Ex-Marion County Prosecutor Carl Brizzi defends himself in court

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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.•


  • 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.

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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.