Monday morning the State will put forth its most convincing evidence in the fatal drunk driving trial of IMPD Officer David Bisard.
“We got out information that we needed to get out,” said lead prosecutor Denise Robinson after court adjourned in Fort Wayne Friday afternoon, “and we’re ready to transition to the blood evidence.”
Bisard is accused of reckless homicide and causing a fatal crash while driving drunk in the August 6, 2010, collision between his patrol car and three motorcyclists on Indianapolis’ northside.
Eric Wells was killed and two other people were injured.
Blood samples taken from Bisard that day tested at .18-.19% BAC, meaning the alcohol level in the K9 officer’s system was more than twice the legal limit to drive.
“The blood was tested,” said Robinson. “Vial One was tested six times. Vial Two was tested three times. We have DNA tests. That’s all evidence the jury is going to hear.
“Now we move on to the strength of our case.”
Week One of the trial was highlighted by emotional testimony by victims Kurt Weekly and Mary Mills and an account by an IMPD officer that Bisard admitted drinking the night before the crash.
In a halting voice, Weekly told jurors that, “my memory is not very well,” when asked if he could recall the events of the day of the accident.
“I think I am about 50% as strong as I was the day I was hit.”
Weekly, who works for the Defense Finance and Accounting Services at Fort Benjamin Harrison, less than two miles from the crash scene on East 56th Street, has a master’s degree in economics.
“I was asleep for three months,” said Weekly, describing his time in a coma. “The good thing is I got awake. The doctor thought I was gonna die.”
Mills and Weekly married more than a year after the accident.
“I don’t remember anything from that day,” Mills told the jurors after she limped into the courtroom. “I have a plate in my neck and I didn’t realize that.”
Mills testified that she is on daily pain medication and, “I’m not the nice person I used to be.”
The couple was followed to the stand by Wells’ widow Luisa Montilla who wept as she testified that she said goodbye to her husband as he left work to ride to lunch with his friends.
After her testimony, as Mrs. Wells left the courtroom, Bisard followed her closely with his eyes and seemed slightly shaken as he was comforted by his attorney.
Previously the defendant has stared straight ahead through most of the proceedings and had little interaction with his attorneys or the courtroom.
Following a lunch break, Bisard’s demeanor changed.
He engaged more with his attorneys and family, appeared to make notes and sketches, and sat up to display himself to the court and jury as witnesses were asked to identify him from the stand, even locking eyes with a reporter for the first time in more than three years.
“If he comes out very innocent and he comes off cherubic or what have you, it can weigh against the prosecution,” said Colin Andrews, a former prosecutor who sat in during opening statements, “and their ability to get a conviction because they might actually like the guy.
“That has a lot to do with how the jurors perceive the case. Body language speaks more than words do. If he’s slumped over, sometimes you can just have that guilty look on your face. The jurors are going to see that and its going to weigh on their decision right or wrong.”
While a number of first responder witnesses, including top ranking police commanders, testifed that they saw no signs of alcohol at the scene, Officer Dan Ryan, a fellow K9 officer, testified that three days after the crash Bisard told him he would likely test positive for residual alcohol in his system the afternoon of the accident and, several months later, Bisard admitted he was drinking the night of August 5th.
“And to specifically drinking vodka,” said Robinson.
Earlier the prosecution elicited testimony from former Assistant Chief Darryl Pierce that, in his 35 years of police experience, he was aware that vodka does not admit an odor that an officer would detect in a drunk driver, and that Bisard’s eyes were bloodshot and he was sweating that morning.
The defense countered that it was a hot summer day and Bisard’s eyes could have been irritated by the deployment of the airbag in his wrecked cruiser or by crying.
In internal investigative reports obtained exclusively by Fox 59 News, Bisard’s wife is quoted as telling her husband’s supervisor that Bisard had been drinking the night before and got up at two a.m. to get, “a drink.”
“If the defense calls Laura Bisard to testify, I’m sure we’ll cross examine her,” said Robinson.
Mrs. Bisard has not been present in the courtroom, instead sitting on bench in the hallway, indicating she may be a potential witness.
IMPD Commander John Conley testified that it was his decision to send Bisard to the Methodist Occupational Health Clinic for the DUI blood draw three hours after the crash.
Judge John Surbeck has indicated to both sides that he does not expect them to delve deeply into the internal police department probes that found violations of state law and general orders during the investigation of the Bisard crash.
Attacking those blood samples, their collection, testing and maintenance, is key to Bisard’s defense.
“Intoxication has to be proven with evidence,” said Andrews who is now a private attorney in Allen County and not affiliated with the case. “What they said was there really isn’t a lot of evidence of intoxication than the blood draw that we’ve all been talking about for the last few years now.”
John Tompkins, a DUI attorney in Indianapolis, told Fox 59 News that Defense Counsel John Kautzman’s best hope of sewing the seeds of doubt in the mind of jurors would be to question the credibility of the draws,specifically, the testing equipment at the Marion County Forensics Laboratory.
Tompkins said he has won drunk driving acquittals when it was determined that the testing devices had not been recently calibrated or technicians made simple clerical or operational errors.
Robinson will call to the stand those technicians to testify that they repeatedly verified the test results.
The State will also hear from medical experts on the effects of alcohol in individuals who have built up a high tolerance.
Bisard was arrested in April of this year for wrecking his pick up truck in Lawrence with a half-empty vodka bottle inside.
That time he tested .22% BAC, almost three times the legal limit to drive.
Jurors do not know of that arrest or that Bisard has spent more than five months in jail, changing out of jail jumpsuits into dark business suits everyday, because of that case.
“At the end of this trial, there will be no winners regardless of what the outcome is,” said Kautzman during his only on-the-record encounter with reporters. “This continues to be a tragedy for everyone involved and our heart continues to go out to everyone affected by this tragedy.”
Robinson expects to wrap up her case and call the last of 70 State’s witnesses by the end of the week.
Kautzman has listed 113 witnesses for the defense.
The trial was moved to Fort Wayne due to extensive pre-trial publicity in Indianapolis, which didn’t preclude a panel of six prospective jurors and one seated juror to be excused due to comments made in their presence about the case.
“Monday we’re looking at the blood draw…and transfer of the blood to the property room,” said Robinson as a jury of six men and six women prepare to immerse themselves in the technical evidence that will guide their deliberations as they decide if the tragedy on East 56th Street three summers ago was an accident or a crime.