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Justices uphold conviction for blogger's threat to judge

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Blogger Daniel Brewington’s convictions for intimidating Dearborn Circuit Judge James Humphrey and obstruction of justice were upheld by the Indiana Supreme Court May 1, but under different reasoning than the Indiana Court of Appeals applied.

Justices held that Brewington’s actions arising from being stripped of his children’s custody placed targets of his contempt in fear for their safety. The court found the appeals panel failed to distinguish between fear for one’s reputation and fear for one’s safety in affirming some of Brewington’s convictions.

loretta rush Rush

“Many of Defendant’s statements, at least when viewed in isolation, threatened only to harm the victims’ reputations — hyperbolically accusing them of ‘child abuse’ and the like. To the extent those statements were aimed at a public official or involved an issue of public concern, they are subject to the steep constitutional ‘actual malice’ standard for defamatory speech, and the Court of Appeals erred in relying on them to support … convictions,” Justice Loretta Rush wrote in a unanimous 35-page opinion.

However, Brewington’s “statements and conduct, understood in their full context, clearly were meant to imply credible threats to the victims’ safety,” Rush wrote in Daniel Brewington v. State of Indiana, 15S01-1405-CR-309. The case drew national attention for its First Amendment implications after the Court of Appeals’ ruling.

brewington-daniel-mug.jpg Brewington

At the center of the case are posts on family court blogs in which Brewington took aim at Humphrey, who presided in his custody case, Humphrey’s wife, and a psychologist who served as a custody evaluator in Brewington’s 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.”

“The ‘true threat’ inquiry requires reference to all the contextual factors — one of which is the anger and obsessiveness demonstrated even by the protected portions of Defendant’s speech. And Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to (Humphrey and the custody evaluator) during his years-long vendetta against them.

“In that context, Defendant’s conduct, including showing his victims against a backdrop of obsessive and volatile behavior that he knew where they lived, was clearly intended to place them in fear — not fear of merely being ridiculed, but fear for their homes and safety, the essence of an unprotected ‘true threat,’” the court held.

volokh Volokh

“We therefore grant transfer and affirm Defendant’s convictions for intimidating the Judge and obstruction of justice as to the Doctor, finding the evidence sufficient to support those convictions under Indiana Code section 35-45-2-1(c)(1)-(3) without implicating constitutional free-speech protections. As to reversing Defendant’s intimidation convictions involving the Doctor and the Judge’s wife, and affirming his perjury conviction, we summarily affirm the Court of Appeals.”

The opinion discusses at length Brewington’s actions toward the judge and doctor and his behavior in and out of the courtroom which the court found, in the totality of the circumstances, gave rise to credible fears for safety.

“There would be no doubt about that conclusion if Defendant, all in a single episode, had violently shouted and slammed piles of books in the courtroom, shaken his fist at the Judge and the Doctor, and told them, ‘You crooked child abusers! I’m a pyromaniac, I have guns and know how to use them, I’d like to beat you senseless, I know where you live, and I’m going to hold you accountable!’” Rush wrote.

“Under those circumstances, it would be obvious that Defendant was making an unprotected ‘true threat’ against the victims, even if the phrase ‘crooked child abusers’ was protected speech. Defendant’s threats neither lose force, nor gain protection, merely because he built them up over the course of a years-long campaign of harassment.”

Indiana Attorney General Greg Zoeller hailed the ruling. “We all revere the First Amendment, but the law provides that the right of self-expression does not include the right to threaten violence or harm against another person,” he said in a statement. “The jury found that the defendant crossed that line, and so we advocated for leaving intact the defendant’s felony convictions.”

Rush wrote that Brewington’s First Amendment defense glossed over his “statements and conduct that gave rise to more sinister implications” for the safety of his targets. Citing the landmark 1964 U.S. Supreme Court ruling New York Times v. Sullivan, Rush wrote the court had a duty to “make an independent examination of the whole record, so as to assure ourselves that the [conviction] does not constitute a forbidden intrusion on the field of free expression.”

Brewington also argued that failure to instruct the jury on the actual malice standard was error. The justices agreed that it was, but no relief was warranted because Brewington’s trial counsel pursued a strategic “all or nothing” First Amendment defense. “His general-verdict and instructional complaints were therefore invited error, not fundamental error,” the court held.

After almost two years in the Department of Correction, Brewington was freed Sept. 5, 2013, just ahead of oral arguments in his case.

Noted First Amendment scholar and UCLA Law professor Eugene Volokh argued on behalf of a dozen amici who feared that if the Brewington verdict affirmed by the Court of Appeals stood, it would constitute a chilling effect on speech, opinions expressed in the media about public officials and political speech.

These amici presented briefs in Brewington’s case: the American Civil Liberties Union of Indiana, Eagle Forum, Hoosier State Press Association, Indianapolis Star, Indiana Association of Scholars, Indiana Coalition for Open Government, James Madison Center for Free Speech, NUVO Newsweekly, former IUPUI School of Journalism Dean James W. Brown and IUPUI professors Anthony Fargo and Sheila S. Kennedy.

“I can’t speak to whether this decision is correct given the trial record and the state of Indiana ‘invited error’ law,” Volokh wrote on his blog The Volokh Conspiracy. “But I am glad that the Indiana Supreme Court recognized and reversed the legal error in the Indiana Court of Appeals opinion — the thing that my clients (who were the amici, not the defendant) were concerned about.

“Threatening to harshly criticize people’s actions, and thus to expose them to ridicule and disgrace (at least outside the special case of blackmail) is legal again in Indiana,” Volokh wrote.•
 

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  1. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  2. Low energy. Next!

  3. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  4. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  5. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

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