Donald Johnson’s securities fraud trial is going forward Nov. 13 — period.
That was Porter Superior Court Judge Jeffrey Clymer’s oft-repeated phrase during a Friday hearing on a slew of motions filed by Johnson, for a bench trial, for Clymer to reconsider another interlocutory appeal with the state appellate court, for funding to assist with his defense
In a case that’s dragged on in court for almost a decade, Clymer’s answers came as an easy no, even as Johnson faces the difficult task, since his attorneys quit several weeks ago, of now representing himself.
Johnson, 58, of Porter, was initially charged in Porter Superior Court in March 2014 with 14 counts related to securities fraud, Class C felonies at the time. Two 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.
An appellate court ruling trimmed that to 15 counts after determining that the statute of limitations had run out for one of the victim’s claims but the rest of the charges could stand.
The allegations stretch back to around 2007 and include multiple victims 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.
Johnson will have counsel on standby for his trial, Marc Chargualaf with the public defender’s office, and though Clymer said Chargualaf can assist with legal questions, Johnson’s defense is still up to him.
How that goes will play out in the coming weeks.
Johnson provided prosecutors David Rooda, a deputy with the Lake County Prosecutor’s Office, and Gabriel Brown, with the Indiana Securities Division, his full list of witnesses for his trial Friday morning, all 101 of them, later reduced to 100 when Clymer noted one of them had died.
Under questioning from Clymer, Johnson admitted he wasn’t going to call all of them.
“Who are you going to call? What you’re doing is in bad faith,” said Clymer, obviously irritated.
Johnson said he provided 52 names to prosecutors last week and said he still has to contact his witnesses but was waiting for Clymer to rule on his pending motions during Friday’s hearing.
“I have a lot of work to do,” Johnson said.
“So what have you been doing the last nine and a half years?” snapped Clymer, before turning to prosecuting attorneys, who had bemoaned the long list in court. “Has the state ever heard of any of these people?”
And so the hearing, which stretched for an hour and a half and at times sounded like an introduction to trial law class, went, with prosecutors frustrated by what they hadn’t been provided by Johnson.
When Johnson claimed the same, they said all of their discovery and other material had been provided to his previous attorneys — six in total, as Clymer noted — and offered to him.
Brown said he had conferred with Johnson’s most recent attorneys and provided everything to Johnson on a flash drive.
“I have gone above and beyond what my duties are to provide discovery,” Brown said, adding he also invited Johnson to the Secretary of State’s Office in Indianapolis to look at the files. “He’s still not taken me up on that.”
“I don’t know what more I can do for Mr. Johnson. I can’t be his attorney,” Brown added.
Perhaps the most important lesson for Johnson Friday was that when the trial rolls around, the only witnesses who can testify will be the ones who have given depositions.
That includes what Johnson called an expert witness in securities who has yet to file a report with the court; Clymer set an Oct. 13 deadline for that and other exhibits in the case. Witness depositions were scheduled for later this month.
Johnson failed in a bid to get Clymer to determine he was indigent so the court would have to assist with his trial expenses.
After Clymer swore him in, Johnson said he didn’t have any income and that he owned a home in Porter and a commercial building on Broadway in Chesterton that included an apartment. The building was where he had a business that shut down during the COVID-19 pandemic and didn’t generate any income.
The apartment, Johnson added, generated “a little bit of income.”
“You just told me you didn’t have any income. That was false,” Clymer said sharply, since Johnson was under oath.
Johnson backpedaled and said he made $14,000 last year in rent from the apartment. His father purchased a car for him. He and his son used to give seminars but that dried up during the pandemic.
“So your only income is from an apartment you said didn’t have any income,” Clymer said, before finding that Johnson was not indigent.
“But my expenses far outweigh my income,” Johnson said, adding he and his wife have both filed for bankruptcy and all the rentals he used to own that provided income have been foreclosed on.
Clymer remained unmoved.
“You’re not indigent,” he repeated.
The next hearing in the case is scheduled for 1:30 p.m. Oct. 27 to go over jury instructions and other matters. Clymer bumped jury selection from the afternoon of Nov. 13 to the morning, in an effort to move the trial along, mindful of his own court calendar and Thanksgiving weekend.
alavalley@chicagotribune.com
