David Bisard faces uphill battle to overturn conviction

Former Indianapolis police officer David Bisard lost a key fight to overturn his 2013 conviction, after a unanimous decision against him by the Indiana Court of Appeals.

The latest blow means Bisard will likely face more difficulties if he decides to keep challenging his conviction, said one legal expert who has been following the case.

"Let me put it this way," said Indianapolis attorney Jack Crawford, "he has a very steep hill to climb on his further appeals in this case."

An Allen County jury convicted Bisard on Nov. 5, 2013 of nine counts of drunken driving, reckless homicide and criminal recklessness for driving his patrol car into a group of motorcyclists while responding to a non-emergency call in his patrol car. The Aug. 6, 2010, accident killed Eric Wells, 30, and severely injured two companions, Mary Mills and Kurt Weekly.

Bisard, 41, is serving a 16-year sentence at New Castle Correctional Facility. Allen County Judge John Surbeck suspended three years of that sentence.

In a 19-page opinion issued Wednesday, the appeals court denied all of Bisard's claims for appeal, including his argument that the trial court denied him his constitutional right to an impartial jury when it did not order a mistrial over alleged juror misconduct. Crawford said he thought Bisard had the best chance of successfully arguing that claim.

"By pure coincidence, I was there that day. It was a very unusual procedure," Crawford said. "I thought it was a close issue as to whether or not the court was going to grant a complete mistrial."

The appellate judges ruled that one juror's decision to look up information online about the reliability of blood evidence and to talk about his research to some of the other jurors was not so egregious to cause a mistrial.

The alleged misconduct surfaced toward the end of the trial. The juror was dismissed, while the others were questioned individually. Surbeck later decided the rest of the jury wasn't tainted and that he was "perfectly comfortable" with allowing the jurors to begin deliberations.

The appellate judges trusted Surbeck's judgment, saying he's in the best position to gauge the alleged misconduct's impact on the jury and they will not "second-guess" his decision to not declare a mistrial.

"Those jurors who were aware of Juror 8-2's Internet search clearly indicated that they could set aside what they had heard from Juror 8-2 in arriving at their verdicts," Judge Ezra Friedlander wrote.

Bisard also argued that the court denied him his due process right to call witnesses who would testify that he was a "tolerant drinker," and thus it would be difficult for other police officers to detect the signs of alcohol use or intoxication at the crash scene. Presenting that defense, the trial court ruled, would open the door for his second drunken-driving arrest to be used as evidence — something that Bisard had argued would be unfair.

The appeals court struck down that argument, too, ruling that the possible admission of his 2013 OWI arrest "did not amount to denial of due process." According to the opinion, Bisard had other options, such as calling witnesses who would say that they had never seen him drunk before, or that he'd never consumed too much alcohol.

Bisard was arrested on a drunken-driving charge in April 2013, while he was still awaiting trial in the 2010 case. Police said Bisard drove into a guardrail on a Lawrence street while driving drunk. A test taken at the time showed his blood alcohol content was 0.22 percent. After his conviction in the first case, Bisard pleaded guilty in the second case, though he wasn't given any additional time in jail.

"The second DUI arrest really sunk Bisard," Crawford said. "That really put a heavy weight on the defense. ... There was no way the defense could have let the jury consider his second DUI arrest."

Bisard further argued in his appeal that abuse of police power and breach of public trust should not have been used as aggravating factors in sentencing him.

The appellate judges dismissed that claim as well and supported arguments that police officers are expected to perform their duties sober.

Indiana Attorney General Greg Zoeller's staff represented the state in the appeal, denying all of the former IMPD officer's claims, including his contentions that the juror's alleged misconduct should have resulted in a mistrial.

"This was a tragic and difficult case, but the prosecutor and trial court each performed their duties correctly as the Court of Appeals' ruling found by affirming the defendant's conviction," Zoeller said in a statement.

Marion County prosecutor Terry Curry said in a prepared statement that it was "a long path to reach this point," with more than four years having passed since the accident.

"As was expressed at the time of the jury verdict, the only ultimate satisfaction that this decision delivers is that justice has been served on behalf of Eric Wells, Mary Mills, and Kurt Weekly," Curry said.

Bisard's public defender, Victoria Bailey, did not return a call seeking comment.

Bisard has 30 days to ask the Indiana Supreme Court to hear his case. But the appeals court decision, Crawford said, suggests that his chances of succeeding in the higher court are slim.

Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter:@kristine_guerra.