Porter Superior Court Judge Jeffrey Clymer had no hesitation during a Tuesday court hearing in saying that, after more than 9 years, the multi-count securities fraud case against Donald M. Johnson had gone on for too long without a resolution.
That weighed in Johnson’s favor as Clymer considered the defendant’s third motion to dismiss the case against him, filed on June 29 and alleging that Johnson’s right to a speedy trial has been violated.
Still, Clymer said three other factors — including that the delays in the case were not caused intentionally or in bad faith; Johnson did not ask for a speedy trial; and there was no evidence submitted of prejudice against Johnson by the state — all weighed in the state’s favor.
Clymer ruled during the hearing, which lasted more than an hour, that Johnson’s Nov. 13 trial date stands, with a pretrial hearing scheduled for Oct. 6.
“Is there some hard and fast rule that says put up and shut up?” he said of the delays during the hearing. “When does a case have to go to trial?”
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.
An appellate court ruling on Johnson’s second motion to dismiss the case dropped two of the counts against him because of the statute of limitations but said the rest of the charges could proceed to trial.
Clymer apologized for his own role in the case’s delay, since a mandatory judicial conference in September forced him to push the trial back two months.
Defense attorney Julie Treida argued the issue was why the continuations were filed, and noted the state waited almost three years to respond to Johnson’s second motion to dismiss the case, filed on July 16, 2018.
“It’s clear it’s not who files the continuation but why the continuation was filed,” she said, adding a lot of the delays should be charged to the state.
Special Prosecutor David Rooda disagreed. While the defense filed for more than 30 continuances, he said, the state filed for just three. Additionally, Johnson filed two interlocutory appeals to the state appellate court, which paused action on his case here, and filed three motions to dismiss the charges.
“There were trips. I believe Ms. Treida needed some time off. There were conflicts by defense counsel. I don’t know why all that time should be attributed to the state,” Rooda said.
Clymer, who received the case in 2021 and at one point held up a thick blue binder of documents because the case is so old it predates online docketing, went over his own timeline of delays in the case that had nothing to do with the defense or the state.
Since the original charges were first filed on March 14, 2014, the first prosecutor on the case, Brian Gensel, lost a reelection bid and his successor, Gary Germann, had to recuse himself and his office from prosecuting the case because Germann was one of Johnson’s first attorneys.
The deputy prosecutor handling the case when it was filed, Michael Drenth, is now a judge. Porter Superior Court Judge Roger Bradford, who initially presided over the case, retired and was replaced by Judge Michael Fish, who recused himself from the matter.
There also was an order by the Indiana Supreme Court to pause court proceedings during the COVID-19 pandemic.
“There are lots of times that are clearly the epitome of neutral (delays in the case) because of where everybody sat in the courtroom,” Clymer said.