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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. 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!

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  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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