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.