Bisard jurors to stay overnight, resume deliberations Tuesday morning

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UPDATE: Jurors in the David Bisard trial will deliberate until 6:30 p.m. Monday but don’t expect to have a final decision by then. They plan to stay overnight and resume deliberations Tuesday at 9 a.m.

According to a court statement, “apparently the jury is making progress although they are tired.” Rooms have already been booked for an overnight stay.

PREVIOUSLY:

ALLEN COUNTY – A jury of five men and seven women, 12 people from Fort Wayne, whittled down from a pool of more than a hundred three weeks ago, hanging on by a thread after all three alternate jurors were called in a “next man up” fashion, is debating the fate of Indianapolis Metropolitan Police officer David Bisard.

More than three years after Bisard’s patrol car collided with a group of motorcyclists on a busy Indianapolis street, a jury drawn from a faraway county barely aware of the controversy and tragedy that has convulsed the metro area since that summer day in 2010 retired to deliberations after hearing from 79 witnesses and reviewing more than 200 pieces of evidence.

A day that began with the threat of mistrial because of juror misconduct ended with the panel hearing three hours of closing arguments and an explanation from the judge of their duties and the law and how they were to proceed to determine if the suspended officer should be found criminally liable for the lunchtime crash.

“He was intoxicated, folks,” a prosecutor told jurors.

“Garbage in. Garbage out,” countered a defense attorney as he characterized the State’s evidence.

What followed was three hours of closing arguments in the trial of an Indianapolis Metropolitan police officer accused of driving drunk on duty at the time of a 2010 fatal accident.

Attorneys for both sides quoted their own witnesses and each others’ in attempting to convince that David Bisard was either a dangerous drunk or a victim of an accident to be blamed on a faulty police car.

Sometimes quoting the same witnesses, prosecutors and defense counsel portrayed some of the same testimony in opposite ways.

The crime lab’s blood alcohol testing system matches industry standards, argued the state.

The blood draw was bad and stored in a refrigerator with mold inside, said the defense.

And the fate of a suspended police officer and justice for a dead man’s family hung in the balance.

At 10:43 a.m., 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 Bisard case entered a Fort Wayne courtroom and began the final phase of determining if the IMPD 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 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 reconvened, 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 Aug. 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 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 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 0.15; 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 Aug. 6 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 antifreeze 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?” asked Hollingsworth, citing bad driving judgment. “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 a 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.

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 with 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 judgment, 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 because it “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 Heustis’ 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.” He pointed out photographs of skid marks to jurors, indicating the marks should’ve been longer.

Hollingsworth replayed for jurors a reenactment video animation created by prosecutors showing how the crash occurred. The prosecutor said the officer in the reenactment, 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 0.19 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 0.19 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 meds,” 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.

At 12:10 p.m. Bisard’s attorney John Kautzman rose from the defense table and thanked the jury for its patience.

He told the jurors that “what you’re here to decide” is the difference between responsibility and criminal conduct “in this horrific collision.”

“If he was a drunken mess,” said Kautzman, “then there is no doubt.”

But the defense attorney told jurors that an accident is not necessarily a crime.

“That is not what this is for.”

Kautzman said questions about the car’s brakes or Bisard’s judgments were more properly decided in civil court and not Surbeck’s criminal courtroom.

The defender told jurors that the State was avoiding the evidence and instead referring to concepts.

Clinic technician Michelle Johnson violated blood draw protocols, said Kautzman. “She didn’t follow the protocols one iota” and those are the doubts the jury must consider, said the attorney. “It’s garbage in, garbage out.”

“You’ve got to start saying to yourself, ‘Maybe something went awry here,'” Kautzman said, indicating that is the first step to jurors having reasonable doubt about the prosecution’s case.

Kautzman said the convenience store video doesn’t prove intoxication, only that the officers leaned on counters as they purchased soft drinks.

Bisard’s stopping distance was impaired by his anti-lock braking system locking up.

“If he had been able to steer 24 inches, we would not be here,” said Kautzman. “The ABS failed.”

While explaining the state’s obligations, Kautzman asked, “Did we ever reach the level of beyond a reasonable doubt? You’ve got to get up this mountain, folks, to believe these allegations that the facts and the laws combine mean that he was guilty of the crime alleged.”

Kautzman quoted the testimony of 39 witnesses, including a police chaplain and clinic doctor who did not see any signs of intoxication.

“Do you think they were all wrong?”

Kautzman referred to Bisard’s radio calls for help in a clear and specific tone as doubts about his alleged intoxication.

“The state is trying to convict David Bisard on an absence of evidence,” said Kautzman in a strong clear voice from eight feet in front of the jury box, occasionally pounding a podium for emphasis. “‘It must’ve been there. It should’ve been there.'”

Kautzman said the state wants the jury to believe that his client is part of a “fraction of society” that doesn’t show the effects of intoxication.

The attorney discredited the reenactment animation video as, “a figment of their imagination” as he clicked off the questions not answered by the prosecutor’s evidence.

Bisard’s trips that morning from home to a city garage and to his daughter’s soccer camp were recounted and the officer’s safe passage through 64 intersections previous to the crash.

“Did anybody think of the fairness to David Bisard?” asked Kautzman when his client’s brakes on the 2005 Ford Crown Victoria patrol car were changed the morning of the accident and perhaps caused the failure to stop in a safe distance.

“Nobody saw any signs of intoxication,” said defense attorney Andrew Duncan, taking over the closing argument as he listed all the witnesses jurors heard who swore an oath that Bisard did not appear drunk.

Fort Wayne attorney Robert Gevers walked the jury though the State’s blood alcohol evidence.

“Garbage in, garbage out,” said Gevers, beginning his defense, claiming that evidence proved the blood draw and storage protocols were violated.

Gevers said IMPD lost track of one blood vial after it was stored warm for five months.

The defense argued that the device that analyzed the blood alcohol level in Bisard’s blood hadn’t been tested for accuracy since 2003 and its results can’t be trusted.

Gevers said the device has analyzed a potential 100,000 blood samples over its 15-year lifetime.

“It was testing what was in the tube, not what was in his body,” said Gevers.

The testimony of Bisard’s strongest defense witness, Dr. Fran Gengo, a clinical pharmacologist, was recalled.

Genco said that for Bisard to test 0.19 BAC two and a half hours after the crash, the officer would have been at either a near-comatose level of intoxication at 2 a.m. or ingesting seven drinks the next morning as he rose, spent an hour at a city maintenance garage, dropped his daughters off at soccer camp and prepared and left for work.

Gevers told jurors that Alix found no signs of intoxication or involuntary eye movement common in intoxicated patients when Bisard was examined at the clinic.

The attorney cited a comment of Dr.Jones, a Swedish resident, about the U.S. Constitution and its protection of the innocent as reason enough to import American legal values to Europe as he stood behind his client at the defense table.

Kautzman wrapped up the last 45 minutes of the defense argument, reminding jurors that Sgt. Doug Heustis, the lead IMPD investigator, did not list reckless driving on his original accident report.

“If the DUI isn’t right, this isn’t a reckless case,” said Kautzman, arguing that the driving charges were filed to support the drunken driving counts.

Kautzman criticized the movement of a Bisard blood vial between the IMPD Property Room and the state toxicology lab that violated established practices.

“It’s that kind of stuff that makes you think something went awry,” said Kautzman. “Why not here?”

The state toxicology lab was reorganized under former Indianapolis Public Safety Director Scott Newman after the crash.

Current Public Safety Director Troy Riggs is reexamining the operation of IMPD’s Property Room.

Kautzman said there is no room for a “slightly unreliable” blood test result to convict his client.

“Folks, that ain’t reasonable doubt,” he contended.

The attorney pulled a bag of donuts out of a shopping bag and demonstrated to jurors that food products have tamper proof seals while the Bisard blood vials were not similarly protected.

“Don’t you want that kind of confidence?” in evidence, asked Kautzman.

The attorney referred to Bisard’s calls for help and back up at the crash scene as indications of the officer’s high-level critical thinking that would supposedly have been impaired by heavy drinking.

Kautzman argued that Bisard’s decision to respond to the search for marijuana suspect Malone was appropriate and said “you guys can decide” if the officer was driving too fast.

Even though he didn’t have time to play the radio tapes for the jury, Kautzman did a bit of elementary math on a large notepad, saying the MDT messages with Officer Joseph Maxey happened minutes before the crash.

“The math doesn’t work for the state,” said Kautzman, citing also a lack of time for Bisard to drink the alcohol the prosecution claims he ingested before the crash.

“He wasn’t a bat out of hell. He was trying to go somewhere judiciously as so many officers do,” said Kautzman, wrapping up his case. “When he slammed on his brakes he had no ability to control his car.

“You have to decide if this cop is a criminal,” Kautzman said. “I think we’ve made an overwhelming presentation of the flaws in the State’s case.

“You have to have a unanimous verdict. Have they convinced you that this single blood draw is so foolproof…that you are willing to be firmly convinced?” he asked.

“I don’t think you’ll get there,” Kautzman told jurors. “I know you’ll do the right thing for David Bisard because he is not guilty.”

At 1:57 p.m., lead prosecutor Denise Robinson began the State’s last best argument about why David Bisard was guilty of drunk driving in the death of Eric Wells. Robinson defended the defense team’s doubts about the integrity of the blood draw, reminding jurors there was no proof of fermentation that would have degraded the sample.

The prosecutor said drugs in Bisard’s system, including an anti-depressant, did not alter the test results. Attacking the defendants final witness, Dr. Fran Jenco, Robinson said the clinician “simply took what was spoon fed to him” by the defense. “He did not have all the information” to testify whether Bisard was drunk.

Robinson said the doctor’s models that found Bisard’s 0.19 BAC implausible the afternoon of the crash assumed the officer began drinking at home at 11 p.m. on Aug. 5.

The prosecution argues that if Bisard “had a couple vodka and Cokes,” as Lora Bisard testified that her husband told her, he began drinking before 11 p.m., giving him a head start on that excessive blood alcohol level.

“The defense has made much of no signs of intoxication,” said Robinson. “They’ve pounded the table. They’ve pounded the rail.”

Robinson said the State’s case is based on driving behavior and lack of judgment.

“There are numerous signs of intoxication and (you should) not discount them because they are not bloodshot eyes and slurred speech.

“What about the blood test? The defense says that something must have flown into the blood,” Robinson said. “Whatever it was, it didn’t affect the DNA. One person’s DNA was in the blood and that one person’s blood was the defendant’s.”

Robinson’s countered the defense claim that the lab device that tested Bisard’s blood was unreliable. She said the device had been tested in the days after the crash because of the anticipation that Bisard’s blood would be examined and that a second vial of Bisard’s blood confirmed the results of the first vial that always remained refrigerated.

Leaving the DUI counts behind, Robinson said Bisard was guilty of criminal recklessness which she described as a “plain and conscious disregard” for the safety of others, accelerating one second before the crash.

“He had 6-8/10ths of a second to stop. How can you blame anyone but yourself?” Robinson asked. “His choices. Not his car.”

Robinson argued it was likely Bisard was paying more attention to his in-car computer messages than he was to his driving in the minute leading up to the crash.

“In the end, what you heard from the defense was coulds, possiblys, may haves,” said Robinson. “The laws of physics would have to be suspended. The laws of chemistry would have to be suspended. The law of biology would have to be suspended,” for the jury to find Bisard not guilty.

Robinson sat down at 2:32 p.m. as Surbeck began jury instructions.

“Each of you must refuse to vote for conviction unless you believe he is guilty beyond a reasonable doubt,” read the judge. “Your vote must be unanimous.”

Bisard’s best hope for non-conviction on the most serious charge which could imprison him for up to 20 years may be convincing one juror to cast doubts on the integrity of the prosecution’s blood evidence, which is the cornerstone of the defense team’s “seeing is believing” strategy thus leading to a hung jury on that charge.

The officer has remained jailed since last April when he was arrested for a second DUI in Lawrence. Surbeck ordered him held as a potential danger to himself and society and for violating a previous court’s order to not commit another violation while free on bond from the 2010 case.

This jury does not know that Bisard spends his nights in the Allen County Jail, changing into a business suit and having his handcuffs removed before the panel enters the courtroom.

At 2:40 p.m. the jurors left the ornate third-floor courtroom to retire for deliberations.