In Re Litz

FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION

______________________________________________________________

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF )
) Case No. 55S00-9806-DI-330
STEVEN C. LITZ )
________________________________________________________________________

DISCIPLINARY ACTION
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December 30, 1999

Per Curiam

The respondent, Steven C. Litz, defended a woman accused of neglect of
a dependent. While a retrial of that case proceeded, the respondent caused
to be published in several newspapers a letter which stated his client had
committed no crime, criticized the prosecutor’s decision to retry the case,
and mentioned that his client had passed a lie detector test. For that,
we find today that the respondent violated Ind.Professional Conduct Rule
3.6(a), which forbids attorneys from making extrajudicial statements which
they know or reasonably should know have a substantial likelihood of
materially prejudicing an adjudicative proceeding.
This case is now before us for approval of a Statement of
Circumstances and Conditional Agreement for Discipline reached by the
parties in resolution of this matter pursuant to Ind. Admission and
Discipline Rule 23 § 11(c). Our jurisdiction here is a result of the
respondent’s admission to this state’s bar on October 12, 1984.
The parties agree that the respondent represented a client in criminal
proceeding in Morgan County in which a jury found the client guilty of
neglect of a dependent resulting in serious bodily injury. The respondent
represented the client in the appeal of her conviction and succeeded in
obtaining a reversal of the conviction from the Indiana Court of Appeals.
The Court of Appeals remanded the case to the trial court, finding that the
lower court erred in determining that evidence of “battered women’s
syndrome” was irrelevant and inadmissible in the first trial.
After remand on June 2, 1997, the trial court set the matter for a new
jury trial on November 3, 1997. On June 25, 1997, a “Letter to the Editor”
written and submitted by the respondent appeared in the Bloomington,
Indiana Herald-Times and the Mooresville, Indiana Times. An identical
letter from the respondent appeared in the June 26, 1997, edition of the
Indianapolis Star. The respondent’s letter stated this his client had
spent the “last 18 months in jail for a crime she did not commit” and
revealed that she had passed a lie detector test. The letter also decried
the decision to retry his client, characterizing it as abominable.”[1] On
September 29, 1997, the respondent, on behalf of the client, filed a Motion
for Change of Venue from Morgan County, citing “prejudicial pre-trial
publicity.” The court granted the motion.
Indiana Professional Conduct Rule 3.6(a) provides:
A lawyer shall not make an extrajudicial statement that a
reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably should know
that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding.

Indiana Professional Conduct Rule 3.6(b) provides that certain types
of extrajudical statements referred to in subsection (a) are “rebuttably
presumed” to have a substantial likelihood of materially prejudicing an
adjudicative proceeding, including the results of any examination or test,
any opinion as to the guilt or innocence of a defendant in a criminal case
that could result in incarceration, or information that the lawyer knows or
reasonably should know is likely to be inadmissible as evidence in a trial.
Prof.Cond.R. 3.6(b)(3), (4), (5).
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. Comment to
Prof.Cond.R. 3.6. The respondent’s letters to area newspapers created a
substantial likelihood of material prejudice to the pending jury retrial of
the respondent’s own client. Some of the statements contained therein
presumptively presented that risk: his description of evidence that could
have been inadmissible at trial (i.e., the fact and result of the lie
detector test), and his opinion that his client did not commit the crime
for which she was charged. Further, the respondent’s identification of the
prosecution’s decision to retry the case as “abominable,” despite the fact
that retrial of the case was well within the prosecutor’s discretion,
tended to contribute to a pre-trial atmosphere prejudicial to the
prosecution’s case. In sum, the respondent’s letters created an
environment where a fair trial was much less likely to occur.
Additionally, the respondent effectively set the stage for his own
subsequent motion for change of venue based on prejudicial pre-trial
publicity. Accordingly, we find that the respondent’s published
commentary created a substantial likelihood of materially prejudicing
retrial of his client’s criminal case, and thus violated Prof.Cond.R
3.6(a).
The parties agree that the appropriate sanction for the misconduct is
a public reprimand. Among the factors we consider in assessing the
adequacy of that proposed sanction are aggravating and mitigating
circumstances. See, e.g., Matter of Christoff, 690 N.E.2d 1135 (Ind. 1997);
Matter of Darling, 685 N.E.2d 1066 (Ind. 1997); Matter of Conway, 658
N.E.2d 592 (Ind. 1995). In mitigation, the parties agree that the
respondent has not previously been the subject of a disciplinary
proceeding, that he cooperated with the Commission, and that he continued
to represent the client through the resolution of her case.
No factors in aggravation were cited.
We view the respondent’s actions as a purposeful attempt to gain an
unfair advantage in retrial of his client’s case. Although the respondent
had no real selfish motive (and instead apparently sought only to advocate
zealously his client’s cause), he nonetheless was bound to do so only
within the bounds of our ethical rules. His public comments were
inappropriate because they threatened or in fact impinged the prospect of a
fair trial for his client. Whether extrajudicial statements of this sort
warrant reprimand or suspension is fact sensitive. Here, we take into
account the fact that the respondent’s primary motivation appears to have
been the welfare of his client. We are also cognizant while assessing the
proposed sanction of our policy of encouraging agreed resolution of
disciplinary cases. We find that, in this case, the agreed sanction of a
public reprimand is appropriate.
Accordingly, the respondent, Steven C. Litz, is hereby
reprimanded and admonished for the misconduct set forth above.
The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d) and to provide the clerk of the
United States Court of Appeals for the Seventh Circuit, the clerk of each
of the United States District Courts in this state, and the clerks of the
United States Bankruptcy Courts in this state with the last known address
of respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.

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[1] The letter stated:

In a time when the public is fascinated with criminal trials and
often perceives grave injustice being done to victims of crimes, I thought
your readers would be interested to know that here in Morgan County, the
prosecutor has elected to retry my client . . . [h]er boyfriend . . .
murdered [her] daughter. . .in October 1995. [The client] was
subsequently charged with neglect of a dependent because she allegedly knew
that leaving [her daughter] with [the boyfriend] would endanger her life.
She was convicted in January 1996 and sentenced to 20 years in
prison, the maximum possible for the crime. Her conviction was recently
reversed by the Indiana Court of Appeals because it said [the client] did
not receive a fair trial due to the judge’s refusal to allow her to present
evidence that she suffered from battered woman’s syndrome.
In the weeks preceding her daughter’s murder, [the boyfriend] had
beaten [the daughter] and allegedly raped [the client] at knifepoint. She
reported the beating and rape to the Connersville police who, because they
were friendly with [the boyfriend], released him at the scene of the
alleged rape.
Ironically, [the client] was given a lie detector test (which she
passed) to make sure that she had not hurt her daughter and that she had
been raped. Fearful of her life, she moved away from [the boyfriend], only
to return to him a week later.
Tragically but not surprisingly, she believed his promises to her
that he would get help, that he would never harm [the daughter] again and
that he would provide a life for her. Two weeks later, [the daughter] was
brutally murdered.
[The client] has spent the last 18 months in jail for a crime she did
not commit. Anyone who has the slightest familiarity with battered woman’s
syndrome knows that the batterer frequently promises to change, and all too
often his victims accept those words – even when they come after one’s
child has been injured.
While the ability to say she could have left comes easily, the fact
is that the single greatest difficulty for battered women is leaving their
attackers. [The client] has come to learn this at the horrible expense of
her daughter’s life. Perhaps others in situations such as hers can learn
from [her] that the time to leave is now, not after a life-altering event
occurs.
The decision to re-prosecute [the client] is abominable. Our system
of justice was never intended to repeatedly exact punishment from someone.

She has lost the dearest thing to her, and our citizens should voice
their concern that she continues to be penalized for being the victim of a
brutal, terrifying man who convinced her that her and her daughter’s safety
would be protected.

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