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Justices reprimand former Marion County prosecutor

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The Indiana Supreme Court has publicly reprimanded former Marion County Prosecutor Carl Brizzi for statements he made about a high-profile murder case, and in doing so the state’s justices have set a new standard and issued a warning for prosecutors statewide: Be careful what you say.

In a 13-page per curiam opinion released late Monday afternoon, the state Supreme Court issued the public reprimand to Brizzi, whose term in office ended in 2010 as this disciplinary action was pending.

“We conclude that in performing his important responsibility of apprising the public of the activities of his office, Respondent stepped beyond the bounds permitted by Rules 3.6 and 3.8,” the court wrote. “We conclude that when these statements were made, Respondent knew or reasonably should have known that they would have a substantial likelihood of (a) materially prejudicing an adjudicative proceeding in the matter and (b) heightening public condemnation of the accused.”

The Indiana Supreme Court's Disciplinary Commission filed a complaint against Brizzi Oct. 1, 2009, accusing him of making statements that went beyond the public information purpose and prejudiced the cases. 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 initially sought the death penalty. That case resulted in both defendants receiving life sentences.

Shelby Circuit Judge Charles O’Connor held a disciplinary hearing in January 2011 to hear testimony, and last summer he 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. But the disciplinary commission disagreed and asked the justices to reconsider those findings.

The Disciplinary Commission argued the statements Brizzi made in press releases and at news conferences were prejudicial to the administration of justice as soon as they were spoken because actual prejudice of jurors shouldn’t be required as proof. That line has never been explored in Indiana caselaw before, but the Supreme Court has now offered guidance.

Referring to provisions of Rule 3.6, the court wrote that the rules don't require a finding of actual prejudice but rather a substantial likelihood of heightened public condemnation of the accused. Even if time, trial court preventative measures and other factors prevent actual prejudice from occurring, a prosecutor's statements can still rise to the level of meeting the "substantial likelihood" standard, the court wrote.

The justices agreed with O'Connor on dismissing the Mendenhall charge, but they pointed out that the press release relating to the Hamilton Avenue murders didn't include the required explanation that a charge is merely an accusation and the defendant is presumed innocent until proven guilty. That led to a substantial likelihood of prejudice, the court found.

For future statements by Indiana prosecutors, the Brizzi decision lays out a strict interpretation of a current rule that allows their public comments to cite any information contained in a public record. The justices relied on a 2003 ruling from Maryland's appellate bench in Attorney Grievance Committee v. Gansler, 835 A.2d 548, 571 (Md. 2003), which defined a public record as referring only to public government records on file.

"We agree with the definition of 'public record' set forth in Gansler, with the proviso that 'on file' does not mandate such formalities as file stamping or entry on a case docket. A more expansive concept of a public record that includes the unfiltered and untested contents of all publicly accessible media would permit the public record safe harbor to swallow the general rule of restricting prejudicial speech," the court wrote.

The justices wrote that there's no evidence that any of the prosecutor's statements were meant "to serve such law enforcement purposes as protecting potential victims or apprehending suspected perpetrators still at large." They found that some of the information Brizzi provided could have been properly communicated if he'd framed it within any of the safe harbor provisions in Rule 3.6(b).

Noting that Brizzi was repeating information in media accounts and the probable cause affidavit in the Hamilton Avenue murders, the justices gave him the benefit of a broad interpretation of the public record safe harbor. But they warned that the narrower interpretation will be applied to future statements.

With Brizzi having no disciplinary history and the court finding little precedent in Indiana or elsewhere at the time these statements were made, the justices concluded that a public reprimand is appropriate. The costs of proceedings are assessed against Brizzi.

 

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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