ALLEN COUNTY – The last witness testified in the trial of Indianapolis Metropolitan police officer David Bisard.
Toxicologist Dr. Michele Glinn was called to rebut the testimony of defense expert witnesses who raised the specter of fermentation in Bisard’s blood evidence that could have altered the sample’s alcohol content.
Glinn testified that such fermentation would likely not affect the sample “if it was drawn in a sterile environment,” nor would the various medications and supplements in Bisard’s system, though she knew of no tests on the officer’s blood to determine their presence.
The Michigan State Police toxicologist told jurors that hand sanitizer Bisard applied at the crash scene would not have had an impact on his blood alcohol reading.
Both sides rested their cases at 11:30 a.m.
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 case Monday.
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 Aug. 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.
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.
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 judgment is not defined as criminal recklessness.
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, Indianapolis Metropolitan 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 jurors what the standard of conduct was to compare the defendant’s conduct. “That is the essence of the whole case.”
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.
The case was moved to Allen County due to extensive pretrial publicity in Indianapolis that 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. They’re also unaware 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.