Saturday, October 10, 2009

Friendly Advice for Carl Brizzi

As most people know by now, the Indiana Supreme Court Disciplinary Commission lodged a complaint against Marion County Prosecutor Carl Brizzi for "public comments" made in two cases.

Respectfully, the mainstream media has not done a good job of explaining this brouhaha, and non-lawyers may wonder what the hubbub is all about.

Simply stated, lawyers must comply with the Rules of Professional Conduct, and Rule 3.6 prohibits any lawyer from making an (a) extrajudicial statement that (b) the lawyer knows or reasonably should know will be disseminated by means of public communication and (c) will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

If Prosecutor Brizzi makes a comment to the media, which he did here, then a & b are already satisfied. The only remaining issue is whether the comment is likely to prejudice an "adjudicative proceeding" (known to laypersons as "a trial").

That language is pretty subjective, I can hear some non-lawyers saying. How would somebody know whether there is a "substantial likelihood?" Oh, you know because Rule 3.6 sets forth in mind-numbing detail the specific information that can be recounted by an attorney, in particular, a prosecutor.

The integrity of the criminal judicial system is built on the idea that a defendant can get a fair trial, but public comments by someone with first-hand knowledge of the case can inflame a community and make it impossible to get a jury that can render a fair decision. Adverse pretrial publicity, even if it happens without comments by a prosecutor, can lead to a case being transferred out of county.

The legal profession demands that its members forego the desire to score political points or try to get a leg up by commenting on cases or judges. It's easy to forget this mandate because most cases have heightened emotion and talking is innate for most politicians. Plus, lawyers who are also public office holders have a lot of microphones and cameras at their disposal, which means their every utterance, even if imprudent, gets captured.

I will never forget my former boss, Attorney General Jeff Modisett, getting chastized by the Indianapolis Bar Association after he crumpled up an order dismissing his tobacco law suit. The IBA had the same harsh words for Governor Daniels recently when he called a recent Court of Appeals decision an example of "judicial arrogance." Lawyers know that the general public holds the profession in low regard, so we damn sure aren't going to let other lawyers pile on.

And that leads me to my advice for Prosecutor Brizzi, which all politicians might keep in mind. DON'T talk when you're angry. Let a surrogate do it, or you will do or say something you'll regret. Brizzi already did. When told of the complaint, his response to the Star was "I find the timing curious."

The Commission itself is a bipartisan body with members appointed by the Supreme Court. Do you really want to come off as accusing the Commission that is investigating you of doing so for political reasons? Run it by Helen next time. She'll help you get it right.

Ultimately, if any action is taken against Brizzi, it's will be just a public reprimand, which will have almost no impact on his standing. Sorry, fellow lawyers, but very few non-lawyers care what lawyers think. To those who don't already oppose Brizzi, this will likely come off as much ado about a prosecutor hurting the feelings of some murderous scumbags.



Anonymous said...

Unfortunately, the two instances cited by the disciplinary authorities are not the only ones in which this Prosecutor has made inflammatory comments in the press. These kinds of comments may 1) betray a personal, emotional or ideological stake in a case; 2) an absence of professional objectivity; 3) a naked political pitch to the majority of constituents who have not reviewed Rule 3.6; or 4) some combination of the above.

And at what point in your term, Mr. Prosecutor, would the timing of such a complaint NOT be "suspicious," from your point of view as an elected official?

Even if it doesn't read the Rules of Professional Responsibility, the public should understand that such conduct by seemingly zealous prosecutors may lead to the conviction innocent people, and and may actually allow guilty persons to escape conviction.

So maybe we should be glad he DOES talk when he is mad; at least now we know.

Paul K. Ogden said...

I'm not a Carl Brizzi fan, but to say he made those statements to influence the outcome of the trial is far-fetched at best. How many people in the jury pool do you think will have heard the comments? Very, very few and those folks will probably be excluded from the jury.

Brizzi's comments are no worse than what other prosecutors in the state say all the time. Like it or not, even Carl Brizzi has First Amendment rights.

I totally agree that Brizzi should be more tempered in his public comments.

Chris Worden said...


As you know, I'm not a fan of the "everybody does it" defense when it's uttered by either party. The fact other prosecutors are as bad or worse doesn't absolve Brizzi.

Respectfully, seven people died. I assure you that a LOT of people in Marion County knew about this case and read his comments, and further, a lot of jurors start cases with information in mind they shouldn't have, and if they say, "Yeah, I heard about it, but it won't affect my decision," the Court can't strike them for cause, no matter how ridiculous it is to think they won't be swayed by it. Plus, as you know, peremptory challenges are limited, so you can't act like there's no possibility that somebody biased by this kind of information won't get on a jury.

Do I think Carl Brizzi's goal was specifically TO influence a juror? Probably not. But it was certainly to sound tough in the paper, damn the consequences or professional rules.

I agree that Brizzi has a first amendment right, but like Justice Holmes once said (in a parallel context), "You don't have a right to be a police officer." If Brizzi can't follow the rules of professional conduct (that he knew were in place before he took the job) and temper his remarks, he should step down. For now, I will give him the benefit of the doubt and assume he's learned his lesson.

Anonymous said...

Those of us who are not lawyers do care about the Brizzi situation. Lawyers do not have the franchise on politics.In fact if polititions thought less like you all things would get done.

While I hate what he has done to his friends and family , I hate even more what he and Tom John have done to this party.

While we should be sweeping the next election, we may end up with nothing in Marion Couny.The Democrats will have a field day with us.

The saddest thing is that I think that you are right Paul, he wil get off with a slap on the hand. He knows where ALL of the bones are buried