Nine people, including Metro Police Chief Rick Hite, six police officers and investigators, one civilian and the IMPD legal advisor, were on the receiving end of trial synopsis messages sent by a top police commander regarding testimony in the David Bisard case, according to a source familiar with the email distribution investigation.
At least two of the recipients were regarded as potential witnesses in the case and Allen Superior Judge John Surbeck has speculated he might call Hite to testify about the email process which could present separation of witness issues in the trial against the officer accused of the drunk driving death of a motorcyclist in 2010.
Major Greg Bieberich was back at the Allen County Courthouse, but not in the Fort Wayne courtroom, for Day 7 of the trial, 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 Fox 59 News 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, Major 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 emails he had received preceeding his own day on the witness stand.
Eventually IMPD’s Legal Counsel Ted Nolting, who was on the original emails distribution list, became aware of Turner’s concerns and advised lead Bisard prosecutor Denise Robinson Tuesday night.
Wednesday morning, after he was advised by Robinson of her concerns before the jury was seated, 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 its time the chief of police appeared here to tell us what’s going on under oath.”
The judge indicated Thursday that he has the emails in hand and will review them before turning the copies over to counsel. Its undetermined if he has all the forwarded emails to determine the extent of the distribution within IMPD.
Public Safety Director Troy Riggs has indicated Chief Hite is handling the department’s investigation and response of the email issue that occurred under his watch.
Among the officers who received the emails are a 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.
The conflict, of course, is that the Bieberich reports were generated by a supervisor of the Investigations Branch which technically oversees the officers who led the various inquiries into the crash and the department’s intial and subsequent responses into one of its own officers accused of a crime to which other IMPD officers and employees were witnesses.
Any internal probe into the assignment of Bieberich to monitor the testimony and report back on a daily basis will necessarily focus on his immediate supervisor, Deputy Chief Bill Lorah, and Chief Hite as to their knowledge and expectations of the courtroom reports and awareness of their email distribution. The participation of Hite’s lawyer, Nolting, who would be expected to protect the department’s legal interests while advising IMPD officers on respecting the authority and directives of the Court, could also be investigated.
After attorneys receive copies of the Bieberich emails Friday morning, jurors are expected to hear from a pair of IMPD detectives who investigated the chain of custody of two vials of Bisard’s blood.
Sgt. Dawn Higgins and Sgt. Kevin Wethington were part of an internal investigation conducted under the authority of then-Public Safety Director Frank Straub in April 2012 after it was discoverd that Blood Vial #2 had spent five months on an unrefrigerated shelf in an IMPD Property Room Annex.
Wethington previously testified that he accompanied Deputy Director Ellen Corcella on a trip to the IMPD Property Room to observe and handle the Bisard blood vials which reportedly tested at an alcohol level more than two times the legal limit to drive in Indiana. Wethington also told Judge Surbeck that, on Straub’s orders, he retrieved then-Police Chief Paul Ciesielski’s emails to determine his knowledge of the Bisard blood vial chain of custody and, at Corcella’s direction, secretly seized the department’s Bisard investigation files from the Internal Affairs Branch.
Higgins testified that in Corcella’s presence she surreptitiously tape recorded two conversations with lead prosecutor Robinson about the case and her knowledge of the blood vial chain of custody. Higgins also accompanied Corcella to the IMPD Property Room to observe, handle and document the condition of Blood Vial #2 the day before its movements were publicly disclosed and Chief Ciesielski stepped down to be replaced by Hite and Lorah.
During a hearing this summer, Judge Surbeck warned both counsels that he would not entertain an extensive inquiry into alleged IMPD incompetence in the investigation of the Bisard crash. Such an exploration, he advised, would be appropriate for an Indianapolis news conference after the trial but not for his courtroom.
Prosecutors once predicted they would wrap up their case Friday but that timetable may be delayed due to the recent revelations of the Bieberich emails and arguments over the numbering of items of evidence.
Defense Counsel John Kautzman 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.