Indiana Court of Appeals Sets Oral Arguments for November 21, 2012 at 11:00 a.m. on a Case that may Regulate/Limit First Amendment Political Speech

The Court of Appeals of Indiana filed an Order Scheduling Oral Argument in the case of Daniel Brewington vs. State of Indiana; Cause No: 15A01-1110-CR-550. 

Trial Court Case No. 15D02-1103-FD-0084

Arguments are scheduled to be heard:

Wednesday, November 21, 2012 at 11:00 a.m.

Indiana Court of Appeals Courtroom,

Statehouse, Room 413,

Indianapolis, Indiana, 46204

The argument is scheduled for web-cast at www.IN.gov/judiciary and will be televised on a monitor outside of the Court of Appeals Courtroom.

Excerpt from the beginning of Brewington's attorney's response.

INTRODUCTION

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, ... is nevertheless protected against censorship and punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. ... There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

Terminello v. City of Chicago, 337 U.S. 1, 4-5 (1949) (internal citations omitted).

The Supreme Court could have added prosecutors to that list; their nearly unfettered discretion could allow them to censor speech that they disagree with or find bothersome. For this reason, the First Amendment constrains prosecutorial discretion.

From the very beginning of Brewington's prosecution, the State has shown no concern for these principles. Brewington may not have had the rhetorical skill of Thomas Paine, but like 18th Century pamphleteers, he used a popular forum of expression in his time (here, the Internet) to complain about unfair treatment by an oppressive system. This case is not just an appeal of a wrongful conviction. It is a challenge to this Court to re-affirm the fundamental right of free expression.

Dan Brewington’s appellant brief states “Aaron Negangard, the Dearborn County, Indiana, Prosecutor, took personal umbrage with Brewington exercising his First Amendment rights and silenced him by indicting Brewington with three felonies and three misdemeanors”…

A blog post with links to Dan Brewington’s appellant brief, appellant reply, and Motion for Oral Arguments, and to Deputy Attorney General Whitehead’s appellee brief.

http://www.danbrewington.blogspot.com/2012/07/in-process-of-appealing-case-to-court.html  

The court finally locates the missing transcripts, part 1 and part 2:

http://www.danbrewington.blogspot.com/2012/07/the-case-of-missing-transcripts.html http://www.danbrewington.blogspot.com/2012/07/the-case-of-missing-transcripts.html

A letter to Mr. G. Michael Witte, Executive Secretary of the Indiana Supreme Court Disciplinary Commission.

http://www.danbrewington.blogspot.com/2012/08/july-27-2012-g_330.html 

Media Attention:

Divorce Corp. Full length documentary that is scheduled to be released in the fall of 2012.

http://www.danbrewington.blogspot.com/2012/08/dan-brewingtons-story-highlighted-in.html 

Fathers & Families

http://www.danbrewington.blogspot.com/2012/07/fathers-and-families-article.html 

Dan Brewington, Norwood (Cincinnati), Ohio, blogger, was sentenced to 5 years in prison in Indiana for blogging, October 24, 2011. Dan is currently serving his sentence in the Putnamville Correctional Facility, Greencastle, IN.

Dan Brewington criticized the family court system and county government in Dearborn County, Indiana, on the internet.  Brewington was convicted of Intimidating a Judge, Judge James D. Humphrey, with absolutely no threat of physical violence issued, anyplace. Dan Brewington received a $600,000 bond from Judge Sally Blankenship who 5 days later recused herself, citing conflict of interest but the excessive bond remained. Dan was later convicted and sentenced to five years in prison for publically criticizing judges and public officials. Now a man with no criminal history, no history of violence, no history of drug or alcohol abuse, and a perfect record of caring for his girls for 2 ½ years, sits in an Indiana State Prison. He hasn’t seen his girls for over 3 years.

The attempts by the Dearborn County Indiana Judicial System to control internet speech could not be clearer. Prosecutor F. Aaron Negangard told the jury that Brewington wrote too much.  If the Court of Appeals affirms the trial court’s ruling, political speech will be subject to prosecution at the discretion of prosecutors and judges.

Letter to My Daughters, 3 Years After They Lost the Ability To SeeTheir Father.

On this 3 year anniversary of being stripped of the ability to see my children, I decided it was time to explain to my girls, the truth of why they can’t see their dad. I explained in a manner that I thought the girls would be able to understand. I don’t know if they will be able to hear the contents now, but here is a copy of the letter that was mailed to my daughters.

Dear Girls,

Nearly three years have passed since I have seen or talked to the two of you. Please believe me when I say I have been working as hard as I can at trying to see you again. The problem started when a man named Judge James D. Humphrey got mad at me because I questioned the way children were separated from their moms and dads during divorce. When your mother and I got divorced, a psychologist named Dr. Edward J. Connor evaluated your mom and me to see what the best parenting arrangement was for the two of you.  Dr. Connor recommended the two of you live with your mom but still be able to see me 3 days a week. I never questioned that recommendation of Dr. Connor but I did question things in his evaluation that did not make sense. For example; Dr. Connor mixed up your names in the evaluation. Dr. Connor claimed he could not understand me when I talked. He said he tried to call Uncle Matt to ask questions, but he called him Mark and said the telephone number that I gave him for my brother did not work. I never gave him Uncle Matt’s number to call. Dr. Connor said Grandma Sue was supposed to show up to talk to him but she never did. Of course this was not true because Grandma Sue would do anything to help with you girls. The problem was Dr. Connor never told anyone that Grandma Sue was supposed to meet with him. When I asked Dr. Connor for the paperwork supporting his ideas and claims, he started to tell me lies. He said I could have the information. Then Dr. Connor said I was not allowed to have the information. Then he said a person was normally allowed to have the information but I could not have it because I did not have a lawyer. Then Dr. Connor said it was against the law for him to give me the information, even though he previously said I was allowed to have it. The more I questioned Dr. Connor; the more he lied. When I told judges about Dr. Connor, they got mad at your dad. When the judges did not do anything about Dr. Connor and his lying, I wrote about Dr. Connor on the internet so other parents would know to look out for Dr. Connor because he did not tell the truth. This was the biggest reason Judge Humphrey gave when he said I could not see you. He said he was most concerned about my writings about Dr. Connor. Judge Humphrey was worried more about Dr. Connor than the two of you being able to see your dad. Even though Dr. Connor said I was a good father and a safe parent capable of caring for the two of you at least three days a week, Judge Humphrey said I was not allowed to see you until I saw another doctor. Judge Humphrey delayed and helped prevent me from seeing another doctor. I wrote on the internet that Judge Humphrey was mean to children because he took away children from good parents. When I did that, Judge Humphrey wanted me to go to jail. I was arrested a year and a half ago and I am still in jail because the court said I was not allowed to say Judge Humphrey and Dr. Connor were mean to children.  They said I was not allowed to tell other moms and dads on the internet that Dr. Connor did not tell the truth. Me being in jail is the reason I have not been able to visit another doctor so I can see you again, but I am still trying my hardest to see you.

Grandma Sue and Uncle Matt are doing everything they can to help me get out of jail and see you again. Do not be afraid for me because I have many new friends in jail and outside who support me in what I am doing. With everything I have put on the internet, I have found out that there are many bad people like Dr. Connor and Judge James D. Humphrey who do not care about the well being of kids like you.  There are many parents who contacted Granma Sue, Uncle Matt, and me who say they have had the same kind of problems. Many of them are praying for me because they think I am doing something that will help moms, dad, and kids everywhere. They think I can help protect kids from other bad people like Judge Humphrey and Dr. Connor. If nothing else, I am protecting the ability for other moms and dads to criticize bad people.

Right now Daddy has two lawyers who are working very hard to clear my name. Their job is to prepare paperwork and present it to a higher up court to help demonstrate that I have not done anything wrong. They are telling the judges at the higher court that I did things that President Thomas Jefferson said I was allowed to do. President Jefferson said over two hundred years ago that people like me were allowed to harshly criticize people like judges and others who work in the public. When my lawyers win, I will be closer to seeing you.

I love the two of you more than I can imagine. I dream of you every night and think about you every day. Anytime I see kids on TV I think of you. Almost everything I see and do in a day somehow reminds me of my two little angels. It’s not fair that you had to go without a dad for three years. It breaks my heart thinking about it but bad people like Judge Humphrey unfairly punish kids and their parents for telling the truth about their actions. If I did not speak up, more kids would have been hurt. I did not think that I would go to jail for doing things President Jefferson said we were allowed to do but Judge Humphrey’s friends helped put me here. Now there are some pretty mad people who are supporting your dad. A little while ago, the director of a national organization that helps fathers wrote an article about me and a lot of people are mad about what Judge Humphrey and his friends did to your dad. My new friends know that I am a good dad and they know the two of you need me in your lives. These people are telling other people in the United States to let them know of our story to help make people aware of the bad things that can happen when people like Judge Humphrey take away the rights of people.

I know this may be hard for you to understand but I want you to know that I love the two of you more than anything in the world.

Soon this will all be over and we can be together again. I will never stop fighting to be your dad. I love you.

Love,

Daddy

Letter to Mr. Witte Executive Secretary of the Indiana Supreme Court Disciplinary Commission Regarding the Missing Transcripts

July 27, 2012

G. Michael Witte

Indiana Supreme Court
Disciplinary Commission
30 S. Meridian St., Suite 850
Indianapolis, IN 46204

Re:

State of Indiana vs. Daniel P. Brewington

Case No. 15D02-1103-FD-084

Appeal Case No. 15A01-110-CR0050
MISSING TRANSCRIPTS
Dear Mr. Witte:

On January 12, 2012, I hand-delivered a public access request to Barbara Ruwe, court reporter for Dearborn County, for all the tapes from all the hearings in the case of

State of Indiana vs. Daniel P. Brewington.

I also requested a tape of the Keith L. Jones interview detective/county commissioner Shane McHenry conducted in the Hamilton County Justice Center in Cincinnati, Ohio, that was submitted by the Prosecutor at the August 16, 2011 Bond Reduction Hearing in the foregoing case and a copy of the letter written and submitted to Judge Hill by Dan Brewington at the September 19, 2011 pre-trial hearing. Mr. Brewington's letter was released to me as was the jailhouse interview with Keith L. Jones (note - the disc was incorrectly labeled the "Eddie Jones" interview!).

On January 12, 2012, Judge Brian D. Hill signed an Order Releasing Audio

Tapes which are listed below:

a. Arraignment Hearing - March 11, 2011

b. Pre-Trial Hearing - June 17, 2011
c. Pre-Trial Hearing and Bond Reduction Hearing - July 18, 2011
d. Bond Reduction Hearing - August 16, 2011
e. Final Pre-Trial Hearing - September 19, 2011
f. Trial - October 3,4,5,6, 2011
g. Sentencing Hearing - October 24, 2011
h. CD of the Keith L. Jones interview
i. Copy of letter written by Dan Brewington and submitted into
evidence at the Final Pre-Trial hearing on September 19, 2011.

Judge Hill further ordered that if I shared the released audio tapes with anyone I may be held in contempt of court. Matthew Brewington, made similar record requests and received the identical order from Judge Hill. Judge Hill's orders were dated January 24, 2012.

On February 2, 2012 I received an Amended Order Releasing Audio Copies, signed by Judge Brian D. Hill which stated:

a. The Grand Jury Tapes would not be released because the tapes
were not part of the record
b. No recordings were made because no hearing took place on July
18, 2011.

On February 14, 2012, I hand-delivered another public records request seeking a clarification of the reason for the refusal to release the grand jury tapes, I explained the July 18, 2011 hearing did take place. Individuals who attended the hearing who were prepared to sign affidavits that they present at the July 18, 2011 hearing and the events at the hearing they witnessed. In my record request I attached all the documents that led up to the two hearings: the CCS entries that reported the setting of the hearings and motions and orders that related to the July 18, 2011 pre-trial hearing.

On Friday, February 24, 2012, Barbara Ruwe, Court Reporter for Judge Sally Blankenship, Superior Court II, called me at approximately 3:15pm, and informed me my public records request was filled and could be picked up in the Dearborn County Auditor's Office.

On Monday, February 27, 2012, I picked up the public records from the http://www.danbrewington.blogspot.com/2012/07/the-case-of-missing-transcripts_23.html

Dearborn County Auditor's office. There was a, typed page with no office identification of any kind and no signature explaining the contents in the packet and the reason other documents requested were not in the packet. The unsigned typed page reiterated that there were no transcripts for the hearings
for June 17, 2011 and July 18, 2012. The note further advised that "all grand jury proceedings areconfidential and cannot be released to anyone.  Judge Brian D. Hill had already released the Grand Jury transcripts. I made another public records request as I wanted the transcripts of the March 11, 2011 arraignment hearing involving Daniel P. Brewington. Ms. Ruwe then forwarded the public record request for the March 11, 2011 transcript to Daniel Brewington's appellate attorney. It is my
understanding the Indiana law states a public records request delivered in person, as I did with all my requests, is to be answered yes or no with explanation within 24 hours.

When Mr. Brewington's appellate attorney, Michael K. Sutherlin, contacted the Court to state that he was going to be filing signed affidavits by four individuals swearing under oath that they were at one or both hearings and describing what took place at these hearings, Ms. Ruwe miraculously found the "missing" recordings of the hearings I requested. On Tuesday, July 3, 2012 I received an email from Mr. Sutherlin that Ms. Ruwe "located" the "missing" transcripts from the June 17, 2011 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 the Judge's Chambers, actually did take place in open court. Both Judge Hill and Court Reporter Ruwe were adamant that these hearings did not take place or did not take place in open court. This is consistent with Judge Hill's failure to investigate Mr. Brewington's claim of constitutional violations during the

course of the trial. Judge Hill, since the discovery of the missing transcripts, contacted Mr. Sutherlin to accpt responsibility and stated he thought that he didn't come to Dearborn County for a hearing on July 18, 2011. Judge Hill failed to explain why the other transcript was "missing" or why it could not be located. As a layperson, I think that Judge Hill should have contacted the Indiana Court of Appeals and notified or reported the "missing" transcript issue to the Appellate Court and the Judge's mistake or concealment of the transcripts. The failure of Judge Hill to report the issue to the Appellate Court
required further expense to correct another matter that Judge Hill or Ms. Ruwe failed to correct through their shortcomings, indifference, negligence, or concealment of the transcripts.

Daniel Brewington's appeal of his conviction could be badly damaged by this lack of information and poor record keeping. This is a high profile case with many constitutional issues and dealings with the conduct of public officials and court officials concealing transcripts of hearings either through actual

concealment or incompetence. Mr. Brewington's appellate attorneys were able to add a section to the reply brief and submitted the "missing" transcripts and a Request for Hearing Transcripts for the two "missing" hearings. In the foregoing request the appellate attorney made it clear that Daniel Brewingt wanted the "missing" transcripts prepared so they could be made part of the record on appeal. Mr. Sutherlin received the "missing" transcripts on Friday, July 13, 2012.

Whether it is incompetence, negligence, or intentional concealment of the transcripts, the error and ultimate arrogance of Ms. Ruwe and/or Judge Brian Hill resulted in the waiver of my son's ability to appeal some of the issues in his appeal. Some of the issues include the right to medication for a condition recognized by the ADA (Americans with Disabilities Act), right to a special prosecutor, impairment of his ability to make the best argument for ineffective assistance of counsel as a result of Judge Hill's hand-picked public defender for Daniel Brewington, and to pursue his right to explanation of the charges against him. The appellate attorney made the arguments in the appellant's

reply brief but the actions of Ms. Ruwe and Judge Hill were grossly negligent at best.

I wanted to bring this to your attention to provide you with some idea of the slovenly work of the court reporter and Judge Hill. I would think a judge would make a careful review of the record prior to simply stating something does not exist without any investigation. If Judge Hill rested his opinion on the statements of Ms. Ruwe, it only provides insight into the sloppy and careless work of Ms. Ruwe that she is unable to track or otherwise maintain the audio recordings to permit defendants to obtain a completed record of his/her case for appeal.

I believe this matter requires investigation to determine who is in charge of the audio recordings of defendant's hearings, whether Dearborn County has a system in place to accurately maintain the audio recordings of court hearings, and more importantly whether a court reporter's word for the existence or lack of existence of an audio recording of a court proceeding should be relied upon

by a Judge without some investigation. Quite frankly, I view the Dearborn County justice system with suspicion based purely on my observation of the prosecutor, the court reporter, and the judges who preside in Dearborn County or were assigned to the county. It is even more alarming when there is little or no effort to supervise employees and a Judge who simply sends a letter
based on a court reporter's statement or the judge's failure to adequately investigate whether hearings were held or not held.

I believe it strains the imagination that I am required to obtain affidavits from individuals who attended a court hearing to prove a hearing was held to the Judge who conducted the hearing or the court reporter charged with maintaining the record. The court reporter is being paid to perform the task of maintaining the audio record and in this case she was either too lazy or

maintained her records in such a haphazard fashion she was unable to locate them or chose not to locate them. Further, the Judge is similarly irresponsible when he fails to investigate the CCS, or check his calendar to determine if a hearing took place, and who couldn't be bothered to make sure the appellate court had the complete record in Mr. Brewington's case.

I hope you can share my frustration with a justice system in Dearborn County

where the wheels are simply off and no one in charge seems to care.

This case is important because it represents a potential change in Indiana law, where the state is trying to criminalize political speech. It appears the concealment of the transcripts will assist the State in stripping the citizens of Indiana of their right to criticize public officials. Conveniently misplacing or denying the existence of transcripts from two hearings in the case facilitate the goal of criminalizing political speech. Of course one may think it is "unbelievable" that events such as this could occur. These "unbelievable" events did occur. What happens to other citizens whose families are not keeping the records that I maintained, 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 Daniel Brewington's family, with the help of his civil rights attorney from Indianapolis, Michael K. Sutherlin and Associates, there would be no record of two hearings that took place before Judge Hill. Dearborn
Country 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, a malicious attempt to obstruct justice, and/or an attempt 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. It should be investigated to protect other citizens of Indiana.

Thank you for your time.

Sue A. Brewington

Dan Brewington’s story highlighted in a documentary to be released in the fall of 2012.

Divorce Corp. is an ambitious film on the current state of family law and the broader financial issues surrounding divorce in America. It is set to be released in the fall of 2012.

In spring of 2011, Dan Brewington’s family was contacted about the possibility of participating in a documentary about divorce. One of the project researchers came across Dan Brewington on the internet and was interested. In July 2011 producer, Lee Thompson, came to Cincinnati, talked to Sue and Matt Brewington, and chose film locations.

Thompson returned with film director, James Scurlock, and his crew in August 2011. They interviewed Dan’s mother, Sue Brewington, and Dan’s Ohio Attorney, Robert G. Kelly in Norwood, Ohio.  James Scurlock and Lee Thompson met Dan in a regular prison visit at the Dearborn County Jail behind glass but were not granted permission to do an in person interview and definitely no cameras. They also filmed outside the Courthouse and jail where Dan was incarcerated since March of 2011. The film story continued at Brewington’s family farm in Milan, Indiana, where Dan had lived with his girls during the 2 ½ year divorce.

They asked the Brewingtons not to speak about the project in public last year. On Monday, July 30, 2012 a film crew returned with the owner of Candor Entertainment, Joe Sorge, to finish the part about Dan. They went to Putnamville Correctional Facility in Greencastle, Indiana where Stan Knight is superintendent and Dan is in prison. Candor Entertainment had been trying to get permission to film Dan at the prison since late last year, but had been denied. The film crew, with Joe Sorge, went into the visitor center and asked again. They were told that they could film from across the highway and they did.

The crew came to the Brewington family home later in the day on Tuesday, July 31, 2012. Joe Sorge conducted the interviews. Dan called from prison and Joe got to interview Dan.  In his final question he asked Dan what he would like to tell his girls. August 18, 2012 marks three years since he has seen them. Joe interviewed Matt to get some personal idea about what kind of brother Dan is. Even Dan’s dog, Sophia, participated before the crew departed for Los Angeles later that evening.

The significance of this documentary needs to be emphasized. The family court systems around our country are broken in many ways. Dan’s story is just one of many that will be mentioned in the film. It is one example of what happened to someone who tried to find some accountability within the system and got punished drastically for fighting to have meaningful time with his girls.

 Thanks to everyone for all of their support. You can reach us at contactdanbrewington@gmail.com or go to danbrewington.blogspot.com.

Candor Entertainment creates scripted and unscripted content for TV, film and the web. Candor just completed production on a million dollar feature documentary titled Divorce Corp., with Director James Scurlock who previously directed and produced Maxed Out. That film aired on HBO numerous times and can be reviewed at http://www.imdb.com/title/tt0762117/fullcredits#cast and is also available on Netflix. Divorce Corp. is set to release fall 2012.

Sue Brewington