Chesterton Tribune



Judge Chidester prevails in legal flap with Gensel over police reports

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Porter Superior 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.

Gensel refused, 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 work-product privilege.”

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.”

And, Chidester 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.

Gensel, Chidester 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 process.”

This morning 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.


Posted 7/15/2016





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