Monday, July 26, 2010

The Indiana Appellate Court doesn't tell the truth

I think the Indiana Court of Appeals is under the impression that we live in a place like Russia or China. I got a ruling [Click here to see the Appellate decision] from the Indiana Court of Appeals and apparently they are in the business of abusing children and taking away First Amendment Rights as well. Rather than deny my appeal because I did not preserve my right to appeal matters while representing myself or claim that my lawyer did not make the correct argument, the Appellate Court did just what the two trial court judges did; they lied.

Dearborn Circuit Judge James D. Humphrey terminated my ability to see my children on August 18, 2009, based primarily on the testimony and evaluation of child custody evaluator Dr. Edward J. Connor. The one thing that I have had difficulties understanding is why the state of Indiana makes laws if the state does not have to follow them. Indiana Code (IC) 31-17-2-12 deals with the procedures regarding custody evaluations for custody hearings. IC 31-17-2-12(b) states the evaluation and the testimony of the investigator may not be excluded in court on the grounds as hearsay if the requirements of subsection (c) are met. IC 31-17-2-12(c) states:

(c) The court shall mail the investigator's report to counsel and to any party not represented by counsel at least ten (10) days before the hearing. The investigator shall make the following available to counsel and to any party not represented by counsel:
(1) The investigator's file of underlying data and reports.
(2) Complete texts of diagnostic reports made to the investigator under subsection (b).
(3) The names and addresses of all persons whom the investigator has consulted.

I tried to get a copy of Dr. Connor’s case file for fifteen months before the final hearing. Judge Taul said he would not release the file because he was not aware of Kentucky law. I still wonder why an Indiana judge would think that the laws of Kentucky govern the release of information in Indiana trials. When Judge Taul recused himself after participating in ex parte communication with Dr. Connor, Judge Humphrey stepped in to take over violating my rights to due process. Judge Humphrey said he was not going to let me have Dr. Connor’s file because he thought that I wanted to use it to hurt the children’s mother. [Please note that throughout the two and a half year divorce, I was never accused of harassing or menacing behavior by any party.] Judge Humphrey allowed Dr. Connor’s report and testimony to be admitted as evidence despite my objections that the evidence is hearsay because I was not provided a copy of Dr. Connor’s case file. Judge Humphrey terminated my parenting time based on Dr. Connor’s testimony and report.

Appellate judges are fair, right? What motivation would they have not to perform their duties in an honest and unbiased manner? The Indiana Appellate Court sounded like they did not like me in their ruling. As a lot of people know, appellate rulings can take several months or even years. The Indiana Appellate Court took just eighteen business days from the time they received the trial court record to make a decision. How did they rule on my appeal regarding me not having access to Dr. Connor’s case file per IC 31-17-2-12(c)? They affirmed the trial court’s decision.

I thought the Indiana Code was pretty clear; if I did not have a copy of the case file, then the evaluation was not admissible to court because it was hearsay. The Appellate Court disagrees. The Indiana Appellate Court stated, “We first note that IC 31-17-2-17(c) does not require that Dr. Connor’s entire case file be provided to Daniel.” The Appellate Court did not offer any statute or case law to support their opinion that “investigator’s file of underlying data and reports” did not mean Dr. Connor’s entire case file. When I researched cases involving IC 31-17-2-12(c), I was unable to find any case precedence that defined exactly what the “investigator’s file of underlying data and reports” consisted of. Immediately after the Appellate Court stated that the “investigator’s file of underlying data and reports” did not mean Dr. Connor’s entire case file, the Appellate Court wrote, “All the items specified by statute were provided.” Somehow the Indiana Appellate Court ruled that the investigator's entire file of underlying data and reports, under IC 31-17-2-12(c), did not refer to Dr. Connor's entire case file.

Despite there being no definitive explanation as to what Dr. Connor’s file of underlying data and reports” represented, the Appellate Court stated I was provided all of the information. Apparently, the Appellate Court did not review the transcripts from the May 27, 2009 hearing. When I questioned Dr. Connor on the stand about why he did not give me a copy of my responses to the questionnaires I filled out for the evaluation, Dr. Connor responded, “I don’t know. That should have been included and I will see to it that you get that, if you like.” From a legal standpoint, I hope that the Indiana Appellate Court understands that the only way that they could be sure that I was provided with all of “the items specified by statute” is if I was provided with a copy of Dr. Connor’s entire case file or if a Judge reviewed the case file and determined what information that I was required to have under IC 31-17-2-12(c). Since I did not get a copy of Dr. Connor’s case file; and no judge reviewed the contents of Dr. Connor’s case file; and Dr. Connor admitted in testimony that he did not provide me with some information; the Indiana Appellate Court just conjured up a story in an effort to deny my appeal.

Why would the Indiana Appellate Court lie just to hurt me? It appears that they don’t take kindly to people exercising their rights to freedom of speech and exposing unethical and/or illegal conduct of the Indiana Court System. I am not a lawyer and I represented myself at the trial court level. When the trial court failed to protect my rights to due process and to a fair trial, I created a website and a blog page to share my experiences. The Indiana Appellate Court demonstrated their disapproval of my internet material in their decision by lying about the court record in an effort to “build” a case against me.

Near the end of the appellate decision, the Indiana Appellate Court wrote, “During the pendency of the proceedings, Daniel posted information concerning the dissolution on his website and blog, in response to which [Wife] sought a protective order and a temporary restraining order on more than one occasion.” During the course of a trial, all motions, orders, and everything else that is filed with the court is logged into the Chronological Case Summary or CCS. The CCS from my case demonstrates that my ex-wife only filed ONE motion for a protective order/restraining order that requested the Court to force me to take down my internet material. The motion was filed on April 16, 2009 and there was a hearing on the motion on April 29, 2009. On May 14, 2009, Judge James D. Humphrey denied her motion because she failed to demonstrate how my writings were dangerous, harassing, and/or harmful to her or my children. Not only did the Appellate Court condemn me for something that the trial court already ruled did not harm my children or their mother, the Appellate Court fabricated a story that my ex-wife sought protective/restraining orders on more than one occasion, to strengthen their argument against me.

The Appellate Courts condemnation of my internet content that criticized the trial court came just three weeks after their June 29, 2010 decision, where the Indiana Appellate Court overturned a trial court ruling that prohibited a mother from exercising her First Amendment Rights in challenging the trial court. After the mother’s story about her court proceedings was published in the Indianapolis Recorder, the trial court issued a restraining order prohibiting her from speaking about the court hearings. In T.N. vs. B.D., the Indiana Appellate Court wrote:

“Freedom of speech is a fundamental right. De Jonge v. Oregon, 299 U.S. 353, 364 (1937). And the right to challenge the government, inherent in freedom of speech, is at the foundation of our Constitution. Thus, we decline to say that Mother’s right to freedom of speech must yield absolutely to all facets of what the juvenile court broadly described as “a confidential matter.”

So not only did the Indiana Appellate Court make up the story about my ex-wife having to file for multiple restraining/protective orders because of my web material that criticized the trial court, the Appellate Court condemned me for publicly challenging the government just three weeks after the Appellate Court wrote, “The right to challenge the government, inherent in freedom of speech, is at the foundation of our Constitution.”

So I guess the fight goes on. I’m researching options and talking to my lawyer because this is a matter that cannot be ignored. The Indiana Appellate Court is taking away my rights and the rights of my children because I exercised my fundamental right to freedom of speech, which is at the foundation of our Constitution. I can see why the Appellate Court doesn’t want me to talk about this, because people will know that the Court is vindictive and doesn’t tell the truth. Now they will probably punish me and my children even more for exercising my right to free speech. If the Indiana Appellate Court issues anymore rulings on my case containing information which is not in the official record and are not based on law, I will subpoena the IP information of the people in Indiana who have been frequenting my websites lately. I will be able to determine if anyone associated with the Indiana Appellate Court was doing their own research on a pending appellate case. It has been documented that an Indiana Supreme Court IP address has been frequenting my website. If you are a judge and you are reading this; there is a record of it. Subpoenaing Indiana IP addresses that have visited my websites can lead right to someone’s computer, Blackberry, netbook, IPad, etc... If we cower to corruption, what lesson does that teach our children? “The penalty good men pay for indifference to public affairs is to be ruled by evil men.” –Plato. I love you girls. Daddy is still fighting for you.

On a side note, page 14 of the Appellate decision states that my conduct during the trial court hearings made it necessary for a Sheriff's Deputy to be present in Judge Humphrey's courtroom for all three days of of the final hearing. Judge Humphrey lied about that in his brief as there was no special security in Humphrey's courtroom during the final hearing on May 27, June 2, and June 3 of 2009; just the normal bailiff. I am currently trying to obtain police and court records to prove that Judge Humphrey lied in his efforts to further deny my children of their father.

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