ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

ADVERTISEMENT