ILNews

Ex-Marion County Prosecutor Carl Brizzi defends himself in court

Back to TopCommentsE-mailPrintBookmark and Share

While the ex-prosecutor in the state’s largest county waits to hear whether he will get a black mark for misconduct on his record, the Marion County disciplinary action against Carl Brizzi has broader professional conduct implications for attorneys throughout Indiana.

Testifying before Shelby Circuit Court Judge Charles O’Connor just a week after leaving the elected prosecutor’s office, Brizzi defended himself on the stand against disciplinary charges alleging he violated the Indiana Rules of Professional Conduct by making public statements on two pending high-profile murder cases in 2006 and 2008.
 

Brizzi Brizzi

The man who served as the county prosecutor for two terms from 2003 to 2010 appeared in court Jan. 7 on the disciplinary case against him. Two continuances last year prolonged the hearing until after he’d finished his eight years in office.

The Indiana Supreme Court Disciplinary 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 two cases, in violation of Rules 3.8(f) and Rule 3.6(a).

One of the allegations stems from an April 2008 news conference when Brizzi made statements about accused multi-state serial killer Bruce Mendenhall. The second allegation involves a 2006 news release about the Indianapolis Hamilton Avenue slayings, where seven people were killed and Brizzi went after co-defendants Desmond Turner and James Stewart. At the time of charging, Brizzi noted in a news release, “They weren’t going to let anyone or anything get in the way of what they believed to be an easy score.”

While investigation on this disciplinary matter began in 2007 and the disciplinary commission filed official charges in late 2009, the litigation has moved slowly because of the commission’s broad request for discovery from multiple media outlets in Indianapolis.

Originally, a two-day hearing was set before Judge O’Connor in April 2010 and then continued until October. But the ongoing discovery issues that motions described as “broad” and “voluminous” pushed the hearing back to January 2011.

Brizzi is being represented by Indianapolis attorney Kevin McGoff of Bingham McHale.

Arguing for the disciplinary commission, attorney David Hughes said Brizzi’s comments were prejudicial against the individuals. He asked questions during the hearing that implied the motivation behind the statements was part of a larger message the prosecutor was sending at a time when Indianapolis was experiencing higher crime trends and, in 2006, when Brizzi faced a heated re-election race.

“In today’s media market, what a prosecutor says in public really matters, especially in a big market like Indianapolis,” Hughes said.

Attorney Matthew Symons, who now works as a deputy prosecutor in Marion County and previously served as Brizzi’s media relations manager and his 2006 campaign manager, was the only other person aside from Brizzi to testify. He spoke about the prosecutor’s office standards and practices in holding press conferences and communicating with the media.

On the stand, Brizzi furthered Symons’ explanation and said he strived as prosecutor to help explain what was happening in his office and with criminal proceedings in a way that the public could easily understand. He discussed how he found out about the Hamilton Avenue slayings when he was out of the state in 2006 and how he always worked to be mindful of due process and potential prejudice issues.

At one point, Brizzi described how he always said or made it clear that the charges were only allegations and not meant to insinuate a person had actually been found guilty before the commencement of court proceedings.

“It’s a delicate balance you have to strike,” he said in reference to a question from his attorney about how the conduct rules apply to prosecutor statements. “The public doesn’t know what we’re reviewing in the office, so we must tell them. I want to give out as much information as I can to the public, without interfering with a defendant’s right to a fair trial.”

Brizzi testified that he could not recall the particular context behind the isolated comments that are alleged to be rule violations. Because the Turner and Mendenhall cases were both capital cases involving the death penalty, Brizzi said he wanted to make sure the general public understood why he was making such a “monumental decision” involving both defendants.

Hughes argued that the comments were prejudicial, and during the hearing he and Brizzi sparred over whether the statements were valid based on public record and basic public knowledge at the time. Brizzi contends that in his initial decision to pursue the death penalty against Turner it was important to talk about the five aggravators that were “facts” and led him to make that decision; but Hughes dismissed that notion and said it amounted to the prosecutor attempting to try the case through the media.

On the broader statewide implication points, Hughes argued the statements were prejudicial to the administration of justice as soon as they were spoken and that “actual prejudice” of jurors shouldn’t be required as proof. He cited a comment by U.S. Supreme Court Justice Anthony Kennedy indicating that actual prejudice shouldn’t be the test in these misconduct actions because then any “Disciplinary Commission is a fool’s errand.”

Responding to a specific question from Hughes, the former prosecutor said he has never witnessed public opinion shaping criminal proceedings. The answer drew a cynical response from Hughes, and Brizzi clarified his answer to say he has never observed that impact because the process ensures a defendant receives a fair trial and that he has not been in the practice of filing charges without the belief of a person’s guilt based on the evidence.

Though Brizzi said he isn’t sure whether Rules 3.6(a) and 3.8(f) have a built-in timeline that might distinguish between statements being made in real-time versus two years later, his understanding has always been that the professional conduct rules focus on the bigger picture of ensuring a fair trial and unbiased criminal proceedings.

“If it’s a strict ‘you said it’ test, then we would’ve been done a long time ago,” he said. “I said it and admit that. But it’s not (the test), and I don’t think this was prejudicial to the trial and the evidence shows that. I do not believe I violated those rules.”

Both parties have until Feb. 25 to submit proposed findings, and then Judge O’Connor will issue a report for the Indiana Supreme Court’s review. The state’s five justices are the final decision makers on this matter, and if no agreement is reached between the parties then the justices will decide whether any misconduct occurred and, if so, if sanctions are necessary.•

ADVERTISEMENT

  • blind justice or ulterior motives
    If he had to bury his child had he/she been the victim instead of Eric Wells, would he have dismissed the charges against the Indy police officer? Ambiguity in the case as he claimed?? He needs to stand up like a man and answer the question.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT