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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

    2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

    3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

    4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

    5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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