Judge dismisses juror No. 12 as trial enters final phase

Juror researched BAC info on web

FORT WAYNE, Ind. - A juror was dismissed from the trial of embattled Indianapolis Metro Police Officer David Bisard Monday as it entered its final phase, Derrik Thomas reported.

Special Section: David Bisard Trial  ( http://bit.ly/17jXANK )

The juror was dismissed for researching blood alcohol content information on the Internet. Judge John Surbeck was expected to give prosecution and the defense 90-minutes each for closing arguments. The remaining 12 jurors will then weigh the strengths and weaknesses of nearly two weeks of testimony. Bisard is accused of DUI in the crash where Eric Wells was killed and Mary Mills and Kurt Weekly were injured.

Judge Surbeck said that it was discovered that the juror in question researched BAC on the web and that he shared the information with other jurors.

The juror in question admitted to the judge that he Googled information about blood alcohol tests and details about other cases that had been overturned in another state.

Jurors were told to bring two sets of clothing Monday in case they don't reach a decision that day. If the jury doesn't reach a decision Monday, they will stay at a hotel until a decision is made.

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UPDATE 5:45 p.m.

Jurors expected to deliberate until 6:30 p.m. Monday night Deliberations will resume at 9 a.m. Tuesday.
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UPDATE 4:10 p.m.

How did prosecuting attorney Denise Robinson summarize Bisard's defense team's arguments? "Rampant speculation."

"The question comes down to blood alcohol content in this case," Robinson said. "The fact of the matter is, [Michelle Johnson] used a sterile needle, she used a sterile vial, and the blood went into the [vacuum sealed] vial. When we talk about if the blood was properly drawn or not, that's all speculation. You had three witnesses come and sit in front of you and say it was [properly drawn]."

Robinson noted the lack of any testimony saying that fermentation by glucose in the blood samples actually occurred, and that neither chemist who inspected the blood saw anything that raised red flags.

"If you don't have the coagulant mix, if you don't have the preservative mix, then you get putrefaction," Robinson said. "And neither chemist noted that."

Robinson also questioned the value of BAC charts made by one of the defense's key witnesses, Dr. Fran Gengo.

"All the defense's models assume a 0.0 BAC at 11 p.m. at night," Robinson said. "None of them assume a continuous consumption of alcohol throughout the day, as an alcoholic would do. And if you do that, then all of those models are incorrect."

And Robinson dismissed the claim the defense spent much of their closing remarks on: That David Bisard showed no outward signs of intoxication.

"There are signs of intoxication," Robinson said. "There are numerous signs of intoxication, and you shouldn't discount them because they aren't bloodshot eyes and the odor of alcohol."

Robinson said the defense's arguments about possible contamination of the blood vials amounted to speculation that "something, somehow flew into the blood."

"The defense wants you to believe that, in this particular case, the laws of physics had been suspended, the laws of chemistry had been suspended, the laws of biology had been suspended," Robinson said.

With that, the State rested its case. After instructions, the jury recessed to deliberate the verdict at 2:50 p.m.

Defense attorney John Kautzman noted for the record that the defense had petitioned for a mistrial upon revelations that a juror had done outside research, prompting his removal from the trial.

That petition was denied.

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UPDATE 3:45 p.m.

David Bisard showed no signs of intoxication. Defense lawyers hammered that point over and over again as they spoke to the jury for the last time.

"[Bisard] went to the Methodist health center where he was surrounded by doctors and police personnel, and the saw zero signs of intoxication," said attorney Andrew Duncan.

Bisard drove several places before the accident, the defense said. He talked to people who had no suspicion that he was intoxicated. He was in a car with a veteran police officer.

"There were no outward signs of intoxication, and yet we have a .19," said attorney Robert Gevers. "How could that be? It could be because proper procedures were not followed. It could be because Ms. Johnson was in over her head. She said she was flummoxed by everything going on around her."

And, Gevers said, the blood vials may have been mishandled.

"Dr. [Robert] Belloto said, and I don't think it was refuted by anyone, that fermentation begins immediately," Gevers said. "The vials of blood were taken by the officer and put in his pocket against his warm leg on a hot day. Then it sits for 72 hours because it wasn't tested until the following Monday. Dr. Belloto says it must be tested right away."

The defense also had issues with the machine used to test Bisard's blood.

"They put the vials into a machine that's 15 years old … that has done 108,000 tests in 15 years," Gevers said. "That's a lot. And you're telling me not one of them has been wrong?"

Finally, Gevers pointed to models done by Dr. Fran Gengo about how many drinks Bisard would have had to consume to have a BAC of .19 at 11:20 a.m.

"He would have had to have 16 drinks the night before," Gevers said. "That would put him at a .4 – a near-fatal dose."

Attorney John Kautzman pointed to two pieces of evidence he felt were in the defense's favor: the braking system on Bisard's patrol car, and the timelines created by Dr. Gengo.

"ABS data showed the brakes failed," Kautzman said. "He was thinking clearly. He was looking for an escape route. You can't have the data both ways."

And, Kautzman said, there is the Gengo's chart.

"There was no time to drink the alcohol," he said. "The math doesn't work for the state. If he was that drunk, would he have gone to the garage, or talked to his neighbor, or take his daughters to soccer practice, or go to Shapiro's? Wouldn't a guy who had been drinking all morning say, 'I've had a tough day; I just want to go home?'"

The defense closed its final arguments just before 1:45 p.m. After a short break, the prosecution was scheduled to have 45 minutes for rebuttal and closing remarks.

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UPDATE 12:30 p.m.

Prosecutor Mark Hollingsworth opened up the State's closing arguments Monday morning by revisiting the events of the crash.

Bisard was among a group of officers responding to wanted person call, but he was the only one who responded with lights and sirens, Hollingsworth said.

"A group of probation officers … went back to the area non-emergency," Hollingsworth  said. "Two IMPD officers also responded without lights and siren."

The call, a class "D" felony warrant for marijuana charges, did not merit an emergency response, Hollingsworth said, pointing to testimony from IMPD Major John Conley and Asst. Chief Darryl Pierce.

"Nothing excuses a reckless disregard for the safety of others, and that's exactly what the defendant did," Hollingsworth said.

The prosecution then dove into their key witness testimony about the integrity of the blood vials.

"Cathy Walton, a 28-year veteran, tested that blood six times," Hollingsworth said. "The blood was not clotted. It was not putrefied, which means that Michelle Maga Johnson [drew it] right."

Hollingsworth reminded jurors of the testimony of toxicology expert Dr. Alan Wayne Jones, who called gas chromatography the "gold standard" in the industry. Jones also testified that in Sweden, police had abandoned the practice of sending suspected DUI drivers to physicians because too many doctors were missing signs of intoxication.

Prosecutors finished by replaying security camera footage of Bisard at a gas station prior to the crash.

"At the Speedway: How about the defendant putting his hand on the counter? Was that to hold himself up," Hollingsworth said. "Is that a sign of intoxication? The officers didn't see [intoxication] because they weren't looking for it. But you saw it right there with your own eyes."

"This was not a poor unfortunate accident. This was not a tragedy," Hollingsworth finished. "This was a crime. He is guilty of every crime we have charged him with. Please give him what he deserves."

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