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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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