stoplights, neighborhoods and schools that line East 56th to illustrate to jurors the reckless driving counts.

The State argued that there were plenty of signs of intoxication, poor decision making, red eyes, sweating, “They just misinterpreted it.

“He was intoxicated, folks.”

Hollingsworth quoted Officer Dan Ryan’s testimony that Bisard admitted drinking Vodka the night before the crash.

Another officer said Bisard’s speech was, “different,” after the crash though he assumed it was due to the defendant’s emotional distress.

Fox 59 viewers had heard exclusively audio tapes of Bisard calling for help to the scene of the crash that day.

Hollingsworth said other officers assumed Bisard was victim and not the cause of the crash, that’s why they did not see or look forward signs of intoxication.

Dr. Sajiv Alix examined Bisard at the Methodist Occupational Health Clinic after the crash but did not see any indications of intoxication, but Hollingsworth said Alix wasn’t necessarily looking for those signs.

Dr. Alix was looking into Bisard’s eyes for signs of a concussion.

Hollingsworth said the blood draw by clinic technician Michelle Johnson was similar to every other blood draw she had ever done even though it was her first DUI draw.

“She did it right.”

Hollingsworth said Johnson testified that she lived a vodka drinker and was never aware of his addiction.

Lt. Stan Stephens, formerly of the Lawrence Police Department, did not advise Johnson how to do the blood draw, said Hollingsworth. Stephens then sealed the blood vials into a plastic bag for transportation to the IMPD Property Room.

Hollingsworth said even though Bisard’s brakes were repaired on this squad car that morning, “Those brakes worked, folks,” because the officer defied a warning to gently apply braking during the next 100 miles.

Ignorance of the warning indicates bad judgement, a sign of impairment, argued Hollingsworth.

The prosecutor quoted Bisard’s mobile data terminal messages with another officer as he was warned not to show up at work with mustard from Indiana State Fair elephant ears on his uniform, “Wouldn’t be tactical.”

Hollingsworth speculated that Bisard was laughing at the comment at the moment his vehicle hit the motorcyclists.

The investigation of Sgt. Doug Heustis was quoted.

“Unsafe speed and intoxication,” was Heusits’ conclusion as he determined that Bisard was moving in excess of 60 miles per hour at the time of the crash.

Quoting an expert from Ford Motor Company, Hollingsworth said again, “There was nothing wrong with the brakes of this car,” as he pointed out photographs of skid marks to jurors, indicating the marks should’ve been longer.

Hollingsworth replayed for jurors a re-enactment video animation created by prosecutors showing how the crash occurred.

The prosecutor said the officer in the re-enactment, Steve Parks, testified that it scared him to drive as fast as Bisard did on that Friday morning.

Hollingsworth reminded the jurors of the testimony of Kathy Walton, a chemist in the Marion County Forensics Services Agency, who said that she tested Bisard’s blood six times at it consistently came back at .19% alcohol, more than twice the legal limit to drive in Indiana and the condition of the blood sample proved that Johnson’s draw was done properly.

An unauthorized IMPD investigation of the Bisard blood vials in April, 2012, after it was learned one of the vials was stored warm on a shelf for five months, was defended as non-intrusive for the actual sample, only a handling of the packaging material.

Hollingsworth quoted Dr. Wayne Jones, a Swedish expert, who testified that the Marion County testing protocols were at the industry standards.

“No doubt in his mind, folks, that .19 is an accurate blood test.”

Officer Ron Shelnutt testified that the night before the crash Bisard called him and did not appear drunk on the phone, even thought Shelnutt was under the influence of, “pretty good meeds,” after cancer surgery.

Hollingsworth referred to a laundry list of what he indicated were questionable decisions and actions as proof that Bisard was intoxicated.

Then jurors watched a surveillance tape from a convenience store that showed Bisard after the crash supporting himself on a counter.

“Is that a sign of intoxication?” Hollingsworth asked as he pointed to the video screen. “You’re seeing it right now, folks.”

“This was not a tragic event. This was a crime.”

Hollingsworth then rested the first part of the prosecution’s closing argument.


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