We find that Respondent, Carl J. Brizzi, engaged in attorney misconduct by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing adjudicative proceedings and a substantial likelihood of heightening public condemnation of the criminal defendants. For this misconduct, we find that Respondent should receive a public reprimand.
. . . .
Respondent was the prosecuting attorney of Marion County, having been elected in 2002 and re-elected in 2006. During Respondent’s two terms, the Prosecutor’s Office filed close to 100 murder cases, including five death penalty cases. The Commission charged Respondent with the following two counts of misconduct relating to public statements concerning murder cases.
Count 1. Respondent conducted a press conference on April 10, 2008, announcing the filing of a murder charge against Bruce Mendenhall for the murder of Carmen Purpura, who was last seen at an Indianapolis truck stop. Mendenhall had murder charges pending in Alabama and Tennessee, and he had been previously convicted of murder in Tennessee. According to media reports, Respondent’s statements included the following:
DNA testing of blood taken from Purpura’s parents matched blood inside the cab of Mendenhall’s truck.
“When the officer opened up the cab of the truck, you can imagine his surprise, because the cab of the truck was literally awash with blood.” Purpura’s blood “soaked” the seats of Mendenhall’s truck.
Enough blood matching the DNA of Purpura’s parents was found inside the cab of Mendenhall’s truck to determine that she could not possibly be alive.
The “DNA analysis of [the blood] shows that it’s not just the blood of one victim, but the blood of several victims.”
The victims were shot after their heads were wrapped in plastic wrap and duct tape.
A .22 caliber handgun used by Mendenhall in the killings was found in his truck.
Mendenhall had admitted to the police when arrested that Purpura had been shot in the back of the head at the Indianapolis truck stop, then left inside a vehicle parked at a nearby restaurant, but that he denied being the murderer.
Respondent was confident that he had enough evidence to convict Mendenhall.
Respondent was “working with the other jurisdictions to see the quickest way and the best way to punish [Mendenhall] with the ultimate punishment – a capital sentence.”
. . . .
Count 2. On or about June 1, 2006, seven family members, including three children, were discovered murdered in their east side Indianapolis home. The County Prosecutor’s Office issued a press release on June 6, 2006, after Desmond Turner and James Stewart were charged with the murders. The press release included the following:
Brizzi said, “According to the probable cause affidavit, Desmond Turner and James Stewart thought there was a large amount of money and drugs at 560 North Hamilton Street. They weren’t going to let anyone or anything get in the way of what they believed to be an easy score. There was no money in that house. There were no drugs. Seven bodies were carried out, including those of three children. I would not trade all the money and drugs in the world for the life of one person, let alone seven. Turner deserves the ultimate penalty for this crime.”
Regarding the swiftness with which the death penalty was filed, Brizzi said “The evidence is overwhelming. There are several aggravators present, any one of which would merit the death penalty. To do otherwise would be a travesty.”
The Charges. The Commission charged Respondent with violating the following Indiana Professional Conduct Rules:
Rule 3.6(a): “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
Rule 3.8(f): “The prosecutor in a criminal case shall . . . except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused . . . .”
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C. Actual Prejudice vs. Substantial Likelihood of Prejudice.
In concluding that Respondent had committed no misconduct, the hearing officer considered highly relevant his finding that the Commission made no showing that any of the criminal defendants suffered actual prejudice from the statements at issue. The rules at issue, however, do not require a finding that an otherwise improper statement cause actual prejudice to a criminal defendant or to an adjudicative proceeding. Rather, Rule 3.6(a) requires “a substantial likelihood of materially prejudicing an adjudicative proceeding,” and Rule 3.8(f) requires “a substantial likelihood of heightening public condemnation of the accused.” (Emphasis added.) Even if the passage of time, preventative measures by the trial court, and other factors prevent actual prejudice from occurring in a particular case, it does not necessarily mean that a prosecutor’s statements did not meet the “substantial likelihood” standard when made. In considering the propriety of a prosecutor’s extra-judicial statement, the court determines the likelihood that a particular statement will cause prejudice at the time made, not whether, in hindsight, it actually worked to the detriment of a defendant. See Attorney Grievance Committee v. Gansler, 835 A.2d 548, 571 (Md. 2003).
The following types of statements are rebuttably presumed to have a substantial likelihood of materially prejudicing an adjudicative proceeding under Rule 3.6(d):
Statements concerning the character, credibility, reputation or criminal record of a suspect in a criminal investigation.
Statements concerning the performance or results of any examination or test or the identity or nature of physical evidence expected to be presented.
Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case.
The fact that a defendant has been charged with a crime unless there is included a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
Rule 3.6 applies to all attorneys, not just to prosecutors. See Matter of Litz, 721 N.E.2d 258 (Ind. 1999) (defense attorney reprimanded for statements in letter published in newspapers). Rule 3.8(f) “supplements Rule 3.6 . . . . In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused.” Prof. Cond. R. 3.8, cmt. . “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” Prof. Cond. R. 3.8, cmt. . A prosecutor’s opinion of guilt is particularly likely to create prejudice, given that his or her words carry the authority of the government and are especially persuasive in the public’s eye. See Gansler, 835 A.2d at 572.
Although we defer to the hearing officer’s finding the Commission did not offer clear and convincing evidence that Respondent made the statements alleged in Count 1, for future guidance we note that a large part of alleged statements are of the type rebuttably presumed to have a substantial likelihood of materially prejudicing an adjudicative proceeding under Rule 3.6(d). Regarding Count 2, we note that the press release did not include the required explanation that a charge is merely an accusation and that the defendant is presumed innocent until proven guilty, and much of the undisputed statements Respondent made in the press release are also of the type rebuttably presumed to have a substantial likelihood of materially prejudicing an adjudicative proceeding. We find nothing in the record to rebut this presumption in this case.
D. “Safe Harbor” for Information Contained in a “Public Record.”
Professional Conduct Rule 3.6(b)(2) provides: “Notwithstanding paragraph (a), a lawyer may state . . . . information contained in a public record.” The hearing officer concluded that the several of Respondent’s alleged statements concerning the Mendenhall case would fall within this “safe harbor,” reasoning:
“Media reports from other states about the Mendenhall case were accessible on the Internet. Respondent searched the Internet for news stories about Mendenhall
because Respondent himself had little information about the multi-state investigation into the suspected slayings.”
“Mendenhall’s alleged use of a .22 caliber handgun in his murders was publicly documented and available as early as October 2007, six months prior to Respondent’s press conference. The probable cause affidavit filed in the Marion County case discusses Mendenhall’s suspected killings in other jurisdictions, and states that ‘the evidence found in his truck including a .22 caliber weapon, all point to Mendenhall as the killer.’”
“The statements . . . concerning DNA analysis, plastic wrap and a .22 caliber handgun refer to information previously documented in the media. The Probable Cause Affidavit . . . discusses the .22 caliber gun, the DNA testing and the law enforcement officials’ discovery of such a large amount of blood that they were able to determine that Ms. Purpura was no longer alive. Thus, these statements were based on publicly available information and protected by the safe harbor provision in Rule 3.6(b).”
Hearing Officer’s Report at 5-7, 13 (emphasis added, record citations omitted).
Media accounts. In Gansler, a prosecutor charged with making a number of improper public statements about several murder defendants argued that some of the statements fell within the public record safe harbor. Because there was no settled definition of “public record,” the high court of Maryland construed the phrase as broadly as possible to statements made prior to its opinion. Thus, it found the prosecutor’s statements of information in media reports and in police charges to be within the Rule 3.6(b)(2) safe harbor. However, the court determined that in the future, the phrase “public record” would refer only to public government records, i.e., the records and papers on file with a government entity to which an ordinary citizen would have lawful access. See 835 A.2d at 567-69.
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.
Probable cause affidavit. A probable cause affidavit falls under the Gansler definition of “public record” so long as it is on file with a government entity to which an ordinary citizen has lawful access. Cf. Muex v. State, 800 N.E.2d 249 (Ind. Ct. App. 2003) (no cogent argument supported assertion that prosecutor violated Prof. Cond. R. 3.6 and 3.8. by public disclosure of DNA test results contained in probable cause affidavit). However, Gansler held, and we concur, that to receive the protection of the public record safe harbor, a lawyer may not provide information beyond quotations from or references to the contents of the public record. See 835 A.2d at 569. Moreover, we hold that a prosecutor must make clear that what is being disclosed is, in fact, the contents of the probable cause affidavit or other identified public document so the statements cannot be misunderstood to be the prosecutor’s own opinion about the evidence or the suspect’s guilt.
With regard to the Mendenhall case, some of the alleged statements corresponded to the contents of the probable cause affidavit, but the alleged statements did not make clear that this information was from the probable cause affidavit as opposed to a personal assessment of the matters.
With regard to the press release about the Turner and Stewart cases, Respondent began by referencing the probable cause affidavit, but it is unclear where the content of the affidavit ended and Respondent’s own assessment of the matters began. The transition certainly occurred by the time Respondent stated: “I would not trade all the money and drugs in the world for the life of one person, let alone seven.”
E. Other “Safe Harbors” and Permitted Statements.
Professional Conduct Rule 3.6(b)(2)’s list of “safe harbors” reads in full:
Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress; 11
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
In addition, Rule 3.8(f) permits a prosecutor to make “statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose,” even if they might heighten public condemnation of the accused. “Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused.” Prof. Cond. R. 3.8, cmt. . The inevitable negative consequences are why the announcement of the fact that a defendant has been charged with a crime is presumptively prejudicial unless accompanied by a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. See Prof. Cond. R. 3.6(d).
We do not fault Respondent or any prosecutor for wanting to share with the public information on the prosecution of serious crimes of great interest in the community.
It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. . . . On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.
Prof. Cond. R. 3.6, cmt. . In the cases at issue, there is no evidence that any of Respondent’s statements were meant to serve such law enforcement purposes as protecting potential victims or apprehending suspected perpetrators still at large. Some of the information Respondent provided could have been properly communicated if framed within any of the “safe harbors” listed in Rule 3.6(b). 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.