The appointment of Loretta H. Rush to the position of Chief Justice of the Indiana Supreme Court delivers a sharp blow to the Sixth Amendment of the United States Constitution. In the Indiana Supreme Court’s decision in Brewington v State, filed May 1, 2014, Justice Rush wrote:
“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).”
Justice Rush acknowledged Dearborn County Prosecutor F. Aaron Negangard and his deputies failed to make the argument that the statements Daniel Brewington made about Dr. Edward J. Connor and Judge James D. Humphrey were threats to personal safety. Negangard argued Brewington’s speech was false and constituted fighting words, which are words intended to invoke a violent reaction from Judge James D. Humphrey and Dr. Edward J. Connor. Brewington was essentially convicted of criminal defamation, which was affirmed by the Indiana Court of Appeals. In the opinion from the Indiana Court of Appeals, filed January 17, 2013. Justice Carr Darden wrote, “Even if the State was required to prove that Brewington knew his internet postings and other communications about Judge Humphrey were false, there is ample evidence of Brewington’s knowledge.[sic] His public comments went well beyond hyperbole and were capable of being proven true or false.” When the case was brought before the Indiana Supreme Court, Justice Rush wrote making “false” statements, which Judge Darden acknowledged the prosecution failed to prove were false, were constitutionally protected speech. Rather than remand the case back to trial because the jury was never informed that Brewington could not be prosecuted for criminal defamation especially without providing proof that Brewington’s statements were false, Justice Rush went through the entire record of the case and decided what she believed to be examples of true threats to physical safety. Even if Justice Rush’s findings about Brewington's statements were accurate, the fact still remains that it was not until after Brewington’s case reached the Indiana Supreme Court did anyone define what parts of Brewington’s speech constituted true threats to personal safety, leaving Brewington unable to prepare a defense against the alleged threats during trial. Rush said Prosecutor Negangard made the wrong argument then went on to make an argument for the prosecution based on evidence falling outside the view of the jury, then proceeded to, in effect, affirm her own argument she made for the prosecution.
Brewington was found guilty of Intimidation for making unproven “false” statements. The Sixth Amendment of the United States Constitution protects a defendant’s right to be “informed of the nature and cause of the accusation” of the indictments against him. Despite acknowledging Brewington was never afforded the opportunity to know which of his statements over the course of 3.5 years constituted true threats to safety, Justice Rush wrote, “under the circumstances of this case, we find neither fundamental error nor ineffective assistance of counsel in allowing Defendant to be convicted under general verdicts that failed to distinguish between protected “criminal defamation” and unprotected “true threats.” Even after pointing out the constitutional flaws in Rush's decision, the Indiana Supreme Court denied Brewington's Petition for Rehearing without explanation.
And Loretta H. Rush has just been named the Chief Justice of the Indiana Supreme Court. If the Chief Justice of the Supreme Court can arbitrarily decide which citizen is allowed to enjoy the protections guaranteed to him by the US Constitution, all constitutional rights are in jeopardy in Indiana. This November, Indiana residents need to vote Chief Justice Loretta H. Rush off the Indiana Supreme Court.