David Bisard’s attorneys asked the judge overseeing his trial to strike testimony from an IMPD witness who received emailed summaries of prior court proceedings.
Judge John Surbeck told attorneys he was not inclined to strike testimony from the record, but said he would consider the defense’s request. Surbeck met with attorneys Friday morning to discuss the issue before the jury was brought into the courtroom, after the judge sent copies of the e-mails to counsel for their review Thursday night.
According to information obtained by Fox59, nine different people received the e-mails, including Metro Police Chief Rick Hite, six police officers and investigators, one civilian and the IMPD legal advisor. The messages, summarizing the trial, were sent by a top police commander regarding testimony in the Bisard case, according to a source familiar with the e-mail distribution investigation.
At least two of the recipients were regarded as potential witnesses in the case against Bisard.
Major Greg Bieberich was back at the Allen County Courthouse Friday, but not in the courtroom, after he admitted to Judge Surbeck that his emails, generated by note-taking from the back row of the gallery, had been distributed to certain members of the department.
Bieberich told Fox59 during the first week of the case that his role was to monitor logistics of the trial and facilitate the appearances of officers delivering testimony, though his presence in the courtroom would negate most contact with officers waiting outside to testify.
A source indicates that following his testimony Tuesday, IMPD captain Harold Turner remained in the courtroom to observe the trial and became aware of Bieberich’s note-taking and concluded that the number two man in the
IMPD Investigations Division was the author of e-mails he had received prior to his appearance on the witness stand.
It was Turner’s testimony that defense attorney John Kautzman wanted struck from the record, a decision the judge said he would take under advisement.
However, Surbeck said, at first glance, he did not believe the e-mails were detailed enough to taint witness testimony.
“I’m having difficulty on a substantive basis finding any undue prejudice to the defense as a result and would be hard-pressed to strike testimony or go to the next extraordinary step of mistrial because of this,” Surbeck said. “But I will take it under advisement.”
Wednesday morning, after he was advised of the situation, Judge Surbeck asked, “Who’s writing the damn emails?
“That’s about as unprofessional as anything I’ve ever heard, and I’ve heard a lot of things about IMPD… maybe it’s time the chief of police appeared here to tell us what’s going on under oath.”
Kautzman said Friday it was still undetermined if the court truly had all the forwarded emails to determine the extent of the distribution within IMPD.
“(That) points out the danger of what we have here,” Kautzman said.
Among the officers who received the emails are another potential witness, Deputy Chief Val Cunningham, author of The Bisard Report, the definitive IMPD internal study of the Bisard crash and its immediate investigation.
At least one internal affairs investigator also received the emails which multiple sources indicate contain little information beyond what could be gleaned from media reports.
Friday, defense attorneys also asked the judge to permit evidence relating to other noteworthy crashes, including the ambulance crash that killed two EMT’s in Indianapolis earlier this year. The defense had hoped to show the jury how other deadly crashes did not lead to charges being filed, but the prosecutor disagreed.
“You can’t compare crashes that have nothing to do with each other,” said lead prosecutor Denise Robinson.
Testimony continued Friday morning after the jury was brought into the courtroom. IMPD property room technician Rebecca Hardin told jurors about the blood evidence she received from investigators, which showed Bisard was intoxicated when he crashed into a group of motorcyclists, killing one and injuring two others.
Prosecutors also called Michael Medler to the stand Friday morning. The director of the Marion County forensic services agency testified as to his involvement with the blood tests.
Toxicology expert Alan Jones also testified Friday. Jones is a well-known researcher from Sweden who has studied methods for measuring blood-alcohol levels. Jones has also taught at Indiana University.
Jones told jurors about the science of blood sample collection, explaining how blood tests are performed and analyzed.
Jones said it was not uncommon for physicians analyzing drunk drivers to miss obvious signs of intoxication, even when blood-alcohol tests came back with results of .15% or higher. Especially, Jones said, if the person was a heavy drinker or drank heavily over long periods of time. Officers responding to the Bisard crash said they did not see any obvious signs of intoxication after the crash.
“I think the most likely explanation is if the person drank night before, but awoke in the morning with a heavy amount of alcohol in his body and in his blood,” said Jones.
Jones used a noteworthy example to make his case, referencing the crash that killed Princess Diana. Her driver was witnessed on surveillance video walking around before the crash, without any apparent signs of intoxication. But an autopsy showed he had a high amount of alcohol in his system when he crashed.
Defense attorneys said they planned on showing video of Bisard from news footage shot at the crash scene to show jurors that Bisard did not appear to be intoxicated.
Prosecutors once predicted they would wrap up their case Friday but that timetable has been delayed due to the recent revelations of the Bieberich e-mails, in addition to other procedural arguments and delays.
The prosecution is now expected to rest its case Monday morning or Monday afternoon, after showing the jury a video re-enactment of the crash that had been scheduled to presented earlier this week.
Defense attorneys have listed 113 potential witnesses, though some of them also appeared for the prosecution and have already been cross-examined.
As the trial faces a third and likely fourth week of testimony and argument, the jury remains unsequestered though two jurors have been excused and only one alternate remains on the sidelines.
Fox59’s Russ McQuaid contributed to this report.