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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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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  3. Do you know who the sponsor of the last-minute amendment was?

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