After a stretch of nearly a decade, the securities fraud case against Donald M. Johnson just might be nearing a conclusion.
Johnson, 58, of Porter, was first charged in Porter Superior Court in March 2014 with 14 counts related to securities fraud, Class C felonies at the time. A couple of months later, he was charged with one count of forgery, also a Class C felony, and two counts of theft, Class D felonies, in a related case.
The allegations stretch back to around 2007 and include multiple defendants who, according to charging documents, lost hundreds of thousands of dollars in real estate investments gone bad when they did not get the returns they were promised and couldn’t get back the money they put into the deals.
The charges have been modified over time and dropped from 17 counts to 15. Judges have come and gone, as have prosecutors and defense attorneys. The COVID-19 pandemic shut down the courthouse, delaying all cases for several months.
On June 29, Johnson filed, for the third time, a motion to dismiss the charges against him, presenting a timeline which his attorneys said is evidence that his right to a speedy trial has been violated.
Tuesday, special prosecutors assigned to the case — Porter County Prosecutor Gary Germann recused himself because he was one of Johnson’s defense attorneys early on, before he was elected prosecutor — filed their own timeline, noting that many of the delays in the case came at Johnson’s request.
Those included his previous attempts to have the charges dismissed and two filings with the appellate court, which automatically stopped any action in the court here.
Porter Superior Court Judge Jeffrey Clymer has scheduled a hearing in the case for 9 a.m. on Tuesday when he will consider Johnson’s motion to dismiss the remaining charges against him.
In his motion to dismiss the case, Johnson’s attorneys note that, as of June 28, “3,388 days had passed since Mr. Johnson’s arrest. Rule 4(C) of the Indiana Rules of Criminal Procedure requires a defendant must be brought to trial within one year.”
The state, the motion said, “concedes that it is responsible for 264 days” of the delays, though by the defense’s count, the court continued the case from July to November 2014, for an additional 112 days, “without setting a trial date and without explanation.”
Those additional days pushed the case beyond the one-year limit and required the case be dismissed, the defense argued. In fact, Johnson’s attorneys argue that the state should be charged for much more than that, given the amended charges.
“Here, at least five years of delay are caused by actions and inactions of the State. Although Mr. Johnson agreed to many delays, his choices were to move forward with a trial without all of the allegations or without having fully litigated the renewed motion to dismiss,” documents state.
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Additionally, the defense notes the amount of time encompassed by the charges.
“Here, it has been 15-16 years since most of the claims are alleged to have occurred and 11 years since most witnesses were interviewed by the State. Given this significant gap in time, memories are sure to have faded, documents are no longer retained, and witnesses are difficult to locate,” the motion states.
All of that will prejudice Johnson’s ability to receive a fair trial and mount a defense, his attorneys said.
Prosecutors put out their own timeline of the various delays in the case and by their count, “At most, the State should be charged with 212 days.”
“In this matter, the Defendant has time and again caused delays, most frequently by filing numerous motions for continuances but also by filing multiple motions to dismiss as well as multiple motions for interlocutory appeals,” prosecutors said.
Prosecutors also responded to Johnson’s contention about how much of the delay was because of the state.
“It is incredulous that the Defendant wants to charge ‘at least five years of delay’ because he claims that it was caused by actions and inactions of the State,” the document notes. “The State has filed three continuances while the Defendant has filed over 30 continuances.”
Johnson, according to prosecutors, has pushed back proceedings even as a trial date loomed, including recently.
“When the Court scheduled the September 2023 jury trial date on March 20, 2023, the Defendant did not object to that date. Defendant only filed the Motion to Dismiss after plea negotiations failed and the final pretrial conference and jury trial were imminent.”
A Sept. 11 trial date has been pushed back to Nov. 13 by a motion from the court; Clymer said during a July 21 hearing that he has a mandatory judicial conference that week in September, though the trial date won’t be needed if Clymer dismisses the charges.
During that hearing, attorney David Rooda, a Lake County deputy prosecuting attorney serving as special prosecutor in Johnson’s case, said that Johnson had tendered a possible plea agreement.
“You can say there’s been an offer but I don’t want to know the substance,” Clymer said, adding he would see Rooda at the hearing this month.