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Brizzi disciplinary case poses 'actual prejudice' question

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Former Marion County prosecutor Carl Brizzi took the stand today, defending himself against attorney misconduct charges alleging that he violated professional conduct rules by public statements made on pending cases.

Testifying before Shelby Circuit Court Judge Charles O’Connor just a week after leaving the elected prosecutor’s office, Brizzi told the hearing officer that he didn’t believe he had done anything wrong in making statements about two high-profile murder cases after charges were filed in 2006 and 2008 and that the defendants in those cases received fair trials. But the Indiana Disciplinary Commission contends that Brizzi’s comments violated the rules and that his conduct years ago went against the administration of justice.

The commission filed a formal complaint against Brizzi Oct. 1, 2009, accusing him of making statements that went beyond the public information purpose and prejudiced the cases. The complaint contends that this conduct amounted to violations of Indiana Professional Conduct Rules 3.8(f) and Rule 3.6(a).

One of the allegations stems from an April 2008 news conference, when Brizzi made statements about accused multi-state serial killer Bruce Mendenhall. The second allegation involves a 2006 news release about the Indianapolis Hamilton Avenue slayings, where seven people were killed and Brizzi initially sought the death penalty. A comment in that news release stated about the defendants, "They weren't going to let anyone or anything get in the way of what they believed to be an easy score."

Arguing for the Disciplinary Commission, attorney David Hughes said those comments were prejudicial against the individuals. He insinuated that the motivation behind the statements was part of a larger message the prosecutor was sending at a time when Indianapolis was experiencing higher crime trends and, in 2006, when Brizzi faced a heated election race.

“In today’s media market, what a prosecutor says in public really matters, especially in a big market like Indianapolis,” Hughes said.

Attorney Matthew Symons, who works as a deputy prosecutor in Marion County and had previously served as Brizzi’s media relations manager and former 2006 campaign manager, was the only other person aside from Brizzi to testify. He spoke about the prosecutor’s office standards and practices in holding press conferences and communicating with the media.

On the stand, Brizzi furthered Symons’ explanation and said he strived as prosecutor to help explain what was happening in his office and with criminal proceedings in a way that the public could easily understand. He discussed how he found out about the Hamilton Avenue slayings when he was out of the state in 2006 and how he always worked to be mindful of due process and potential prejudice issues.

“It’s a delicate balance you have to strike,” he said in reference to a question from his attorney about how the conduct rules apply to prosecutor statements. “The public doesn’t know what we’re reviewing in the office, so we must tell them. I want to give out as much information as I can to the public, without interfering with a defendant’s right to a fair trial.”

Brizzi testified that he couldn’t recall the particular context behind the isolated comments that are alleged to be rule violations. In that they were both capital cases involving the death penalty, Brizzi said he wanted to make sure the general public understood why he was making such a “monumental decision” involving both defendants.

Hughes argued that the comments were prejudicial to the administration of justice as soon as they were spoken because actual prejudice of jurors shouldn’t be required as proof. He cited a comment from U.S. Supreme Court Justice Anthony Kennedy about how actual prejudice shouldn’t be required because then any “Disciplinary Commission is a fool’s errand.”

But the defense disagreed. Brizzi said that is not what he has always understood the rule to be and, if it was, this case would not have gotten to this stage.

“If it’s a strict ‘you said it’ test, then we’re done,” Brizzi said. “I said it, and admit that. But it’s not (the test), and I don’t think this was prejudicial to the trial and the evidence shows that. I do not believe I violated those rules.”

Both parties have until Feb. 25 to submit proposed findings, and then Judge O’Connor will issue a report before sending the case to the Indiana Supreme Court for review. The ultimate disciplinary decision and any sanction would be up to the five justices.
 

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  • Okay
    So when do they investigate Brizzi for corrupt influence peddling to his cronies like Paul Page and Tm Durham?
  • Brizzi
    Everytime brizzi made a big bust he would brag to the media about what a tough prosecutor he was. Most of his big cases went south, especially ones he handled. But he never went to the media to apologize for prosecuting innocent people. And he didn't apologize for letting off friends and using his office for peresonal gain.

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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