You don"t know them, but either Jim Osborn or Carl Brizzi will soon be the most powerful criminal justice official in town When I was a public defender in the Marion County courts, it happened every day. I would stand in the congested hallway outside a criminal court room, hunched over and scribbling notes on a stack of manilla folders while my client nervously explained his side of the story Ö
He was riding in a car with some friends when the police pulled the car over and searched it. Some drugs were found on the floorboard. He says the drugs weren"t his, but there"s no way to prove that. A pre-trial conference will begin in a few minutes. "What happens now?" he asks. I reply that there are several ways this could go. All of the charges could be dismissed, he could be offered a chance to plead guilty to a misdemeanor, he could face a felony charge that carries prison time. That range of possibilities is almost too wide to get his agitated mind around. He"s not much older than a kid. He is scared of jail time, but he should probably be even more scared of how a felony conviction will screw up his chances for education, jobs, housing. "Who decides all this?" he demands. "The police? The sheriff? The judge? A jury?" No, I say. The prosecutor decides all this. The prosecutor"s power stemmed from the fact that my client"s case was likely to be resolved without a trial. The Marion County prosecutor filed over 38,000 criminal charges in 2001, but only tried 300 jury trials that same year. A recent study by the National Center for State Courts tracked major felony cases in nine large cities, and found that almost 95 percent of the cases never went to trial in front of a judge or a jury, being resolved instead by plea agreements or dismissals. Under Indiana"s system, until and unless a case comes to trial before a judge or a jury, the prosecuting attorney usually holds all the cards. The prosecutor can give my sweating client a break, throw the proverbial book at him or offer a compromise somewhere in between. "Grand juries are not required before filing criminal charges in this state," says Indiana University School of Law-Indianapolis professor Fran Hardy, who directs a criminal defense clinic. "So the county prosecutors in Indiana have the ultimate power to file or not file charges, to decide what charges to file and how many." That wide discretion in filing charges also invests the prosecutor with unmatched power in making broader criminal justice policy. A county prosecutor can vigorously pursue government corruption and police brutality, or wink at such crimes with a boys-will-be-boys policy of refusing to investigate or file charges. Prosecutors can put drug users in jail or recommend treatment. In murder cases, a prosecutor can pursue the death penalty or life imprisonment. Prosecutors send messages about acceptable behavior by either treating domestic violence as a serious crime or letting the accused go with a slap on the wrist. With two-term incumbent Scott Newman not running for re-election, Marion County voters will choose a new prosecuting attorney on Nov. 5. The winner will assume control of the most powerful criminal justice office in the community. But the race has been overshadowed by an intriguing sheriff contest featuring Lawrence Mayor Tom Schneider, survivor of a bitter May Republican primary, versus former U.S. Marshal Frank Anderson, the Democrat candidate who represents the possibility of the first-ever African-American Marion County sheriff. With the two major party candidates for prosecutor being new to the public eye, their contest has received scant attention. The negatives: PERF and Dan Burton So far, the biggest news to emerge from this low-profile prosecutor race has nothing to do with how either of the candidates will exercise their prosecutorial discretion. In August, the campaign of Democrat Jim Osborn was rocked by the revelation that the Public Employees Retirement Fund (PERF), for which Osborn worked as project director, had hired a convicted felon and identity thief as its chief benefits officer. As has been well-documented in NUVO ("Lies and Damned Lies," NUVO, Oct. 9-16, 2002) and in a report by an investigator appointed by the governor, Osborn was involved only in the preliminary stages of hiring Kevin Scott. Osborn interviewed Scott and other candidates and checked Scott"s references with his most recent employer, Cook Group Incorporated. The Cook supervisors gave positive recommendations, which Osborn relayed to his boss at PERF, William Butler. Butler, who has since been fired as executive director of PERF, then took over the vetting process. Osborn says he offered to perform a background check on Scott, but Butler declined his offer, saying the Governor"s Office would perform that task. Although the timing of the PERF scandal could hardly have been worse for him, Osborn says the incident has no bearing on his qualifications to be prosecutor. "I did the job my boss told me to do, there"s not much more I can do than that," Osborn says. Republican candidate Carl Brizzi disagrees. After the story of Scott"s hiring at PERF broke in The Indianapolis Star, Brizzi issued a press release with the headline "Democrat Prosecutor Candidate Could Have Done More to Protect Employees Personal and Financial Information." Brizzi still stands by that assertion, pointing to a PERF hiring protocol that called for Osborn to perform background checks. "He [Osborn] is holding himself out as an experienced prosecutor," Brizzi says. "At the very best, he did the very least he could do." Less recent and less well-known is Brizzi"s own connection to a botched investigation, this one on a national scale. In the late 1990s, Brizzi served a little over one year as senior investigative counsel for Rep. Dan Burton"s (R-Ind.) campaign finance investigation, which was conducted through the House Committee on Government Reform chaired by Burton. The investigation became notorious for costing over $7 million and for a partisan taint that offended even Washington, D.C., sensibilities. Of Burton"s voluminous subpoenas and document requests, 99 percent were aimed at uncovering Democrat campaign abuses. Eventually, Burton and his investigation were discredited even by members of his own party. "You should be embarrassed," then-Speaker Newt Gingrich told Burton when transcripts of former Clinton aide Webster Hubbell"s telephone calls were released to the media after statements that appeared to exonerate both Clintons were edited out. Carl Brizzi
"That investigation has become the gold standard for incompetent investigations," says Phil Schlero, chief of staff for Rep. Henry Waxman, Burton"s Democrat counterpart on the Government Reform committee. "I don"t think association with that investigation is a positive part of a resume." Brizzi doesn"t seem to disagree too much. Burton"s name is conspicuously absent from discussion of Brizzi"s experience on either his campaign Web site or the prelude to "The Brizzi Brief," the 70-page outline of his campaign platform. Brizzi defends the integrity and importance of his work trying to trace millions of dollars that flowed from China to United States political campaigns, but he says the committee"s partisan focus surprised and dismayed him. "I was 28 years old when I went out there," he says. "What I wasn"t prepared for was the political nature of the investigation. I butted heads with the political people every day. "I would have preferred it not to be as political, absolutely," he adds. "I don"t think I am talking out of school when I say I went there envisioning something different." Democrats counter that Brizzi"s discomfort with the Burton investigation was a bit late in coming. They note a 1998 Indiana Lawyer profile of Brizzi, written after his return to Indianapolis, included Burton"s praise for Brizzi"s work and cites Brizzi"s opinion that the investigation would "reap dividends for the country." Osborn himself scoffs at Brizzi"s distancing himself from the investigation. "He"s learned one thing from Dan Burton, and I will point to his handling of the PERF issue," Osborn says. "He"s learned what we call the "Ready, fire, aim" style of prosecution. That should scare the voters. Being a prosecutor is about getting facts first before making accusations." Not in favor of crime I happened to interview Carl Brizzi and Jim Osborn for this article on the same day. After speaking with Osborn in the afternoon at the county Democrat headquarters, I mentioned to one of his campaign workers that I had been with Brizzi that morning. "Bet you saw a big difference between their guy and ours, didn"t you?" he asked. Uh, no. Not really. In both settings, I was greeted by a young white man in shirt-sleeves and a tie, a family man with a receding hairline. Both possess some mid-level prosecutor experience. Both are making their first run for major political office. Both take pains to publicly align themselves with higher-profile party allies, Brizzi with Scott Newman and Osborn with Frank Anderson. When the talk got around to the issues, the similarities continued. Osborn and Brizzi expressed nearly identical views on drug prosecution (hammer the dealers, rehabilitate the addicts, expand drug treatment options), the death penalty (both would pursue it, but only in rare circumstances) and jail overcrowding (consolidation of cases will help, and the priority needs to be on keeping violent offenders locked up). Both freely acknowledged the role of race in a criminal justice system that disproportionately snares people of color for crimes, such as drug use, that span racial boundaries. Brizzi suggests the bail system be modified to avoid detaining Latino defendants just because they have no roots in the community. Osborn vows to bring more diversity to the team of deputy prosecuting attorneys entrusted with court proceedings. Unprompted, both candidates even shared separate poignant childhood anecdotes to illustrate why they respect the prosecutor"s duty to collect child support and pursue domestic violence cases. Both men come across as likeable and competent, but they aren"t exactly presenting the voters with a clear policy choice. Longtime observers of elections for law enforcement positions say they aren"t surprised. "There is a sense that prosecutor candidates have to run on essentially the same positions," says Brian Vargus, IUPUI political science professor and director of the school"s Public Opinion Laboratory. "One of the most interesting political issues is law and order, but I"ve yet to see anyone come out in favor of crime." In my conversations with them, the most distinct separation the candidates provided was in response to a question about investigating public corruption. Ten days before we talked, Lt. Mark Wood of the Marion County Sheriff"s Department filed an extraordinary suit in United States District Court against Sheriff Jack Cottey, alleging that Wood was disciplined by Cottey for refusal to submit false crime statistics to the Federal Bureau of Investigation. The 12-page complaint (2.7mb pdf
) alleges that Wood, whose duties include submitting local crime statistics to the FBI, uncovered severe under-reporting of crime in Cottey"s sheriff district last February but was told to "sit on the problem" until after the May primary election. In that election, Cottey"s preferred candidate, Schneider, faced a challenge in the GOP primary from former Sheriff Joe McAtee. The amount of crime in the sheriff district under Cottey"s tenure was a much-debated election topic. Wood says he was ordered to deliver misleading crime statistics for the Schneider campaign to use, and was also ordered to do volunteer work for the Schneider campaign and contribute more than $1,000 to the candidate. Wood alleges Cottey later asked him to report false statistics to the media and, when Wood objected, Cottey angrily asked, "Don"t you know this is an election year?" Wood was then suspended for insubordination. (Calls to both a Cottey spokesperson and a Cottey attorney seeking comment on the suit were not returned.) When asked how he would handle this situation if he were prosecutor, Osborn immediately said he would investigate the allegations for possible criminal prosecution. Brizzi, who devotes a section of his "Brizzi Brief" to "combating public corruption," was familiar with the allegations but seemed surprised by the question. At first, he simply stated that he would never use his position as prosecutor to solicit political contributions. When pressed about the situation outlined in the court filing, he said, "I haven"t seen the lawsuit, but I know that Scott Newman said that the mayor did exactly the same thing." (Brizzi apparently was referring to a different incident, where a fund-raising letter for Schneider was sent from Cottey"s office to Sheriff Department employees.) Brizzi then complained about Osborn politicizing the issues in the campaign. Ultimately, Brizzi said only that he would be "very careful" about allegations of public extortion and intimidation and that the crime figures, if inaccurate, should be corrected. Who is going to win? In Brizzi"s defense, it is fair to wonder if Osborn would have been so eager to investigate the Wood allegations if they had been leveled against a Democrat. (In listing the parties responsible for failing to show leadership in alleviating the county"s jail overcrowding crisis, Osborn mentions the GOP sheriff and the GOP-controlled City-County Council, but neglected to include the Democrat mayor who has a less direct but still significant role in public safety financing.) Neither candidate is likely to challenge their party"s leadership right now, since this race appears to hinge on their parties" respective abilities to produce straight-ticket voters on Election Day. Brizzi"s campaign has commissioned a poll that shows him with a large lead. But two other polls, one conducted on behalf of Democrats and one by an independent pollster, show Osborn to be the voters" leading choice by a small percentage within the polls" margins of error. With low name recognition for both candidates, political observers say the next prosecutor will likely be determined by the relative strength of the Marion County Democrat and Republican organizations. "In any election like this one, the first predictor of votes is party identification," says IUPUI"s Vargus. Under that scenario, it used to be a truism that local Republicans would win easily. But 1999 saw the first Democrat elected mayor in 32 years and the majority of City-County Council votes went to Democratic candidates. "This is a demographic change fueled by the growing number of African-American voters and by move-ins to Indianapolis, including young whites," says Indianapolis Recorder political columnist Amos Brown. "What has happened is that traditional GOP voters have moved to the surrounding counties and the younger voters that replaced them tend to vote more Democratic." Not about looking tough Over the past few decades in Indianapolis, more than just the voting demographics have changed. The hallways of the City-County Building, so crowded in the days when I tried to explain the criminal justice system to frustrated clients, now house even more young men and women charged with crimes. Domestic violence and black-on-black homicides frustrate the community. More decisions, small and large, are entrusted to the elected prosecutor. Criminal defense attorney Aaron Haith still has those hallway conversations with his clients, and he also helps advocate for systemic changes through his work with the civil rights organization Concerned Clergy. When asked about what issues he wants the next prosecutor to tackle, Haith points to drug prosecutions that disproportionately target African-American males, a lack of rehabilitation opportunities for juvenile offenders and a need for transition help for local men and women released from the state"s teeming correction system. Haith is an active Democrat, but he says the most recent prosecutors from both parties have failed to address those needs. "The opportunity to do justice in the prosecutor position is immense," Haith says. "But it"s not about trying to see how tough you can look. It"s taking a long-range approach to making our community better. And we haven"t had that around here for decades." For more information on the prosecutor candidates, check www.carlbrizzi.com and www.jimosborn.com.