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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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  1. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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