Today the Indiana Judicial Nominating Commission convened and interviewed potential candidates for the position of Chief Justice of the Indiana Supreme Court. After publicly and privately interviewing the candidates, the Commission chose Justice Loretta H. Rush to be the next Chief Justice of the Indiana Supreme Court. This is the same Justice who wrote a Supreme Court decision stating that a defense attorney can waive a person’s constitutionally protected right to free speech. Justice Rush also wrote that taking advantage of a prosecution’s weak case or argument, by not raising issues on behalf of the prosecution could waive constitutionally protected rights. And now Justice Rush sits on top of the Indiana Judicial System.
Newly appointed Indiana Supreme Court Chief Justice Loretta H. Rush ruled that someone can be convicted for exercising a constitutionally protected freedom if the lawyer of the accused waives the defendant’s right to exercise that protected activity. Sound odd? It should. Justice Rush wrote that my public defender’s “strategy” in doing nothing to instruct the jury on the principle that a person cannot be criminally convicted for defamation of character, made “it quite possible that the impermissible criminal-defamation theory formed at least part of the basis for the jury’s guilty verdicts, and the general verdict cannot indicate otherwise.” Justice Rush acknowledged that it was “quite possible” I may have been convicted of intimidation based on constitutionally protected speech. Rather than remand the case back to trial to ensure the First Amendment of the United States Constitution was not used as a grounds for a criminal conviction, Justice Rush began rationalizing how it is possible for someone to go to prison for exercising their constitutional rights. Justice Rush wrote,
“Requesting instructions on actual malice would have called the State’s attention to the distinction it repeatedly overlooked between threatening the targets’ reputations under Indiana Code section 35-45-2-1(c)(6)–(7) and threatening their safety under subsections (c)(1)–(3).”
Rush went on to write the following about what she perceives to be the trial strategy of my public defender Bryan Barrett,
“Indeed, the theme throughout [Barrett’s] closing argument was that his speech was all protected political opinion, with no proof that he intended any of it to be threatening.”
Justice Rush described my public defender’s non-action in properly instructing the jury on the difference between threats to reputation and threats to safety as “strategy” yet referred to the prosecution’s non-action, in its failure to distinguish the difference between threats to reputation and threats to safety, as a repeated oversight. Rush wrote, “In effect, that approach sought to exploit the prosecutor’s improper reliance on “criminal defamation” to the defense’s advantage.” Rush somehow determined it was advantageous to me for the prosecution NOT to inform the jury nor the defendant exactly what conduct was considered criminal. Even more, Rush claimed my rights to free speech were waived because my public defender did not explain to the jury which of my actions were protected by free speech and which were illegal. Justice Loretta Rush effectively claimed that my public defender waived my rights to free speech because Bryan Barrett did not tell the jury that his client was guilty. Rush rationalized her decision with the following,
“In effect, that approach sought to exploit the prosecutor’s improper reliance on “criminal defamation” to the defense’s advantage.”
Not only did Justice Loretta H. Rush place the burden on a defendant to do the prosecutor’s job in instructing the defendant and the jury on what actions by the defendant the prosecution believes to be criminal, she rationalized her decision by stating,
“Defendant demonstrated significant sophistication about free-speech principles long before trial in a motion to dismiss these charges, Supp. App. 1–4, and confirmed it by his post-verdict, pre-sentencing blog posts, Sent. Ex. 1 at 2–3.”
First it should be noted that Justice Rush’s above claim is false. When my public defender, Bryan Barrett, refused to meet with me to discuss my case prior to trial, I filed three different motions on October 3, 2011, an hour before trial, to try to protect my constitutional right to free speech, fair trial, right to an attorney, etc… Despite pleading to the court that Bryan Barrett refused to call me, meet with me, provide me with evidence, discuss my explanation of events related to my case, or even provide an explanation of which of my actions constituted a crime, at no point did the trial court, Indiana Court of Appeals or Indiana Supreme Court ever investigate or even inquire into whether my statements about my public defender were true. Justice Rush even acknowledged the grand jury indictments were vague and compared my case to the case of Bachellar v. Maryland, where there was no particular act or statement that constituted intimidation. Rush wrote,
“Like Bachellar, the grand jury’s indictments against Defendant here do not allege any particular act or statement as constituting intimidation, instead alleging generally that his conduct as a whole “between August 1, 2007 and February 27, 2011” (as to the Doctor) and “between August 1, 2009 and February 27, 2011” (as to the Judge) was “intended to place [them] in fear of retaliation for a prior lawful act.” App. 22, 24. Nothing on the face of the indictments, then, creates confusion between protected or unprotected acts as the basis for conviction. Instead, like Bachellar, any confusion arises only because of how the case was argued and how the jury was instructed.”
An important component Rush failed to mention was the timeframe of events in the Bachellar case. Justice Rush claimed our cases were similar because the charges did not allege any particular act of intimidation where the prosecution relied on unspecified acts in a certain period of time. My non-defined “acts” that allegedly constituted intimidation occurred somewhere between August 1, 2007 and February 27, 2011; a period spanning 3 years, 6 months, and 26 days. In the Bachellar decision by the United States Supreme Court, Justice Brennan wrote,
“The prosecution arose out of a demonstration protesting the Vietnam War which was staged between 3 and shortly after 5 o'clock on the afternoon of March 2, 1966, in front of a United States Army recruiting station located on a downtown Baltimore Street.”
In Bachellar, the defendant was aware that the alleged crime occurred roughly in a two hour timeframe, on March 2, 1966, and the event occurred in front of an army recruiting station on a downtown Baltimore Street. In comparing my case to Bachellar, Justice Rush stated that as a defendant, I knew what actions of mine over the course of 3.5 years constituted a crime. She supported her claim by referencing the motions filed on the day of trial and by my post-verdict and pre-sentencing blog posts, which were written after the trial. Justice Rush determined my guilt based on evidence never presented to the jury. With that being said, in Bachellar, Justice Brennen wrote,
“Thus, since petitioners' convictions may have rested on an unconstitutional ground, they must be set aside.”
In my case, Indiana Supreme Court Justice Loretta H. Rush agreed that it was “quite possible” that my convictions rested on an unconstitutional ground yet she upheld my convictions because my public defender did not tell the jury what he felt the prosecutor felt was a violation of law. Justice Rush claimed that since my public defender went with an “all or nothing strategy,” he waived my constitutional rights because he made the argument that all my statements were protected. Rush believed my public defender had an obligation to assist the prosecution and tell the jury which of his client’s actions were against the law.
Justice Loretta H. Rush believes United States citizens can have their rights to free speech waived if their attorneys do not represent their clients in the “correct” manner or if the attorneys try to take advantage of deficiencies in the prosecutor’s case against their clients. This doesn't even take into account how Justice Rush ruled legal gun ownership may be considered as a factor of whether a person is likely to be more dangerous than a non-gun owner. Justice Rush also punished me for exercising my Fifth Amendment right to not testify in my own trial claiming it was part of the trial strategy that waived the same rights that were protected by the United States Supreme Court in the Bachellar case. Rush wrote,
“His decision not to testify, thus letting the case hinge solely on the sufficiency of the State’s proof, was also consistent with an “all or nothing” defense rather than the actual-malice defense he now says he should have had.”
In the courts of the United States of America, the burden is on the State to prove someone’s guilt. Justice Rush claimed the prosecution “repeatedly overlooked” the difference between threats to reputation and threats to safety. Rush claimed the indictments were non-specific. Rush said the prosecutor improperly relied on the “criminal defamation” argument. By her own account, Justice Rush acknowledges the prosecution’s argument against me was vague and unconstitutional yet I somehow waived my rights to constitutional protections because my attorney did not assist the prosecution in their case against me and because I chose not to testify because I felt the prosecution’s vague, criminal defamation argument failed to meet the burden of proof for a criminal conviction. Justice Rush explained the public defender’s and my “strategy” based on what she believed was our keen knowledge of First Amendment law, which happened to be approximately 15 pages after she corrected the Indiana Court of Appeals for not understanding the First Amendment when they issued a decision in my case in January 2013.
This November there is a retention election for Justice Loretta H. Rush. The above is every reason why people should go to the polls and vote to have her removed from her judicial seat. Either Justice Rush lacks the education and intellectual reasoning to understand and interpret the Constitution of the United States of America or she maliciously violated an oath she swore to uphold. Speak out, show up, and support the US Constitution this fall. Vote Rush off the Bench.
For more information, check out my Petition for Rehearing and Motion for Disqualification of Justice Loretta Rush; which were both denied, without explanation, by the Indiana Supreme Court. Please note there was never any mention of violence on my part anywhere throughout the grand jury process, criminal trial or at the Indiana Court of Appeals. Justice Rush stated I had a history of violence despite there never being any accusations of violent activity.