Court Judge David Chidester has prevailed in his legal dust-up with
Prosecuting Attorney Brian Gensel.
On Thursday, the
Indiana Supreme Court rejected Gensel’s petition for an order which would
have blocked Chidester from reviewing the actual police reports in the cases
of three persons charged with OWI-refusal.
In April, Chidester
ordered Gensel and three of his deputies to provide him with copies of those
reports, as he wanted to familiarize himself with the details of the arrests
of the three defendants, should any of them choose to challenge the
mandatory one-year license suspension.
however, to make the police reports available to Chidester, on the ground
that they’re confidential and privileged, because prepared by “agents” of
the prosecuting attorney--police officers--and therefore “protected by the
Gensel continued to
refuse, even after Chidester scheduled a hearing for May at which Gensel was
to explain why he shouldn’t be held in contempt. Chidester himself later
continued that hearing, to give Gensel the opportunity to file his
petition--technically for a writ of mandamus, a court order to a subordinate
government official to fulfill his or her duties or to correct an abuse of
discretion--with the Supreme Court.
Among other things,
Gensel also argued that Chidester has no reason at this point to see the
police reports, because the three persons in question have not to this point
challenged their license suspension; and that it’s possible that those three
would not want Chidester to review the reports, as they may contain
information about “uncharged or other bad acts” which could influence his
decision to uphold any license suspension.
Chidester, for his
part, stated in a response to Gensel’s brief that he has no intention of
unfettered, willy-nilly access to the police reports and wouldn’t in any
case review them unless and until one of the defendants challenges the
mandatory license suspension.
He also argued that
the police reports would be essential to any ruling, as “deputy prosecutors
often review the narrative reports in the middle of the hearings and often
misstate relevant facts of the case.”
added, Gensel’s deputies have already waived the work-product claim--to the
extent that the claim is applicable at all--when they disclose the police
reports to defense attorneys.
stated in his response, “is asking this court to sanction a practice of
withholding information from the trial court, thereby hampering the court’s
ability to determine the best interests of society in its decision-making
Chidester released the following statement on his legal victory: “I was
prepared, either way, to fully follow their decision and order, to the
letter. Our system is based upon following court orders. This is what this
case was all about. Now that I have prevailed in court, civility demands
that I give the Prosecutor’s Office ample opportunity to comply with the
court order. As President Lincoln said in 1865, when asked what he would
like to have done with rebel leaders after the war was over, ‘My advice is
to let ‘em up easy.’ That is what I intend to do.”
The Supreme Court’s
order was not unanimous, with two of the five justices dissenting and voting
to grant Gensel the writ.
The order was not
accompanied by a decision.
It is, however,
final. “Motions to reconsider or petitions for rehearing are not allowed,”
Chief Justice Loretta Rush stated in the order.