Sometimes it’s hard to narrow a topic down for a blog post
given there are so many complex disturbing facets to my case. One subject deserving attention is Indiana
Appellate Court Judge Ezra H. Friedlander.
Judge Friedlander has played a major role in both my criminal and
divorce appeals. Friedlander’s actions
in my case have also remained relatively anonymous, until now. Former Chief Judge of the Indiana Appellate
Court John G. Baker was the person who brought this matter to the attention of
my lawyer. What is truly scary about my
current criminal case is if the Supreme Court upholds the verdicts in my
criminal appeal, Judge Friedlander will be able to initiate criminal
proceedings against me for criticizing him in this blog post.
Many people have had difficulties following all of the
events in my divorce and criminal hearings, which is very understandable due to
the complexity and also the absurdity of the entire situation. On August 18, 2009, Judge James D. Humphrey
filed the Decree of Dissolution in my divorce, which abruptly terminated my
parenting time with my 3 and 5 year old daughters pending a psychological
evaluation. Humphrey’s decree also
stated I had to pay my ex-wife over $122,000 for my future interest in farmland
that my parents purchased over the course of a 28 year marriage. The property was placed in a trust prior to my
father’s passing in 1998; a year before I met my ex-wife. I appealed Judge Humphrey’s ruling on the
termination of parenting time and the inclusion of the trust assets as marital
property in the divorce. In 2010, the Indiana
Appellate Court upheld all of Humphrey’s findings. The Indiana Supreme Court denied transfer of
my divorce case. What was most peculiar
about my divorce appeal was the Court of Appeals ruled “Panel Per Curiam,”
which means the Appellate Judge who authored the decision in my divorce appeal
remained anonymous; until now.
When the Indiana Court of Appeals filed its opinion in my
divorce case on July 20, 2010, I didn’t know what panel per curiam meant. I found a common consensus was that panel per
curiam rulings were issued by judges looking to avoid conflict or criticism. After some research, I discovered my appeal
was the only case in 2010 the Indiana Appellate Court ruled per curiam. It was only after the conviction in my
criminal case that I found out the Appellate Court’s 2010 per curiam ruling in
my divorce case was the first per curiam ruling in nearly 50 years. It wasn’t until January 2013 that I found out
the author of the panel per curiam ruling in my divorce was Judge Ezra H.
Friedlander. How did I find out? Former Chief Judge of the Appellate Court, John
G. Baker told my lawyer. Judge
Friedlander would not only sabotage my appeal of my divorce decree but would
also later interfere with the appeal of my criminal conviction as well.
When Judge Friedlander issued the anonymous decision in my
divorce appeal, he filed the ruling “Not for Publication” meaning the decision
“shall not be regarded as precedent or cited before any court.” In layman’s terms, “not for publication”
usually deals with cases involving already established case law, which was
always mind boggling in my case because there were no cases prior to my divorce
appeal that directly dealt with the issues at hand. My main complaint throughout the course of my
divorce was Dr. Edward J. Connor never provided me with the case file that Dr. Connor
relied upon to support his findings in the custody evaluation he performed in
my divorce. Indiana Code (IC) 31-17-2-12
states a custody evaluator’s report may not be excluded as hearsay or otherwise
incompetent if the following requirements are met:
(c) The investigator shall make the following available to
counsel and to any party not represented by counsel:
(1) The investigator's file of underlying data and reports.
(2) Complete texts of diagnostic reports made to the
investigator under subsection (b).
(3) The names and addresses of all persons whom the
investigator has consulted.
(d) Any party to the proceeding may call the investigator
and any person whom the investigator has consulted for cross-examination. A
party to the proceeding may not waive the party's right of cross-examination
before the hearing.
There’s been quite a bit written about Dr. Edward J.
Connor’s inability to tell the truth, especially regarding my attempts to
obtain Connor’s case file. When the
issue regarding IC 31-17-2-12c was placed before Friedlander, Judge Friedlander
wrote:
“We first note that I.C. § 31-17-2-12(c) does not require
that Dr. Connor’s entire case file be provided to Daniel. All the items
specified by statute were provided. Other than his belief that I.C. §
31-17-2-12(c) was violated, Daniel asserts no other basis on which to find that
Dr. Connor’s report and testimony were inadmissible or should have been
excluded from evidence.”
That’s it. That’s all
Friedlander wrote. The first question
one would ask is what does IC 31-17-2-12(c) require Dr. Connor to release? There hasn’t been any previous court rulings
or legislation that further define the original legislative intent of IC
31-17-2-12(c). Someone not familiar with
the case would just assume Judge Ezra Friedlander was aware of what Dr. Connor
provided me and was content that the information was sufficient per IC 31-17-2-12(c). The problem is there was never any court
record of what information Dr. Connor provided.
There was no way to tell what portions of Dr. Connor’s file were required
to be released under IC 31-17-2-12(c) without, at least, Judge Humphrey
reviewing the contents of the file; which never occurred. How did Friedlander know I was provided with
everything required by IC 31-17-2-12(c)?
He didn’t. For whatever reason Friedlander
did not want to deal with the issue and dismissed my entire legal argument with
three sentences. It wasn’t until my
criminal trial that I discovered Dr. Connor released information from Connor’s
case file to Prosecutor Negangard that Connor failed to release to me during my
divorce. But from a legal standpoint,
this wasn’t the worst of Friedlander’s actions.
In August 2009, Judge Humphrey ruled I owed my ex-wife over
$122,000 for what the court called a future vested interest in farmland my parents
placed into a trust before the death of my father. This is where the situation gets very
complicated/ridiculous. Humphrey did not
rule that my ex-wife was entitled to my parents’ farmland; he just ruled that I
was required to pay my ex-wife $122,000 for my future interest in the
farmland. When my father was dying of
cancer in 1998, he and mom placed their property in a trust that would provide
for mom throughout her lifetime with any remaining assets falling to dad’s “legal
issue” upon mom’s passing. Dad named his
brother as the trustee of the trust and mom was the beneficiary. Humphrey’s ruling that I was to pay my
ex-wife $122,000 was not contingent on the death of my mother, I was
responsible for paying the $122,000 when the ruling was issued on August 18,
2009. Every banker and trust attorney
gasped when they saw the ruling. Most
were very confident the ruling would be overturned. Then Judge Friedlander came into play.
It is truly disturbing how a judge of a state appellate
court would go out of his way to rule against a party petitioning the
court. In my appellant brief, my lawyer
directed the Court to review the case of Fiste v. Fiste when considering the
matter of including a future interest in a trust as a marital asset. In regards to Fiste, Friedlander wrote:
“We determined in that case that because the husband had no
present possessory interest in the land and because his interest was subject to
complete defeasance if he predeceased his mother, his remainder interest in the
real property was too remote to constitute marital property.”
It seemed exactly like my situation. If I died before mom, I wouldn’t be entitled
to anything in the trust. Upon mom’s
death, any assets that would have gone to me would pass to any of my
children. But Friedlander said my case
was different. Friedlander wrote:
“[Dan’s] interest is not subject to a condition subsequent
and as such, his interest is not subject to complete defeasance should he
predecease his mother. Per the terms of the trust, Daniel’s remainder interest
will pass through him regardless of whether he predeceases his mother.”
Friedlander worked hard in his attempts to discredit the
legal arguments in my appeal from my divorce case. The easiest way to discredit Friedlander’s
reasoning is to look at my brother’s interest in the trust. If my brother died before the death of my
mother, what happens to his share of the trust when mom passes? The answer is he doesn’t have a share; he’s
dead. No assets pass through my brother’s
estate. What would potentially have been
his share would just become mine.
Because I have children, if I were to predecease my mother, my share
would fall to my children per the terms of the trust. If for some reason (I’m obviously using worst
case scenario to demonstrate a point) my children and I predecease my mother,
my “half” no longer exists and my brother gets everything upon mom’s
death. It’s all rather morbid but there
really isn’t another way to explain it more clearly. And even more ridiculous “what if” scenario is
if my father happened to have another family or children to which we were not
aware. Anyone bearing a birth
certificate listing my dad as the father would also be entitled to an equal
share of the trust.
But Friedlander claimed my case was different. Friedlander wrote my situation was similar to
the case of Moyars v.
Moyars where the court “likened a vested future interest in land to vested
pension benefits.” Friedlander went on
to write:
“As in Moyars, Daniel had no current possessory interest in
the land, as his mother held a life estate therein. Daniel’s right to take
legal possession of the land at some point in the future was fixed and
certain.”
There are many troubling aspects with Friedlander’s
logic. For one, Friedlander compared my
interest in a trust to a man who was actually listed on the deed of a
property. David Moyars and two other
siblings were willed property upon the death of David’s father. He was on the title of the property which
could be “sold or otherwise alienated, transferred or mortgaged.” David was not able to take full possession of
the property until the death of his mother but he was listed as an owner of the
property and it was subject to marital division. If David predeceased his mother Geneva, his
interest in the property would go to his estate upon the death of Geneva. I, on the other hand, have no right to any
assets in my father’s trust. Of course
Friedlander failed to address how Judge Humphrey stated in the original ruling
that I had a possessory interest which may be sold, transferred, or mortgaged. I had no control of the assets in my father’s
trust because the trust specifically designates the Trustee as the only person
with the authority to sell, transfer, or mortgage property within the trust. Friedlander relying on Moyars is even more
flawed because the trial court would have been required to join all parties who
had an interest in the property in question.
In the Moyars decision, the Appellate Court wrote, “the trial court
joined Geneva Moyars and David's two siblings in the dissolution proceeding as
persons needed for a just adjudication.” Humphrey would have been required to join to
the divorce proceedings as interested parties, the trust, trustee, beneficiary,
and any other individuals with a future interest, which would include my uncle,
mother, brother, children and me. In
stretching to compare my case with Moyars, Friedlander ignored the requirement
that all interested parties be added to the dissolution as was properly done in
Moyars. A recent ruling by the Indiana
Supreme Court concerning trusts further demonstrates the flaws in Friedlander’s
ruling. The Court recently ruled in Fulp
v. Gilliland that a trustee cannot serve two masters. The current responsibility of the trustee in
my father’s trust is to provide for the beneficiary at the trustee’s
discretion. I am not a beneficiary. My mother is the beneficiary. If the trustee believes it is necessary to
dispose of all the assets of the trust to care for the beneficiary, then I get
nothing. This is written plainly in the
terms of the trust yet Friedlander stated my right to the property in the trust
was “fixed and certain.” By
Friedlander’s account, if a complete stranger assigned a future interest in
property by means of a trust to someone involved in an Indiana divorce, the
person’s spouse would only have to place a monetary value on the property in
order to include the future interest as a marital asset. It would then become the responsibility of
the poor soul who was unknowingly given the future interest to refute the value
of the property. Not only would the
person have to retain their own appraisal, but he would have to subpoena
banking information, acquire tax information, research liens, etc., in order to
refute the value of something he never agreed to take on. From a constitutional standpoint Friedlander’s
ruling is deplorable because the ruling allows a third party (trust agreement)
to place a financial burden on someone without giving the person the financial
means to deal with that burden. A person
can choose whether to work for an employer with a pension fund. A person who is willed property or money has
the value of the acquired assets to defend against any claims. In a trust like the one in my divorce, a
person has neither the right to refuse the obligation of the trust nor the
ability to access the assets. Not only
did I not have a right to the assets in the trust, Friedlander’s ruling made me
financially liable for arguing the value of assets to which I had no claim.
Near the end of Friedlander’s ruling he wrote, “We commend
the trial court for its thorough findings, each of which are supported by the
record.” If Humphrey’s findings were so
thorough, why did Friedlander have to go to such lengths to affirm Humphrey’s
findings? And what record was
Friedlander referring to? Friedlander’s
opinion had the same common undertone as other legal officials with whom I have
crossed paths in my experiences with the Indiana court system. Friedlander wrote:
“During the pendency of the proceedings, Daniel posted information
concerning the dissolution on his website and blog, in response to which
Melissa sought a protective order and a temporary restraining order on more
than one occasion.”
I did post information about the events of my divorce on a
blog and website and my ex-wife subsequently sought a protective order and
temporary restraining order requesting Judge Humphrey to force me to remove my
internet writings. My ex-wife did this
once and Humphrey properly denied her petition because my web content was not
harmful to her or my children.
Friedlander simply made up the part about my ex-wife filing for
protective orders on more than one occasion while ignoring the fact that her
petition was properly denied. Friedlander chastised me for prevailing in a matter involving free speech where there was no evidence that the speech was harmful to my children. The major
question is why did Friedlander write a “panel per curiam” decision? This is what seemed to bother Judge John
Baker the most. All appellate rulings
are required to have at least a panel of three judges. Given the obvious flaws in Friedlander’s
ruling, it is hard to conceive that two other Judges from the Indiana Court of
Appeals could review the record of my divorce and come to the same conclusion
as Friedlander; especially as Friedlander’s decision is not supported by the
facts of my divorce case or Indiana law.
This might explain why someone with an IP address registered to the
Indiana Supreme Court was visiting my website while Friedlander was writing my
appeal. I believe Friedlander’s
unilateral ruling on my divorce appeal and blatant disregard for proper
appellate procedure is what most angered Judge John Baker. But my divorce appeal did not mark the end of
Judge Ezra Friedlander’s involvement in my experiences with the high courts of the
State of Indiana.
When I was first
arrested in Dearborn County, Indiana, Judge Sally Blankenship set my bond at
$500,000 surety and $100,000 cash based on the prosecution’s argument that I
did not respect the Court and the prosecutor’s office and would probably
continue writing about my case if I was released. Judge Brian Hill refused to lower my bond and
refused to grant a bond between my conviction at trial and my sentencing
hearing. Judge Hill then denied my
motion for a bond pending the appeal of my case. When I took the matter to the Indiana Court
of Appeals, my motion was denied. One of
the Judges listed on the order
denying Appellant’s Verified Motion for Bail Pending Appeal dated May 11,
2012, belonged to Judge Friedlander.
There was no explanation why the Court denied the motion, just a flat
denial. What findings did Friedlander
rely on in discussing the denial of my motion for bail with Judges Crone and
Sullivan; the other two judges on the panel?
Did Crone and Sullivan review the motion or did Friedlander unilaterally
rule on the matter as he did in my divorce appeal? Did Friedlander base his decision on the
record of the case or did he rely on outside sources? Maybe Friedlander based his opinion on the
fact he believed my ex-wife had to file for multiple protective orders even
though it never happened. What we do
know is Friedlander eventually decided he should not preside over the appeal of
my criminal case because he felt there was a conflict because he wrote the
decision in my divorce appeal. When did
Friedlander withdraw? Less than a day
before the oral arguments in my case were to begin.
Judge James D. Humphrey seemed to have this problem. Dearborn County Prosecutor F. Aaron
Negangard, and later the Indiana Attorney General, argued Judge Humphrey feared
Dan Brewington posed a real danger to the lives of Humphrey and his family in
August 2009 and possibly earlier. Even
though Humphrey claimed he thought I posed a real risk of murdering his family,
he continued to preside over my case for nearly a year. (This subject never ceases to amaze me.) Humphrey waited until less than a week before
the June 14, 2010 hearing on the approval of a mental health evaluator to
recuse himself. Friedlander did the same
thing. In an order
from the Indiana Court of Appeals, dated August 21, 2012, the Court set the
oral arguments in my case for 11:00 am on November 21, 2012. The order also set the panel to hear the
case, which included Senior Judge Darden, Judge Brown, and Judge Friedlander. On the day of the hearing, the proceedings were
delayed for approximately a half an hour.
It was a couple months later in an informal setting that Judge Baker
informed my appellate lawyer the delay in the hearing was due to a last minute
search for judges to hear my case. Judge
Baker claimed Judge Elaine B. Brown withdrew from my case because she feared
for her own safety. Baker said
Friedlander withdrew because Friedlander claimed ruling on my divorce created a
conflict of interest. At the last
minute, the Indiana Court of Appeals was scrambling to find judges to hear my
case, finally settling on Judges Darden, Riley, and Baker. Friedlander presided over my bond appeal
prior to May 11, 2012. On August 21,
2012 he was named a member of the three judge panel to hear oral arguments in
my case on November 21, 2012. Rather
than recuse himself immediately, Friedlander denied my ability to post bail and
get out of prison during the appeal of my case and then waited until the last
minute to withdraw, leaving the replacement judges unable to properly prepare
to hear my case. (Note: I have no idea
why my case would cause Judge Elaine Brown to fear for her personal safety. I assume she has handled many cases involving
violent criminals, yet I guess her fear of bloggers is much greater.)
Dearborn County Prosecutor F. Aaron Negangard argued I was a
threat to the United States Judicial System.
I’m not a threat. Judges like
Friedlander are a threat to the integrity of the judicial system; I just write about
their conduct. If you back up through
the whole story and claim Friedlander’s rulings were truly based on fact and
law, the “Panel Per Curiam” fact still remains.
Friedlander placed a question of doubt on the decision in my divorce
appeal when he issued the first anonymous decision in nearly fifty years. Then Friedlander continued his involvement in
my criminal case until removing himself just prior to the oral arguments in my
criminal appeal. I have no idea why Judge
Baker would tell my lawyer these things especially as Baker knows I went to
prison for 2.5 years for criticizing the court system on the internet. I hope Judge Baker would expect a lawyer to
share this type of information with the lawyer’s client because not doing so
would be unethical. Blogging about
judicial conduct is what landed me in prison but why should I suffer
consequences for writing about the conduct of members of the Indiana
Judiciary? I have a right to free
speech, do I not? Maybe not in Indiana. If the Supreme Court upholds my convictions,
then people will no longer be able to criticize the actions of judges in the
State of Indiana without fear of prosecution.
