County Councilman Scott Wells will be allowed to do more than just prove in court that he was not driving drunk and did not strike a police officer last Sept. 27. Under a ruling issued by Special Judge Frank Nardi last week, Wells will be permitted to show that his arrest and subsequent mugging by Indiana State Troopers were the products of a malicious character-assassination attempt.
In the trial scheduled for next month, Wells will be allowed to introduce evidence that shows he was set up by a cabal of right-wing extremists, whose cell includes a state trooper, elected and influential Republican Party operatives, and his arch nemesis, Pedigo Bay developer Steve Smith.
Indeed, when the entire picture is considered, some might conclude that the humiliations and public indignities that Wells has endured these past nine months were retaliation for his dogged pursuit of environmental violations at Smith's Lake Monroe development.
Among the evidence that Wells can present at his criminal trial are telephone records from Smith, Indiana State Police Trooper J.D. Maxwell, County Councilman and Plan Commission President Jeff Ellington, GOP political operatives Leo Hickman, Franklin Andrew and Richard Wells, and GOP activists Herman "Bud" and Amy Bernitt.
Here's what Maxwell, who was running for sheriff as a Republican at the time, said in an "Indiana State Police Supplemental Case Report" of his role in Wells' arrest.
"On 9-27-02 at approximately 2100 hours (9 p.m.) I received a telephone call at my residence from a subject whom I know as Bud Burnett who advised he had observed a drunk driver and that the subject had turned into a bar near the corner of Sixth and Dunn Street in Bloomington, Indiana. He further advised he was parked in a large parking lot across from the bar and he observed the subject staggering in the parking lot and urinating in the parking lot. He further advised that he thought the subject might be Scott Wells, whom I knew to be a County Council member."
Maxwell said he telephoned the State Police Post, which had Trooper Stacy Brown call him. He wrote: "I received a call from Trooper Brown and I explained to him that a subject wanted a trooper to meet him at the stated location. Trooper Brown advised he would be enroute to the location."
Maxwell continued: "I then called back to the post advising corporal Jimmy Valentine that I had spoken to operator Forston about a subject wanting to file a complaint on a drunk driver and that Trooper Brown was being sent to meet the subject. Corporal Valentine advised that would be OK."
Brown stopped Wells at 9:50 p.m. on Seventh Street between Dunn and Grant.
Suspecting that Maxwell was setting him up, Wells refused to take a breath test on the scene. He says he was cooperative, other than to insist that he be given a breath test at the jail, where the machines were more accurate and more people would witness the test.
Brown and fellow Trooper Travis Coryea claim Wells resisted arrest and struck them. Wells suffered a knee injury that landed him on crutches and cuts and bruises on his arms and head.
Wells was booked into the Monroe County Jail at 10:23 p.m., 33 minutes after Brown stopped him. A breath test administered at the jail showed Wells' blood-alcohol level was 0.075, below the legal limit for drinking and driving.
Cell phone records of Bud and Amy Bernitt, produced under court order, refute Maxwell's account, demonstrate the extent of the conspiracy, and show that Smith was a participant.
The evidence shows, for example, that while Bud Bernitt sat in an apartment building parking lot at Seventh and Dunn watching Wells' arrest, he was on the phone with Smith, or someone using Smith's phone. Their 18-minute conversation began four minutes after Brown stopped Wells. It was one of three calls the Bernitts made to Smith that evening:
8:50 p.m. - From Amy Bernitt's cell phone; seven minutes; 8:59 p.m. - From Bud Bernitt's cell phone; one minute; 9:54 p.m. - From Bud Bernitt's cell phone; 18 minutes.
The records contradict Maxwell's claim that Bernitt made the urinating-drunk call at 9 p.m. They show:
Bernitt called Maxwell at 7:41, an hour and 19 minutes before the urinating-drunk call. Bernitt called Smith at 8:59, one minute before the urinating-drunk call. Bernitt did not call Maxwell at 9. An as-yet unidentified caller called Bernitt at 9:01. Bernitt called Maxwell at 10:34, 11 minutes after Wells' was booked into jail.
The records raise the obvious question: If Bud Bernitt is the "subject" who saw the urinating drunk but did not call Maxwell, who did? Smith and Maxwell are among those whose telephone records have been subpoenaed to find out.
The Bernitts' cell phone records also show that between 7:05 p.m. and 1:47 a.m. that evening, Bud and Amy made and received 42 calls. Among them:
Steve Smith, three calls, 26 minutes Jeff Ellington, four calls, 13 minutes J.D. Maxwell, two calls, 11 minutes Franklin Andrew, two calls, two minutes Richard Wells, two calls, two minutes Leo Hickman, one call, two minutes Randy Carmichael, two calls, two minutes Kevin Shiflet, one call, one minute
According to the records, neither Bud nor Amy Bernitt made any cell phone calls after 7 p.m. on the Fridays before and after Wells' arrest. Two weeks before, they had made four, none later than 8:10.
Between Sept. 13 and Oct. 4, the Bernitts made no Friday calls to Smith, Ellington, Maxwell, Andrew, Richard Wells, Hickman, Carmichael, or Shiflet.
Nardi's ruling that Wells can pursue his political-set-up defense parallels recent action in his civil lawsuit that claims Shiflet, the Bernitts, Andrew and Richard Wells defamed him when they publicly accused him of complicity in an arson fire at Smith's Pedigo Bay development.
The Bernitts, Andrew, and Richard Wells have been added to the lawsuit. Among other allegations, Wells alleges:
Richard Wells drove Shiflet to attorney Eric Koch's office to prepare an affidavit stating that Wells told Shiflet that "he, Scott Wells, knew about the arson fire at the Pedigo Bay project before it happened and that he knew the people involved but would not reveal their names." Shiflet "read the contents of the affidavit at a Monroe County Council meeting and presented copies of his affidavit to people at the meeting." Bud Bernit, at Richard Wells' request, "took a copy of the same affidavit to AM1370 for broadcast on the air." Andrew called Wells a liar at the Council meeting and demanded that he be "relieved of his position on the county council until he had been investigated." Bud Bernitt shouted during the meeting at Wells: "You belong behind bars." Bud and Amy Bernitt "referred to Wells as a terrorist on the Herald Telephone newspaper's message board under the names 'Chainsaw' and 'Motor City Madman.'"
While Nardi did grant two prosecution motions last week, neither would seem to weaken Wells' case nor counter the dramatic impact that the political orgy that preceded and surrounded his arrest will have on the jury.
Under one ruling, Wells will not be allowed to submit as evidence the jail breath test results that showed him legally sober.
But, presuming he needs to take the stand, Wells will maintain that he demanded a breath test at the police station. Jurors would surely question why the test wasn't administered or why they weren't allowed to see the results if it was. It's doubtful that six jurors would unanimously convict Wells of drunken driving in the absence of answers to that question.
Under another Nardi ruling, Troopers Brown and Coryea will be allowed to interrogate Jason Moore, an eyewitness to the arrest who contradicts the troopers' story. Moore came forward after reading Brown and Coryea's account in the newspaper, which he says is inconsistent with what he witnessed.
Nardi ruled that Brown and Coryea, as the investigating officers, can question Moore, provided a member of the prosecutor's office is present.
Moore, however, is one of six eyewitnesses to the arrest on Wells' side; the prosecution has one. The prosecutors' broader witness list also includes GOP mayoral candidate Fred Prall's niece.
Steven Higgs is editor of The Bloomington Alternative.