The Office of the Indiana Attorney General recently
requested the Indiana Court of Appeals to do the absurd; read someone’s mind.
In the recent Court of Appeals opinion in Derrick
Weedman v. State of Indiana, authored by Judge Michael P. Barnes
(filed November 26, 2014), the Indiana Attorney General argued Weedman waived
his right to seek relief from improperly admitted evidence at trial because the
AG claimed the failure of Weedman’s attorney to object to the unfairly prejudicial
evidence was clearly a trial strategy on the part of the defense counsel; thus
waiving Weedman’s right to raise the issue during appeal. The Indiana Court of
Appeals addressed the AG’s request in footnote 3 of the opinion, “We simply
have no information regarding Weedman’s trial counsel’s thoughts on his
strategy.” Weedman v. State,
90A04-1311-CR-549. Where would the Indiana Attorney General get the idea that
the higher courts of the State of Indiana are in the business of reading the
minds of defense attorneys in order to deny defendants the ability to appeal
fundamental errors in trial? From the case of Daniel
Brewington v. State, 7 N.E.3d 946 (Ind. 2014). Apparently Appellate Judge
Michael P. Barnes and the Indiana Court of Appeals lack the mind reading
abilities of Chief Justice
Loretta H. Rush and the Indiana
Supreme Court.
“[Brewington] is correct that the instructions were
erroneous and created a general-verdict error—but he affirmatively invited
those errors as part of a perfectly reasonable trial strategy. When an error is
invited for such legitimate reasons, it is neither fundamental error nor
ineffective assistance of counsel.” Justice Rush wrote it was impossible to
determine if the guilty verdict in Brewington’s trial was based on constitutionally
protected activity because the jury instructions were constitutionally
incomplete. Previous rulings by the United States Supreme Court mandate the
reversal of a conviction based on constitutionally protected activity. Justice
Rush wrote the general verdict error was a result of “the prosecutor’s improper
reliance on ‘criminal defamation’” and “constitutionally incomplete jury
instructions” but ruled the Indiana Supreme Court would “not grant relief from
what by all indications was a deliberate and eminently reasonable strategic
choice” by defense counsel. Rush wrote Brewington’s defense counsel “sought to
exploit the prosecutor’s improper reliance on ‘criminal defamation’ to the
defense’s advantage.” The Indiana Supreme Court ruled the failure to object to “constitutionally
incomplete jury instructions” and a “plainly impermissible” criminal defamation
argument by the prosecution was not ineffective assistance of counsel, rather a
sound defense strategy. Justice Rush and the Indiana Supreme Court opined that
defense counsel’s failure to object to the constitutionally flawed trial was “part
of a reasonable defense strategy, and therefore may not raise it as grounds for
relief.” Rush further justified the Supreme Court’s trial strategy argument by
writing Brewington’s, “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. What also distinguishes Weedman from Brewington is the
Attorney General raised the trial strategy argument in Weedman. Justice Loretta
H. Rush and the Indiana Supreme Court raised the issue on their own when they
either speculated or read the mind of Brewington’s defense attorney in order to
reach the Court’s conclusion because there was simply no information regarding
Brewington’s trial counsel’s thoughts on his strategy on the record. [Note: Transcripts of the beginning of trial demonstrate Brewington informing the trial court Brewington had not met with his public defender to discuss his case and he, himself, was not aware of his own trial strategy nor was he aware what conduct led to the indictments against him.]
Brewington filed a writ
of certiorari on October 29, 2014 so his case is now in the hands of the United
States Supreme Court. At this point, no attorneys,
groups, or organizations have stepped forward to publicly support Brewington’s
writ that addresses how Brewington was denied proper constitutionally relief
because the Indiana Supreme Court did what the Indiana Court of Appeals refused
to do; get into the business of reading minds in order to justify not following
the Constitution of the United States of America. Brewington was denied
probation and completed a 2.5 year prison sentence on 9/5/2013.
