Attorneys argue jury instructions in Bisard case

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FORT WAYNE, Ind.– Before jurors entered the third floor courtroom of Allen Superior Judge John Surbeck, attorneys representing both sides argued about instructions to be given to the jury which will begin debating the David Bisard case Monday.

Judge Surbeck rejected outright or was lukewarm to several of the proposed jury instructions offered by defense attorney John Kautzman.

“The issue here is whether or not Mr. Bisard operated a vehicle recklessly or under the influence such that he injured or killed people,” said the judge.

The Court said it will need to define the concepts of recklessness and negligence for the jury.

Kautzman proposed instructions be given to jurors advising them that under the color of legal authority Bisard had the duty and legal right to violate the speed limit as he voluntarily responded to a call to a search for a wanted drug suspect along East 56th Street on August 6, 2010.

At Brendon Way Drive South Bisard’s patrol car slammed into a trio of motorcyclists and killed Eric Wells.

Analysis of Bisard’s blood taken that day showed the officer tested more than twice the legal limit for alcohol to drive in Indiana.

Judge Surbeck said that legal authority to engage in emergency driving practices does not negate the responsibility to operate a vehicle safely.

While the parties were free to argue whether Bisard violated IMPD regulations as he drove with lights and sirens operating that day, said the judge, he indicated the Court would give jurors the latitude to determine if the officer’s actions were criminal even if they were within IMPD regulations.

Judge Surbeck said he didn’t want jurors to confuse IMPD regulations with criminal violations.

Kautzman argued that an investigator’s finding that Bisard was driving at an, “unsafe speed,” may unfairly prejudice the jury against his client.

The defense counsel sought an instruction that a violation of law through an inadvertent mistake or error of judgement is not defined as criminal recklessness.

Judge Surbeck said he would take that request under advisement.

The judge said he assumed that the defense will argue the tragedy was a simple accident as opposed to a negligent act.

Kautzman also asked that jurors be instructed that Bisard’s actions need to be compared to his peer group, Metro police officers, who, out of necessity, must drive in emergency conditions.

“This is where you and I disagree,” said the judge, who told the Bisard lead counsel that he could make that argument but the Bench would not tell the jurors what the standard of conduct was to compare the defendant’s conduct. “That is the essence of the whole case.”

Judge Surbeck indicated he would do further research on the proposed instructions and advise the attorneys over the weekend so that he might call the jury to work at promptly 9 a.m. Monday and present them the case by 1 p.m. after 90 minutes of closing arguments from both sides.

The judge said he was making preparations in the event that deliberations stretched into Monday night and the jury would need to be sequestered at a hotel.

Jurors in the David Bisard trial are returning to the Allen County Courthouse to hear one more morning of testimony before heading home to prepare for deliberations Monday in the case against the suspended IMPD officer.

Prosecutors will call a rebuttal witness, the last person to take the stand in the three-week old trial.

Bisard’s attorneys wrapped up their case Thursday afternoon with the presentation of a minute-long compilation of Indianapolis TV news video of the crash scene.

There was no audio accompaniment of the video which gave jurors their first authentic look of the accident scene that they’ve heard about since the first day of jury selection.

The video familiar to Indianapolis television viewers showed the wrecked vehicles and police officers at the scene and Bisard removing a black bag from his patrol car.

Earlier a clinical pharmacologist told jurors that the accused IMPD officer’s blood alcohol level would have been at a life threatening rate if he started drinking the night before the crash as the prosecution claims.

Dr. Fran Gengo testified that he reviewed case reports, videos, audio tapes, summaries, charging information, clinic reports and blood draw and laboratory results information related to the accident that killed motorcyclist Eric Wells.

Under cross examination Gengo told jurors that the decisions Bisard made behind the wheel that day would be common not only in a drunk driver but any driver involved in an accident.

The Metro police officer faces nine counts, including causing death while under the influence of alcohol, because of the on-duty crash that occurred on Indianapolis’ northeast side.

Bisard’s blood alcohol level tested at more than twice the legal limit to drive two and a half hours after the accident.

Addressing the jury directly, Dr. Gengo testified that nothing in his review of witness statements and visual and audio records of that day prove to him that Bisard was drunk.

“The thing that I found interesting that there was uniform opinion that they found nothing that would indicate intoxication,” said Gengo.

The doctor said Bisard exercised what he called, “the highest executive functions of the brain,” including an awareness of his situation and a demonstrated ability to make choices.

Bisard’s blood alcohol test registered .19%.

Gengo said Bisard’s level of alleged intoxication would have been even higher when the crash occurred and his impairment would have been more pronounced at a time when no witnesses reported he appeared intoxicated.

The doctor estimated that Bisard’s intoxication level would have to have been as much as three times the state’s legal limit to drive at the time of the crash or at a toxic life threatening level if he had been drinking heavily the night before.

Gengo said that Bisard would have had to ingest up to 15 drinks, in various combinations of the previous night and the next morning, to reach the intoxication level alleged by the prosecution.

Upon cross examination, Dr. Gengo agreed that the driving skills exhibited by Bisard as he approached the accident scene, speeding, lack of safe braking, decreased reaction time, lack of perception of the street environment, risky driving and violation of IMPD driving protocols, could all be signs of intoxication.

As lead prosecutor Denise Robinson ticked off various signs of intoxication, Gengo responded, “Counselor, you’re picking and choosing the ones that support your argument and ignoring the ones that don’t.

“Most of the things that you describe happen in most accidents that do not involve alcohol.”

During further questioning from Bisard attorney John Kautzman, Gengo said the officer would not have been able to function at a high level to call for help and the blockage of approach streets if he had truly tested at .19 BAC or above.

Fox 59 viewers have heard exclusively the same police tapes jurors listened to in the courtroom depicting Bisard’s verbal reaction minutes after the crash.

Before Dr. Gengo took the stand a hospital pharmacist and defense witness testified that while he can’t prove mishandling changed the findings of David Bisard’s blood tests, the conditions were present for a possible altered result.

Dr. Robert Belloto said that examinations run on both samples of Bisard’s blood, which found similar BAC results, were based on faulty collection and storage and incomplete testing protocols.

“I wouldn’t expect anything different,” testified Belloto, referring to the alleged faulty lab results that the prosecution says prove Bisard was drunk. “What you’re really measuring is illusionary, nothing else.”

A list of Bisard’s medications and supplements, including a protein supplement, an anti-depressant, medication for acid reflux and an antihistamine, were read into the record.

Belloto said he could find no evidence that the analysis of Bisard’s blood took into account the impact such compounds could have on the test results.

“Those medicine’s impacts were not taken into consideration,” said Belloto. “Its something you should rule out.”

Upon cross examination, Deputy Prosecutor Robinson pointed out that some of Belloto’s scientific conclusions ran in opposition to another defense witness who testified the day before.

When asked if he was aware of anything that was “wrong” with the tests on both Bisard blood vials, Belloto answered, “No one does.”

The case was moved to Allen County due to extensive pre-trial publicity in Indianapolis which included controversial comments about police conduct from Mayor Greg Ballard on down and news about Bisard’s second DUI arrest in Lawrence this past April.

The seven woman/five man panel has no extensive knowledge of those issues and is unaware that Bisard is currently jailed, because of the second arrest which has not been adjudicated, and that each morning he arrives at the Fort Wayne courthouse in shackles only to emerge in the courtroom an hour later in a business suit and tie.

If convicted of the most serious charge, Bisard faces a potential 20 years in prison.