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Volokh to argue in Brewington before justices, partake in McKinney moot court

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One of the National Law Journal’s 100 Most Influential Lawyers in America will be before the Indiana Supreme Court this week to argue on behalf of a blogger convicted and sentenced for intimidating a Dearborn County judge who revoked the man’s joint custody of his children.

First Amendment scholar and UCLA law professor Eugene Volokh will take 10 minutes of 30 allocated for each side in Daniel Brewington v. State of Indiana, 15A01-1110-CR-550, Brewington’s attorney Michael K. Sutherlin confirmed Monday. The case is set for oral argument at 9 a.m. Thursday.

Volokh, who operates the widely read legal blog The Volokh Conspiracy, wrote an amicus brief joined by a range of free-speech, press, academic and activist organizations across the political spectrum. Volokh “is going to address simply the constitutional claims,” said Sutherlin, who will argue about mistakes Brewington contends were made.

“There are irregularities we would call prosecutorial misconduct,” along with problems in the conduct of the trial, Sutherlin said in describing the outlines of his arguments before the court.

The Indiana Court of Appeals affirmed a jury’s conviction of Brewington on a counts of intimidation against Dearborn Superior Judge James Humphrey, but reversed intimidation convictions against a custody evaluator and the judge’s wife.

After Humphrey granted sole custody of two daughters to Brewington’s ex-wife in 2009, Brewington made Internet posts calling Humphrey a child abuser, corrupt and unethical. He unleashed a torrent of angry blog posts aimed at Humphrey and the custody evaluator whose reports the judge relied upon to determine Brewington “to be irrational, dangerous and in need of significant counseling.”

The appeals court rejected Brewington’s argument that civil defamation law principles must be incorporated into Indiana Code 35-42-2-1(c)(6). The judges found the state was not required to provide evidence that Brewington’s public statements about Humphrey were knowingly false.

The COA opinion rallied First Amendment activists. Volokh wrote an amicus brief on behalf of a dozen parties that argues, “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.”

While the case has taken on First Amendment implications, the state argues justices should affirm Brewington’s conviction.

“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 state’s brief in response to the petition to transfer states.

Brewington’s speech is unprotected, the state claims. “Brewington communicated ‘true threats’ to Judge Humphrey, although he cleverly attempted to disguise them.

“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.”

Volokh is expected to dine with amici after he arrives in Indianapolis on Tuesday, Sutherlin said, and will take part in a moot court argument at 3:30 p.m. Tuesday at Indiana University Robert H. McKinney School of Law, Sutherlin said.  
 
Meanwhile, Sutherlin said Brewington, who also was convicted of perjury and attempted obstruction of justice, was released Sept. 5 after serving just shy of two years in the Indiana Department of Correction.

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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