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Brewington case focuses First Amendment attention on Indiana

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Daniel Brewington is either a poster child for the wrongful prosecution of free speech or a man whose online rants about a judge constituted criminal threats. It all depends on your point of view.

After almost two years in the Department of Correction, Brewington was freed Sept. 5, just days before the Indiana Supreme Court heard oral arguments on whether to formally grant transfer in his case. Brewington had done his time for a Dearborn County jury’s conviction of intimidation, perjury and obstruction of justice stemming from blog posts he made criticizing a judge who stripped him of joint custody of his children.

apb_brewington01-15col.jpg Attorneys Eugene Volokh, left, and Michael Sutherlin prepare for a moot court argument Sept. 11, a day before presenting oral arguments in the Indiana Supreme Court on behalf of Daniel Brewington in Brewington v. State. (IL Photo/Aaron P. Bernstein)

“Tell any person on the street what happened to me,” Brewington said outside court chambers after oral arguments Sept. 12, “and the first thing they say is, ‘that’s a violation of free speech.’”

At the center of the case are posts on family court blogs in which Brewington took aim at Dearborn Circuit Judge James Humphrey, who presided in his custody case. The posts for which Brewington was prosecuted included comments that Humphrey was a child abuser for stripping Brewington of custody and that Humphrey was playing with fire and Brewington was “an accomplished pyromaniac.”

Inside the courtroom, Brewington’s case drew First Amendment scholar Eugene Volokh to argue on behalf of a dozen amici who feared that if the Brewington verdict affirmed by the Court of Appeals stands, it would represent a chilling effect on speech, opinions expressed in the media and political speech.

“I think the whole country wants this court to accept transfer,” Brewington’s attorney Michael Sutherlin told the court, noting a spectrum of amici in the court from the ACLU of Indiana to Phyllis Schlafly’s Eagle Forum, along with numerous media, speech and academic interests.

The state argued, though, that Brewington had failed to preserve the constitutional arguments, and that in its consideration of granting transfer, the justices should narrow the inquiry. At any rate, the state says Brewington made true threats against a judge and his conviction and sentence should stand.

“Not only is it invited error, he also has waived his claims,” Indiana Attorney General Chief Counsel Stephen Creason said of Brewington’s appeal raising constitutional issues.

“This court should not take cases merely to resolve issues when they’re not properly presented and properly developed. It should not take cases to decide broad issues of constitutional law outside the context and the facts of a particular case. That’s the situation presented here.”

Creason said Brewington had been convicted for the totality of a torrent of real threats and veiled threats that caused Humphrey to be placed in fear of retaliation for a prior lawful act, but he acknowledged the Court of Appeals decision was overbroad. “It reached questions it should not have reached,” he said, conceding that a selective reading of the opinion could be used to justify criminal prosecutions of protected speech.

Justices quizzed both sides about the proper scope of their inquiry. Chief Justice Brent Dickson and Justice Robert Rucker appeared to wrestle with whether the constitutional questions could be reached procedurally and whether such arguments were properly preserved in the trial court.

Dickson also said the jury’s general verdict, which did not specify what parts of Brewington’s speech constituted intimidation, “was essentially invited by Mr. Brewington or his counsel.”

Sutherlin said legal counsel’s ineffectiveness during Brewington’s jury trial amounted to fundamental error. “This court and every court, its intent, its focus, is to do justice,” he said. He noted Brewington’s public defender essentially put on no case and “spent all of 45 minutes talking to him before this trial.”

The intimidation statute in question, I.C. 35-45-2-1, includes not just threats of violence or harm to a person, but also threats that “expose the person threatened to hatred, contempt, disgrace or ridicule.”

“The state, the defendant and amici all agree,” Volokh argued, “the Court of Appeals erred in its First Amendment analysis.” He suggested that the COA had left open the possibility that political criticism or commentary could be treated as a criminal act at the discretion of a prosecutor.

“There are hundreds of blogs out there of dissatisfied fathers and they’re saying the same thing,” criticizing the family law system, Sutherlin argued. “Dan Brewington never had a face-to-face discussion or conversation or threat to Judge Humphrey.”

“This has been an inflammatory attack on Dan Brewington,” Sutherlin said in regard to the blog comment in which Brewington called Humphrey a child abuser. “Here’s the context: Anybody who takes away my right to visit my children is abusing my children. That’s the context of the statement.”

Sutherlin noted Mitt Romney’s son made a remark during the 2012 presidential election in which he said he’d like to punch President Obama, and a member of Congress shouted “liar” at the president during the State of the Union address. Sutherlin said those instances were properly regarded as hyperbole, but they might not have been under the COA analysis.

The fundamental error argument seemed to gain traction with Justice Mark Massa, who pressed Creason on why the doctrine shouldn’t apply.

“It’s reserved for issues that make the fair trial impossible,” Creason said of fundamental error.

Creason also said Brewington’s threats didn’t have to be a threat to injure, and that even veiled threats that place someone in fear of being injured are criminal.

“You’re talking about a very, very big door,” Justice Steven David responded. But Creason said unlike an off-the-cuff remark, Brewington’s remarks were “well-considered and made over time.”

Massa and David focused their inquiries toward Creason on the “fear of retaliation” language.

“It’s an expression that subjects you to fear for having done a prior lawful act. … It’s the fear that you’re being retaliated against for something you have the right to do,” Creason said, explaining what constitutes a threat considered criminal in nature under the statute.

David had a quick reply: “Isn’t that the objective, indirectly if not directly, of every blogger, every commentator? I’m struggling with where your line is.”

Indiana Attorney General Greg Zoeller issued a statement the day of the Brewington arguments urging the justices to affirm the trial court. “The state contends the defendant’s right of self-expression does not include the right to threaten violence or harm against a judge or any other person,” the statement said.

Brewington, meanwhile, won’t be blogging for some time. Now a resident of Ohio, he said terms of his probation prohibit him from posting on blogs or social media.•
 

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  • Ridiculous
    This is ridiculous, an obvious retaliation all too common in these kangaroo courts today. Thousands are wishing Dan Brewington well.
  • A hard case ,,,,
    Hard cases are not usually the best for making good laws. Heckfire, in Indiana one need not issue any threat to get in lots of hot water for speaking of the judiciary. See the poll on the left to sound off about the dangerous trend afoot.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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