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Is COA opinion on threat to judge a threat to rights?

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Editor's note: This story has been updated with the state's March 12 response to the transfer petition.

Dan Brewington posted a torrent of online rants after a Dearborn County judge’s 2009 order separated him from his children. The father of two girls blogged that a judge who would do such a thing was a child abuser, corrupt and unethical.

Brewington was incredulous, writing that there never had been a question of his fitness as a parent. His screeds sharpened and also took aim at the qualifications, credentials and conclusions of a Kentucky custody evaluator whose reports the judge relied on to determine Brewington “to be irrational, dangerous and in need of significant counseling.”

IL_Michael_Sutherlin05-15col.jpg Indianapolis attorney Michael K. Sutherlin, shown recently in his office, says the intimidation conviction of Dearborn County blogger Dan Brewington is more than just a First Amendment case. He argues the Indiana Supreme Court should review the case.(IL Photo/ Perry Reichanadter)

“When (Dearborn Circuit) Judge (James) Humphrey figured out that I was not going to stop publicizing the misconduct of his expert, Judge Humphrey dropped the biggest bomb in a judge’s arsenal, he took away my children,” Brewington blogged.

So it went, until Brewington’s actions led a jury to convict him of three counts of intimidation, including a felony count involving Humphrey; perjury; and attempted obstruction of justice. He was sentenced to five years in prison.

The problem is, “There’s been no direct threat to a person,” said Brewington’s Indianapolis attorney, Michael K. Sutherlin. He said the record shows Brewington spoke his mind, often to his detriment in his Internet posts, and Sutherlin acknowledges Brewington was a persistent bother. Nevertheless, Sutherlin said, “They can’t let this stand.”

While Sutherlin focuses on appellate arguments ranging from ineffective counsel to prosecutorial misconduct, an array of interests has come to Brewington’s defense, seeing a First Amendment case and pleading for the Indiana Supreme Court to grant transfer.

threatThe Court of Appeals in January reversed two of Brewington’s misdemeanor intimidation convictions – charges he threatened Humphrey’s wife and the custody evaluator – in Daniel Brewington v. State of Indiana, 15A01-1110-CR-550. But the court’s 44-page opinion alarmed First Amendment advocates.

“If the Court of Appeals opinion is allowed to stand, then much criticism of legislators, executive officials, judges, businesspeople, and others – whether by newspapers, advocacy groups, politicians or other citizens – would be punishable,” First Amendment scholar and UCLA professor Eugene Volokh wrote in an amicus brief.

Volokh publishes the popular legal blog, The Volokh Conspiracy, which he used after the Brewington decision to rally like-minded people who saw a danger in an opinion they say too broadly interprets what constitutes a threat under Indiana’s intimidation statute.

In the amicus brief, Volokh wrote, “The Court of Appeals erroneously interpreted Ind. Code Section 35-45-2-1 (2012) to criminalize a broad range of constitutionally protected speech, without recognizing that this would render the statute unconstitutionally overbroad. … The decision also ‘erroneously labeled Brewington’s statements about Judge Humphrey as false statements of fact, rather than the figurative and hyperbolic statements of opinion that they are.’”

“We think that the precedent in the Court of Appeals ruling is wrong and dangerous,” Volokh said in an interview. “The language of the statute needs to be interpreted in a narrow way by the courts.”

The language in the code that got Brewington into trouble was that which defines intimidation as a threat made with the intent “that the other person be placed in fear of retaliation for a prior lawful act” by a threat that “expose(s) the person threatened to hatred, contempt, disgrace, or ridicule; (or) falsely harm(s) the credit or business reputation of the person threatened.”

Terre Haute attorney James Bopp Jr., known for his successful advocacy to eliminate political contribution limits in the Citizens United case, joined Volokh as an amicus brief signer. Amici curiae include groups ranging from the conservative family-values organization Eagle Forum to the American Civil Liberties Union of Indiana.

“I think what we’ve been able to establish is there’s a broad public interest that we hope makes this case eligible for the court’s consideration,” Bopp said.

negangard Negangard

“The First Amendment was designed to protect everyone regardless of their viewpoint. Fortunately, people on all sides of the political spectrum can agree if you give government the power to punish people for comments about government officials, you’ve got a problem that would affect everyone,” he said.

Sutherlin said aside from First Amendment concerns, Brewington’s case is a potpourri of irregularity and potential error. He notes, for instance, Brewington’s perjury conviction was based on his grand jury testimony. Brewington said, “I don’t know” whether a person he identified in one of his Internet posts was Humphrey’s wife. Brewington’s answer was interrupted by the prosecutor, Sutherlin said, and that response was the basis of the perjury count.

“Grand juries are meant to seek the truth, not to play ‘gotcha,’” Sutherlin wrote in his petition to transfer.

“It’s a terrible record,” Sutherlin said. “Everywhere (Brewington) turned, he got screwed.”

Humphrey, who didn’t preside in Brewington’s criminal trial, said it would be inappropriate to comment about the case at this time.

But Dearborn-Ohio County Prosecutor Aaron Negangard said Brewington’s case is anything but a First Amendment matter. “The advocates for this have said they don’t want to get into the minutiae,” he said. “Why let the facts get in the way of the case?”

He said jurors decided Brewington’s guilt based on evidence that included witnesses who said Brewington had made them fearful with warnings such as, “I’ll destroy you.”

The state argues in its response to the transfer petition filed March 12 that the Supreme Court should take the case, but for far different reasons. “This Court should affirm Brewington’s conviction for intimidation because Brewington’s communications to and about the judge were truly threatening communications, conveying the threat that he would injure the judge or commit a crime against him,” the brief states.

Brewington’s speech is unprotected, the state claims. “Brewington communicated ‘true threats’ to Judge Humphrey, although he cleverly attempted to disguise them. Brewington’s communications to and about the judge included communications that both indicated Brewington’s capacity for setting things on fire … as well as communications that made clear to the judge that Brewington knew where the judge lived, and knew where the judge’s wife lived.

 “It is a disappointing irony that Brewington, who is no friend of free speech when it is spoken by his victims, now takes refuge in the First Amendment,” the brief says, noting the judge and custody evaluator have a right to perform their duties without fear of violent reprisal. “Brewington does not have the First Amendment right to place them in fear of such violent reprisals for their speech.”

“This was not just someone posting stuff on a blog, but he was threatening our judicial system by putting witnesses in fear,” Negangard said. “You don’t get to communicate threats to someone to get them to change their testimony or not testify. The First Amendment does not protect those types of actions, otherwise, we lose our justice system.”

volokh Volokh

Negangard noted that after Brewington was arrested in Hamilton County, Ohio, evidence was presented at Brewington’s bond hearing from a cellmate who said Brewington had broached the subject of murder-for-hire. Negangard said there was insufficient evidence to bring charges on that allegation.

Brewington’s co-counsel Sam Adams said those allegations are false and have been disproven. Brewington, he said, “never spoke with this inmate and his attorney in Ohio obtained the jail movement logs for both (Brewington and the other inmate), and it showed they were never in the same place at the same time.” ATF agents also investigated the allegation, Adams said.

“Our opinion is it was pretty much a jailhouse snitch trying to get his own charges lessened,” Adams said.

Negangard used the alleged jailhouse threat to secure bond for Brewington in the amount of $600,000. “The bond he sought was really excessive in light of the charges,” Adams said, though it has not been reduced on appeal.

Brewington has been behind bars since he was arrested in 2010. He is eligible for release in September, according to Indiana Department of Correction records.•

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  • Turley jump cite here
    Thanks to Advance Indiana for this. http://jonathanturley.org/2013/10/03/former-pennsylvania-congressman-suspended-from-practicing-law-due-to-criticism-of-judges/
  • National coverage
    Great coverage and comments on blog via Jonathon Turley. Looks like Indiana might help to spark a national discussion on whether lawyers have the right to make public statements against the judiciary. (Funny, none seek to discipline those who fawn over the judiciary. Imagine that.)
  • So much for a real journalist to report!
    Indiana's court system has racked up an impressive array of neo-totalitarian cases for journalists who value the First Amendment. Cases that really should be reported on in a national journal. This one, mine, Paul Ogden's, Wilkins, many others. And beyond this, questions of equal protection as to who is not restricted, judges who attempt suicide and lie to the police, lawyers who are serial drunk drivers caught carrying unregistered firearms, attorneys who fabricate subpoenaes, judicial agencies that ignore subpoenaes. Barriers to bar entrance via a deliberate denial of the NCBE, denial of US constitution and settled case law, etc. So much almost hidden that needs to be exposed. See the tip of the iceberg at http://www.ogdenonpolitics.com/
  • The 1st Amendment
    All speech is protected speech even if it is offensive to someone else. Words cannot harm a real person there was no threat and this is a travesty of justice!
  • Due Process
    This joke of a trial was not due process, it was not Constitutional as required, it was held under private statutes. The people are not to have loss of life or liberty WITHOUT due process. This mans liberty was stolen prior to due process and he didn't even get due process on top of that, just a kangaroo court with impostors using private statutes, Color of law against him, stacking the deck.
  • where?
    Dan never got any oportunity in court to confront this "charge", which was never made. After the audio was submitted at the bond reduction hearing, Sue Brewington put in a public records request for the audio. Brewington's Ohio attorney found that Brewington and Keith L. Jones were never in the same location at the Hamilton County Justice Center for the 48 hours that Brewington was there. The jail keeps computerized movement logs. Family members drove to Franklin County Ohio (Columbus) to find copies of Keith L. Jones criminal record, He was 54 and had an extensive record, He had apparently turned into a professional snitch based on his own letter in his folder. Dan's Ohio attorney talked to the ATF officer and he said they didn't think this guy was credible and a Cincinnati officer who seemed to be involved, agreed. None of these people or reports were ever subpoenaed because Brewington was never charged with any offense yet after admitting there wasn't enough evidence to charge Brewington,(perhaps because a crime did not accure!!!???) Dearborn County Prosecutor, F. Aaron Negangard just raises the issue as if it were true. It's not.
  • Where?
    ATF agents also investigated the allegation, Adams said. where is there report?

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    1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

    2. This guy sounds like the classic molester/manipulator.

    3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

    4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

    5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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