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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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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