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Legal community reflects on prosecutor issues

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As controversy swirls around the Marion County Prosecutor's Office, attorneys throughout Indiana have their eyes on how the ethical issues can be a lesson for the state's legal community.

The Marion County issues surfaced in an April 3 Indianapolis Business Journal article. IBJ is owned by the parent company of Indiana Lawyer. IBJ reported first that Marion County Prosecutor Carl Brizzi intervened last year in a drug case to offer a reduced sentence over objections from law enforcement officers and his own deputy prosecutors. He insisted on a plea deal for accused drug dealer Joseph Mobareki that would be acceptable to Indianapolis criminal defense attorney Paul J. Page, a lawyer at Indianapolis-based Baker Pittman & Page and a Brizzi friend, campaign contributor, and business partner on an Elkhart County real estate deal. According to the IBJ report, Brizzi also ordered his staff to return $10,000 in cash seized from Mobareki, and the money was routed through Page.

The uproar is already seeping into courtrooms on other cases, and a newly created Indianapolis Bar Association task force is studying those concerns as part of a larger effort about public confidence in the legal community. While criminal defense attorneys and prosecutors statewide decline to discuss the merits of what's happening in the state's largest county, many are wondering how they might deal with similar situations.

"This shows how you have to really, really avoid anything that will cause even an appearance of anything inappropriate," said Vigo County Prosecutor Terry Modesitt. "You have to go the extra yard to make sure. We're always going to be questioned and criticized on our decisions ... but people have to trust us if we're going to do this job. We all know going in that we have to raise the bar, and we're held to a higher standard."

Another issue that's caused concern in Marion County is the 1991 case of Paula Epperly Willoughby, who received a 110-year sentence for hiring someone to kill her husband but was released in July 2009 after the prosecutor's office agreed to modify her sentence for early release. IBJ reported that Brizzi collected $28,500 in campaign contributions from her father, millionaire businessman Harrison Epperly. The contributions came at the same time as Brizzi's office supported the sentence modification requested by defense attorney Jennifer Lukemeyer of Voyles Zahn Paul Hogan & Merriman in Indianapolis. The prosecutor later returned that contribution and said it was not a factor in the decision. Lukemeyer, who co-authors a column for IL, did not return calls from Indiana Lawyer about this issue.

Brizzi couldn't be reached by deadline for this story, but in a March letter to IBJ he wrote, "proper checks and balances have been built within the prosecutor's office to prevent favoritism influenced by either campaign contributions, friendships, or outside business dealings."

In an e-mail response, Page said he's never received preferential treatment on any plea agreements from the prosecutor's office and that all are negotiated ethically, in good faith, with his client's interests in mind.

"The plea agreements are a result of the facts and the merits of each case," he wrote. "If one practices law with honesty, integrity and under our ethical guidelines, then attorneys being involved in business dealings or contributing to political campaigns should not be an issue. In a broader spectrum, relationships are important in the practice of law and for that matter business. It is beneficial to our clients to know opposing counsel because it promotes more expeditious, fair and equitable results for both sides."

Local response

Since the issues surfaced, former Brizzi supporters and the leadership of the county's Republican Party have called for Brizzis resignation before his term ends at the end of this year. Brizzi has already announced he isn't running for a third term, but if he stays through December he's eligible for retirement benefits from his stint as prosecutor.

Those vying for the prosecutor's seat include Republican Mark Massa, former general counsel to Indiana Gov. Mitch Daniels. Massa has already called for Brizzi to step down early, and ethics reform has become part of his campaign.

Allegations about Brizzi's influence are already damaging the prosecutor's office reputation, according to attorneys both in and outside Marion County.

During a robbery case voir dire in February, defense attorney Patrick Stern brought up the Epperly case and told jurors that those who donate to Brizzi can get a break on sentencing. He compared the donor-prosecutor relationship to that of a witness who had agreed to testify against his client in exchange for a lighter sentence. On Stern's next case, the prosecutor's office had asked the judge to ban the attorney from discussing those political contributions, but the judge allowed it.

"Their whole conduct is disrespectful to everyone who works in the court profession," Stern told IBJ.

The Marion County Public Defender's Office said it has enjoyed a high level of communication and cooperation with Brizzi's office, and that hasn't changed.

"We do not expect that aspect of our working relationship to change in any way, and we look forward to continuing the relationship with either Mr. Brizzi or his successor," Bob Hill, Marion County chief public defender, said in a statement.

Bigger impact

Statewide, the legal community remains mostly silent on the merits of any allegations or implications about possible wrongdoing, but many say the whole issue is negatively impacting the state's legal community.

Franklin criminal defense attorney George "Jay" Hoffman III said he doesn't believe generally that campaign contributions to prosecutors or even judges affect the outcome of cases. But this looks bad.

"This looks bad from the outside and that's most troublesome," he said. "To the general public, anything that calls into question the integrity of the system looks bad and hurts all of us lawyers. There are so many more things wrong with our criminal justice system, but this just chips away at us being able to do anything about it."

Johnson County's former prosecutor-turned Superior Judge Lance Hamner declined to speak about the Marion County situation, but spoke generally about his 16 years as prosecutor before taking the bench in 2009.

Special prosecutors were always an option, and the former prosecutor said even if he knew he or his office could be fair and impartial, they'd still turn to a special prosecutor to avoid any possible question. He always told his deputies to first do the right thing and second to make sure the public understands you're doing the right thing.

"As prosecutors, we all understand it's important that the public has confidence in our integrity and that of the system," he said. "You always need to be above suspicion if there's an appearance of anything. If people think it's corrupt, then it might as well be because you lose them as witnesses, jurors, and voters."

Chief Deputy Prosecutor Mike McAlexander in Allen County echoed those thoughts, saying the situation has been closely watched in the Fort Wayne area.

He's quick to point out he doesn't want to second-guess his Marion County colleagues because many factors go into plea deals and recommendations, and it's tough to explain the decision-making process to those outside the legal community. But that office blocks the 32 deputy prosecutors and staff and others involved in handling cases from being involved in cases where there might be a conflict. For example, the office handled a mortgage-fraud case once and McAlexander was a victim of mortgage fraud, so he was walled off from any involvement on those cases. Prosecutors should also avoid business deals that might present conflicts for their attorney-client duties, he said.

"We are always sensitive to these issues, and we have to play above board in everything we do," he said. "You have to be very careful when dealing with people you know because of the perception."

Ethical considerations

The Indianapolis Bar Association said it is deeply concerned about any allegations of impropriety that could undermine public confidence, according to IBA president Christine Hickey at law firm Rubin & Levin. She said the association formed a task force in February to study just those issues, specifically on the heels of a landmark ruling last year by the Supreme Court of the United States. In Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), the 5-4 court addressed when judges must recuse themselves from cases involving big campaign donors.

Campaign contribution issues aren't new, but they're growing in attention and Hickey said the IBA wants to be proactive on that issue. The task force is forming a plan to promote public confidence and offer solutions aimed at avoiding any appearance of impropriety in supporting candidates for law-related offices such as judge or prosecutor. Hickey declined to elaborate and said no timeline exists for when that might happen.

Besides the most recent issues raised, Brizzi is already facing an unrelated disciplinary matter filed in October 2009. A two-day hearing set for the end of April was recently continued until late October because of ongoing discovery and trial preparation, Brizzi's attorney Kevin McGoff said.

These more recent issues don't impact that case, which involves allegations that Brizzi's public comments on two murder cases crossed the line and violated professional conduct rules.

"The case in which I'm representing Carl is pretty narrow and a straightforward set of facts, not related to this more recent issue," McGoff said. "From my perspective as his lawyer in this disciplinary case, the issues aren't connected. Whether you're prosecutor today, tomorrow, or yesterday, it's based on conduct at a specific time and that's what matters."

The Indiana Supreme Court's Disciplinary Commission is unable to acknowledge whether or not other investigations are under way. Nothing becomes public unless formal disciplinary charges are filed or if someone with knowledge of a case comments publicly about it.

The commission doesn't keep statistics pertaining to specific allegations against local elected officials such as prosecutors, according to Seth Pruden, interim executive secretary of the Disciplinary Commission. Generally, a lawyer should avoid conflicts of interest that would materially limit his or her obligations to a client, Pruden said, pointing to the state's professional conduct rules that apply to those situations as well as to perceptions of potential conflicts that attorneys might face.

"Also as a very general matter, prosecutors have special obligations because of the extensive discretion they have in the prosecution of criminal cases," Pruden wrote in an e-mail to Indiana Lawyer. "I cannot say at this point whether the reports regarding Mr. Brizzi that have occurred in the newspaper implicate any of the Rules of Professional Conduct, and I am not authorized to reveal whether any investigation is pending or whether one is not pending on those matters."

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  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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