Friday, June 7,
2013
Dear
Legislator;Intimidation
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, http://danbrewington.blogspot.com/
The
online docket appears http://hats.courts.state.in.us/ISC3RUS/ISC2menu.jsp
, 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.
http://danbrewington.blogspot.com/2013/02/dan-brewingtons-petition-to-transfer-to.html
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, http://danbrewington.blogspot.com/2013/02/ucla-law-professor-eugene-volokh-to.html
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 http://www.bopplaw.com/attorney-profiles http://prospect.org/article/citizen-bopp
(Republican)
3.
The James Madison Center for Free Speech http://www.jamesmadisoncenter.org/cases/
Right to Life Issues
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
9.
For a complete list see http://danbrewington.blogspot.com/2013/02/dan-brewington-receives-impressive-help.html
Link to the Volokh and ACLU Indiana amicus briefs http://danbrewington.blogspot.com/2013/02/volokh-and-aclu-amicus-briefs-filed.html
Link to the State’s Brief http://danbrewington.blogspot.com/2013/03/the-states-brief-in-response-to.html
Link to Brewington’s Response to the State’s Brief http://danbrewington.blogspot.com/2013/03/reply-in-support-of-petition-to-transfer.html
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
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