Kristine Guerra

kristine.guerra@indystar.com

Shortly after Kurt Eisgruber sentenced a convicted rapist to home ­detention, a flurry of angry comments began to surface on news websites. Some were posted on the Marion ­Superior Court judge's election campaign Facebook page.

"Judgie-wudgie what is it that you have against women? ... Wake up judge, your sentence is a joke," one com­menter wrote.

Some called Eisgru­ber a "shame" to his profession. Others vowed to do what they can to unseat him.

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Cable news pundits also have weighed in.

"This is terrible that a judge would give a rapist eight years of home detention," defense lawyer Ted Williams said Wednesday on Fox News' "On the Record with Greta Van Susteren."

As national attention on the David Wise case grows and personal attacks against Eisgruber pile up, lawyers — even the one who fought for three years to put Wise in prison — have defended the judge. Most said that ­although they can't comment on Eisgruber's decision, or say whether they agree with it, the hateful statements toward the judge are largely unfair and misinformed.

Although Eisgruber's decision is unpopular, unusual and easily perceived as an injustice, criminal justice experts said the focus of public and media scrutiny should not be on him but on Indiana law, which does not ­always require imprisonment for rape cases.

'Man of integrity'

Eric Schmadeke, a former Marion County deputy prosecutor, is in a unique position to defend Eisgruber.

From 2011 until he resigned this year to switch to private practice, Schmadeke handled the case against Wise. He also had several other sex-crime cases in Eisgruber's courtroom.

Schmadeke said he felt let down by the sentence given to Wise, who was accused of drugging and raping his then-wife, Mandy Boardman, while she slept. She has since started speaking publicly about the crime. The Indianapolis Star typically does not name victims of sexual assault.

"Other than Mandy Boardman, no one believes David Wise deserved a sentence of imprisonment more than I do," Schmadeke said. "I worked for three years to hold Mr. Wise accountable for his actions."

Still, Schmadeke called the judge a "man of integrity who cares deeply about victims, witnesses, defendants and attorneys who come before him in court."

Although he cannot comment on Eisgruber's decision, Schmadeke said it does not reflect how the judge views sexual assault cases.

"I've never seen him take a sexual assault case as anything less than seriously," Schmadeke said. "I've never gotten the impression, ever, that he doesn't believe that rape, no matter who the victim is, should be punished."

Others who have defended cases in Eisgruber's courtroom echoed Schmadeke.

Marla Thomas, an Indianapolis defense lawyer, said some criticisms of Eisgruber are unfair.

"He listens to everything that everybody has to say," Thomas said. "He really thinks long and hard on his sentences."

'A sucker punch in the gut'

The Marion County prosecutor's office filed one count of rape and five counts of criminal deviate conduct against Wise. Despite being found guilty on all counts, he will not spend a day in prison.

Eisgruber's sentence requires Wise to be on a monitoring device for eight years, allowed to go only to work. It also calls for substance abuse and mental health evaluation.

Boardman, a 36-year-old mother of two, called the sentence a "sucker punch in the gut."

She said Eisgruber told her during the sentencing hearing that she "needed to forgive" Wise, a statement she — and the public — found unacceptable.

In an interview with The Los Angeles Times, Eisgruber said the statement was intended to help Boardman heal. He declined to comment for this story because Wise intends to appeal his conviction.

Eisgruber has sent several convicted rapists to prison.

In 2011, he sent Kevin Legg to prison for 14 years. In 2008, he sentenced Juan Garrett to 15 years. Like Wise, both were convicted of class B felony rape. Other sentences were harsher. In 2011, Nick Bigsby, a habitual offender, was sentenced to 65 years. He was convicted of class A felony rape. He beat, raped and threatened to kill his ex-girlfriend, according to documents.

Survey shows judge is highly regarded

Joel Schumm, who runs the judicial externship program at the Indiana University Robert H. McKinney School of Law in Indianapolis, said he regularly sends law students to work for Eisgruber and he wouldn't hesitate to do so again.

An Indianapolis Bar Association judicial survey indicates that the former deputy prosecutor and defense attorney is highly regarded. About 70 percent of respondents strongly agree that Eisgruber, who was elected in 2008, is ethical.

The association's judicial criticism response committee is now looking at the public's reaction to Wise's sentence to determine what information the public needs to better understand the judicial process, said Julie Armstrong, the organization's executive director.

Although many critics have made statements about unseating Eisgruber in the wake of the Wise sentencing and have begun online petitions to do so, such efforts are likely fruitless, Schumm said, adding that Indiana does not have a recall election.

Eisgruber, a Republican, will run unopposed in the Nov. 4 general election, unless someone decides to run against him as an independent. Boardman or others also can try to file an ethics complaint to the Indiana Commission on Judicial Qualifications, but Schumm said that likely won't prevail.

"It's not an ethical violation of any kind to issue a decision that's unpopular," Schumm said. "I realize some people are really unhappy about it, but it's completely legal."

Concerns raised on sex crime laws

Schmadeke said that while anyone has the right to criticize an elected official, the public should instead use this case as a chance to reach out to lawmakers and push for a change in the state's sexual assault laws.

Indiana law allows for class B felony rape charges to have suspended sentences or sentences that won't be served unless a person commits another offense. And if a defendant does not have a prior felony conviction — like Wise — judges don't have to send the person to prison. Home detention is allowable.

Schmadeke, now a senior trial counsel for Densborn Blachly, said there needs to be a conversation about whether imprisonment for major felony sex crimes should be nonsuspendable.

Mandatory imprisonment, however, does not take into account each individual defendant, said Thomas, the defense attorney. She said there are circumstances in which a suspended sentence for a class B felony rape is appropriate, and judges should have that discretion. Nonexistent or limited criminal history, which likely played a role in Wise's sentencing, is one of them. Wise has misdemeanor convictions for operating a vehicle while intoxicated, battery and public indecency, but no felonies.

"That is not to say I'm condoning any type of assault. Obviously to the victim, it's the worst thing ever to happen, and I understand that," said Thomas, a former domestic violence victim's advocate. "But each case has different circumstances, different people, different set of facts."

She said some rape crimes are worse than others. Indiana law considers rape a class A felony if it involves deadly force and serious injuries. The class A crime is not suspendable, and judges are required to impose at least the minimum prison time.

This is not the first time that Indiana's treatment of sex crimes was questioned.

Concerns recently came to light after a man confessed to the 2005 rape of a young woman and still walked away a free man. Indiana is one of seven states with a statute of limitations of five years or less for filing rape charges. Others have either a longer statute of limitations or none at all.

Related story:When rape is not a crime: Indiana case spotlights statute of limitations

Come July 1, the state's new criminal code takes effect. That means a class B felony rape will become a Level 3 felony. Under the new statute, the penalty range for a Level 3 felony is three to 16 years, said Schumm, the law professor. The current penalty is six to 20 years.

Schumm said although the minimum sentence is slightly shorter under the new statute, overall rape penalties will be increased. With good behavior, defendants will be required to serve 75 percent of their sentences instead of the current 50 percent.

The new statute would not have made much of a difference had Wise been charged after July 1. Schumm said a judge still can suspend the sentence of a person convicted of a Level 3 felony if that person has no prior felony convictions.

He said he hopes lawmakers wait a few years to see how the new laws work before considering further penalty increases.

"On its face, the revised criminal code looks like a step in the direction of requiring prison for the most common violent sex offenses," Schmadeke said. "How it plays out over time is anyone's guess."

Star reporter Tim Evans contributed to this story.

Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.