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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. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  2. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  3. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  4. Indiana up holds this behavior. the state police know they got it made.

  5. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

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