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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.•

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  • 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. 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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