Indiana Appellate Judge John G. Baker: "It was Judge Ezra H. Friedlander who filed the Anonymous Decision in Brewington Divorce Appeal."

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.