Defense set to begin in Bisard case

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The State expects to rest its case Monday afternoon in the trial of suspended IMPD Officer David Bisard.

Then the defense will have its chance to convince jurors.

Bisard is accused of the drunk driving death of motorcyclist Eric Wells on the city’s northeast side on August 6, 2010.

Testimony late last week focused on the blood vials that showed Bisard’s alcohol level was more than twice the legal limit the day his patrol car slammed into Wells and two other motorcyclists.

The defense has repeatedly shown, on cross examination, that there was no visual evidence of Bisard’s alleged intoxication.

Prosecutors also introduced testimony and evidence that portrayed Bisard, drunken or not, wantonly violating safe driving practices and IMPD rules by speeding into that intersection at up to 73 miles per hour on his way to a non-emergency run at 11:21 a.m. as East 56th Street was crowded with late morning traffic.

“The circumstances of a police officer on duty going on a run are going to be stretched beyond the norms of how you drive on a typical day,” said veteran defense attorney John Tompkins who has followed the case from the day of the crash. “Here the question is, ‘Did he go beyond even those standards?'”

Metro Police officers and commanders testified that Bisard received training to keep his vehicle under control and operating safely during various traffic conditions.

“He should be expected to be a better driver than the average driver because he drives so much and has more experience driving, has seen more situations, has had more training,” said Tompkins. “But it can also be that if you drive more, you are involved in more accidents. If you drive in more high risk situations, you will be involved in more accidents because of the nature of that kind of driving.”

The trial was moved to Allen County due to extensive publicity and the familiarity jurors in Indiana’s second largest city would have with the urban traffic environment Bisard encountered that day.

“They are supposed to use their own common sense and their own everyday experience to determine whether they think a crime has been committed or not,” said Tompkins. “They should absolutely not only draw on their own experience but draw on the other eleven jurors collectively and twelve jurors’ common sense and experience in like or similar situations.”

The most serious charge Bisard faces is drunken driving causing death which carries a maximum 20 year sentence. But lesser charges of reckless homicide and other driving counts could provide jurors an opportunity to punish the patrolman even if they find fault with the state’s DUI evidence.

“Sympathy verdicts are improper,” said Tompkins. “Jurors are not to make people feel better. That’s why it was so contested in letting some of the victim witnesses show up to not prove anything. None of those witnesses said anything about how Bisard was acting, whether he was intoxicated that day. Nothing about the blood testing. Nothing about his driving behavior. They were put on by the state to try to tug at heartstrings and that’s improper.”

Bisard’s attorney John Kautzman is certainly aiming for an acquittal on all charges, however, a hung jury on any of the counts could strike those charges from being refiled,

“In the short run, obviously they want, ‘Not guilty,’ on all counts,” said Tompkins. “A hung jury is better than a guilty verdict. It means you try the case again.

“In many ways , in the long run, it is not best for the defense to get a hung jury because if it’s going to be tried again, the State’s going to be better next time.”

If any of the DUI counts result in a hung jury, Tompkins said Prosecutor Terry Curry could decide to refile the counts.

“Remember: this case was tried on a campaign promise and, from the political standpoint, it will be tried again if the prosecutor doesn’t think he’s kept that promise yet.”

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