THE BISARD EVIDENCE

BISARD’S BLOOD SAMPLE – VIAL TWO

Prepared By: Ellen M. Corcella. Esq.

Chief, Professional Standards Division Department of Public Safety

Assigned investigators: Sgt. Dawn Higgins and Detective Michele Rusk of the

Professional Standards Division, Department of Public Safety.

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I. INTRODUCTION.

On August 6, 2010 Officer David Bisard, a sworn police officer for the

Indianapolis Metropolitan Police Department (IMPD), was involved in a fatal crash while

on duty. As part of the initial crash investigation, two vials of blood were drawn from

Officer Bisard. The vials of blood are referred to herein as Vial One and Vial Two.

Officer Bisard is currently facing criminal charges as a result of this crash in The State of

Indiana v. David Bisard, Cause No. 49G051101FB002516 (hereinafter the “Bisard

Case”).

On April 16, 2012 at 8:00a.m., Marion County Prosecutor Terry Curry informed

then IMPD Chief of Police Paul Ciesielski that one of the two blood samples drawn from

David Bisard, commonly referred to as “Vial Two” was not stored in a refrigerated unit

for a period of time. The prosecutor gave Ciesielski a chain of custody report for Vial

One and Vial Two that demonstrated Vial Two had been in unrefrigerated storage. Chief

Ciesielski notified Director of Public Safety Frank Straub. Director Straub, in turn, asked

Ellen Corcella, Chief of Professional Standards, to determine the circumstances that

caused Vial Two to be held in non-refrigerated storage. As part of the investigation, all

civilian and sworn personnel involved were interviewed and all relevant documents

reviewed.

a. Summary of Factual Findings

The investigation found that Vial Two was maintained and preserved in the

IMPD’s refrigerated storage from on or about August 6, 2010 until August 9, 2010. On

August 9, 2010, Vial Two was transferred to the Indiana State Department of Toxicology

(“ISDOT”), where it was maintained in refrigerated storage. On August 25, 2010, Vial

Two was retrieved from the ISDOT and returned to refrigerated storage in the IMPD

Property Room. On November 3, 2011, Vial Two was transferred to Property Room

Annex J where it was stored without refrigeration until April 5, 2012. Since April 5,

2012, Vial Two has been stored in refrigeration in the IMPD’s Property Room. At no time

between August 6, 2010 and the present was the vial cap securing the blood sample

within Vial Two ever removed. Vial Two’s seal remains intact.

b. Summary of Conclusions

A lack of clear policies and procedures, inadequate supervision, and a failure to

properly safeguard the Brisard evidence ultimately led to Vial Two being removed from

refrigeration in the Property Room and transferred to a non-refrigerated location in

Property Annex J. The IMPD Property Room does not have procedures or policies for

many of its primary duties and responsibilities. There are no storage or handling

protocols for blood evidence. To the extent that policies and procedures exist, they are

outdated, poorly constructed, and do not provide adequate guidance or protocols for the

demands placed on IMPD property room personnel. Direct responsibility for the

operation of the IMPD Property Room is placed in the hands of civilian personnel. The

IMPD command staff does not provide sufficient oversight of the Property Room.

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Neither the Property Room’s civilian personnel nor its IMPD commander were properly

trained in evidence handling or in property room management. They have not been

trained in the proper storage protocols for blood evidence. As a result of these gaps in

existing systems, policies and supervision, Vial Two was improperly transferred to

unrefrigerated storage in Property Annex J.

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II. STATEMENT OF FACTS

On August 6, 2010, Lt. Stan Stephens of the Lawrence Police Department, and a

member of the Fatal Accident Team (FAT), placed two vials of blood in the IMPD

Property Room under IMPD Case # DP100114281. These vials contained blood drawn

from IMPD Officer David Bisard, who had been involved in a fatal crash earlier in the

day. When Lt. Stephens turned the two blood vials into the IMPD Property Room, the

vials, along with other evidence collected in the Bisard matter, were assigned control

number “AC 10015325” and case number “DP10114281.” It is standard procedure to

draw two vials of blood. Vial Two was placed into a manila evidence envelope as is the

protocol for packaging blood vials for evidence. The standard evidence envelope used by

the property room is shown in the photograph below:

Standard evidence envelope used to store blood vials.

On August 9, 2010, at about 3:14 p.m., IMPD Sgt. Douglas Heustis retrieved

numerous blood samples from the IMPD Property Room, including Bisard's blood

sample contained in Vial Two. Vial Two was in a standard evidence envelope. Sgt.

Heustis transported the blood vials to the ISDOT. Sgt. Heustis has been assigned the task

of transporting blood vials to the ISDOT since approximately 2007. According to all

parties with experience in handling blood evidence related to Operating Motor Vehicle

While Intoxicated (OVWI) cases, one blood vial is routinely tested by the Indianapolis-

Marion County Forensic Services Agency (FSA) for blood alcohol content (BAC). The

second blood vial is transported to the Indiana State Department of Toxicology (ISDOT)

where it is tested for the presence of drugs. Sgt. Heustis was following the standard

practice.

A property technician “closed out” Vial Two’s control number in the ACE

property data management system, because it was understood that Vial Two would be

stored at the ISDOT and not return to the IMPD Property Room as per standard practice.

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On or about August 9, 2010, Deputy Prosecutor Denise Robinson, of the Marion

County Prosecutor’s Office, assigned to the Bisard prosecution asked Sgt. Heustis to

retrieve Vial Two from ISDOT and return it to the IMPD Property Room. On August 12,

2010, Deputy Prosecutor Ed Zych wrote an email to Dr. Wu at the ISDOT, stating that

Sgt. Heustis “will be stopping by to pick the sample up and return it to the IMPD

Property Room.” Sgt. Heustis was copied on the email. The existing standard practice

was that once evidence, like blood samples, were delivered to the ISDOT then this

evidence would not be returned to the IMPD property room.1 Sgt. Heustis did not inform

the prosecutors that their request was contrary to standard practice. Sgt. Heustis did not

inform his supervisors about the request to move Vial Two.

On August 12, 2010, Judge Grant Hawkins granted a defense motion to preserve

and maintain the evidence in the Bisard case. Judge Hawkins ordered that “any agency

that may have relevant and tangible evidence preserve and maintain said evidence for

possible testing and inspection by the defense at a later date.” The Order included all

blood samples taken from Bisard and Bisard’s squad car in use at the time of the

incident.” (State v. Bisard, Order dated August 12, 2010).

On August 12, 2010, at 1:30 p.m., Sgt. Heustis sent an email to the day shift

supervisor in IMPD’s Property Room, asking her to preserve Vial One in the refrigerator

when Vial One was returned from the Crime lab. Sgt. Heustis wrote “we are under court

order to preserve all evidence in this case.” Sgt. Heustis, however, did not provide the

IMPD property room with a copy of the Court Order. Sgt. Heustis did not advise his

immediate supervisors about the Court's Preservation Order. On August 12, 2010, Vial

Two was still in storage at ISDOT. Sgt. Heustis did not send the Court preservation

Order to the ISDOT or otherwise inform them of the Court Order.

On August 23, 2010, DC Cunningham instructed Lieutenant Pauli Irwin to

preserve the Bisard evidence after she learned about the Court Order issued by Judge

Hawkins from news reports.2 DC Cunningham also instructed Lt. Irwin that she, DC

Cunningham, had to authorize any activity regarding the Bisard evidence. DC

Cunningham told investigators that Lt. Irwin, in turn, instructed Property Room Manager

Theresa Bockbrader to place a “hold”3 on the Bisard evidence. The documents reviewed

confirmed Bockbrader made an entry into ACE, and changed the responsible officer for

the Bisard evidence to DC Cunningham. A note with DC Cunningham’s order was placed

1 This is because as a state agency, the ISDOT is a different jurisdiction than Marion County.

2 Lieutenant Irwin was placed in charge of citizen services in August 2010, after the Bisard accident. Lt.

Irwin’s areas of responsibility included the Citizen’s Service Desk, Auto Desk, Data Transcription, Property

Room/Annex, Latent Prints, Identification and Records, Criminal Records, Firearms and Alarm Citations.

When interviewed, Lt. Irwin advised that she was unfamiliar with IMPD Property Room General Orders or

operating procedures and was not trained in evidence handling, property room management, or on how to

preserve forensic evidence, such as blood evidence.

3 We note that the term “hold” is a generic term used by the property room under a variety of

circumstances. The term “hold” did not adequately convey that the IMPD was under a court order to

preserve and maintain the evidence/property.

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directly on the outside of the evidence envelope that contained Vial One. This note was

still attached to Vial One's evidence envelope when this investigation began on April 16,

2012.4

On August 25, 2010, Sgt. Heustis retrieved Vial Two from ISDOT and returned it

to the IMPD Property Room in new packaging -- an unmarked Styrofoam container with

a rubber band around the container’s exterior.5 Initially, the Styrofoam container did not

have any exterior marking. The blood evidence vial, Vial Two, stored inside the

Styrofoam container still had the original marking. Sgt. Heustis handed the unmarked

Styrofoam container to Property Room Technician Rebecca Hardin. Since there was no

protocol or standard operating procedure to re-enter a piece of evidence after it has been

closed out of ACE, Rebecca Hardin treated the Styrofoam container and its contents as if

it was a new property item. Accordingly, Vial Two was assigned the control number “AC

10016631” and case number “DP10114281 (the Bisard case number).” Hardin generated

a computerized label and placed it on the top of the Styrofoam container.6

4 It should be noted that on August 23, 2010, Vial Two remained logged out of the IMPD property

management data base and was still at the ISDOT.

5 Per the practice that has been followed since the merger, blood vials transferred to ISDOT are not

returned to the IMPD property room. Instead, the ISDOT secures the blood samples or other evidence in its

facility until the case is fully adjudicated. 6 The property room did not re-assign the evidence control number pertaining to items of evidence in the

Bisard case, AC#10015325. Vial Two was re-entered into the system as a “new” item – and not

returned to the list of Bisard evidence.

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The Styrofoam container was then placed inside an 81/2 by 11 standard manila

mailing envelope because it was too large to fit into the standard evidence envelope used

to store blood vials. An adhesive label was secured to the outside of the envelope that

bore a bar code, the AC number, and Bisard’s case number. Officer Bisard’s name was

not written on the manila envelope or printed out on the external label. The exterior of

the manila envelope was also missing other important data normally found on IMPD

evidence envelopes such as: the invesitgator’s/officer’s “initials,” “Time recovered,”

Recovered at/From,” and an adequate description of the contents. This is the label placed

on the manila envelope.

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This is the front of the manila envelope. As explained below, the handwritten note

was added on April 16, 2012.

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This is the back of the manila envelope as it appeared on April 16, 2012.

Sgt. Heustis’ initials are not on the evidence seal. Instead the initials SLVS with

the date 9/23/2010 are on the evidence seal, which was not the date that Sgt. Heustis

returned the blood vial. The investigation determined these are the initials of Sgt. Sandy

Storkman. The Property Room Technician secured Vial Two in a refrigerated unit. Due

to the size of the envelope, Vial Two was not placed into the box where other blood vials

were stored. The storage box for blood vials is shown below.

As a result of the following factors: a different AC number from Vial One, a

different type and size storage container than the one normally used for blood evidence

(plain manila envelope vs IMPD evidence envelope), the absence of markings to “hold”

the evidence, no mention of the Court Order, and no clear markings indicating that the

envelope contained Bisard evidence – Vial Two was not adequately identified or linked

with the Bisard case.

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Sgt. Heustis completed a “Property Room Voucher” pertaining to Vial Two. A

Property Room Voucher is a document completed by persons requesting that property be

secured in the Property Room. The data fields include a description of the property, the

case number, and whether the item should be “held” or released. Sgt. Heustis did not

write that Judge Hawkins’ Court Order required that Vial Two be preserved and

maintained. Sgt. Heustis placed a “hold” on Vial Two. Sgt. Heustis did not write

“Bisard” on the property room voucher to make it clear that the blood sample was part of

the Bisard case. No one entered into ACE a note that an item of evidence known in the

system as “AC# 10016631” was subject to either the Court’s preservation Order, DC

Cunningham’s directive, or that it was Brisard’s blood.

On August 26, 2010, Beth Dale, an attorney with the Office of Corporation

Counsel, emailed then Chief Ciesielski that a Court Order had been issued to preserve

and maintain the Bisard evidence. Chief Ciesielski notified Deputy Chief Cunningham.

This was the first time IMPD Command staff was formally notified of the Court Order.

On September 2, 2010, DC Cunningham notified Sgt. Heustis by e-mail of the

Court Order. Sgt. Heustis replied to Deputy Chief Cunningham’s email that Vial Two had

been returned to the IMPD Property Room from ISDOT and that it was secured in the

refrigerator.

On November 3, 2011, Property Room day shift supervisor Stacey Krom

transferred Vial Two from the IMPD Property Room to Property Annex J. Vial Two was

among other blood samples and forensic evidence transferred to the Annex because the

refrigerators were too full to hold all of the evidence. A picture of the current Property

Room refrigerators is below.

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Ms. Krom ran a report to identify evidence that had been in the refrigerator more

than one year. Ms Krom obtained the data by searching ACE by AC number. Ms. Krom

ran AC numbers, because the AC numbers identified the date the property was checked

into the property room for refrigeration. Ms. Krom removed the oldest blood vials. Ms.

Krom did not recognize that Vial Two was part of the Bisard Case for the following

reasons: 1) Vial Two was assigned an AC number different from the Bisard case AC

number; 2) the manila envelope containing Vial Two was not marked with the name

“Bisard,” or with a directive to “hold” the property, or with a copy of the Court Order.

Ms. Krom was not required to, nor did she cross-check, the AC number with the

case number to determine whether the case was open or closed, nor did she check the

JUSTIS system, or consult with the case investigator/officer to determine the status of the

investigation or court proceedings. There are no written protocols or standard operating

procedures to govern the transfer of refrigerated evidence into non-refrigerated storage.

Ms. Krom advised that she relied on an informal and unwritten policy developed by

Property Room Manager Theresa Bockbrader7 to determine when blood evidence could

be removed from refrigeration and transferred to the Property Room Annex.

7 Ms. Bockbrader has been the civilian manager of the Property Room since 2008. At the time of

her appointment, Bockbrader had served the IMPD for many years, but did not have experience in evidence

handling or property room management. Neither Bockbrader nor any of the employees in the Property

Room have received training in property room management, evidence handling and preservation.

Bockbrader learned how to perform her responsibilities from the property room employees she supervised.

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Ms. Bockbrader informed the investigators that because there were no written

SOP’s she had to create her own solutions to solve operational issues that arose in the

IMPD Property Room. Because the Property Room did not have adequate space to store

blood vials and other items requiring refrigeration, in 2009, Ms. Bockbrader developed

an informal and unwritten policy regarding the storage of blood vials older than one year.

Ms. Bockbrader decided that blood vials older than one year could be transferred to non-

refrigerated storage in the Property Annex. Ms. Bockbrader implemented the policy after

consulting FSA and a toxicology professor at a local university Ms. Bockbrader’s

decision, though well-intended, was not factually or scientifically consistent with the

advice she received from FSA or the university professor, nor was it reviewed or

approved by IMPD personnel in her chain of command.

On April 4, 2012 at 8:00 a.m., in preparation for the State’s motion to test Vial

Two and retest Vial One, DPs Hirshauer and Robinson met with Sgt. Heustis. Again, a

routine request was made by DP Robinson to Sgt. Heustis to make sure both Vials of

blood were packaged together in preparation for shipping to an independent lab in Texas,

if the court allowed the requested new testing. Sgt. Heustis and DP Hirschauer went to

the property room in the city/county building and requested information on Vial Two. A

Chain of Custody Report was printed at 0934 hours for blood stored under the DP

10114281 agency case number. DP Robinson was informed that Vial Two is in a

“wharehouse.” She was immediately concerned about the integrity of Vial Two and

requested it be returned to the property room downtown.

In his interview with investigators, Sgt. Heustis described events from April 4,

2012:

Ellen Corcella: Okay. I just want to go back to another point where he says

who understood it was a very unfortunate event?

Sgt. Heustis: Well I did. I know Tom Hirshauer did. Both of us

understood that.

Ellen Corcella: And did you convey that to anybody?

Sgt. Heustis: To Denise and to Becky.

Ellen Corcella: Okay.

Sgt. Heustis: I mean, we obviously conveyed it to Denise that the blood

had been moved, I mean she understood obviously what

that meant and

Ellen Corcella: That meant it was not refrigerated?

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Sgt. Heustis: Well that it had been out at the annex, yes. At that point,

okay, I was pretty sure that it had not been refrigerated in

the annex. Having been in the department for a while, and

having in my job you know evidence and stuff, I have been

out to the annex and I never observed refrigeration out

there. But I could not say with certainty that there was no

refrigeration out there or whether that blood had not be

refrigerated. I didn’t think it had, so at some point

subsequent to that I can’t remember exactly what day it

was, I spoke with I think it was Stacey Krom because she,

I’d asked Becky if anybody knew about the annex out there

and she said Stacey had worked out there. So I spoke with

Stacey and she confirm that no, the blood at the annex is not

refrigerated. But I passed that on to Denise, that

confirmation, I mean I had told her already I didn’t think it

was but that was the confirmation.

The chain of custody report shows that Vial Two remained at Annex J, until April 5,

2012, when the property room transferred Vial Two back into the refrigerator in the main

Property Room. On April 6, 2012 Manager Bockbrader, stapled a note on Vial Two’s

manila envelope directing that Vial Two should remain refrigerated.

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On April 11, 2012, according to DP Robinson, she learned that Vial Two may have

not been maintained in a refrigeratored environment at the Annex. According to DP

Robinson, this information was from officers not affiliated with the Bisard case or with

any other cases specifically involving blood vials.

On April 12, 2012, Vicki Coates from the Marion County Prosecutor’s Office

spoke to Donna Forbes, then Chief Ciesielski’s assistant, to set up a meeting with the

Chief for Monday, April 16, 2012. Ms. Forbes, in turn, confirmed the time and date of

the meeting through Microsoft Outlook.

On Monday, April 16, 2012 at 0716 hrs Sgt. Heustis confirms in an email to DP

Robinson, “Authority of the Property Room supervisor, there is no refrigerated storage

for any evidence at the Property Room annex at 901 N. Post Rd.”

On April 16, 2012, at 8:00 a.m., Ciesielski met with Prosecutor Curry and DP

Denise Robinson. Prosecutor Curry advised Ciesielski that Vial Two had been removed

from refrigeration and transferred to Property Annex J. Prosecutor Curry provided

Ciesielski with the chain of custody reports for Vial One and Vial Two. The chain of

custody report for Vial Two documented the transfer of Vial Two to the Property Annex.

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III. CONCLUSIONS and RECOMMENDATIONS

For purposes of this report, we make the observation that from day one – August

6, 2010 – the IMPD was on fair notice that it was – and is –important to handle the Bisard

case, and the evidence associated with it, with meticulous care and impeccable

professionalism. As identified herein, a series of missteps led to the placement of Vial

Two in unrefrigerated storage for approximately twenty-two weeks. Despite these

missteps, the integrity of Vial Two as the container for Bisard’s blood has not been

compromised. Bisard’s blood sample is in the original vial. The vial has never been

opened and the blood has never been tested. It is not within the purview of this

investigation to determine whether or not the lack of refrigeration compromised the

viability of the blood sample for alcohol or other testing. The viability of this test sample

must be determined through proper scientific analysis.

This investigation also revealed there are significant administrative, supervisory,

and operational issues regarding IMPD’s evidence and property management. IMPD

operates five separate property/evidence facilities, many of which are in disrepair. There

is no differentiation between the way evidence and non-evidentiary property is stored.

The Property Room General Orders and procedures are out-of-date. In many cases, there

are no standard operating procedures. For example, the Property Room does not have

protocols for storing, handling and monitoring forensic evidence (eg. blood evidence).

Civilian staff is not appropriately supervised by IMPD command personnel. Neither

IMPD sworn nor civilian personnel are trained to perform their duties and

responsibilities.

Sgt Heustis did not take sufficient steps to ensure the Bisard evidence was

properly secured. Sgt. Heustis retrieved Vial Two from the ISDOT even though this was

contrary to routine practice and had never been done before. He did not seek the advice

of his superior officers as to handle the situation, nor did he inform the MCPO that

returning Vial Two to the Property Room was inconsistent with standard operating

procedures. Sgt. Heustis’ delay in retrieving the evidence – from August 12, 2010 to

August 25, 2010 – contributed to the problem. Had Sgt. Heustis retrieved Vial Two on or

about August 12, 2010, Vial Two would have been in the IMPD Property Room on

August 23, 2010, when DC Cunningham secured the Bisard evidence in compliance with

the Court’s Order. When he returned Vial Two, Sgt. Heustis did not tell Lt. Irwin, his

immediate supervisors, or other pertinent persons about retrieving this piece of Bisard

evidence from ISDOT. At no time did Sgt. Heustis inform his chain of command and/or

Property Room staff that Judge Hawkins’ had issued a Court Order to preserve and

maintain the Bisard evidence. Sgt. Heustis never advised his chain of command that Vial

Two had been removed from refrigeration, transferred to Property Annex J, or returned to

the refrigeration in the Property Room. In essence, Sgt, Heustis kept his chain of

command in the dark regarding Vial Two.

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Since April 16, 2012, the IMPD has undertaken a review of the IMPD Property

Room and its operations. The IMPD is developing new General Orders as well as Rules

and Regulations concerning evidence handling and property management. Additional

recommendations regarding property room operations and management will be

forthcoming in a separate report.