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Prosecutor denies misconduct accusations

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Marion County Prosecutor Carl Brizzi denies that he violated any professional conduct rules in his handling of two high-profile murder cases, specifically in his written or spoken statements made when describing the crimes to the public.

On Monday, just three days before the prosecutor announced he won't be seeking a third term, Brizzi filed an answer to disciplinary charges lodged against him late last year by the Indiana Supreme Court's Disciplinary Commission.

In its formal complaint against Brizzi filed Oct. 1, the commission alleged that public comments the prosecutor made about two murder cases crossed the line and violated the attorney 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).

Some of the comments came during an April 2008 news conference, where Brizzi made statements about the case against accused multi-state serial killer Bruce Mendenhall, alleged to have killed Carma Purpura in Indianapolis as well as other women in Tennessee and Alabama. A second allegation from the commission involves a 2006 news release about the city's Hamilton Avenue slayings, where seven people were brutally killed in Indianapolis 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 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.

In the seven-page answer, Brizzi's attorney Kevin McGoff at Bingham McHale in Indianapolis offered one legal defense for his client: "A lawyer is permitted to make an extrajudicial statement, as contemplated by Ind. Prof. Cond.R. 3.6(b), including but not limited to: (2) information contained in a public record and; (3) an investigation is in progress."

Indianapolis attorney William Hodes, an expert in lawyer ethics, said he found the case interesting, highlighting the gray area and tension between parts (a) and (b) of Rule 3.6. While unfamiliar with details of the Brizzi case, he noted that both sides appear to be making reasonable points in relation to the rules.

The rule applies to the public record, such as an indictment or probable cause document, not any of a prosecutor's own documents such as a press release.

"The charges sound like they're in the ballpark of what's off limits by the rules, and the defense seems solid," he said. "This could be a fairly close case, with legitimate arguments on both sides if you really look at the exceptions and qualifiers in the rules."

Bloomington law professor Charles Geyh at Indiana University Maurer School of Law - Bloomington agreed, saying the rules being examined here are "a thicket, owing to the First Amendment rights of the lawyer to speak and the difficulty of determining when there is a 'substantial likelihood' of material prejudice."

The Disciplinary Commission is now able to file a response to Brizzi's answer, and once that happens the Indiana Supreme Court can appoint a hearing officer to examine the evidence. Justices have final say over attorney disciplinary issues, and if it finds any misconduct the penalties could range from a private reprimand to a suspension or disbarment.

Admitted to practice in 1994, Brizzi was first elected prosecutor in 2002 and was re-elected in 2006. This is the first time Brizzi has faced any professional misconduct charges, according to his office. But whatever happens with this disciplinary action, it won't impact whether he remains prosecutor of the state's largest county past 2010 - Brizzi announced Thursday he wouldn't seek a third term in November's election. He hasn't announced what his future plans are.

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  1. I'll dedicate this final work of Saint Thomas More to the Indiana A.G., since without the "zealous" legal work of a small subset of issue-advocacy-driven attorneys working for him it would be unlikely that I could identify so much with this lesser known prayer of a public enemy #1: The following is reported to have been written while St. Thomas was imprisoned in the Tower of London. Give me the grace, Good Lord to set the world at naught. To set the mind firmly on You and not to hang upon the words of men’s mouths. To be content to be solitary. Not to long for worldly pleasures. Little by little utterly to cast off the world and rid my mind of all its business. Not to long to hear of earthly things, but that the hearing of worldly fancies may be displeasing to me. Gladly to be thinking of God, piteously to call for His help. To lean into the comfort of God. Busily to labor to love Him. To know my own vileness and wretchedness. To humble myself under the mighty hand of God. To bewail my sins and, for the purging of them, patiently to suffer adversity. Gladly to bear my purgatory here. To be joyful in tribulations. To walk the narrow way that leads to life. To have the last thing in remembrance. To have ever before my eyes my death that is ever at hand. To make death no stranger to me. To foresee and consider the everlasting fire of Hell. To pray for pardon before the judge comes. To have continually in mind the passion that Christ suffered for me. For His benefits unceasingly to give Him thanks. To buy the time again that I have lost. To abstain from vain conversations. To shun foolish mirth and gladness. To cut off unnecessary recreations. Of worldly substance, friends, liberty, life and all, to set the loss at naught, for the winning of Christ. To think my worst enemies my best friends, for the brethren of Joseph could never have done him so much good with their love and favor as they did him with their malice and hatred. These minds are more to be desired of every man than all the treasures of all the princes and kings, Christian and heathen, were it gathered and laid together all in one heap. Amen

  2. From a dissent on denial of cert ... "We expect the Government to seek justice, not to fan the flames of fear and prejudice. Also troubling [is that] the Government failed to recognize the wrongfulness of the [government attorney's prejudicial] question, instead calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. In this Court, the Solicitor General has more appropriately conceded that the “prosecutor's [Equal Protection violating] remark was unquestionably improper.” I hope never to see a case like this again." Justice Sotomayer, woodshedding a prosecutor who crossed the line by using a prejudicial line of questions. Calhoun v. United States, 133 S. Ct. 1136, 1138, 185 L. Ed. 2d 385 (2013) I have been knocking on the Indiana Supreme Court's door since 2007, and have documented serial questions by government counsel every bit as "impolitic" as the one referenced above. Well, maybe not, my questions involve Christian faith, so prejudice against that is A-OK in the Hoosier State? Evidently so, as that I remain unlicensed eight years on. Of course, the impolitic questions put to me did not deal with race, and I am not recognized as a racial minority. And the questions were not put to me by white heterosexual males. So I have no claim to advance, it would seem. OR protection under the law.

  3. A prosecutor occupies a unique role in our criminal justice system and it is essential that he carry out his duties fairly and impartially. This distinctive role of the prosecutor is expressed in Ethical Consideration (EC) 7–13 of Canon 7 of the American Bar Association (ABA) Model Code of Professional Responsibility (1982): “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 803, 107 S. Ct. 2124, 2135, 95 L. Ed. 2d 740 (1987)

  4. Such disclosure will serve to justify trust in the prosecutor as “the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Kyles v. Whitley, 514 U.S. 419, 439, 115 S. Ct. 1555, 1568, 131 L. Ed. 2d 490 (1995)

  5. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

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