Charlie White Convicted of Six Felony Charges; Why Did White's Counsel Abandon Winning Election Commission Strategy to Instead Not Present Exculpatory Evidence to the Jury?

Early this morning, Secretary of State Charlie White was convicted of six of the seven felony charges against him, including voter fraud and perjury.  All six of the charges had as their factual basis that White was living at the condo he had purchased and not at his ex-wife Nicole's house.  The seventh charge was a charge that had contradictory facts when compared to the other charges, namely that White had signed an affidavit to occupy the condo within 30 days when he closed (actually it is an "intent" to occupy) but was actually living at the ex-wife's house instead of the condo.

Former Secretary of State Charlie White

At trial, White's defense attorney, former Marion County Prosecutor Carl Brizzi, chose to employ the  tactic of not putting on a defense at all.  That is an old defense attorney trick to send the message to the jury that the defendant considers the prosecution's case is so weak that it does not even be justify a response.  It is a tactic best used when the defendant really doesn't have any exculpatory evidence to present that might sway the jury.  A good example would be a criminal case where the only witness is the defendant himself and you don't want to give away the defendant's 5th Amendment right not to testify.

What is mystifying is that White did have evidence to present, boatloads of evidence in fact.  The factual issue - whether White was living in the condo instead of the ex-wife's house, was addressed in a proceeding before the Election Commission, headed by three individuals, including ex-Democratic Hamilton County Judge Buddy Pylitt.   Commission members first heard the all-circumstantial case presented by Democrats which were based on documents White had executed which suggested the condo was his email address. For example, White signed a benefits package when he started working at a downtown law firm in which he used the condo address as his address.  He also received some mail at the condo address.

Carl Brizzi

At the Commission hearing, White, also through attorney Brizzi, matched the Democrats' circumstantial evidence, providing documents to the Commission showing White had also signed documents on which he used his ex-wife's address as his residence and also received mail at his ex-wife's address.  But while the circumstantial cases were offsetting, White also had four witnesses - himself, his current wife, his ex-wife and her new husband that were available to offer direct evidence, i.e. testimony White was actually spending nights at the ex-wife's house.  At the Commission, Brizzi called two of them, White's current wife and then fiance Michelle, who testified she did not want to live together before marriage, which had been delayed due to the statewide campaign, and that White was living at his ex-wife's house.  The most powerful witness though was the ex-wife, Nicole, who confirmed they had an arrangement that White could stay at her and her husband's house so he could spend more time with their son, pending the nuptials and move into the condo.  She also talked about White receiving mail at the address. 

The Commission, in a unanimous vote, found the Democrats had failed to meet their burden of proof (preponderance of the evidence...a mere tipping of the scales) and decided as a matter of fact that White was living at the ex-wife's house and had yet not moved into the condo yet.  On administrative appeal, Judge Louis Rosenberg accepted White had not yet moved into the condo and was living at the ex-wife's house, but said the ex-wife's house was a temporary living situation (because he was going to move into the condo) and thus the ex-wife's house couldn't qualify as a residence under Indiana law.  In his ruling, Judge Rosenberg appears to have a missed another statute that deals with people with temporary living situations and which allows them to claim that temporary abode as a residence to vote.

But the living situation, as found by the Commission, would not have supported the six felony charges White was convicted of. Those charges were completely based on the fact that White was living in the condo.  Yet when it came to the criminal trial, where the burden of proof was much higher for the prosecution (beyond a reasonable doubt), White didn't introduce any evidence or call any witnesses.  Strange to say the least.  Why abandon a strategy that had worked very well and one would have thought would have worked even better with a lay jury for which White just had to create reasonable doubt?  In particular, why not call the ex-wife, Nicole, to testify?  She alone could have created reasonable doubt.  Since she had already testified under oath, it is unlikely she would have suddenly changed her story.

Plus, there was another option.  After the prosecution restes, White's counsel could have moved for a directed verdict on the basis that the prosecution's case, even if completely true, was not enough to support the criminal charges. Although such motions are rarely granted, once the judge ruled against White, he could have then presented a case instead of relying on the jury to make the determination that the prosecution's case by itself did not support conviction beyond a reasonable doubt.

Unfortunately for White now, it is virtually impossible to get a conviction overturned based on insufficiency of the evidence.  Also, the tactics employed by counsel cannot be raised in an effective assistance of counsel claim.

NOTE:   My apologies for the headline.  I inadvertently wrote "sex" when I meant "six" as in felony charges.