Drug Suspect Acquitted

No defendant? No problem.

Michael Charles Kistner of Warsaw was acquitted of all charges Tuesday afternoon despite never appearing for his trial.

Kistner, 23, was charged with three counts of dealing in a controlled substance after an April 20 incident that resulted in two 13-year-old girls requiring medical attention.

The girls, both now 14, testified during the two-day trial in Kosciusko Circuit Court. Also testifying was 18-year-old Joshua Hamilton, who was a roommate of Kistner's at the time of the incident.

The nine-man, three-woman jury deliberated nearly four hours before returning their verdicts of not guilty.

Kosciusko County Prosecutor Chuck Waggoner said he was surprised by the verdicts and "a little disappointed," but added that he understood the jury's decision and believed the jury did weigh the evidence they had before them.

Prior to retiring for deliberation, court-appointed defense attorney Mike Reed reminded jurors in his closing argument that they had promised during jury selection that the absence of his client would not affect their decision.

"I'm gonna hold you to that," Reed told jurors. "Mike Kistner didn't come to the trial ... he chose not to. That's his right."

Defendants in criminal cases do not have to take the witness stand to testify against themselves, and Indiana law does not require that they appear in court during a trial. The burden is on the prosecutor to prove the state's case against the defendant.

Reed also told jurors that he believed the testimony of the state's witnesses was contradictory and inconsistent and the case was based on poor police work.

"The prosecutor would have us believe that the statements made in court are more believable than previous statements because they are under oath," Reed said, "but they were under oath before."

Both of the girls indicated in written statements made about six weeks after the incident that Mike Kistner did not provide them with the phenobarbital pills on which they overdosed. One of the teens testified that she offered to trade a portable CD player to Kistner for 50 of the seizure pills because she wanted to get high.

Reed said that both of the girls, as well as Joshua Hamilton, could have distorted the truth "because they all were involved in illegal activities."

Although Reed admitted that Kistner was involved with people who did drugs, he said there are suspicions whether Kistner was involved with drugs.

"We know that the girls were the instigating parties - they sought him out - their idea was to get wasted and they did," Reed said. "It was unfortunate that they went to the hospital, but that doesn't change the facts."

He discredited the testimony of the two 14-year-olds, saying that one may have changed her story to get back at Kistner, who once dated her sister but no longer did, or to avoid prosecution for herself. The other girl, Reed said, "wouldn't know the truth if it jumped up and hit her." As for Hamilton's testimony, Reed said, the teen-ager changed his story and claimed that Kistner threatened to beat him up if he didn't help him sell drugs because "now he needs a reason why he would do this."

Reed said the biggest problem with the case was poor police work. "They did a very brief investigation," Reed said. "They brought in Joshua Hamilton for questioning ... and when he said it was Mike Kistner and that he wasn't involved, they let him go."

Reed also told jurors that the prosecution "failed to present believable ... evidence that Mike Kistner is guilty of these charges."

Waggoner tried to explain the difference between "contradictory evidence" and "contradictory argument" to the jurors and said that the evidence presented during the trial "hasn't been contradicted. It's just been argued about." He said that "sometimes a defense attorney argues facts, sometimes a defense attorney argues law and sometimes a defense attorney says it's bad police work."