A respected legal blog, The Volokh Conspiracy, has weighed in on Dan's case concerning the recent Indiana Appellate Court decision upholding the charge of intimidating a judge. link to the article
A threat requires that the defendant express an intention to unlawfully injure the person threatened. IND.CODE section 35-45-2-1(c)(1). See Gaddis v. State, 680 N.E.2d 860 (Ind.App. 1997).
Gaddis also seemed to acknowledge the overly broad provisions of the intimidation statute. That court spoke of the need to resolve ambiguity’s against imposition of the statute and specifically noted that, “Statutes enacted by our legislature are presumed to be constitutional and, where possible, must be so construed.”
The Brewington court ignored the Gaddis holding that an intimidation defendant has to threaten to commit an unlawful act. The court “focused its analysis on “whether Brewington threatened Judge Humphrey by expressing an intent to expose him “to hatred, contempt, disgrace, or ridicule.” Ind. Code § 35-45-2-1(c)(6).” Nevermind that that are many lawful acts that result in exposing someone to such problems.
The Brewington court also failed to consider the constitutionality of this particular application of the statute.
This decision is a sickening example of how free our courts feel to ignore the law when it suits them. I hope the decision is widely circulated and appreciate that it was exposed here.
Hang in there. I assume your folks are preparing a petition for transfer (that is, a petition to appeal to the Indiana Supreme Court)? The Court of Appeals decision appears very wrongly decided, and many are very troubled by it. There are many decisions from Supreme Courts from other states that have found this statute clearly unconstitutional. It's distressing that the Indiana Court of Appeals didn't address any of those cases, and relied instead on a decision decided a few years after the Civil War, and a decision that has nothing to do with your facts. I believe that the Indiana Supreme Court will take this up and hopefully get it right.
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ReplyDeleteA threat requires that the defendant express an
ReplyDeleteintention to unlawfully injure the person threatened. IND.CODE
section 35-45-2-1(c)(1). See Gaddis v. State, 680 N.E.2d 860 (Ind.App. 1997).
Gaddis also seemed to acknowledge the overly broad provisions of the intimidation statute. That court spoke of the need to resolve ambiguity’s against imposition of the statute and specifically noted that, “Statutes enacted by our legislature are presumed to be constitutional and, where possible, must be so construed.”
The Brewington court ignored the Gaddis holding that an intimidation defendant has to threaten to commit an unlawful act. The court “focused its analysis on “whether Brewington threatened Judge Humphrey by expressing an intent to expose him “to hatred, contempt, disgrace, or ridicule.” Ind. Code § 35-45-2-1(c)(6).” Nevermind that that are many lawful acts that result in exposing someone to such problems.
The Brewington court also failed to consider the constitutionality of this particular application of the statute.
This decision is a sickening example of how free our courts feel to ignore the law when it suits them. I hope the decision is widely circulated and appreciate that it was exposed here.
Let me know what I can do to help. You've got a blatant example of corruption here.
ReplyDeleteDan:
ReplyDeleteHang in there. I assume your folks are preparing a petition for transfer (that is, a petition to appeal to the Indiana Supreme Court)? The Court of Appeals decision appears very wrongly decided, and many are very troubled by it. There are many decisions from Supreme Courts from other states that have found this statute clearly unconstitutional. It's distressing that the Indiana Court of Appeals didn't address any of those cases, and relied instead on a decision decided a few years after the Civil War, and a decision that has nothing to do with your facts. I believe that the Indiana Supreme Court will take this up and hopefully get it right.