Brizzi discipline case could set new prejudice standard

The Indiana Supreme Court’s Disciplinary Commission wants to set a new standard of “actual prejudice” for attorney misconduct. In making that argument, the validity of two high-profile murder convictions that Carl Brizzi secured during his time as prosecutor in the state’s largest county are being questioned.

Briefs were submitted last week in the disciplinary action against the former Marion County prosecutor, with both the state and defense issuing their findings and related legal arguments for a special judge to consider in the coming weeks. Shelby Circuit Judge Charles O’Connor is serving as hearing officer on the case and held a one-day hearing in January. He will now submit a report to the Indiana Supreme Court about whether any misconduct occurred and if he thinks a sanction is needed.

Both Disciplinary Commission attorney David Hughes and defense attorney Kevin McGoff appeared in Judge O’Connor’s courtroom Jan. 7 to make their arguments, with Brizzi and his former spokesman testifying on the stand. The submitted briefs outline the evidence and what each side argues should happen in the case.

While McGoff’s brief for the defense requests the disciplinary case be dismissed because no violations occurred, Hughes doesn’t make any recommendations, but clearly points to what he sees as violations of Indiana Rules of Professional Conduct by Brizzi in 2006 and 2008.

The commission filed a formal complaint against Brizzi Oct. 1, 2009, accusing him of making statements that went beyond the public information purpose and prejudiced the pair of cases – violations of Indiana Professional Conduct Rules 3.8(f) and Rule 3.6(a). One issue arose during an April 2008 news conference when Brizzi made statements about accused multi-state serial killer Bruce Mendenhall, and a second allegation involves a 2006 news release about the Indianapolis Hamilton Ave. slayings where seven people were killed and Brizzi initially sought the death penalty for the accused, Desmond Turner and James Stewart. 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."

Hughes said those comments were prejudicial against the individuals, and he insinuated the motivation behind the statements was part of a larger message the prosecutor was sending at a time when Indianapolis saw higher crime trends and, in 2006, Brizzi faced a heated election race.

In his brief, Hughes points to scant Indiana caselaw on pre-trial publicity in the context of the state’s attorney conduct rules. He points to Maryland and Michigan cases that he argues offer guidance for interpreting Brizzi’s statements to be extrajudicial comments and that actual prejudice isn’t required to show an impact on the proceedings. Hughes also argues that the true impact of the conduct in question can’t be known because both Stewart and Turner were found guilty on all charges and there’s no way to impugn the jury or question the trier-of-fact so long after the proceedings.

But McGoff counters those claims, saying that Brizzi was within his authority to inform the public about the decision-making process that the prosecutor’s office used for the charges and rest of the legal proceedings. His comments didn’t create any actual prejudice as national precedent has dictated is needed, McGoff contends, and what Brizzi said is protected by the safe harbor provisions within the conduct rules. However, he admits that little guidance has been outlined concerning what does and doesn’t fall into that category.

“Nevertheless, it is not always clear, from a practitioner’s standpoint, which statements fall into the safe harbor,” McGoff wrote. “For example, the rule fails to specify how much can be included in a statement of ‘the defense involved’ or ‘the result of any step in litigation’ – or whether the category of ‘public documents’ includes media reports.”

He relies on similar precedent from Indiana, including the prosecutor defamation case of Foster v. Pearcy, 387 N.E.2d 446, 448 (Ind. 1979), that have held a prosecutor is responsible for apprising the public of important case developments.

Once Judge O’Connor submits his report for consideration, the Indiana Supreme Court will make the final disciplinary decision. No timeline exists for that to happen. Penalties, if deemed necessary, could range anywhere from a private reprimand to a more severe sanction. Impacting the discipline could be the fact that Brizzi left office at the end of 2010 and is now in private practice.