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Commission urges discipline for former Marion County prosecutor

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The Indiana Supreme Court’s Disciplinary Commission wants the state's highest court to find former Marion County Prosecutor Carl Brizzi committed misconduct when he made statements about two high-profile cases he handled as prosecutor. The commission indicated that Brizzi should have known that his comments could impact public perception and deprive defendants of fair trials.

In a 44-page review petition filed with the Supreme Court this week, the commission reiterated its argument in the case against the former prosecutor. The focus is on whether the Indiana Rules of Professional Conduct require “actual prejudice” in proving an attorney’s statements go beyond what is allowed and damage a defendant’s ability to receive a fair trial.

The disciplinary commission filed a formal complaint against Brizzi in October 2009, accusing him of making statements that went beyond the public information purpose and prejudiced the cases. It argues that the statements amounted to violations of Indiana Professional Conduct Rules 3.8 and 3.6. In an April 2008 news conference, Brizzi made statements about accused multi-state serial killer Bruce Mendenhall, and a second allegation involves a 2006 news release about the Hamilton Avenue slayings in Indianapolis, where seven people were killed and Brizzi initially sought the death penalty. In that news release, Brizzi said the defendants “weren't going to let anyone or anything get in the way of what they believed to be an easy score.”

Shelby Circuit Judge Charles O’Connor held a disciplinary hearing in January to hear testimony, and commission attorney David Hughes said Brizzi’s comments were prejudicial against the individuals and that he should have known they could impact the fairness. He issued his hearing officer report in June and found in the former prosecutor’s favor. O’Connor recommended that disciplinary charges be dismissed on the grounds that the comments Brizzi made years ago fell under the safe harbor provision of the professional conduct rules and that pre-trial publicity didn’t actually prejudice the defendants.

The disciplinary commission disagrees, saying the hearing officer erroneously imposed a subjective standard on both rules and focused on whether the specific public statements, in hindsight, actually worked to prejudice the defendants.

“If Rule 3.6 were held to have no real practical application in a situation such as the case at bar where a considerable time elapsed between the date of the statements and the beginning of trial, then a prosecutor could control his professional discipline destiny by merely causing a considerable delay of the proceedings as to attempt to avoid ‘actual prejudice,’” the brief says. “The Commission is not saying that is what happened here in connection with the subject murder case, but these are very likely some of the reasons why Rule 3.6 is written the way it is, namely, one whereby the ‘reasonable likely’ standard is applied to offending comments as of the time they are made, and not by whether it can be proved that the prejudicial effect of them is still lingering in the public several years later at trial.”

Indiana has little caselaw on the subject of pre-trial publicity in the context of disciplinary rules. The disciplinary commission brief points to a 1999 Indiana Supreme Court case as well as other rulings from state and federal courts nationwide.

The justices have final say in the case and on what, if any, misconduct occurred and sanctions that might be imposed.

Brizzi left the prosecutor’s office at the end of 2010 and has opened his own solo practice in Indianapolis.
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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