Does this Shock Your Conscience?

Manifest injustice: something which is 'obviously unfair' or 'shocking to the conscience.' It refers to an unfairness that is direct, obvious, and observable.

This is a direction I am considering in preparing to petition the Supreme Court of the United States of America.  There are very few rights more fundamental than a criminal defendant’s right to know which of his actions led to the charges against him.  The following statements are from the opinion of the Indiana Supreme Court in my criminal case.  Of course the author of the opinion is Chief Justice Loretta H. Rush.  And if you read this blog, I guarantee you will be calling for her resignation from the Indiana Supreme Court.

Rush said the jury instructions were unconstitutional:

“…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”

“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—but as discussed below, [Brewington’s public defender] invited that error as part of a reasonable defense strategy, and therefore may not raise it as grounds for relief.”

Rush then said the prosecution improperly argued to a jury that I could be criminally prosecuted for lawful actions but I tried to take advantage of the unconstitutional trial:

“In effect, that approach 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 [Brewington’s] speech, and on that basis to find the ambiguous aspects of his conduct to be protected as well.”

“Requesting instructions on actual malice would have called the State’s attention to the distinction it repeatedly overlooked between threatening the targets’ reputations…and threatening their safety.”

After claiming I tried to take advantage of being prosecuted for a non-crime, rather than assume the State failed to meet its burden of proving the case against me, negating the need for me to testify in my defense, Indiana Supreme Court Chief Justice Loretta H. Rush speculated the decision to exercise my Fifth Amendment Right not to testify somehow coincided with what Rush speculated was my trial strategy, which somehow added to the weight of me waiving my rights to appeal the unconstitutional trial:

“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.”

Trial Strategy?  How can a defendant develop a plausible trial strategy when the Chief Justice of the Indiana Supreme Court affirmatively stated the prosecution failed to acknowledge what conduct of mine was illegal and argued I should be convicted for constitutionally protected speech?  Then after listening to an implausible prosecution theory without a statement of a crime, the jury was not provided with constitutionally sufficient jury instructions, yet somehow Rush concluded my ability to appeal the matter was waived because my public defender’s strategy in doing nothing sought to take advantage of the unconstitutional prosecution.  Here is where I want to invite legal scholars around the globe to take note and maybe offer a little perspective into how to build a plausible defense against the following argument made by Dearborn County Deputy Prosecutor “Barney” Kisor during the prosecution’s closing arguments in my trial [NOTE: This quote has not been edited or modified in any way]:

“Craziness, dangerousness and then multiple times the threats to Dr. Connor — the game.  It's only a game to one man — Dan Brewington.  But when you tell me the game is over. We're not playing, we're taking off the gloves now, we may be, we're getting out the weapon ring, I don't know what we're going. The game is over? It ain't a game. Don't make it a game. Don't buy that it's a game because it's not. Those are threats and there's only a, there's a lot more threats. I probably haven't even highlighted the best ones.”

The best ones?  There was an eighteen month investigation by the federally funded Dearborn County Special Crimes Unit headed by Dearborn County Prosecutor F. Aaron Negangard.  A two day Grand Jury investigation.  My $600,000 bond.  There were three judges.  I had two public defenders.  My trial lasted four days.  Despite spending hundreds of man-hours and tens of thousands of dollars investigating, housing, and prosecuting me, Deputy Joseph Kisor and the Dearborn County Prosecutor’s Office claim in the closing arguments of my criminal trial that “they probably haven’t even highlighted the best threats” that caused Judge James D. Humphrey and Dr. Edward J. Connor to fear for their lives and the lives of their families.  How could I possibly develop a trial strategy if the prosecution admits they haven’t even told anyone what the best crimes are?  Someone should be calling for Kisor’s resignation.

I never knew which of my actions the prosecution alleged to be a crime.  “In general, an indictment is constitutionally adequate if it ‘contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend’” United States v Landham, 251 F.3d 1072 (6th Cir. 2001).  Despite knowing my indictments fall short of this constitutional requirement, Justice Rush reworded my indictments to try to strengthen the case she felt she needed to build against me.  Rush wrote:

“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."

Wrong.  What creates confusion is Justice Rush’s need to mislead the reader.  That was not the conclusion of the grand jury.  The front page of the Court’s Final Jury Instructions, filed October 6, 2011, contains the grand jury indictment that states the “Grand Jurors of Dearborn County”…“do present that on or about or between August 1, 2007 and February 27, 2011, Daniel Brewington did communicate a threat to another person, to-wit: Dr. Edward Connor, with the intent that Dr. Edward Connor be placed in fear of retaliation for a prior lawful act.”

A THREAT.  On or about or between a 43 month time-frame, Dan Brewington communicated A threat.  The letter “A” followed by a singular noun is a single entity.  The indictment says the grand jury alleged I communicated A THREAT; the grand jury did not allege “generally that [my] conduct as a whole was ‘intended to place [the “victims”] in fear of retaliation for a prior lawful act.’”  As Justice Rush acknowledged the prosecution failed to define what specific conduct constituted an illegal threat, I was left with the task of guessing which of my actions over the course of 43 months were considered illegal by the standards of the Office of the Dearborn County Prosecutor.  As Justice Rush stated the prosecution argued I could be convicted under the prosecution’s unconstitutional criminal defamation theory, nearly all my actions were deemed illegal by the prosecution.  I hope people understand the severity of this situation.  The Chief Justice of the Indiana Supreme Court, Loretta H. Rush, after citing my “defense strategy” as the reason I waived my right to appeal what she deemed to be an unconstitutional prosecution and criminal trial on a number of levels, altered the wording of my, otherwise constitutionally defunct indictment, in an effort to solidify her judgment against me.  Rush did this because she thought she could get away with squashing the little guy who spoke out about her kind.  Does this shock your conscience?  Someone should be calling for the resignation of Chief Justice Loretta H. Rush.    

Some thoughts from an 8 year vet of the Family Court System

If you ask me for advice regarding custody or divorce issues, I'll give it because I care. The system isn't fun or fair, and rarely is anything resolved in an expeditious fashion. Please do not ask me for my opinion if you do not want to hear it. I'm an optimist grounded in reality. I'm not an enabler, I'm a true friend. If you think I am going to condone bad behavior because the other side has done something wrong; you are wrong. Two wrongs never make a right. There may be no "me time." These are the things a parent in the bowls of a bad family court situation must realize. Everything you say and do, as well as those around you, will probably be used in court. Months or years of good behavior can be ruined by a seemingly insignificant event. It's not easy. People fall down. I'll always be there for a friend with an ear or a shoulder for support. Please do not confuse my sympathy with my approval. If I pat you on the head and say "It's going to be okay because they did it too" then I'm not being a friend. I'll help you get past the mistake and work on a game plan to move on effectively. If someone is willing to put forth the effort needed to weather the hurricane, I'll ride out the entire storm beside them.

-just wanted to share my thoughts from my Facebook page.  Dan Brewington 9/21/14

The "Do What I Think or You're Gonna Die!" Threat Test

Here is an example of a legitimate test for a true threat as explained to the jury in the closing arguments by the government in the case of U.S. v. Turner; 720 F.3d 411 (2nd Cir. 2013):

“In this country, you can criticize people, you can use hate speech, love speech, or anything in-between. But the minute you say [" ]do what I think or you're gonna die,[" ] that's not protected speech. And that's what the judge will instruct you, that threats, as defined by these instructions, [are] not protected by the First Amendment. You don't have to let that be part of your analysis at all.”

“Do what I think or you’re gonna DIE” was the government’s explanation of the true threat test the jury was to rely on.  Dearborn County Deputy Prosecutor Joseph Kisor provided the jury with a different standard of review of a true threat:

“These threats weren't just little opinions, little criticisms. You know maybe they were. Maybe they were if he was [man] enough to write Judge Humphrey or Ed Connor a letter and say you're a liar, you're a child abuser, you screwed me, blah, blah, blah, blah, blah. But when you do this over and over and over again with only one purpose to harass and bring them to ridicule and put them in fear, that is not an appropriate exercise of speech. That's a crime. That's a bunch of crimes and that's why he's sitting right there.”

Dearborn County Prosecutor F. Aaron Negangard gave his own explanation to the jury of what defined criminal threats:

“Is this political speech or is this something intended to punish Judge Humphrey for ruling against him?  You get to decide but I think the evidence is clear and it's clear beyond a reasonable doubt.”

“That's the law and you can't go so far as to lie. He just didn't say he's a bad judge, he's not a fair judge, he didn't listen to me. That's fine. He could have even called him a son-of-a-bitch if he wanted, alright? That's probably okay. Not smart but probably okay. Not smart when you got cases in front of him. But he can say that. But what he can't say, he's a child abuser because it's not true”

That's clear evidence of his intent here ladies and gentlemen.  It's not a political discourse. It is so he can humiliate, expose Judge Humphrey to hatred, contempt, and ridicule.”

Then Deputy Kisor said American soldiers did not fight and die to give me the ability to criticize the family court system (Which by the way deeply offended some friends and family of mine who served in Vietnam):

“He was taking on our judicial system.  Why? Because after full and fair hearing, he didn't like the way the facts came out. He didn't like the way they were going to come out. He wasn't just taking on Judge Humphrey. He was taking on everything about our legal system that people have fought and died for. You know what, I don't think any American Soldier ever lost his life, gave his life in any war so that Dan Brewington could threaten Judge Humphrey and Heidi Humphrey and Ed Connor and Sarah Jones-Connor.”

Deputy Kisor explained the “WHOLE intent” of my actions:

“This is the one [Dan Brewington] just could not stop doing — exposing the people that he was threatening through the hatred and contempt and disgrace and ridicule. That was his whole intent. That's his only intent. There's no legitimate purpose for what he did except that and the other possible threats.”

My prosecution/persecution was never about law; it was about protecting Child Psychologist Dr. Edward J. Connor and Dearborn County Circuit Court Judge James D. Humphrey.  My intent has always been to share my story regarding my experiences in dealing with these less than desirable court “professionals.”  If reporting their actions causes them fear, I’m sorry about their luck.  The most disturbing part of my case is the Indiana Supreme Court decision, written by newly the appointed Chief Justice, Loretta H. Rush.  Prosecutors Negangard and Kisor spent three days complaining about how many times I called Judge Humphrey a child abuser or how I called Dr. Connor a pervert for only asking women sexually provocative questions during custody evaluations.  They did not argue I made any direct or indirect threats.  They both argued that, as deputy prosecutor Kisor stated, all of my “little opinions” and “little criticisms” amounted to threats to personal safety because I over did it with the free speech.  Justice Rush and the other four Justices decided to protect their own as well by claiming I had a history of violence against the victims but the opinion by high court of Indiana was “surprisingly” void of any examples of said violence.  Hopefully the United States Supreme Court will see the importance of accepting my case.  Please forward this information to anyone who understands the importance of free speech and the right to criticize government officials.

Chief Justice Rush alleges Jury Misconduct and Malicious Prosecution

An in-depth analysis of Daniel Brewington v State of Indiana demonstrates how the findings by the Indiana Supreme Court, in an opinion written by now Chief Justice Loretta H. Rush, alleges malicious prosecution as well as misconduct on the part of the jury in my trial.  In the Court’s opinion filed on May 1, 2014, Justice Rush wrote:

“To the extent Defendant attempted to veil his threats behind self-serving disclaimers and supposed ‘hypotheticals,’ the victims saw through that pretext—as did the jury, and as do we.’”

The first thing to note is I never made any specific threat to Judge James D. Humphrey.  [In upholding my conviction of attempted obstruction of justice of my divorce, Justice Rush referred to a blog post of mine where she claimed I made a hidden threat to punch Dr. Edward J. Connor in the face.  The Supreme Court stated this was an attempt to intimidate Dr. Connor in an effort to keep him from testifying in my divorce hearing.  Besides being an obvious non-violent analogy about making a consumer complaint against a plumber vs a custody evaluator, the obvious flaw with this argument is the blog was posted on May 11, 2010; 350 days after Dr. Connor’s testimony I was supposedly trying to obstruct occurred.]  If someone were to feel the need to argue this point, I would direct you to the Statehouse in Indianapolis, Indiana because it was Justice Rush who wrote:

“Since Defendant never stated an overt threat against the Judge, we begin by examining the circumstantial evidence to determine whether Defendant knew his actions would be understood as a threat.”

First it’s important to note that in Indiana, the State does not bear the burden to prove the existence of a real threat in a criminal intimation trial.  The Court’s ruling in my case has whittled First Amendment protections down to the point where a prosecutor may arrest and try someone for intimidation if a prosecutor believes there is evidence a person would understand his public statements about public officials could be understood as a threat by the “victims.”  Obviously any public scrutiny of public officials has the potential to stir angry reactions from the readers of the speech.  It goes without saying that the targets of that speech may experience some element of fear or feel threatened due to that public anger.  However, outlawing speech critical of public officials because of public outrage only serves to shield the officials from criticism and public outrage; a huge component in public accountability.  The freedom to criticize judges is even more critical.  Attorneys are barred from criticizing judges.  Judges enjoy absolute immunity from civil action dealing with anything considered to be within the realm of their judicial capacity.  As the law currently stands in Indiana, in a case dealing with an unhappy litigant’s persistent complaints about a presiding judge, a prosecutor need only demonstrate in court that the speaker had a reasonable understanding that the judge, who was the target of the speech, may have viewed the speech as a threat.  The only other requirement for conviction is to have the judge testify he viewed the speech as a threat. 

Another key point that cannot be contested, per Justice Loretta H. Rush and the other four members of the high court in Indiana, is that I was a victim of an unconstitutional prosecution.  Rush wrote it was “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.”  This was due to what Justice Rush referred to as “the prosecutor’s improper reliance on ‘criminal defamation’” during my criminal trial. She also said the prosecution “repeatedly overlooked” the distinction between threats to reputation and threats to safety.  A substantial part if not all of my defense centered around rebutting what the Supreme Court found to be Prosecutor Negangard’s unconstitutional criminal prosecution of speech.   Rush sidestepped the constitutional violation by claiming I somehow invited the errors associated with the malicious prosecution.  The Supreme Court ruled the State did not have to prove a real threat.  The State did not have to make a constitutional argument.  The State did not have to tell the jury or the defendant which of the defendant’s actions constituted a crime, nor provide the jury with constitutionally adequate jury instructions.  Justice Rush claimed my “crime” consisted of knowing the “victims” of my case would interpret my speech as threats and then asserted the jury came to the same conclusion as the Supreme Court as the jury also saw through my “pretext” and found that I tried to disguise my hidden threats.  As Justice Rush found the prosecution’s criminal defamation argument to be unconstitutional, the indictments by the grand jury would fail any constitutional test.

How Justice Rush knew the thoughts of the jurors is a mystery.  Rush’s interpretation of the jury’s findings in my trial differ from the prosecution’s trial arguments.  Rush’s opinion claimed the prosecution’s criminal defamation argument was incorrect, the prosecution failed to make the distinction between legal and illegal conduct, while also stating the general-verdict error made it impossible to determine what factors compelled the jury to return a guilty verdict; yet Justice Loretta H. Rush and the Indiana Supreme Court claimed to somehow know the specific logic behind the jury’s findings.  If you rule out the premise that Loretta Rush and the Indiana Supreme Court would lie about knowing the thoughts behind the jurors’ findings, the only means by which the Indiana Supreme Court could obtain the jury’s thought process in returning a guilty verdict is if the Court physically interviewed the jurors.  Even if Justice Rush and the Indiana Supreme Court employed some kind of supernatural psychic powers in determining the exact logic behind the thoughts of the jurors, the actions of the jurors would constitute jury misconduct as they returned a verdict in my trial that wasn’t consistent with the prosecution’s arguments nor the jury instructions.  By default, the “guilty beyond a reasonable doubt” requirement mandated by the jury instructions fails miserably when the current Chief Justice of the Indiana Supreme Court claims the prosecution pursued a conviction for constitutionally protected activity; an error which is impossible for a defendant to invite.  Yet somehow Justice Loretta Rush claimed, "the failure of the jury instructions and general verdict to distinguish between protected speech and unprotected true threats did not prejudice Defendant’s substantial rights here."

There is little doubt in my mind that Indiana Supreme Court Justice Loretta H. Rush crafted the Court’s opinion in this case to send the following message to me or any other person who may criticize judges in the State of Indiana, “DON’T F*** WITH US!”  This fails to account that Rush used the exercising of my Fifth Amendment Right not to testify and evidence presented AFTER the trial, both of which are or should be out of reach of the jurors, as factors in rationalizing my “guilt” and upholding my conviction.  The Indiana Supreme Court did not take these measures to prove that I was the suspect who committed a crime, they resorted to extreme speculation in an effort to make an argument that a crime against the First Amendment was even committed.  I continue to closely analyze Rush’s opinion to find more constitutional arguments that exist within the discrepancies of Rush’s own statements.  Rush tried to custom tailor an opinion in such a manner to thwart any attempt to appeal to the United States Supreme Court.  Rush’s efforts may have unknowingly narrowed down the complexity of my petition to the High Court of the country.  I’ve already contacted a legal publisher and plan on filing my petition for a writ of certiorari well before the October 29, 2014 deadline.  Stay tuned for more information. 

“It is not, what a lawyer tells me I may do; but what humanity, reason, and justice, tell me I ought to do.”

― Edmund Burke, Speech on Conciliation with America