VEVAY, IN (FOX19) - Prosecutors in Switzerland County are working today to pick a jury to decide three felony charges against a man running for one of the three county commissioner seats there. Chris Clerkin has turned down at least one plea deal before showing up to the Switzerland County courthouse to stand trial on the charges.
Jury selection started this morning in an attempt for both sides to pick six jurors and two alternates to decide Clerkin's fate. Prosecutors expect the trial to last about a week.
Clerkin's seeking the Republican nomination for the county's 1st Commissioner's District, which could net Clerkin one-third of the legislative power in the county if he were to win the May primary and defeat the Democrat opponent in November.
Clerkin, the former head of the Switzerland County Highway Department, will be tried on three separate felony counts of: theft, misconduct in office and failure to deposit money that belonged to the county. The charges stem from a 2013 criminal investigation conducted by the Indiana State Police.
Clerkin is free on a $600 bond and has been actively campaigning for the commissioner's seat for the past few months. Clerkin hopes to unseat incumbent Republican Josh South in the May primary.
A total of 25 witnesses are on the list to be called to testify for and against Clerkin, court records show.
FOX19 NOW last spoke with Clerkin outside the Ripley County courthouse on March 14. Clerkin was there to attend a pre-trial hearing in his case. "I have no comment for you, Mr. Barr," Clerkin told FOX19 NOW Investigative Reporter Jody Barr as he walked into court for the hearing. "Did you steal from the county," Barr asked, "Let the trial answer for that," Clerkin said.
"You're running for office, do you believe you can be trusted at this point," Barr asked.
"Absolutely," Clerkin said as he walked into the courthouse and passed through a metal detector on March 14.
Clerkin was in court to make a decision on whether he'd accept a plea agreement in the case. Before the hearing started, Clerkin declined the plea offered by Special Prosecutor Shane Tucker.
Clerkin is being prosecuted by the Ripley County Prosecutor's Office because of a conflict inside the Switzerland County Prosecutor's Office. A special judge out of Ripley County is also assigned to oversee the trial.
THE CRIMINAL INVESTIGATION
The Indiana State Police opened an investigation into Chris Clerkin in December 2013 after investigators received a complaint from Switzerland County Commissioner Steve Lyons that the county was missing money from the Highway Department.
The money, Lyons told investigators, was from the department's sale of scrap metal, the criminal case file shows. At the time, Clerkin's title was "Superintendent" and he was responsible for the operations of the highway department.
The department accumulated scrap metal from highway projects, guardrails mangled in crashes, rusted-out salt truck spreaders and various other means. After collecting several tons of scrap, county workers would take the scrap to a metal recycler in Osgood, Indiana and would be paid scrap value for the metal.
Lyons told investigators that Clerkin "was responsible for the funds generated through scrap metal sales," the ISP criminal complaint shows.
At some point before contacting ISP, Lyons said he talked with Clerkin to ask him about the missing money. Clerkin, Lyons told investigators, "…said he did not know anything about the missing money," the affidavit shows.
Investigators went to Schneider's Scrap Metal to retrieve copies of receipts made out to Switzerland County or to Clerkin. The recycler provided ISP with receipts from 2012 and 2013, the case file shows. The recycler's files showed—in some cases—multiple trips made in a single day.
ISP investigators reported the following cash totals for the following years:
- 2012: $4,888.25
- 2013: $2,017.75
Investigators took those receipts to the Switzerland County Auditor's Office to compare with the county's deposit records. Between 2012 and 2013, ISP reported, the county received three separate deposits totaling $540.85 from the Highway Department for "the sale of scrap metal," the case file shows.
The ISP file showed 15 total receipts from the metal recycler, but only three were deposited in the county's bank account. The total ISP investigators accused Clerkin of stealing is $6,365.15.
During the investigation, ISP interviewed 13 separate Highway Department employees, seven of those workers told investigators "that money and receipts from the above mentioned scrap metal sales was given to Switzerland County Highway Superintendent Chris Clerkin," the affidavit shows.
THE CLERKIN INTERVIEW
On Dec. 18, 2013, Indiana State Police investigators interviewed Chris Clerkin. Clerkin showed up for the interview, flanked by his attorney, Della Swincher. Swincher is also representing Clerkin through the criminal prosecution and will argue his innocence at trial.
Investigators reported Clerkin as telling them he "had only ordered scrap to be sold a few times," the case file shows. Clerkin told investigators he "remembered ordering scrap to be sold four or five times in 2013 and only one time in 2013," investigators reported.
That would leave nine separate scrap metal sales Clerkin claimed to have had no knowledge of.
Clerkin admitted to investigators that he would get the receipt and money from the worker who took the scrap to the recycler and that Clerkin would "take the receipt and money to the auditor's office no later than the following day."
The only scrap Clerkin claimed to have knowledge of being sent to the recycler was in 2013, the file shows, when Clerkin said the county wanted "a filing system to be sold as scrap." ISP found two receipts from around the time Clerkin described, dated Jan. 15, 2013.
Investigators wrote, "…neither of which reflects a deposit into any county fund."
Multiple Highway Department workers told ISP investigators that Clerkin was standing by while workers loaded a truck with scrap metal and that Clerkin "was given receipts and money from the sales of this scrap metal," the investigator wrote.
It would take another five months of investigation before ISP swore out three warrants for Clerkin's arrest, charging him with three felonies: theft, official misconduct and failure to deposit public funds.
THE CRIMINAL PROSECUTION
On May 23, 2014, Clerkin had his bond set at $600 cash and Clerkin left the county's custody to await trial. The same day, the judge assigned to Clerkin's case, W. Gregory Coy, removed himself, "to avoid the appearance of impropriety," Coy's May 23 order states.
The judge's recusal came two days after he signed the bench warrants for Clerkin's arrest, the case file shows. The order provided no further detail as to the perceived conflict between Clerkin and Judge Coy.
On Sept. 17, 2014, Clerkin's attorney asked the judge to allow Clerkin's side to use tax dollars to take depositions from 33 witnesses in the case and to have taxpayers pay for a private investigator for Clerkin.
Clerkin's side estimated a maximum of $5,000 tax dollars needed to pay for his investigator and expert witnesses he'd need to defend himself, court records show. Clerkin's attorney later withdrew the request for funding for a private investigator to help his side investigate the state's evidence.
Over the course of the next several months, Clerkin and his attorney would depose multiple witnesses at the public's expense, the court file shows.
On March 2, 2015, the court set a trial date for July 21, 2015, but that date was later canceled. The court set a second trial date for Sept. 22, 2015, but again that trial date was canceled. A third trial date was set for Nov. 17, 2015, but that was later canceled and rescheduled.
A fourth trial date of Jan. 26, 2016 was also set and canceled at the request of Clerkin's attorney.
Clerkin is now scheduled to stand trial April 18-22, 2016 and the judge warned both sides during a hearing this week that they would keep that date "because this case will be two years old in May," Judge Jeffrey Sharp said.
"PAID FOR BY CLERKIN FOR COMMISSIONER"
"I want to straighten some things up in that community, such as false accusations like this."
That's why Chris Clerkin says he's running for Switzerland County's 1st Commissioner's District. Clerkin told FOX19 that following his final pre-trial hearing in Ripley County on March 14.
Clerkin's case was assigned to a superior court judge in neighboring Ripley County, but he will be tried by a jury of citizens from Switzerland County.
On Jan. 13, 2016, Clerkin walked into the Switzerland County Clerk of Court's office and filed to run as the Republican candidate for the 1st District commissioner's seat. It's a seat currently held by Josh South, a Republican.
South is also the Switzerland County Republican Party Chairman who will have to beat Clerkin in a primary in May in order to keep his seat.
Clerkin wrote on his candidacy filing that he is currently employed by Switzerland County Emergency Medical Services, the private EMS company the county used as the sole provider of EMS services until council voted last fall to terminate the SCEMS contract, effective Dec. 31, 2015.
South voted to end the EMS contract and is working to create a county-owned EMS service.
Following the March 14 hearing, we questioned Clerkin about whether his candidacy against Josh South was because of the SCEMS vote, "Some have alleged your campaign is a way of getting back at Josh South for the EMS contract, is that true," FOX19 NOW Investigative Reporter Jody Barr asked Clerkin.
"My campaign has nothing to do with Josh South or the EMS contract," Clerkin replied.
If Clerkin is acquitted, the charges and allegations would not prevent him from holding office.
If Clerkin is convicted of the felony charges, he would not meet the qualifications to hold office. If Clerkin is convicted, then appealed and were to win the primary against South and win the November general election, the appeal process could last several months or years, keeping the future of the seat in question.
Clerkin maintained his innocence following his hearing in March. His attorney declined an interview following the hearing.
Josh South, when contacted by phone in March, declined an interview regarding Clerkin's campaign.
The primary election is set for May 3 and the general election is Nov. 8, 2016.