The reason much of this is so difficult for people to understand, other than the people who just get it, is that the whole situation is so illogical. Indiana Chief Justice Loretta H. Rush blamed Dan Brewington and his public defender for the prosecution’s failure to provide the jury and Brewington with an explanation of what actions were responsible for the charges against Brewington. A logical person would never blame a defendant for the prosecution’s failure to properly state its case against the defendant, which is exactly what Justice Loretta Rush wrote in her opinion for the Indiana Supreme Court. It is incomprehensible that a reasonable person would rationalize a defendant could somehow unknowingly waive his Sixth Amendment Right to know the nature of the charges against him. That’s what Justice Rush did. The following is an attempt to demonstrate the absurdity of Rush’s claim.
Rush said it was quite possible the jury convicted Dan Brewington for engaging in constitutionally protected activity requiring Justice Rush and the Supreme Court to correct Brewington’s conviction as she stated the following:
“That makes 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. Accordingly, [the case of] Bachellar compels us to find a general-verdict error here.”
Chief Justice Rush wrote the following about the findings of the Indiana Court of Appeals:
“[T]he Court of Appeals erred in relying on [threats to reputation] to support Defendant’s convictions for intimidating a judge and attempted obstruction of justice.”
Justice Rush stated the Indiana Court of Appeals improperly relied on criminal defamation to uphold my convictions. Rush also wrote the prosecution in my criminal trial repeatedly “overlooked” the distinction “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 made the argument that the prosecution and the Indiana Court of Appeals did not know, or least failed to make known, the distinction between threats to reputation and threats to safety and that it was probable Brewington was convicted of engaging in constitutionally protected activity yet it was Brewington’s fault that the Supreme Court would not reverse the ruling. Rush cited United States v. Jernigan when stating:
“’[P]lain error review is unavailable in cases where a criminal defendant ‘invites’ the constitutional error of which he complains.’ And though it was constitutionally incomplete to instruct the jury on the First Amendment and Article I, Section 9 of our state Constitution without also instructing it on actual malice, glossing over those distinctions was essential to Defendant’s defense.”
“In effect, [not objecting to a general verdict instruction to the jury] 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.”
“Requesting [jury] 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 claimed both the prosecution and the Indiana Court of Appeals were mistaken in relying on criminal defamation in prosecuting Brewington and it was probable that the jury convicted Brewington of engaging in Constitutionally protected activity, BUT claimed Brewington somehow invited the prosecution’s error:
“Defendant invited that error as part of a reasonable defense strategy, and therefore may not raise it as grounds for relief.”
Justice Rush claimed the Indiana Court of Appeals was unable to constitutionally uphold Brewington’s convictions while claiming the prosecutor did not give any explanation as to what parts of Brewington’s speech was or was not protected. Rush stated the prosecution never furnished the jury, and subsequently Brewington and his public defender, with an explanation as to which of Brewington’s actions were considered threats to safety or threats to reputation; the latter of which is not a violation of law. Somehow, Justice Rush rationalized that Brewington’s public defender tried to take advantage of the Dearborn County Prosecutor’s attempts to prosecute Dan Brewington for constitutionally protected speech. Loretta H. Rush, the new Chief Justice of the Indiana Supreme Court, claimed Brewington waived his rights to constitutional protections by asserting Brewington’s public defender developed a strategy that attempted to take advantage of Dearborn County Prosecutor Aaron Negangard's attempts to prosecute him for constitutionally protected activity. Rush claimed the jury and the Indiana Court of Appeals were unaware of the parameters of criminally punishable speech because Negangard never explained which of Brewington’s acts were unlawful. This conclusion alone demonstrates Rush was fully aware that Brewington’s public defender failed to provide Brewington with an understanding of which of Brewington’s actions were responsible for the crimes and providing a defendant with an understanding of the charges against him is a key component of the Sixth Amendment of the US Constitution, but somehow this is all Brewington’s fault. In the absence of knowing which of Brewington’s actions were responsible for the criminal trial, it was impossible for Brewington’s public defender to devise any competent strategy for Brewington’s defense. …But that’s just how things work in the State of Indiana.