FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Steven C. Litz
Attorney at Law
P.O. Box 216
Monrovia, IN 46157
Donald R. Lundberg, Executive Secretary
Robert C. Shook, Staff Attorney
115 West Washington Street, Ste. 1060
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 55S00-9806-DI-330
STEVEN C. LITZ )
December 30, 1999
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 prosecutors 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 respondents admission to this states 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 womens 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 respondents 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.
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
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 respondents
letters to area newspapers created a substantial likelihood of material prejudice to the
pending jury retrial of the respondents 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 respondents identification of the prosecutions
decision to retry the case as abominable, despite the fact that retrial of
the case was well within the prosecutors discretion, tended to contribute to a
pre-trial atmosphere prejudicial to the prosecutions case. In sum, the respondents
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 respondents published commentary created a substantial likelihood of materially
prejudicing retrial of his clients 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 respondents actions as a purposeful attempt to gain an
unfair advantage in retrial of his clients case. Although the respondent had
no real selfish motive (and instead apparently sought only to advocate zealously his
clients 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 respondents 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.
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 judges refusal to allow her to present
evidence that she suffered from battered womans syndrome.
In the weeks preceding her daughters 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
[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
womans syndrome knows that the batterer frequently promises to change, and all too
often his victims accept those words even when they come after ones
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 daughters life. Perhaps others in situations such as hers can learn
from [her] that the time to leave is now, not after a life-altering
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 daughters safety
would be protected.