Second continuance for Brizzi

Indiana Lawyer reporter Michael W. Hoskins wrote this blog post.

By the time Marion County Prosecutor Carl Brizzi faces a disciplinary hearing on alleged misconduct about how he publicly discussed pending cases, he’ll have finished his term and will no longer be prosecutor in the state’s largest county.

A two-day hearing was set to start today before Shelby Circuit Judge Charles O’Connor, but both parties asked for a continuance because of discovery issues that have been ongoing for most of the year. A new date is set for January, and this is the second time the hearing has been pushed back – it was originally set for the end of April.

Brizzi has denied that he’s violated any professional conduct rules, as the Disciplinary Commission accused him of last year. A formal complaint filed Oct. 1, 2009, alleges the prosecutor’s public comments about two murder cases crossed the line and violated conduct rules. Brizzi's statements went beyond the public information purpose and prejudiced the pair of cases, according to the complaint, and amounted to violations of Indiana Professional Conduct Rules 3.8(f) and Rule 3.6(a). One issue came with an April 2008 news conference where Brizzi made statements about accused multi-state serial killer Bruce Mendenhall, and a second allegation involves a 2006 news release about the Indianapolis’ Hamilton Ave. slayings, where seven people were killed and Brizzi initially sought the death penalty. A comment in that news release stated about the defendants, "They weren't going to let anyone or anything get in the way of what they believed to be an easy score."

"The above public statements of the Respondent ... were not necessary to inform the public of the nature and extent of the prosecutor's action and did not serve a legitimate law enforcement purpose, and the same were extrajudicial comments that had a substantial likelihood of heightening public condemnation ..." the complaint says.

Responding to the complaint, Brizzi's answer came after two previous extensions that delayed the case for about three months. He admits to the general information about the underlying cases the statements were made about, but declined to admit or deny the specific claims cited in the complaint because the documents they were reportedly taken from were not included as part of the verified complaint.

After the April hearings were postponed because of discovery, the Oct. 26-27 dates were set. The Disciplinary Commission attorney and Indianapolis attorney Kevin McGoff, who represents Brizzi, filed a continuance motion on Oct. 19. The motion delves into the “broad” and “voluminous” discovery requests to Indianapolis media outlets, as well as requests that Brizzi’s office couldn’t fill and had to contact the county’s information services agency to explore. Some of those documents have just recently been received, and more will likely follow, the motion says.

Now, the hearings are set for January - a time that Brizzi won’t be in office any more since he isn’t seeking a third term.

While the hearing officer and ultimately the Indiana Supreme Court can find that misconduct occurred and decide a penalty is warranted, the fact that Brizzi will at that time be out of office could factor into the decision-making on what type of penalty – if any – is necessary. Attorneys can’t be faulted for lingering discovery issues that sometimes just can’t be avoided, but some may find it disappointing that this matter couldn’t have been closer to resolution by the time Brizzi leaves office. The public’s confidence in this elected office is shaken. And some in the legal community have said their confidence in this elected prosecutor has been shaken. This continuance means he gets to finish his term without answering to these specific allegations.