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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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