Wednesday, September 24, 2014

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.    

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