Humphrey to Brewington, “It’s either the First Amendment or your kids!”

Dearborn Circuit Judge
James D. Humphrey

“I think you better consider what you're doing because I may consider this as reflecting on what's really important to you, making these web-site postings or your children.” –Testimony of Dearborn Circuit Judge James D. Humphrey during criminal trial of Dan Brewington.  This is the ultimatum/warning Judge James D. Humphrey claimed to have given Dan Brewington before stripping Brewington of his ability to see his children.  Unfortunately, Brewington’s divorce record is void of Humphrey giving Dan any such ultimatum.

On April 29, 2009 Judge James D. Humphrey held a hearing on a petition for a protective/restraining order filed on 4/16/2009 by the attorney of Dan Brewington’s ex-wife.  Brewington’s ex-wife complained about Dan sharing his experiences on the internet in dealing with lawyers, judges, and psychologist through the course of the divorce was bad for her and the children.  Brewington filed a Response to her petition and argued the writings were not harmful to the children and their mother and the content was protected by the First Amendment of the United States Constitution. On May 14, 2009 Humphrey’s order on the petition for protective order stated “said Motion should be and hereby is DENIED at this time.”

When a Judge rules in favor of a litigant, one would think the law falls on the side of the litigant.  Humphrey also added the following to the order denying the protective order:

“The Court may consider issuance of an Order regarding public distribution of matters involving the Dissolution or Custody Evaluation as part of the Court's Decree of Dissolution in considering the best interests of the children. The Court may also consider evidence presented at this hearing regarding the temporary restraining order in regard to the Court's decision as to visitation and custody and how Respondent's actions may affect the best interests of the children now and in the future.”

Judge Humphrey stated the motion should be and was denied, and then went on to write how he “may” consider an issuance of a different order regarding public distribution of the divorce case at another time.  He also said he “may” take into consideration Brewington’s actions in determining visitation and custody.  What actions?  The actions Brewington took to demonstrate his writings were not harmful to the children or his ex-wife were what caused Humphrey to deny her petition asking Humphrey to force Dan to take down his internet content.  What Brewington did not know at the time was Humphrey was giving Dan an ultimatum; stop writing telling people what goes on within the family court system in Southeastern Indiana or I will take your children away from you.  Humphrey had the power to order Brewington to remove the internet content if it was dangerous to his children.  Humphrey refused to do so because the web writings were not damaging to the children; they were damaging to him.

During cross-examination of Humphrey in Brewington’s criminal trial, Brewington’s public defender, Bryan Barrett, asked Humphrey for his recollection as to why he denied the petition for a protective order.  Humphrey had a different and more specific explanation as to why he denied the protective order.  Judge Humphrey stated:

“The reason that I denied it because, I think there were probably two reasons: #1, your client was indicating this was my first amendment right to say what I want to say and I was going to let him do it and the second reason was and in my order I also indicated I think to paraphrase, I think you better consider what you're doing because I may consider this as reflecting on what's really important to you, making these web-site postings or your children and I think by your client's continued actions, he made it very clear he was more interested in his web-site postings than his children.”

James Humphrey may be a vindictive and evil judge be he is not a dumb judge.  Humphrey was well aware of the fact that he could have ordered Brewington to remove his internet content if the information was damaging to Dan’s children.  Humphrey also knew he could have issued an order protecting aspects of the divorce from public dissemination.  Humphrey did not issue a protective order because there was no evidence Brewington’s writings were dangerous to the children or harassing to their mother.  Judge Humphrey’s testimony states the intention of his order was to tell Brewington to choose between his children or his First Amendment protected criticisms of the court system.  Humphrey knew he couldn’t give Brewington that kind of direct ultimatum in a court order because it would have been a very appealable issue and would have likely brought some media attention.  Humphrey knew the content was not dangerous to the children because the content is still on the internet to this day.  It was Humphrey’s own contention that he sent Brewington a hidden message saying “stop writing or you won’t see your children.”  No evidence was ever presented that Brewington’s writings were damaging to his children.  Humphrey’s own contention is he felt Brewington should have heeded Humphrey’s warning that was hidden in the order.  Humphrey claimed Brewington chose his writings over his children yet Humphrey did not make it clear to Brewington that Humphrey even posed the ultimatum.  Brewington would have been better suited to choose one freedom over another if Humphrey would have made it clear to Brewington that he was not going to allow Dan to have both his free speech and his children.

The irony of the situation is, during Brewington’s criminal trial, Humphrey testified his May 14, 2009 order contained hidden threats to take away Brewington’s children if Brewington did not cease exercising his First Amendment Right to criticize the family court system.  Brewington was convicted of D Felony Intimidation because Prosecutor Negangard successfully argued Brewington’s writings about Judge Humphrey’s termination of Dan’s parenting time were considered hidden threats and were made in retaliation for a prior lawful act; Humphrey’s terminating Dan’s parenting time.  Because Brewington wrote about how Humphrey retaliated against him in taking away his children because Brewington did not cease to exercise his First Amendment Right in criticizing the courts, Dan was prosecuted for retaliating against Judge James D. Humphrey.  The scary part to the story is if the Indiana Supreme Court upholds Brewington’s conviction, all someone like Judge Humphrey has to do go to the local prosecutor and cry about how a blog post like this scares him and claim he’s intimidated and the writer can be prosecuted.  Only in Indiana.