Thursday, June 13, 2013

Order for Oral Arguments from the Indiana Supreme Court

Below find a link to the official order and posts regarding oral arguments from the Indiana Law Blog.

 Ind. Courts - More on "Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington"

Updating this ILB entry from June 7th, EAGLECOUNTRY 99.3FM has a story today - a few quotes:

(Lawrenceburg, Ind.) - A jailed blogger who targeted a Dearborn County judge with his internet writings will have his appeal heard by the Indiana Supreme Court.

Dan Brewington’s story has made national headlines and caught the attention of First Amendment advocates across the country. Eagle 99.3 has been covering the story since Brewington was indicted for Intimidation of a Judge and other charges in 2010. * * *

The justices’ decision would likely come weeks or months later, which might have little impact on Brewington’s stay behind bars. According to the Indiana Department of Corrections, his earliest possible release from prison is September 15.

See this March 13th ILB post and its links to access all the briefs in the appeal.

Posted by Marcia Oddi on June 10, 2013 10:16 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington"

The ILB was holding off on this, as nothing has yet been officially entered on the docket. But meanwhile, Prof. Volokh at The Volokh Conspiracy has posted the word that the Indiana Supreme Court "will hear oral argument — likely on Sept. 12 — on the matter."

[More] Here is a long list of earlier ILB posts on Brewington v. State, the jailed blogger, free speech case.

Posted by Marcia Oddi on June 7, 2013 03:11 PM
Posted to Ind. Sup.Ct. Decisions




What Is Panel Per Curiam and Why Did the Indiana Court of Appeals Use This for the 1st time in 50 years in the Dan Brewington Divorce Appeal?

One of the more perplexing issues concerning my divorce case was how the Indiana Court of Appeals on July 20, 2010 denied my divorce appeal “panel per curiam.” I had no idea what “panel per curiam” meant at that time. After more research I discovered my case was an isolated one, as I could not find another case where the Indiana Court of Appeals ruled panel per curiam. 
Dearborn County Prosecutor F. Aaron Negangard emphasized to the jury at my criminal trial that panel per curiam meant the entire Indiana Court of Appeals agreed with the decision on my divorce appeal.  Apparently it means that no one on the three judge panel has to sign the Appellate Decision, therefore keeping the names of the judges who ruled, secret, and that all the rest of the appellate judges are made aware of the “targeted” decision. The Indiana Court of Appeals doesn’t even have a procedure for ruling en banc, (all 15 judges sitting on a case).  The ludicrous part is that the Indiana Court of Appeals had not ruled panel per curiam since the 1960’s. What was so significant about my divorce case, where Judge James Humphrey separated two little girls from their dad, that the court felt a need to rule panel per curiam, a process they hadn’t used for a ruling in 50 years? 
Why would the judges who ruled panel per curiam want to remain anonymous? When my criminal trial went to the Indiana Court of Appeals the original panel was J Friedlander, J Brown, and J Darden. At the November 21, 2012 Oral Arguments the 3 judge panel was J Darden, J Baker, and J Riley. What happened to J Friedlander and J Brown? Is it possible that they were involved with the only anonymous (panel per curiam) decision that the Indiana Court of Appeals made in 50 years? Was it one of them who ruled that I was provided with all portions of Dr. Connor’s case file required by law even though there was no court record of what portions of his case file Dr. Connor submitted? Was it one of them who wrote, anonymously, that my internet writings during my divorce caused my ex-wife to file for protective orders on more than one occasion. (In fact she filed for only one protective order against my web content and her motion was denied by Judge Humphrey on 1st Amendment grounds.) Why did J Friedlander and J Brown withdraw from my criminal appeal? Where is the transparency in a case where two small children were removed from a father with no record of being a bad parent?
Murderers, gang members, serial rapists, and other violent offenders petition the Indiana Court of Appeals on a regular basis. These are people who are usually considered dangerous by most members of society, not bloggers. I have no history of violence. I’ve never threatened anyone with an illegal act. Why might any judge or public official be afraid of a man behind a keyboard? Could they be afraid of me blogging them to pieces or just afraid of what others might think if I criticized their judgment? [Note: during the oral arguments in my criminal case, Judge Baker failed to provide a rational explanation as to why there was an armed officer in the courtroom when police protection is virtually non-existent in appellate oral argument hearings.] 
Many questions are left unanswered. When did Judge Friedlander and Judge Brown withdraw and did Judge Baker and Judge Riley have enough time to properly prepare for my oral arguments? Why did the three judge panel, who chose to remain anonymous in ruling on my divorce appeal, dig up something that the court hadn’t used in 50 years? Where is the transparency and integrity that we should expect from a state court of appeals?
Some time ago, I had a meeting with my attorney where he informed me that there might be some thought “out there” that the Appeals Court may have gotten it wrong on my criminal appeal. Odd. Which part of the ruling could have been the problem?  Could it have been their ruling that harsh criticism of an Indiana judge's decision is subject to criminal prosecution or realizing the absurdity of the case law that was just forged; that under the Indiana intimidation statute, a judge could have Indiana law enforcement arrest any individual whom, in a judge’s opinion, unfairly criticizes that particular judge’s decisions, simply by claiming to be afraid? It is unfortunate for me that no one realized a possible “mistake” until after the Court’s ruling on January 17, 2013 because maybe I’d be home right now. 
I would like to thank everyone for their continued love, support, and prayers.
Dan Brewington, with Sue Brewington 

Friday, June 7, 2013

News about Oral Arguments and a Letter Being Sent to Indiana Legislators

The following is a letter that is being sent to the Indiana State Legislators regarding the new Intimidation Law and Dan Brewington's current case. While writing this letter today, I learned that the Indiana Supreme Court has agreed to set oral arguments on September 12, 2013 at 9:00am. The Court will hear oral arguments before deciding if they are going to accept transfer. People will want to know if this is good news. It is to a point. Dan will be finished with his jail sentence September 4, 2013 so I guess he can go to his own oral arguments. We are disappointed that Dan had to spend 2 1/2 years in jail for something that he didn't believe was against the law but we will move forward. Thanks to everyone for all of your prayers, love, and support. Sue Brewington

Friday, June 7, 2013
Dear Legislator;

S.E.A. 361, P.L. 123-2013
Effective July 1, 2013
Provides that for the crime of intimidation, “communicates” includes posting a message electronically, including on a social networking web site. Provides that it is a Class D felony if the person to whom the threat is communicated is: (1) an employee of a hospital, school, church, or religious organization; or (2) is a person that owns a building or structure that is open to the public or is an employee of the person. Specifies that communicating a threat with the intent to interfere with the occupancy of certain buildings may constitute intimidation. Increases the penalty to a Class C felony if it is committed against a judge, bailiff, prosecuting attorney, or deputy prosecuting attorney.

It has come to my attention from reading the Indiana Law Blog that on April 30, 2013 Governor Mike Pence signed a law that would alter the Indiana Intimidation statute.
While I was writing this letter the Indiana Law Blog posted Ind. Courts - "Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington"
The ILB was holding off on this, as nothing has yet been officially entered on the docket. But meanwhile, Prof. Volokh at The Volokh Conspiracy has posted the word that the Indiana Supreme Court "will hear oral argument — likely on Sept. 12 — on the matter."
[More] Here is a long list of earlier ILB posts on Brewington v. State, the jailed blogger, free speech case.

Daniel Brewington v State of Indiana, Petition to Transfer, is currently before the Indiana Supreme Court awaiting a decision. Brewington is challenging the constitutionality of the current Intimidation statute. Daniel Brewington was a blogger and the blog continues in operation,   The online docket appears , the case number is 15 A 01-1110-CR-00550.

The decision by the Indiana Court of Appeals (J Darden, J Baker, J Riley who ruled after J Freidlander and J Brown recused themselves) was greeted with a great deal of consternation from both sides of the political spectrum. After the appellate decision, Brewington’s attorneys were contacted by UCLA Constitutional Law Professor and First Amendment expert, Eugene Volokh, with an offer to write an amicus brief in support of Brewington’s Petition to Transfer.

Michael K. Sutherlin and Samuel Adams filed Brewington’s Petition to Transfer on February 14, 2013.

There are already no controls on unscrupulous prosecutors or judges in the State of Indiana. Now you have upped the ante on anyone who might try to inform the public about an outrageous decision or prosecutorial misconduct. These people have absolute immunity right now. Dan Brewington, who had a perfect record as a father to his two young daughters (check the records) was summarily removed from their lives by Judges James D. Humphrey. Brewington chose a different way to try to inform the public about what had been done. Brewington believed that since he had not been separated from his girls more than 4 days since birth that Judge Humphrey’s action were tantamount to child abuse. Now Brewington is sentenced to 5 years in the DOC for Intimidating Judge James D. Humphrey, from Dearborn County, Indiana. Judge Brian D. Hill denied Brewington any opportunity for probation, saying  Brewington would just blog about the probation department. Brewington, besides blogging, also appealed the divorce decree to the Indiana Court of Appeals and an odd thing happened. The Court of Appeals upheld everything but instead of signing the decision they ruled Panel Per Curiam. Prosecutor Negangard mentioned this in the criminal trial. What he didn’t mention was this was the only panel per curiam decision that the Indiana Court of Appeals issued since the 1960’s, and that is still true today. Brewington was prosecuted by Dearborn County Prosecutor F. Aaron Negangard and Deputy Prosecutor Joseph Kisor. Dan, who had no previous criminal record and no indication of any violent act in his lifetime, was convicted of a D felony of Intimidating a Judge. Now, with the new legislation Dan would have been convicted of a C felony of Intimidating a Judge. This will have an incredible chilling effect on freedom of speech in Indiana.

UCLA Professor and Constitutional, First Amendment Law expert, Eugene Volokh, wrote about Brewington’s Appellate Decision on his blog, The Volokh Conspiracy, and offered to write an amicus brief in support of Brewington. The following is a partial list of people or groups that signed on as supporters of his brief:

1.       James Bopp Jr. Indiana attorney (Republican)

2.       The Hoosier State Press Association

3.       The James Madison Center for Free Speech  Right to Life Issues

4.       The Indiana Coalition for Open Government

5.       Eagle Forum (Right to Life Issues)

6.       The Indianapolis Star  (Largest Newspaper in the State)

7.       Indiana professors James W. Brown, Anthony Fargo, and Sheila S. Kennedy(former IACLU)

8.       The ACLU of Indiana – Gavin Rose, filed a separate amicus brief

This is written as a thank you for all that you do but also as a reminder that legislation can have unintended consequences. Both email copies and regular mail copies are being sent.

Thank you for your time.

Sue A. Brewington