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Brizzi discipline case could set new prejudice standard

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The Indiana Supreme Court’s Disciplinary Commission wants to set a new standard of “actual prejudice” for attorney misconduct. In making that argument, the validity of two high-profile murder convictions that Carl Brizzi secured during his time as prosecutor in the state’s largest county are being questioned.

Briefs were submitted last week in the disciplinary action against the former Marion County prosecutor, with both the state and defense issuing their findings and related legal arguments for a special judge to consider in the coming weeks. Shelby Circuit Judge Charles O’Connor is serving as hearing officer on the case and held a one-day hearing in January. He will now submit a report to the Indiana Supreme Court about whether any misconduct occurred and if he thinks a sanction is needed.

Both Disciplinary Commission attorney David Hughes and defense attorney Kevin McGoff appeared in Judge O’Connor’s courtroom Jan. 7 to make their arguments, with Brizzi and his former spokesman testifying on the stand. The submitted briefs outline the evidence and what each side argues should happen in the case.

While McGoff’s brief for the defense requests the disciplinary case be dismissed because no violations occurred, Hughes doesn’t make any recommendations, but clearly points to what he sees as violations of Indiana Rules of Professional Conduct by Brizzi in 2006 and 2008.

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 pair of cases – violations of Indiana Professional Conduct Rules 3.8(f) and Rule 3.6(a). One issue arose during an April 2008 news conference when Brizzi made statements about accused multi-state serial killer Bruce Mendenhall, and a second allegation involves a 2006 news release about the Indianapolis Hamilton Ave. slayings where seven people were killed and Brizzi initially sought the death penalty for the accused, Desmond Turner and James Stewart. 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."

Hughes said those comments were prejudicial against the individuals, and he insinuated the motivation behind the statements was part of a larger message the prosecutor was sending at a time when Indianapolis saw higher crime trends and, in 2006, Brizzi faced a heated election race.

In his brief, Hughes points to scant Indiana caselaw on pre-trial publicity in the context of the state’s attorney conduct rules. He points to Maryland and Michigan cases that he argues offer guidance for interpreting Brizzi’s statements to be extrajudicial comments and that actual prejudice isn’t required to show an impact on the proceedings. Hughes also argues that the true impact of the conduct in question can’t be known because both Stewart and Turner were found guilty on all charges and there’s no way to impugn the jury or question the trier-of-fact so long after the proceedings.

But McGoff counters those claims, saying that Brizzi was within his authority to inform the public about the decision-making process that the prosecutor’s office used for the charges and rest of the legal proceedings. His comments didn’t create any actual prejudice as national precedent has dictated is needed, McGoff contends, and what Brizzi said is protected by the safe harbor provisions within the conduct rules. However, he admits that little guidance has been outlined concerning what does and doesn’t fall into that category.

“Nevertheless, it is not always clear, from a practitioner’s standpoint, which statements fall into the safe harbor,” McGoff wrote. “For example, the rule fails to specify how much can be included in a statement of ‘the defense involved’ or ‘the result of any step in litigation’ – or whether the category of ‘public documents’ includes media reports.”

He relies on similar precedent from Indiana, including the prosecutor defamation case of Foster v. Pearcy, 387 N.E.2d 446, 448 (Ind. 1979), that have held a prosecutor is responsible for apprising the public of important case developments.

Once Judge O’Connor submits his report for consideration, the Indiana Supreme Court will make the final disciplinary decision. No timeline exists for that to happen. Penalties, if deemed necessary, could range anywhere from a private reprimand to a more severe sanction. Impacting the discipline could be the fact that Brizzi left office at the end of 2010 and is now in private practice.
 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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