Appellant Reply

In the process of appealing a case to the Court of Appeals Dan Brewington filed an Appellant Brief (part 1and part 2), then the Attorney General’s Office files an Appellee Brief, and then Brewington gets to answer that with an Appellant Reply. The Appellant Reply was filed Monday, July 23, 2012. Brewington also filed a Motion for Oral Argument on July 23, 2012. The Court of Appeals rarely grants those but we are hopeful. First Amendment Rights should never be taken for granted or someone will take them away when we are not expecting it.

Complaint Filed Against Public Defender Bryan E. Barrett

Dan Brewington filed a complaint with the Indiana Supreme Court Disciplinary Commission on his public defender #2, Bryan E. Barrett. (link to complaint) As bad as the situation was before the Dearborn County Superior Court II Reporter located the “missing” transcripts, the complaint will now have to be amended because of the information discovered in these transcripts. (missing transcripts part 1 and missing transcripts part 2) If people don’t speak up about horrendous situations in the public defender system it will never be corrected. Some areas in Indiana are making an effort to improve the public defender system. Dearborn County needs to reevaluate their process. Some people are content to just say “that’s just the way the system is”. We are not those people.

The Case of the Missing Transcripts Continued, Post #2, the Transcripts

This case is currently before the Indiana Court of Appeals. The Appellant’s Brief, the Appellee’s Brief, and the Appellant’s Reply have been filed with the Court.

1)    Affidavit of Sue Brewington: sworn statement that she was present at the June 17, 2011 hearing and the July 18, 2011 hearing and details of what transpired at each hearing. link

2)    Dan Brewington’s civil rights attorneys filed a Request For Hearing Transcripts. Barbara Ruwe, Superior Court II Court Reporter, “found” the “missing” transcripts after being informed that Michael Sutherlin had affidavits from 4 separate people who attended one or both of these hearings and he was going to file them with the court. No explanation has been given for why Sue and Matthew Brewington were told that no hearings took place on those dates.

3)    Judge Hill signed an order, filed February 2, 2012, stating that the July 18, 2011 hearing did not take place. link

4)    Response to request on February 14, 2012 from Sue Brewington (no office markings or signature of the person who prepared the document).

a.     Reiterated there was “no audio of July 18, 2011 hearing as that hearing was continued as indicated on the Amended Order… signed February 2, 2012.”

b.     Reiterated that the “Grand Jury audio recordings are not a record in these proceedings as  indicated on the Amended Order signed on February 2, 2011. Also Grand Jury proceedings are confidential and cannot be released to anyone.” (The Grand Jury transcripts in this action had already been released by the Judge before trial and were no longer secret.)

c.     Sue Brewington’s public records request for the March 11, 2011 arraignment hearing was  “forwarded to counsel for the Defendant”. (Sue Brewington made a public records request for the transcript but Barbara Ruwe forwarded it to Dan Brewington’s counsel and failed to respond to Sue Brewington as to why she did not comply with the public records request.

d.     New information. “Request for transcript from June 17, 2011 – This was a pre-trial hearing held in the Judge’s Chambers that was not recorded and there is no audiotape of that hearing. Therefore a transcript cannot be made.” (As we have recently discovered, this is not true)

e.     “Request for transcript from July 18, 2011 – Hearing was continued and no hearing held. Therefore a transcript cannot be made.” (As we have recently discovered, this is not true)

5)    Transcript, Hearing June 17, 2011 

      When a defendant does not have access to all of the records in his/her case they simply cannot get the best representation possible because strategic facts can be missing.  This was definitely the case for Dan Brewington. John Watson, Dan Brewington’s first public defender, gave his reasons for filing a Motion to Withdraw:

a.     Mr. Watson claimed a conflict of interest because he appeared before Judge Humphrey on a regular basis. (Mr. Watson was well aware from the beginning that Judge Humphrey was an alleged victim in the case, yet it took Mr. Watson two months to raise the issue regarding his potential conflict.)

b.     Mr. Watson said “that to properly defend his client (Dan Brewington) it would be necessary to take Judge Humphrey’s deposition and that of his wife as well” (Mr. Barrett never took one deposition)

c.     Mr. Watson told Judge Hill that Mr. Brewington had expressed some concern “about those kinds of issues and inter-relationship among county officials in this county, particularly related to the Judge’s office and other county officials.”

d.     Mr. Watson also told Judge Brian Hill that Dan Brewington had told him “prior to the hearing that he’s got various concerns about conflicts so I don’t know how your honor wants to handle it”

e.     Dan Brewington was sworn in. He told Judge Hill the following:

(a)   “my concern at this point is that there are going to be more conflicts in this case” – (so far the case has lost 2 judges and 1 public defender due to conflict of interest.)

(b)   Dan said he had been incarcerated for 3 months and he hadn’t had a pre-trial hearing.

(c)   Judge Blankenship recused herself

(d)   Judge Westhaver recused himself

(e)   John Watson wants to withdraw.

(f)   Why can Aaron Negangard who has a “political” and a “professional relationship” with Judge Humphrey, prosecute and have no conflict of interest and since Aaron Negangard is the administrative head of the Prosecutor’s Office, Deputy Prosecutors would also have a conflict of interest.

(g)   Dan mentioned freedom of speech and being refused access to his Ohio attorney

(h)  Judge Hill addressed the issue of Dan not being allowed to meet with his Ohio attorney. Dan said that Mr. Kelly had met with other clients in the DCLEC but was now denied access to Dan for an attorney visit.

(i)    Judge Hill “would not tell the jail who you cannot see. I mean that’s their policy.”

(j)    Dan Brewington explained that he had been taking Ritalin for attention deficit disorder and the jail would not allow him to take it as prescribed by his doctor. Brewington explained that because of the sheer volume of documents that he needed to review he needed his medicine to perform at his top level.

f.      Judge Hill – “Quite frankly, I’m not interested in dealing with medication at this hearing.”

g.     Mr. Watson told Judge Hill that he was ready to go with the discovery and he would turn them over to the new public defender. “And it’s ready to be handed over so that he can hit the ground running.” (That was a false statement. )

h.     Mr. Watson had to explain to Judge Hill that the Motion to Reduce Bond had some errors that needed to be corrected. Mr. Watson stumbled around a bit but basically he had to tell Judge Hill that he filed the Motion with someone else’s name on it, not Dan Brewington, and added a C felony, battery with a deadly weapon. (Not one of Dan Brewington’s charges).  "I would like to, offer to say for the record that that was a typographical error that I made."

i.      The Judge set 2 hearings for the same date and time: the Bond Reduction Hearing and the Final Pre-Trial Hearing set for July 18, 2011 at 1:30pm. He set the jury trial to begin August 16, 2011 at 8:30am.

6)    Transcript, Hearing July 18, 2011

a)     The state didn’t have anything for the pre-trial hearing but Mr. Bryan Barrett, Dan’s new public defender, did.  Mr. Barrett was appointed by Judge Brian Hill on June 20, 2011 and didn’t contact Dan Brewington until the day of the July 18, 2011 hearing.

b)     “I’m still trying to get discovery” At last month’s hearing, June 17, 2011, Mr. Watson said he was all ready to go with the discovery and would get them to the new public defender quickly “so he could hit the ground running”. Mr. Barrett said that he would contact Mr. Watson.

c)     Discussed setting the date for a new bond hearing.

d)     Told Judge Hill that “Mr. Brewington has a substantial amount here himself but I don’t, he’s obviously in custody so I don’t actually have access to that on a regular basis.”  (Yet, Mr. Barrett made no attempt to contact Dan’s family or his Ohio attorney for information.)

e)     Mr. Kisor (deputy prosecutor) said they could make a disc of the discovery for Mr. Barrett.

f)     Mr. Barrett – “The inquiry that my client is making and obviously I’m at some disadvantage Judge as what specific, the informations in the indictments, the information and indictments are pretty general, I guess and they cover broad periods of time and I’m just obviously wondering what the specific things the government is saying that my client did that constitute intimidation and the various other offenses but obviously that a discovery issue and probably for another hearing.” (Mr. Barrett NEVER discovered the specifics of the intimidation charge, even at trial.)

g)     P21. Mr. Kisor says “There is a, as far as I know, a complete transcript of the grand jury proceedings.”

h)    Mr. Barrett – “I do have that”. (referring to the grand jury disc) “I have not had an opportunity to go over that with Mr. Brewington, but that’s generally the information that you’re relying upon?” (Mr. Barrett NEVER went over the grand jury transcripts with Mr. Brewington. Mr. Barrett NEVER met with him again except at hearings and at the trial. Dan Brewington did not get his copy of the grand jury transcripts until September 23, 2011, 10 days before the trial started. His questions about the specific charges were never answered by Mr. Bryan Barrett.

7)    The last document is the Notice of Completion of Addendum Transcript. It was filed July 18, 2012, exactly one year after the “hearing that didn’t take place”. We are not sure why the clerk’s office used the word addendum because they are part of the original record.

To contact the Brewington family contactdanbrewington@gmail.com

The Case of the "Missing" Transcripts Continued. Post #1.

The Case of the "Missing" Transcripts Continued. Post #1.

On Tuesday, July 3, 2012 Sue Brewington received an email from Dan’s Indianapolis attorneys that said the Court Reporter for Superior Court II, Barbara Ruwe, had located the “missing” transcripts from the June 17, and July 18, 2011 hearings. The July 18, 2011 hearing that Judge Brian Hill’s Order said never took place, actually did take place and the June 17, 2011 hearing that Ms. Ruwe said only took place in Judge’s Chambers, actually did take place in open court. Both Judge Hill and Court Reporter Barbara Ruwe were adamant that these hearings did not take place or did not take place in open court. Judge Hill has since called Dan’s Indianapolis attorneys to accept responsibility and to say he thought that he had not come down to Dearborn County, for a hearing on July 18, 2011. We do not know what his take was on the other hearing.

It was only after receiving the signed affidavits... Dan’s Indianapolis attorneys submitted signed affidavits from 4 people swearing to what occurred in the “missing” hearings and that they were present at one or both of the hearings. The tapes “magically” appeared and the transcripts are going to be prepared. Dan’s attorneys received them on Friday, July 13, 2012. The transcripts were sent to Sue Brewington and will be posted on Dan’s blog.

Sue Brewington filed her first public records request with Superior Court II on January 12, 2012, pursuant to the Access to Public Records Act (Ind. Code 5-14-3).

Matt Brewington filed his request a few days after this.

By January 24, 2012 two orders had been recorded in the CCS that said Matt and Sue Brewington could have all the tapes that they requested.

Judge Hill added that they could not share the taped public court records with anybody without risking contempt of court.

On February 2, 2012 the Order changed.

              The Grand Jury tapes would not be released.
              No recordings were made because “no hearing took place on that date”, July 18, 2011.

On February 14, 2012 Sue Brewington hand delivered another public records request. On February 24, 2012 Barb Ruwe, Court Reporter for Superior II called to say the records request was available and Sue should pick it up in the auditor’s office Monday, February 27, 2012.

Monday morning, February 27, 2012 Sue Brewington picked up the tapes that were ordered in the Amended Order EXCEPT for the audio for the June 17, 2011 hearing. After being told the July 18, 2011 hearing that Sue Brewington attended did not take place she was now being informed that the June 17, 2011 hearing that she attended only took place in the Judge’s Chambers and no recordings were made.

Sue Brewington received a post it note that said the June 17, 2011 hearing took place in Chambers and she also received typed information on a sheet of paper, no headings, no signatures, “response to request on February 14, 2012 from Sue Brewington”:

            1)   Reiterated there was “no audio of July 18, 2011 hearing as that hearing was continued as                     indicate on the Amended Order… signed February 2, 2012.”

2)      Reiterated that the “Grand Jury audio recordings are not a record in these proceedings as indicated on the Amended Order signed on February 2, 2011. Also Grand Jury proceedings are confidential and cannot be released to anyone.” (The Grand Jury transcripts in this action had already been released by the Judge before trial and were no longer secret.)

3)      Sue Brewington’s public records request for the March 11, 2011 arraignment hearing was “forwarded to counsel for the Defendant”. (Sue Brewington made a public records request for the transcript but Barbara Ruwe forwarded it to Dan Brewington’s counsel and failed to respond to Sue Brewington as to why she did not comply with the public records request.

4)   New information. “Request for transcript from June 17, 2011 – This was a pre-trial hearing held in the Judge’s Chambers that was not recorded and there is no audiotape of that hearing. Therefore a transcript cannot be made.” (As we have recently discovered, this is not true)

             5)  “Request for transcript from July 18, 2011 – Hearing was continued and no hearing held.                      Therefore a transcript cannot be made.  (As we have recently discovered, this is not true).          

This case is important because it represents a potential change in Indiana law, where the state is trying to criminalize political speech and two hearings were missing transcripts. Of course it is “unbelievable.”  What happens to people, who are not keeping the records that Dan’s family is keeping, and all they have to rely on are the records from the Dearborn County Superior Court II?  If it wasn’t for the persistence of Dan’s family, with the help of his civil rights attorneys from Indianapolis, Michael K. Sutherlin and Associates, there would be no record of two hearings that took place.  Dearborn County Superior Court II, under Judge Sally Blankenship, has a legal responsibility to keep accurate court records and provide the public with records upon request. This is a matter of gross negligence or a malicious attempt to obstruct justice, and to obstruct access to public records, which would be criminal activity.   Conspiring to obstruct justice by denying, not only public access but the defendant’s access to records, for his defense, could definitely be considered criminal activity.

For background information on this issue: http://www.danbrewington.blogspot.com/2012/03/missing-records-from-brewington-case.html  This article was posted March 8, 2012 on danbrewington.blogspot.com.  We are still trying to get every last transcript from this case. You can contact Dan's family at contactdanbrewington@gmail.com.

Memo from the Office of the Indiana Attorney General, Gregory Zoeller: Appellate Chief Justice Margret Robb is a child abuser.

Following my criminal trial last October, I wrote a blog post explaining how Dearborn County Prosecutor F. Aaron Negangard proclaimed that Dearborn County Circuit Judge James D. Humphrey was a “son-of-a-bitch.” Prosecutor Negangard argued it was illegal for me to lie and call Judge Humphrey a child abuser. The prosecutor argued one could call Judge Humphrey a “son-of-a-bitch” but not a child abuser. To demonstrate the absurdity of Prosecutor Negangard’s statements, I put two and two together and wrote a blog about the prosecutor’s contention being Judge James D. Humphrey was a “son-of-a-bitch.” Now the Office of the Indiana Attorney General is making a different claim; Appellate Chief Justice Margret Robb is a child abuser.

Indiana Deputy Attorney General, James Thomas Whitehead, filed the state’s response to my appellant brief on June 20, 2012. The response appears to consist of several thousand words worth of name calling, half truths, and patently false statements with very little legal support; all in the name of trying to make Dan Brewington appear to be a bad guy. One of the more prominent arguments of Deputy Attorney General, James Thomas Whitehead, was his contention that it was illegal to call a judge a child abuser. Though many of the deputy’s arguments were vague and somewhat conflicting his following statements stand clear; it is a criminal offense to falsely accuse a judge of being a child abuser and Dan Brewington accused Justice Margret Robb and the rest of the Indiana appellate justices, of being child abusers. As I was never charged with intimidating the entire Indiana Court of Appeals, it would appear the Office of the Attorney General is in agreement that all of the justices are child abusers.

Before Indiana law enforcement officials make a move to indict me on fifteen additional counts of intimidation (there are fifteen justices on the appellate court), let me explain how this post was written to help people understand not only the absurdity of the case but the dangerous nature as well. If it is illegal to call one judge a child abuser, then it is illegal to call all judges child abusers. If the State of Indiana contends I committed a crime against Judge Humphrey by calling him a child abuser then I surely committed a crime against Justice Robb unless the Office of the Attorney General, in fact, agrees with my contention.

One does not have to be a brain surgeon or rocket scientist to see what’s going on. Deputy Attorney General James Thomas Whitehead is simply using the State’s response to my brief to tattle on me. In his best fifth grade playground voice, Deputy James Thomas Whitehead is saying, “Justice Robb, Danny Brewington is calling you names.” Deputy Whitehead’s feeble attempts to weaken my character, greatly weakens his arguments concerning 1^st Amendment Speech. First of all, if Deputy Whitehead is contending that I have committed a crime against all the justices of the Indiana Court of Appeals then the high court should be precluded from ruling on my case. If the Office of the Attorney General believes no crime was committed against Margret Robb and the other justices, the AG is acknowledging that it is NOT against the law to call a judge a child abuser. If Deputy Whitehead still contends it is illegal to call a judge a child abuser but no crime was committed against Margret Robb, it is in the opinion of the Office of the Indiana Attorney General that the entire Indiana Court of Appeals consists of child abusers.

When I referred to Indiana judges as “child abusers”, I obviously was referring to the emotional trauma some children experience as a result of lazy, ill-informed and/or malicious child custody judgments. The real danger existing in this case is how the Indiana Attorney General is trying to criminalize people who allege child abuse. In a world where children fall prey to sexual abuse by religious figures, coaches, teachers, law enforcement official, politicians, etc… the office of the Attorney General agrees with criminally punishing people who allege abuse on behalf of children against people of authority. I was never questioned about my allegations of child abuse or the context of my statements. Now the Attorney General’s office wants to victimize the accuser rather than investigate the accusations. In the case of former Penn State assistant coach Jerry Sandusky, who was recently convicted of 45 counts relating to child sexual abuse; it was the alleged victims who were interviewed by law enforcement to determine if a crime had been committed. Now the State of Indiana, through the Attorney General is trying to outlaw public accusations of child abuse. If Jerry Sandusky would have lived in Dearborn County, he simply could have told investigators that the accusations of child abuse were retaliatory and they would have arrested the accuser without investigating the accuser’s account of events.

Please stay tuned to the developments of this case as the argument out of the office of the Indiana Attorney General is not only an attempt to criminalize free political speech but the actions of the Attorney General may deter victims of rape and child predators from publicly reporting crimes out of fear of criminal prosecution.

Feel free to contact Dan or his family at contactdanbrewington@gmail.com Please contact state officials with any concerns you may have regarding constitutional freedoms or victim’s rights.

For more information about the Deputy Attorney General’s brief please see http://www.danbrewington.blogspot.com/2012/06/indiana-attorney-generals-office-is.html  

Fathers and Families Article

July 8, 2012 Sunday

Posted by Sue Brewington

Robert Franklin, Esq., journalist and attorney, has written an excellent article about Dan Brewington’s case in the national publication, Fathers and Families. Fathers and Families is a national Fathers’ advocacy group with an audience that extends even outside the U.S. Robert Franklin briefly documents Dan’s story and how it has been, and continues to be, an attempt to make a difference in the family court systems in our country by describing Dan’s own struggle within the system. To read the article click here. To learn more about the author click here.