Friday, June 7, 2013Dear 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, 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)
2. The Hoosier State Press Association http://www.hspa.com/
3. The James Madison Center for Free Speech http://www.jamesmadisoncenter.org/cases/ Right to Life Issues
4. The Indiana Coalition for Open Government http://www.indianacog.org/main.php
5. Eagle Forum http://www.eagleforum.org/ (Right to Life Issues)
6. The Indianapolis Star http://www.indystar.com/ (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
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