Monday, July 23, 2012

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)
      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.
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

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