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.