Criticize a Judge,( Or Anyone Else), Go to Jail?

Reason.com Senior Editor Jacob Sullum wrote the following article. This website has a more libertarian viewpoint. Dan Brewington's story first appeared here on February 25, 2013. The article is very good and the comments are interesting too.

http://reason.com/blog/2013/02/25/criticize-a-judge-or-anyone-else-go-to-j  Reason.com  Jacob Sullum

USA Today online picks up Brewington's Freedom of Speech story

 Dan Brewington’s Freedom of Speech story also appeared in USA Today online 2/25/13

.http://www.usatoday.com/story/news/nation/2013/02/25/indiana-court-free-speech/1946089/

Brewington's Freedom of Speech Case Front Page News, Indy Star 2/25/13

Tim Evans, an award winning reporter from the Indianapolis Star, wrote an extensive article on the Dan Brewington, Freedom of Speech Issue.

http://www.indystar.com/article/20130224/NEWS/302240067/

 

 

 

 

Volokh and ACLU Amicus Briefs Filed

UCLA Law Professor Eugene Volokh and Gavin Rose of the Indiana ACLU have filed their Amicus Briefs in support of Dan's Petition to Transfer to The Indiana Supreme Court. The Fort Wayne, Indiana Journal Gazette has also written an article about Dan's Case.

Links:

Professor Volokh's brief

Indiana ACLU's brief

Fort Wayne Journal Gazette Article

Looking at the Grand Jury Process in Indiana through Dan Brewington's Case.

Links to the grand jury transcripts posted below.

Dan Brewington’s case originated with a Grand Jury called by Dearborn County Prosecutor F. Aaron Negangard. Dan was notified that he was the target of a grand jury investigation just 5 days after receiving notice that a complaint he had filed against Prosecutor Negangard the previous July, 2010, had been dismissed.

On Sunday, February 3, 2013 Virginia Black wrote an article in the South Bend Tribune “Little Understood Grand Jury System Under Debate. http://articles.southbendtribune.com/2013-02-03/news/36727479_1_grand-jury-grand-jurors-reluctant-witnesses  On Monday, February 4, 2013 The Indiana Law Blog posted a summary of her article. http://indianalawblog.com/archives/2013/02/ind_courts_litt.html

 A few of the points:

1.      Everything surrounding a grand jury -- the subjects, the testimony and even the grand jurors' identities -- is considered secret, with violators of those secrets facing potential misdemeanor criminal charges.

2.      That, and the fact that grand jury operation is weighted heavily in the prosecution's favor, has compelled state Sen. Mike Delph, R-Carmel, to introduce a bill to the General Assembly for the second year in a row that would eliminate the use of grand juries.

3.      If a grand jury chooses to pass down indictments -- which, because the prosecution has so much leeway, often happens, he said -- it can put more pressure on a defendant to plead guilty, and then the public is kept in the dark about what the facts of the case are.

4.      "If you're a target, or a prosecutor has their sights on you, it's a very, very different, almost undemocratic situation, that you're almost guilty until proven innocent," Delph said. "We should allow public juries to rule the day."

5.      "An individual charged with breaking the law should be charged with breaking the law," Delph said, "but it should be done in an honest, forthright way."

6.      Larry Landis, executive director of the Indiana Public Defenders Council, said his organization supports abolishing grand juries or at least shoring up the rights of defendants in the process.

7.      And if someone is indicted, that defendant has no right to transcripts from the grand jury unless a judge orders them unsealed, he said, although the prosecutor has access to them.

8.      The standard of proof is lower for a grand jury indictment than for a verdict in open court, but "for the public, it looks like, 'Well, he must be guilty,' " Landis said. "The name itself (grand jury) has status, prestige."

Dan Brewington’s case out of Dearborn County, Indiana might be helpful because the grand jury transcripts were released. Dan, who was incarcerated at the Dearborn County Law Enforcement Center on $500,000 surety plus $100,000 cash (March 11, 2011) was presented with a complete copy of the Grand Jury transcripts on September 23, 2011, just 10 days before his trial started. Dan's perjury charge stems from his grand jury testimony. It is evident from reading the testimony that Dearborn County Prosecutor F. Aaron Negangard asked Dan a question, cut him off before he could finish his answer, then charged him with perjury on Dan’s incomplete answer. In another part of the Grand jury transcripts Judge James D. Humphrey informed the grand jury that “I know the first amendment and this goes way beyond that” thereby serving as an expert witness and a victim. Prosecutor Negangard brought up a handgun (a gun Dan was legally permitted to carry) and proceeded to reference the gun or gun issues over 100 times in the grand jury when Dan was not charged with anything to do with a gun. He was a blogger with no prior criminal history and no issues of violence in his entire life. Negangard told the Grand Jury that in Indiana the only way you could lose your concealed carry permit was to be convicted of a felony. Also, Dearborn County Sheriff Mike Kreinhop told the grand jury that Dan filed more motions during his divorce than murderers file. Why would a Sheriff be testifying to the number of motions filed in any case?

Dan represented himself in his divorce case and was critical of the family court system Judge, James D. Humphrey and the Kentucky based custody evaluator, used by Dearborn County, Edward Connor.  Dan had a perfect record of child care for 2 ½ years during the divorce and 2 ½ months after the final hearing in the divorce and yet Judge James D. Humphrey took away all Dan’s visitation rights to his 3 ½  and 5 ½ yr old daughters, who were currently seeing him as much as 4-5 times a week, including overnights.

Special Judge Brian D. Hill, Rush County, released the grand jury transcripts at the Final Pre-Trial Hearing, September 19, 2011.

Grand Jury Transcript Links for Dan's Case

1.      http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Table%20of%20Contents.pdf

2.      http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Sheriff%20Mike%20Kreinhop%20first%20testimony.pdf

3.      http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Melissa%20Brewington%27s%20Testimony.pdf

4.      http://www.dadsfamilycourtexperience.com/Transcripts%20of%20Grand%20Jury%20Edward%20J.%20Connor.pdf

5.      http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Dan%20Brewington%27s%20Testimony%20Part%20One.pdf

6.      http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Dan%20Brewington%27s%20Testimony%20Part%20Two.pdf

7.      http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Sheriff%20Mike%20Kreinhop%20second%20testimony.pdf

8.      http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Angela%20G.%20Loechel%20Testimony.pdf

9.      http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Heidi%20Humphrey%20Testimony.pdf

10.   http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Sheriff%20Mike%20Kreinhop%20third%20testimony.pdf

11.   http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Judge%20James%20D.%20Humphrey%20Testimony.pdf

12.   http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Sheriff%20Mike%20Kreinhop%20fourth%20testimony.pdf

13.   http://www.dadsfamilycourtexperience.com/Transcript%20of%20Grand%20Jury%20Prosecutor%20Negangard%27s%20closing.pdf

A short recap of Dan Brewington’s Case since January 17, 2013 and links to Professor Volokh’s Brief.

A recap: The Indiana Court of Appeals ruled in Dan’s case on January 17, 2013. They vacated the 2 misdemeanors, Intimidating child custody evaluator Edward Connor and Intimidating Heidi Humphrey. They upheld the 3 felonies, Intimidating Judge James D. Humphrey, Attempted Obstruction of Justice in a Divorce Case, based on Dan’s letters and blog posts to Edward Connor, and Perjury. So this decision didn’t alter Dan’s time in jail because the felonies remained intact. Prosecutor, F. Aaron Negangard was quoted on the decision, “The Court of Appeals has affirmed the decisions of the trial court. The only part that was reversed is of no significance since the sentence has been upheld. It involves some complexities that are unique to Indiana… …This is a victory for justice and our criminal justice system”.

Brewington decided to move to the next step which is filing a brief to Petition to Transfer to the Indiana Supreme Court. Michael K. Sutherlin and Sam Adams filed Dan’s brief on Thursday, February 14, 2013. UCLA Law Professor,Eugene Volokh, a well known and respected First Amendment, Free Speech expert, read about Dan Brewington’s case and wanted to help. He filed an Amicus brief, in support of Dan’s Petition to Transfer to the Indiana Supreme Court, February 15, 2013. He had a lot of sponsors that signed on to this brief. A list of supporters has been posted. (http://www.danbrewington.blogspot.com/2013/02/dan-brewington-receives-impressive-help.html)

Below are the links to Professor Volokh’s Amicus brief. He posted in three sections.

1. http://www.volokh.com/2013/02/15/harshly-criticizing-judges-or-others-for-their-past- conduct-crime/

2. http://www.volokh.com/2013/02/15/state-v-brewington-and-the-blackmail-analogy/

3. http://www.volokh.com/2013/02/15/state-v-brewington-and-figurative-speech/

The following entry appeared on the Indiana Law Blog, February 19, 2013.

The Indiana Law Blog

Tuesday, February 19, 2013

Ind. Decisions - More on: Petition to transfer filed in Brewington, along with amicus brief with many signatories

Updating this ILB entry from yesterday, those following the Brewington case may be interested in Dan Brewington's blog.

Among other things, it includes a link to Brewington's petition to transfer.

Posted by Marcia Oddi on February 19, 2013 12:48 PM
Posted to Ind. App.Ct. Decisions

 

Dan Brewington Receives Impressive Help in his Fight for Freedom of Speech in Indiana

The following individuals or groups are filing, or signing onto, friend of the court briefs in support of Dan Brewington’s Petition to Transfer to the Indiana Supreme Court. Without true Freedom of Speech, groups over the entire political spectrum would not only be limited in getting their particular message out but could be threatened with criminal prosecution. The people and groups listed below represent a wide range on the political spectrum.

1.      James Bopp Jr. Attorney  http://www.bopplaw.com/attorney-profiles      http://prospect.org/article/citizen-bopp     .

2.      Justin L. McAdam Attorney  http://www.bopplaw.com/attorney-profiles

3.      Eugene Volokh – Law Professor UCLA  http://www.law.ucla.edu/faculty/all-faculty-profiles/professors/Pages/eugene-volokh.aspx

4.      The Hoosier State Press Association  http://www.hspa.com/

5.      The Indiana Coalition for Open Government  http://www.indianacog.org/main.php

6.      The James Madison Center for Free Speech   http://www.jamesmadisoncenter.org/cases/  

7.    Eagle Forum   http://www.eagleforum.org/

8.      The Indianapolis Star   http://www.indystar.com/

9.     The Indiana Association of Scholars

10.    Nuvo (Indy’s Alternative Voice)  http://www.nuvo.net/

11.    Professors James W. Brown, Anthony Fargo, Sheila S. Kennedy – all Indiana professors of journalism or public policy.

12.  The ACLU of Indiana – Gavin Rose http://www.aclu-in.org/staff_and_board.html

Dan Brewington’s Petition to Transfer to the Indiana Supreme Court.

Thursday, February 14, 2013 Dan Brewington’s attorneys filed the Petition to Transfer to the Indiana Supreme Court. This is the next step in the battle, not just for Dan’s Constitutional Rights, but for the rights of all American citizens.

The vast majority of the brief, pages 4-13, argues the First Amendment, Freedom of Speech, and other legal issues related to the Intimidation and Obstruction convictions, but on pages 13-14 they also argue the perjury conviction. “The Court of Appeals erred in holding that this evidence was sufficient to sustain Brewington’s perjury conviction. It also sanctioned the prosecutor’s misconduct. The testimony cited above ( p. 14) shows that Brewington was cut off mid-sentence. Brewington could not complete his explanation later. The State should not be able to prosecute a witness for perjury based on an incomplete statement when the state is responsible for it being incomplete.” “Grand juries are meant to seek the truth, not to play “gotcha.”

The Petition to Transfer.
http://www.dadsfamilycourtexperience.com/Petition%20to%20transfer%20to%20the%20IN%20Supreme%20Court%20%28final%29.pdf

UCLA Law Professor Eugene Volokh to Write A Friend Of The Court Brief for Brewington's Supreme Court Transfer

Last week Professor Eugene Volokh wrote a blog titled, “Harshly Criticizing a Judge or Others for Their Past Conduct = Crime?”http://www.volokh.com/2013/01/22/harshly-criticizing-a-judge-or-others-for-their-past-conduct-crime/

This week Professor Volokh has written another blog. He is writing a friend of the court brief for Brewington's Indiana Supreme Court Transfer. http://www.volokh.com/2013/01/31/indiana-advocacy-political-or-journalist-groups/

In conclusion Volokh writes:
“This, I think, clearly violates the First Amendment, and has a potentially very broad sweep. The law doesn’t just apply to disgruntled litigants, but also to newspaper columnists, advocacy groups, politicians, and so on. Under the court’s view, someone who goes to a legislator and says, “If you vote for this law [or because you voted for this law], we’re going to condemn you so much that your constituents will have contempt for you and vote you out of office,” would be guilty of a crime. Indeed, someone who simply keeps writing harshly critical columns about a legislator’s actions, without an overt threat of future such columns, would be guilty of a crime, too.”

“Brewington is asking the Indiana Supreme Court to review the case, and I think it would be helpful to have a friend-of-the-court brief supporting that request, and alerting the Indiana Supreme Court to the broader danger posed by the Indiana Court of Appeals opinion. (The Indiana Supreme Court is entitled to pick and choose which Court of Appeals cases it reviews, so the brief needs to persuade the Indiana Supreme Court to focus its time on attention on this case.) I plan to write that brief, pro bono.”

“I already have local counsel lined up, and a likely amicus organization, but I’d like to have more, including those generally seen as on the left, those generally seen as on the right, and those generally seen as elsewhere. If you’re involved with an Indiana advocacy, political, or journalist group — or for that matter an Indiana newspaper, whether professional or student-run — and you think the organization might be interested in joining, please let me know.”