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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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