Justice Loretta Rush: "Brewington's public defender is a Constitutional Scholar."

In the recent opinion from the Indiana Supreme Court decision Brewington v State, Justice Loretta Rush hails my public defender, Bryan Barrett, as a constitutional scholar.  She also claims I had to build a defense against legal conduct because Prosecutor Negangard made up his own Indiana defamation law when no such law existed.  Imagine being a defendant in a criminal trial where a Supreme Court Justice claims the prosecution was not aware of what conduct actually constituted a crime.  How could one defend themselves?  In my petition to the Indiana Supreme Court, it was argued that by not informing the jury that I could not be convicted base on threats to reputation and only by threats to safety, it constituted "fundamental error."  Some courts have defined fundamental error as “errors which go to the heart of a trial and vitiate its fairness.”  It would seem like a no brainer by not informing the jury in my case that they could not convict me for constitutionally protected speech, it would go to the heart of the fairness of my trial and the protection of the 1^st Amendment.  The Supreme Court even agreed it was erroneous not to tell the jury in my criminal trial that I could not be convicted of a crime based on activities which were legal.  Justice Rush wrote:

“As discussed above, the First Amendment and the Indiana Constitution demand a showing of actual malice before the State may impinge on assertions of fact—even false ones—about public figures or issues of public concern; and rhetorically hyperbolic expressions of opinion are always protected, because they can only reasonably be understood as assertions of opinion, not of fact.”

BUT, Justice Rush dismissed the Constitution claims because….

“Were it not for that apparent strategy, Defendant’s arguments would be well taken.”

Justice Rush said the fundamental error did not apply because my lawyer invited the error.  “Invited error” precludes a party from raising an issue on appeal.  An example would be if a party agreed to the admissibility of hearsay testimony even if it violated rules of evidence.  The party could not turn around and appeal the issue because they “invited” the error.  Justice Rush said my public defender invited the error, thus waiving my rights to the constitutional protections.  Justice Rush attributed Bryan Barrett’s failure to object to the absence of jury instructions that included an explanation of constitutionally protected speech to an “all or nothing” strategy.  Mind you, this is the same public defender who never met with me to review my case before trial, did not call any witnesses, subpoena any documents, etc…  Justice Rush stated the following about Barrett’s carefully planned strategy to do nothing:

“In effect, that approach sought to exploit the prosecutor’s improper reliance on ‘criminal defamation’ to the defense’s advantage—focusing the jury on the clearly protected aspects of Defendant’s speech, and on that basis to find the ambiguous aspects of his conduct to be protected as well.”  “Instructing the jury on the text of the federal and state constitutional free-speech protections, but not actual malice, appears to have been a strategic calculation to that end—not an ignorant blunder.”

Justice Rush claimed it was an oversight on the part of Dearborn County Prosecutor F. Aaron Negangard that he failed to tell the jury what parts of my speech were constitutionally protected.  This is the same prosecutor who gave the following instruction to the jury during closing arguments:

“He could have even called him a son-of-a-bitch if he wanted, alright? That's probably okay.”  “But he can say that.  But what he can't say, he's a child abuser.” (No kidding; Page 516 Line 7 of trial transcripts)

Justice Rush said “Requesting instructions on actual malice would have called the State’s attention to the distinction it repeatedly overlooked between threatening the targets’ reputations… and threatening their safety.  Defense counsel could reasonably have anticipated that an actual-malice challenge could lead the State either to withdraw [some jury] instructions, or at least to draw sharper focus onto the statements and conduct that crossed the line and implied a true threat.”

It is Justice Rush's contention that it is the responsibility to address shortcomings of the prosecution in order to preserve issues for appeal.  She effectively stated a defendant is not allowed to capitalize on the shortcomings of an incompetent prosecutor.  Justice Rush’s decision placed the burden on my public defender to NOT take advantage of, what she claimed to be, an oversight of Prosecutor Negangard.  If Justice Rush truly believed Negangard did not know the difference between criminal conduct and constitutionally protected activity in my case, I would imagine there are due process implications if the State can force a defendant to defend himself against an unknown crime.  But Negangard was not the only Indiana official who Justice Rush said was unaware of the distinction between “threatening the targets’ reputations… and threatening their safety.”  When my case went before the Indiana Court of Appeals, Judges John G. Baker, Carr L. Darden, and Patricia A Riley, all of which have a combined 65 years of experience on the Indiana Court of Appeals, failed to make the distinction as well.  The Supreme Court had to correct the findings of the Court of Appeals because Baker, Darden, and Riley ruled if true speech scared judges, the true speech can be prosecuted.  Rush stated Prosecutor Negangard was oblivious to the distinction between threats of safety and reputation, corrected the opinion of three of the longest serving judges on the Indiana Court of Appeals because they couldn’t get it right, and then claimed my public defender from Rush County, Indiana (population 17,000) was aware of the blunder and (unsuccessfully) tried to take advantage of it.

 

This is frightening information.  What Justice Rush doesn’t want to mention is the notion that Prosecutor Negangard’s ignorance was actually the prosecution’s trial strategy; which is much more plausible suggesting a small town public defender would somehow have a much better grasp of the 1st Amendment of the US Constitution than three judges with 65 years of experience in the Indiana Court of Appeals.  It would be prosecutorial misconduct for Negangard to intentionally try to have me convicted for constitutionally protected speech.  (Negangard did have me indicted for releasing grand jury information without having any evidence.)  What makes the situation dangerous is Justice Rush knew what she was doing in writing this opinion.  By making the situation appear complicated, it wouldn’t attract any attention.  But if people take a closer look, they can see how a Supreme Court Justice can use a well written court opinion to manipulate the law to get the result she wants.  Please stay tuned as there will be much more on the unethical conduct of Indiana Supreme Court Justice Loretta Rush. 

The Lie of "Invited Error" in Brewington Case

It is truly frightening that a state supreme court justice would set out to write an opinion that was void of precedence and law in an effort to restrain free speech.  Even worse is that a justice would dare to construct the language and context of her ruling in such a manner to provide a façade of judicial legitimacy.  When I first read the decision of the Indiana Supreme Court in my case, written by Justice Loretta Rush, I verbalized how I felt Justice Rush threw Dearborn County Prosecutor F. Aaron Negangard under the bus for failing to instruct the jury of the difference between what were considered threats of reputation and threats of violence.  Since then my opinion has changed. Justice Rush wrote it was trial strategy by my public defender, Bryan Barrett, to NOT inform jurors the difference between threats to safety and threats to reputation. On the surface it appears Rush believed that Negangard somehow slipped up and failed to mention the difference during trial and Barrett saw the blunder and took advantage of it by not doing anything about it. Rush rationalized Barrett not doing anything was a strategic decision. Rush argued that bringing attention to the difference between threats of reputation and threats of safety would have made Negangard aware of his "blunder" and then he would have been able to argue the difference. This in itself is ridiculous because any appeal could be denied by "invited error" because Rush placed the responsibility on the Defendant's counsel to correct (what Justice Rush perceives to be) the prosecutor's "flawed" trial strategy or risk waiving the ability to appeal an issue. As I said earlier, my thoughts have changed about Negangard being thrown under the bus. After rereading Rush's opinion and trial transcripts, Rush just made up the argument to affirm the opinion. Negangard did not forget to inform the jury of the difference between threats to safety and reputation because Negangard never argued that I ever made a threat of illegal conduct of any kind. He argued all of my speech was intimidating because it was over-the-top, false, etc... He said my words were "fighting words" made to invoke a violent reaction.  He also argued that Indiana law allowed criminal prosecution for libelous speech in extreme circumstances. Negangard never made the argument that I made a threat of violence or illegal activity against anyone. The whole "arson" allegation was never raised until after the trial. My "pyromaniac" analogy, about my ability to challenge the family court system (which was posted several months prior to Humphrey ruling on my divorce), was read during trial without saying when it was made or without any speculation as to whom they felt it was directed. During the appeal process, the AG called it a threat of arson to Humphrey, which is ridiculous. At the time the post was made, Humphrey had barely been on my divorce case and had not made any substantial rulings. Looking at it objectively, even if you contend that I am some sort of diabolical madman, why wouldn't someone assume the threat would have been directed at the original judge in the case, Judge Taul, or Dr. Connor whom I had been harshly criticizing? Why wouldn't someone assume I directed it toward my ex or her attorney, Angela Loechel? Because they needed the statement to be used against Humphrey because that was the only thing the AG and the higher courts could find in any of my writings that they could distort to resemble a threat against Humphrey.  We’re talking somewhere in the vicinity of over a quarter-of-a-million written words and that was the only statement Justice Rush and the AG could come close to claiming was a threat to personal safety.  As for the threat against Dr. Connor, claiming that my analogy drawing the difference between a complaint about a plumber and a psychologist was a threat against Dr. Connor is absurd. Even if I had written “I want to punch Dr. Connor in the mouth,” my history of non-violence would lead a reasonable person to believe the statement was an expression of anger or frustration.  With that being said, saying you “want” to do something and saying you are “going” to do something are two different things altogether.  But the court introduced the “context” argument which allowed Justice Rush to determine her opinion of the context of my opinions.  This is the same woman whose Husband was almost murdered by one of her former clients in a home invasion.  This is the same woman who graduated with Humphrey and served on committees with Humphrey for over four years.  Justice Rush did not throw Negangard under the bus, she just lied about Negangard failing to explain the difference between threats of harm to reputation and threats of harm to personal safety because Negangard never claimed there were threats to personal safety.  If I would have made a threat of violence, my trial would have lasted 10 minutes.  “Dan Brewington wrote, ‘I am going to … blah, blah, blah…’ Ladies and gentlemen of the jury, here is the threat.”  That would have been it.  There was no threat and no invited error.  Justice Rush chose to protect Humphrey over upholding the 1^st Amendment of the US Constitution.

Sheriff Kreinhop's testimony demonstrates Justice Rush lied in Supreme Court Opinion

In the Indiana Supreme Court decision of Brewington v State, Justice Rush wrote the following, “And Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to both of his victims during his years-long vendetta against them.”  She went on to use the words volatile violent, violence, etc… approximately 20 times in her opinion to help rationalize the Court’s decision to uphold my convictions.  A casual reader of the opinion would conclude there must have been substantial evidence to support the claim I demonstrated violence against both Dr. Edward J Connor and Judge James D. Humphrey.  Actually there was none.  The word violence, or any derivative of the word, appears only four times throughout the course of my criminal trial.  Prosecutor Negangard used the word to explain to the jury the “fighting words exception” to the First Amendment.  Negangard stated:

“The thrust of the fighting words exception is become whether an objective standard, the words were stated as a personal insult to the hear [sic] and language and (inaudible) likely to provoke a violent reaction.” (Page 506 of trial transcripts)

Negangard uses the word “violent” three times in two sentences during the Prosecutor’s questioning of Judge James D. Humphrey when inquiring about Humphrey’s experience as a judge and former prosecutor.  Negangard asked the following to Humphrey:

“In your years as prosecutor have you had to prosecute murderers, rapists, child molesters, drug dealers and violent criminals?”

“In your years of Judge, have you had to sentence violent criminals, murderers, rapists, child molesters, drug dealers and violent criminals?”

There was only one mention of violence that pertained to my behavior during the entire four day criminal trial.  It came during my public defender’s questioning of Sheriff Michael Kreinhop, the only Dearborn County Law Enforcement Officer who participated in the investigation.  Public Defender Barrett asked the following of Sheriff Kreinhop (Page 410 of transcripts from criminal trial):

MR. BARRETT: Um, your investigation didn't reveal any acts of violence that Mr. Brewington committed against any public officials did it?

SHERIFF KREINHOP: No.

And that’s the evidence against me.  There is little doubt why Justice Loretta Rush attacked me by claiming I demonstrated violence against the victims.  It would throw any potential First Amendment supporters off the trail.  First Amendment Amici like James Bopp, Sheila Kennedy, The Indianapolis Star, and Eugene Volokh wouldn’t think of continuing to support me if Justice Rush claimed I committed acts of violence against Judge Humphrey or Dr. Connor.  So Justice Rush lied.  Rather than protect the First Amendment, Justice Rush conjured up stories of alleged violence to protect one of her own from being criticized.  (It is important to note that Justice Loretta Rush graduated with Judge James D. Humphrey from Indiana University School of Law, Bloomington in 1983.  The two also served together, along with the first judge in my divorce, Carl H. Taul, on the Juvenile Justice Improvement Committee in at least 2009, 2010, 2011, 2012, and 2013.)  This may not seem like a big deal to many but how can Justice Rush be trusted in any case; especially cases dealing with the death penalty.  Albert Einstein said, “Whoever is careless with the truth in small matters cannot be trusted with important matters.”  It’s depressing to think Indiana Supreme Court Justice Loretta Rush believes the First Amendment is a small, inconsequential matter, but how can this Supreme Court Justice be trusted to be fair in any decision coming before Indiana’s high court?  I would encourage people to be vigilant and outspoken but Justice Rush would rule that conduct as circumstantial evidence as to obsessive behavior, which can be used by judges and prosecutors to find more “hidden” threats in my writings that the general public is not smart enough to see for themselves.  (PLEASE NOTE, THE INDIANA SUPREME COURT’S DECISION ALSO ALLOWS LEGAL GUN OWNSHIP TO BE USED AS A BASIS FOR FEAR TO DETERMINE POTENTIAL HIDDEN THREATS IN CRITICAL SPEECH.  FEEL FREE TO CONTACT 2^ND AMENDMENT PROPONENTS.)  I guess my message to people is to be wary of taking action because Justice Rush and the Indiana Supreme Court have made it possible to label nearly any statement as a hidden threat if accompanied by a history of “obsessive” criticisms of public officials. 

Check out the blog post Trial Transcripts from 3/29/12 and do a search on any variation of the word “violence.”  If you have the time, read the several hundred page document and try to find any accusation by the prosecution that I threatened violence against anyone.  Feel free to review any court transcripts and/or evidence from my 2.5 year divorce to see where there are no allegations of domestic violence, child abuse, or threats of violent behavior.  Documents and history can be found on www.danbrewington.blogspot.com and www.danhelpskids.com.   

Should the attempted murder of Justice Rush's husband have disqualified her from writing the opinion in Brewington Case?

Should Indiana Supreme Court Justice Loretta Rush have disqualified herself in the case of Brewington v State of Indiana?  Indiana Judicial Code of Conduct Rule 2.11 (A) states, “A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.”  Judicial Canon 2.11 also states, “Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply.”  One of the key elements in the Brewington prosecution was the fear factor.  Without real fear, there is no threat.  Was it the intent of Dan Brewington to cause Judge James D. Humphrey and Dr. Edward J. Connor to fear for their lives and the safety of their families?  Perhaps a better question is could Justice Rush deliver an impartial opinion on the matter given her experience with a violent encounter with a former ward of the state for whom she served as a guardian-ad-litem (GAL).  In 1998, the former ward of the state broke into her home and tried to murder her husband.  In 2014, she wrote the opinion involving what Justice Rush considered to be hidden threats against Judge James D. Humphrey and his family.  Were Brewington’s statements true threats, or did the 1998 home invasion and attempted murder of her husband skew her objectivity?

Justice Rush wrote the Supreme Court’s opinion in upholding Dan Brewington’s convictions claiming Brewington’s writings were cleverly disguised threats aimed at Judge James D. Humphrey and Dr. Edward J. Connor.  One of the glaring discrepancies between the opinion written by Justice Rush and the record of Brewington’s divorce hearings and criminal trial was that Justice Rush wrote Brewington had a history of violence, when there had been no previous mention of violent behavior.  In writing the Court’s opinion, Justice Rush used the word “violence” three times in referring to Brewington, “violent” seven times, and the word “volatile” seven times.  Justice Rush cited Brewington’s actions in 2010 as evidence of how Brewington attempted to dissuade Dr. Connor from testifying in Brewington’s divorce although Dr. Connor had already testified in Brewington’s hearing on May 27, 2009.  There were other inaccuracies as well.  Brewington never bragged about having or knowing how to use firearms.  There was no record Brewington ever threw books in a legal proceeding.  Brewington has never been diagnosed with any mental disorder.  How did Justice Rush get all of this information wrong in her attempts to demonize Brewington?  Maybe she was haunted by her past experience. 

The early morning hours of November 18, 1998 were a very scary time for Loretta Rush.  In the 1980’s, Loretta Rush served as the GAL for John Swaynie when he was a ward of the state.  On the morning of November 18, 1998, 26 year old Swaynie broke into Rush’s home.  According to the Opinion and Order by the United States District Court of the Northern District of Indiana (dated April 24, 2008) on a Writ of Habeas Corpus filed by John Swaynie, the following took place at Rush’s home on November 18:

“In the early morning hours of November 18, 1998, Swaynie broke into the home of Loretta Rush (“Mrs. Rush”), who had served as Swaynie’s guardian-ad-litem in the 1980s when he was a minor.  Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002). When her husband Jim Rush (“Mr. Rush”) came downstairs to investigate, Swaynie attacked him, pinning him on the floor and choking him, while yelling up to Mrs. Rush, “I’m killing your husband.” Id. When Mrs. Rush could not get the telephone to work to call the police, she jumped out a window, breaking her shoulder in the process, in order to get help from a neighbor. Id. The neighbor ran to the Rush home and discovered Swaynie choking Mr. Rush. Id. He was able to pry Swaynie’s hands away and pin him down while Mr. Rush called the police. Id. The police arrived and arrested Swaynie.”

Swaynie was convicted of burglary and attempted murder and subsequently sentenced to 70 years in prison.

The District Court’s opinion also included information from a ruling from the Indiana Court of Appeals which stated, “Swaynie filed an amended pro se petition for post-conviction relief, asserting that during his pretrial incarceration, a jail physician examined him because he was exhibiting ‘volatile behavior.’”  Justice Rush used the word “volatile” seven times in writing the Brewington decision despite Brewington having no history of violence.  Justice Rush obsessed about Brewington’s level of psychological disturbance as reported by the custody evaluation of Dr. Connor yet failed to understand Dr. Connor recommended Brewington should be able to continue to care for Brewington’s one and three year old daughters at least three days a week.  During the criminal trial Dr. Connor reiterated that he recommended Brewington have “liberal parenting time” with his daughters.  Despite Dr. Connor’s professional opinion that Brewington was a very capable parent, Justice Rush cited Connor’s findings while claiming Brewington was a violent and dangerous man.

A person could only try to imagine the emotional trauma associated with seeing someone trying to murder a spouse, not to mention the physical pain associated with breaking bones from having to jump out of a window in an attempt to save the life of a family member.  Did the Brewington case cause Justice Rush to relive some of those horrid memories?  It may serve to explain how Justice Rush confused so many facts in Brewington’s case.  Justice Rush claimed Brewington threatened arson against Humphrey in retaliation for suspending Brewington’s parenting time but Brewington’s reference to pyromania came before the final hearing in Brewington’s divorce so it was impossible for Brewington’s statements to be retaliation for a prior lawful act.  The same goes for Justice Rush’s accounts of Brewington’s actions against Dr. Connor.  Brewington’s actions referenced by Justice Rush came after Dr. Connor’s testimony in Brewington’s divorce hearing so the actions could not have been an attempt to dissuade Dr. Connor from testifying because the testimony had already taken place.  It appears that Justice Rush (who happened to graduate from Indiana University’s Maurer School of Law with Judge James D. Humphrey; class of 1983) got so caught up in her own tragic experiences that she lost track of the facts of the Brewington case.  One can definitely feel for Justice Rush and the traumatic events that occurred in her home on November 18, 1998, but she still has a responsibility to remain impartial as a Justice of the Indiana Supreme Court.  If Justice Rush is unable to realize her traumatic experience compromises her ability to interpret facts or causes her to confuse cases, then she should probably step down from the bench.  Please feel free to contact state or federal officials with any concerns about Indiana Supreme Court Justice Loretta Rush.

First analysis of Indiana Supreme Court decision in Brewington v State of Indiana case

This blog will be breaking down the latest ruling by the Indiana Supreme Court in my case Brewington v State of Indiana.  Given the cut and paste hack-job, for the lack of a better word, in Justice Rush’s attempt to make me look like a mentally deranged individual, this is going to take some time to read, absorb, and cross-reference.  This ruling is very dangerous to the average person because it strips him/her of the ability to criticize judges.  This ruling, while claiming to separate threats to reputation and threats to personal safety as criminal acts, gives the State of Indiana the ability to determine what constitutes a “hidden” threat.  The ruling then allows the State to use constitutionally protected speech as circumstantial evidence to make an argument that the speaker is angry and a potential threat, because without anger and an element of fear, there is no threat or intimidation.  So when the State finds a statement or blog post it wants to deem a “hidden threat” against a judge or other elected official, the State can turn around and use any and all previous constitutionally protected writings to establish anger which is a key component in prosecuting someone for “hidden” or “secret” threats.  The following is an example how Justice Loretta H. Rush, who wrote the opinion, pieced together partial quotes from my blogs to help bolster the Supreme Court’s argument against Dan Brewington.

On page 6 of the Supreme Court decision, Justice Rush wrote the following:

He wrote in one post that the Doctor “may be a [p]ervert,” Ex. 181; and in another about a supposedly hypothetical “Dr. Custody Evaluator” who “made me so mad I wanted to beat him/her senseless” and “punch Dr. Custody Evaluator in the face.”  Then after that, Defendant showed up at an unrelated hearing where the Doctor was testifying, bragging afterward that his presence made the Doctor “a little nervous and from a psychological standpoint he probably should have been.”

Sounds a lot worse if taken out of context.  In a blog post written on January 20, 2010 titled, “Dr. Edward J. Connor may be a Pervert” I questioned Dr. Connor’s practice of asking women sexually explicit questions during custody evaluations without asking men the same questions.  I was simply questioning the fairness of only asking a woman sexual questions because the man would never be able to respond or give his perspective of the incident or situation in question.  Then Justice Rush proceeds to provide partial quotes from two other writings of mine without providing any context or timeframe as to when they were written.  On May 11, 2010 I wrote a blog titled “You wouldn’t lose your children because you criticized a plumber would you?”  In this blog I addressed two emails I received from individuals who were concerned about my situation.  I used an analogy that no one would think someone was crazy if, after a plumber failed to fix a plumbing problem, tracked mud through the house, while overcharging for the services, the person verbalized being so mad at a bad plumbing job that could punch the plumber “in the face.”  I then said if the person said the same thing about a custody evaluator and evaluation, the person could lose their children.  Justice Rush went on to write that I then wrote about seeing Dr. Connor at an unrelated court hearing where I wrote my presence caused Dr. Connor to appear “a little nervous from a psychological standpoint he probably should have been.” By itself it sounds like it could be a little over the top except I provided an extensive explanation of my statement.  In the blog post “Sometimes Ed says the craziest things,” written November 17, 2010, my explanation was as follows:

“As a psychologist, he probably believes that aggression or violence would be a common reaction for parents who had their children ripped from them without any warning or justifiable reason. As Dr. Connor was the one who maliciously attacked my credibility in an effort to hurt my children and me after I informed the public that Dr. Connor conducted himself in an unethical and illegal manner, he was probably concerned that I would be in the majority of parents who would have let anger take over. Fortunately for Dr. Connor, I do not fit into the demographic that would want to cause physical harm to someone who lied to hurt their children. I was just taking a legal approach to getting a better perspective of how Dr. Connor operates in other situations.”

This is how Justice Rush and the Supreme Court of the State of Indiana legally suppress free speech while dragging me through the mud.  Justice Rush took three out of context quotes from three blog posts written in a year’s time and pieced them together to make me look irrational.  In issues concerning free speech, the best way to discourage potential supporters of my cause is to make me appear irrational.  The Indiana Supreme Court is the irrational party here for attempting to compartmentalize political speech in an effort to punish those who pick on their own kind.  What is even most disturbing is Justice Rush used this information to support the Court’s decision to uphold my conviction of Attempted Obstruction of Justice.  These events occurred several months to well over a year after Dr. Connor’s testimony in my divorce case.  The Supreme Court argued I tried to prevent Dr. Connor from testifying in my divorce hearing over a year after the hearing took place. 

Stay tuned because I will be breaking down the Court decision to further demonstrate the atrocities Justice Loretta Rush and the Indiana Supreme Court have committed against the First Amendment of the United States Constitution.  I would like to thank all of the people who have continued to support me and my family through this whole ordeal.  Feel free to contact Indiana officials with any concerns about how the Indiana Supreme Court decision in Brewington v State goes against the liberties protected by the US Constitution.