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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. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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