Justices reprimand former Marion County prosecutor

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.