An informative perspective behind Rush's opinion in Brewington v State
Justice Loretta H. Rush and the Indiana Supreme Court have
wandered into dangerous constitutional and ethical waters in their recent
ruling in Brewington v State. I have
addressed some of the major points in the opinion, authored by Justice Rush, in
my Petition
for Rehearing and my Motion
for Judicial Disqualification, both filed with the Supreme Court last week. I decided to write and file the briefs on my
own because no lawyer could obtain a knowledge of the two thousand pages of
trial records necessary to refute the findings of Justice Rush. It was a conscience decision to fill the
Petition for Rehearing with fact and commonsense arguments rather than waste
case law on a Court that would go so far as to manipulate the jury’s findings
on my perjury conviction to help bolster the Supreme Court’s case against me. Hopefully this blog will provide a better
understanding of the minutia of circumstances used by Rush to uphold my
conviction; especially for those who filed briefs to the Supreme Court in support
of the First Amendment.
To put some perspective on how long the Indiana Supreme
Court took to decide my case, here are some relevant dates. On 3/26/2013, the briefs of the parties were
transmitted to the Indiana Supreme Court.
On 6/11/2013, the Court set oral arguments on my case, which took place
on 9/12/2013. The Court did not issue an
opinion until 5/1/2014. The Court
addressed the main concerns of the “Amici” (Latin term used for “friends of the
Court”) which dealt with the ruling of the Appellate Court. The Indiana Appellate Court ruled a true
statement could be a criminal threat if it caused the target of the statement
real fear. Justice Loretta Rush was
meticulous in addressing the concerns of the Amici, a body of media and legal
professionals. Justice Rush was much
less candid in addressing my concerns.
“Minutia” was a word used by the Amici to separate
themselves from the First Amendment issues and any details of my divorce. They only argued that a true statement should
not be subject to criminal punishment.
Knowing this, Justice Rush carefully crafted a decision that not only
satisfied the concerns of the Amici, but also gave the impression there was
much more to the underbelly of my case in regards to what she considered the
“true threatening” nature of my writings.
Justice Rush wrote extensively about my alleged history of violence
toward the victims when the only investigator in my criminal case testified
there were no acts of violence against any public official. If there had been multiple acts of violence
against a judge, the appropriate charges would have been filed. Rush claimed I demonstrated violence in Judge
Humphrey’s courtroom yet somehow I have never been held in contempt of court. Rush fooled the Amici by writing the State
could not criminally punish a true statement but the state could consider a
litany of true statements to be a pattern of obsessive behavior, constituting
circumstantial evidence, to demonstrate an intent to cause fear to a target of
speech. This rationalization gave the
green light to the Supreme Court to take my statements out of my context and
place them in the context of true “hidden” threats of physical violence. Without intent or fear, the out of context
statements are not even threats. The
Court based its finding of fear on the targets of my harsh criticism and my
“intent” on my “psychological profile” as diagnosed by the targets of my harsh
criticisms. The Court acknowledged I may
have been convicted on constitutional grounds but I waived my right to
challenge it because the Court claimed I invited the error. Justice Rush wrote my public defender, Bryan
Barrett, invited the error by strategically doing nothing. Justice Rush claimed Barrett’s strategy was
an attempt to take advantage of the prosecution’s oversight in failing to
differentiate threats to safety and threats to reputation. Justice Rush deemed Barrett’s strategy in not
properly informing the jury of the constitutional boundaries of the intimidation
statute to be “a deliberate eminently reasonable strategic choice.” Of course this is concerning because even the
Indiana Court of Appeals failed to reach the correct conclusion on what
constituted criminal speech. Indiana
Appellate 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 properly draw the line between protected and unprotected speech yet
somehow Justice Rush felt her perception of Bryan Barrett’s understanding of
federal and state constitutional law and Barrett’s “strategy” of doing nothing
justifiably waived my rights that are normally protected by the Constitution of
the United States. Even worse, Rush
placed the burden on the defendant to inform the jury which of the defendant’s
acts constitute a crime and which acts are constitutionally protected; thus
acknowledging that I was unable to build a proper defense in the absence of an
understanding of what actions constituted a crime. During the course of the trial, the prosecution
argued my speech was not protected because they were fighting words and my
intent was to bring hatred, ridicule, and disgrace to public officials. Despite the prosecution telling the jury my
intent was to harm reputations and/or invoke a violent reaction from a judge
and psychologist, Rush took a different route and introduced a new argument,
which I was unable to defend. Rush
claimed that my intent was to place the “victims” in fear for their lives. Rather than remand the case for a new trial
and allow a jury of my peers to decide if my actions were hidden threats of
violence, Rush and a “jury” of four other Supreme Court Justices determined
what would be considered true threats to judges.
Another very disturbing aspect of the ruling was the Supreme
Court’s reliance on my “psychological disturbance” as diagnosed by the targets
of my speech. Justice Rush attacked me
for alleging ex parte communication between the first judge in my divorce, Carl
H. Taul and, and Dr. Edward J. Connor.
She criticized me for blogging about my satisfaction in having Taul
removed from my case, and then wrote how Connor used my conduct in coming to
the conclusion I was “potentially dangerous.”
The main problem being it was Dr. Connor who first raised the issue of
the ex parte communication and Rush was well aware of this fact. In her opinion, Rush referred to State’s
Exhibit 67 on three different occasions to build the Court’s case against
me. Exhibit 67 has a copy of a letter
written by Dr. Connor on 2/25/2008 where Connor claimed Taul contacted him on
2/22/2008. There is no record of the
conversation other than Connor’s letter.
(Excerpt of State’s Exhibit 67 is attached to Motion for
Disqualification) Communication between
a witness and a judge outside the presence of the parties is against the
Indiana Rules of Judicial Conduct.
Rather than report Judge Taul, who has been a member of the Juvenile
Justice Committee with Justice Rush for at least the past six years, Rush
attacked me for writing about it. (Judge
Humphrey sat on the same committee with Rush and Taul for at least five years.)
The Amici were also not aware that Rush used events
occurring after my divorce hearing as evidence as how I attempted to obstruct
justice in my divorce hearing. Rush
claimed my “conduct” occurring as late as November 2010 was an attempt to
obstruct justice in my divorce hearing on May 27, 2009.
Probably the most frightening aspect of the Court’s opinion
authored by Justice Loretta Rush is the discussion of my perjury conviction. I was convicted for perjury for stating I did
not know for sure if James Humphrey and Heidi Humphrey were married when I
advised people to send concerns or opinions to Heidi Humphrey who was an
advisor to the Indiana Supreme Court Ethics and Professionalism Committee. Despite there being no evidence presented
that I knew for sure that James and Heidi Humphrey were married, Justice Rush
wrote that I feigned ignorance, and that I did know or should have known. This is not the worst part. Rush also wrote the Jury found me guilty of
lying about my intentions of having people send letters to Heidi Humphrey when
there was no such jury instructions and subsequently no such ruling. The significance of Rush’s statement is found
in the word “intent,” the cornerstone of the Supreme Court’s argument against
me. First it should be noted that if the
Court has to work at developing an argument as to why speech isn’t protected,
it probably is. Rush argued my intent
was to place Humphrey in fear for his life and to support her argument she
manipulated the record to give the appearance the jury found me guilty of lying
about my intent. Justice Rush, who has
been praised by the legal community for “her thoughtfully crafted and impactful
opinions” fabricated a separate jury finding to strengthen her opinion against
Brewington. If Rush’s misinterpretation of the perjury conviction is
unintentional, then the trial record is so fractured there is no other choice
than to remand the entire case back for a new trial. If the Indiana Supreme Court cannot
understand the facts of the case, how can a jury?
There is little question the actions of Justice Rush are
anything but intentional and malicious.
To give Rush the benefit of the doubt casts a tremendous shadow on her
competence as a Justice on the Indiana Supreme Court. Rush’s opinion left me for dead in the eyes
of the Amici because they had no reason to doubt any error in Rush’s
conclusions; especially as Rush had well over a year to review the record and
form an opinion. Rather than error on
the side of the Constitution of the United States of America, Justice Rush
looked for every possible excuse why NOT to, at minimum, remand the case back
for a new trial and allow a jury to decide what constitutes a “hidden” threat
against judges rather than allow a panel of judges to decide what they believe
a jury would deem to be “hidden” threats against themselves This doesn’t even take into account the
question of whether Rush should have presided over the case given my case deals
with protecting judicial officers and her husband was nearly murdered during a
home invasion by someone with whom Rush had a connection through the court
system. (Addressed in Motion for
Judicial Disqualification.) I hope
people take note of the actions of Justice Loretta H. Rush as this calls into
question her ability to rule on any matter in any judicial capacity. In a world where people on death row are
being exonerated with the advancement of science and forensic technology,
Justice Rush’s inability or refusal to remain impartial can jeopardize the
lives of innocent people. Please forward
this information to others. Thank you
for your ongoing support.
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