IN Court of Appeals: We can't read minds like the IN Supreme Court

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.

Brewington Writ of Certiorari for the United States Supreme Court

Today, October 29, 2014, is my deadline for petitioning the United States Supreme Court.  With the help of my mother and brother, to which there are no words to describe their ongoing love and support, I was able to send the finished product off to the publisher yesterday so my Petition for a Writ of Certiorari will be properly sent and served to the Office of the Indiana Attorney General and the Supreme Court of the United States of America by the end of the day today (Click here for a copy of the petition without appendix). The following excerpt is my closing statement from the Petition:

"The Petitioner made every effort to preserve his rights under the United States Constitution in a criminal action that was brought against Petitioner in retaliation for Petitioner’s criticisms of court officials. The Petitioner files his pro se writ of certiorari after being subjected to outrageous bonds, denial of counsel, and serving 2.5 years in prison because a prosecutor was able to obtain unconstitutional general conduct indictments and convictions by implementing a constitutionally invalid legal argument. The Indiana Supreme Court found that Petitioner’s alleged psychological disturbance was circumstantial evidence toward the commission of a crime yet the trial judge and public defender who both work out of the Rush County, Indiana Courthouse, failed to provide Petitioner with any mental health treatment or psychological evaluations in preparation of an effective defense. As Justice Rush and the Indiana Supreme Court have already stated the Petitioner’s guilty conviction is a general verdict error, it would be a miscarriage of justice not to reverse his convictions. The most telling evidence that the Petitioner’s internet writings enjoy First Amendment protections is the fact that no court of law has attempted to force the Petitioner to remove what the Indiana Courts deem to be hidden threats of violence. Petitioner’s experiences are still available at www.danhelpskids.com and www.danbrewington.blogspot.com. Not having the freedom to criticize the conduct of court officials or living in fear of criticizing the conduct described in this brief would be the ultimate injustice."

The Office of the Indiana Attorney General has 30 days to respond. If the Indiana Attorney General, Gregory Zoeller, files a response, I will post a copy as soon as possible.  I cannot say enough about the love and support I have received from so many during this entire experience.  Thank you.

[Please note that I did not receive any outside legal advice in any state on this petition nor did I receive any assistance in writing the Writ of Certiorari aside from the help I received from my “law clerks” (mom and brother).] 

Guest Hosting on Blog Talk Radio

Tune in tomorrow October 9, at 8 pm EST as I will be a guest host on "For Our Kids," an hour and a half bi-weekly show heard internationally. 

***SPECIAL TOPIC Night - "For Our Kids" - Deborah Maddison, and Tracy Baxter, Canadian activists from British Columbia, will welcome Dan Brewington from Norwood, Ohio, as our US guest host. Dan was one of the subjects of the "Divorce Corp" documentary. The three will lead this evening's discussion about the Rights of Children and Families in North America. Tonight we are covering a very sensitive topic, "Family Court and the Reality of Grief, Loss and Trauma for Children and Families." It should be noted that although we have 5 different individuals who have different stories to tell, the outcome, and the trauma they suffered, is remarkably similar. These are all people who were in need of compassion and understanding. At the most vulnerable time in their lives, and with literally everything at stake, they were instead completely victimized by our judicial system. Going through the system while in a state of acute emotional distress is much like how Prisoners Of War suffer in battle. In fact, the judicial system has become such a hostile environment that Litigation has actually been referred to by lawyers as the last Blood Sport in America. We will also be discussing something the system seems to forget, which is the grief and trauma suffered by children who have been ripped from a loving parent, and how this affects them for the rest of their lives. The best interests of the system are NOT the best interests of the child. ~~ Every two weeks a new THEME will be presented in this series, with frequent special guests speaking from their own experience. ~~

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

Chief Justice Rush: "Brewington tried to take advantage of unconstitutional prosecution against Brewington."

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.”

Rush wrote:

“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. 

Assault on the 2nd Amendment by Chief Justice Loretta Rush and the Indiana Courts

The State of Indiana not only attacked me for exercising my rights to the First Amendment, the State punished me for exercising my Second Amendment Rights as well.  One of many assaults on my Second Amendment Rights by the State of Indiana came during the closing arguments made by Dearborn County Deputy Prosecutor Joseph Kisor at the end of my criminal trial:

“In the divorce decree and throughout the divorce proceedings, there's a 357 handgun, he was ordered, and you can read the order, it's in evidence, to turn it to his wife. He got it when she filed the petition for dissolution. That was her testimony. Around the time she filed, that's when he decided to get a 357 magnum handgun. It was ordered by Judge Humphrey to turn it over. He's not done that. He appealed those orders. The Court of Appeals upheld the judge, sent it back. The order still says; give that handgun to Melissa Brewington. I don't know where it is. Sheriff Kreinhop doesn't know where it is. Ed Connor doesn't know where it is.  Judge Humphrey doesn't know where it is and Melissa Brewington doesn't know where it is. He does. Would you be afraid if you knew right now, based on what you've seen and what you've heard, the distorted thinking, the almost maniacal attacks that he will go, the steps he will go to, to attack people. Would you be afraid if you knew and I hope to God he doesn't but if he had a 357 in his pocket right now, would you be in a little bit of fear? Man, I would.”

Of course, he is talking about someone never accused of violent activity or negligent gun use.  Also, notice that he said Judge Humphrey ordered me to hand over a .357 Magnum handgun that was purchased AFTER my ex filed for divorce to someone who has never fire a gun in her life.  Not the value of the gun; but the gun.  No evidence of misconduct, she simply said she wanted to take the gun away from me.  They claimed I was dangerous because I had a concealed carry permit because everyone knows there are laws against robbing a liquor store or committting murder unless you first are a law-abiding concealed carry permit holder.  Imagine a court telling a father to hand over his new Harley he bought after his wife left him and filed for divorce just because she did not approve.  Kisor pointed out how the Indiana Court of Appeals agreed with Humphrey’s ruling of including property purchased AFTER the filing of the dissolution simply because it was a gun.  Of course I was not going to give a gun to someone who, not only had no experience with handling any firearm, but someone who Dr. Connor claimed may react to imaginary things not to mention also carrying an extreme hatred for me.  Kisor proceeded to implant the fear into the jury that I may have somehow snuck a .357 Magnum handgun past courthouse security in my pocket, despite the fact I arrived at the courtroom in shackles directly from the Dearborn County Jail.  No one was afraid of the .357 Magnum.  If I posed a risk of murdering anyone with my .357 Magnum, I would pose the same risk with the other several guns Humphrey allowed me to keep in the final decree in my divorce.  .357 Magnum just sounds scarier than my 12-gauge Mossberg shotgun my parents bought for me when I was 18.

Until now, I really have not touched upon my struggles with how the Indiana Courts have persecuted me for being a lawful gun owner under the Second Amendment of the United States Constitution.  The persecution began when Judge James D. Humphrey provided the following as one of reasons why he felt it was necessary to terminate my parenting time in the divorce decree filed on August 18, 2009:

“Husband began instructing Mary now age 5, in the use of firearms when she was 4 years old over Wife's concerns and protests.”

When my ex-wife filed for divorce, she began making a big deal about me having guns in the house.  I just had some regular hunting shotguns and rifles, no assault rifles or handguns, I kept locked in a closet.  I kept two black-powder rifles under the couch.  (For those not familiar with black powder firearms, they are loaded the old-fashioned way by loading the powder and projectile into the gun, packing it down, and then igniting it with some kind of spark.)   As my ex began raising a stink about a locked closet not being able to keep guns away from my daughters, who were three and not quite one at the time, I purchased a gun safe.  Prior to that point, my daughters had no idea what a gun was no less had any idea that I owned any.  You could imagine what a three year old would say when she saw a big black box sitting in the living room.  “What’s that daddy?”  “It’s a gun safe.”  …and the questions kept coming. 

I am a person who firmly believes if you tell a kid something is bad just because they are young, it will eventually blow up in your face.  (See drug talk, alcohol speech, and lesson on birds and the bees.)  Taking a hard stance and telling your child that sex is bad for all unmarried people will only increase your chances of becoming a young grandparent.  My philosophy in teaching children right from wrong revolves around respect and education.  If a child respects you and has a good understanding of your concerns and the facts of a particular matter, it will increase the chances the child will make better decisions in life.  My ex was telling the girls that all guns are bad until you turn 18.  Regardless of your views on the Second Amendment or gun ownership, my ex’s statements either served to pit the girls against me, or fuel a normal childhood curiosity about what is behind the locked door.  When Mary was close to five, I let her use a plastic BB gun that we kept in the safe.  It was “her” gun.  The fun for her was not in shooting the gun but it was in trying to impress me with her gun safety.  Mary was aware we did not point anywhere near the dogs when we were shooting plastic BBs (we lived on a farm).  We wore eye protection.  She understood the difference between having fun and playtime.  We could enjoy ourselves shooting the plastic BB gun but it was not a game and we could not mess around.  When she finished shooting, I would open the gun safe and she would put “her” gun in its spot.  When she turned five, Santa gave her a pink BB gun.  I set up an indoor target range and we shot at targets with a backdrop and a gun rest.  She did not carry the gun.  I set it up for her.  The rules were when the BB gun came out and she put on her safety glasses, playtime was over.  Imagine the benefit of a five year old being capable of understanding the difference between having fun as a kid and the responsibility of having fun as an adult.  She was learning and growing… until my ex and Judge Humphrey labeled our experience as firearms training and cited the activity as a reason to strip my daughters of a father.  However, that was just the beginning on the State’s attack on my parental rights and my rights under the Second Amendment.

The best way to obtain an indictment from a grand jury in Dearborn County is to tell the jurors the target of the investigation is dangerous and the only way he can lose his ability to own a gun is to convict him of a felony.  The following is an exchange between a member of the grand jury and Dearborn County Sheriff Michael Kreinhop:

JUROR: Sheriff if he took a psych. eval. and he flunked it or it came back with a negative report, would he lose his license to carry firearms?

MR. KREINHOP: He would have to be convicted of a felony and someone would have to petition the court and show evidence that it possibly could be taken away if he's demonstrated to be unstable but otherwise as far as an automatic loss, uh, it wouldn't be done immediately but if he was convicted of a felony, he would lose his license to have a handgun at that point, but otherwise it would have to be demonstrated in court that he's unstable to continue to possess or have a firearm.

During the course of the grand jury investigation in my case, words like gun, firearm(s), concealed carry permit, etc., appeared over 120 times.  At no time did Sheriff Kreinhop or Dearborn Prosecutor F. Aaron Negangard allege that I did anything illegal with any gun, they just said I was dangerous and the only way the state could strip me of my Second Amendment Rights was to convict me of a felony.  That is exactly what happened.

Things did not get any better after my conviction as the Indiana Supreme Court failed to protect my rights under the United States Constitution.  Writing the decision, Justice Loretta H. Rush, who has recently assumed the role of Chief Justice of the Court, wrote:

“[Brewington] bought a .357 Magnum handgun shortly after his former wife filed for divorce, but never returned it to her as the Decree required, purportedly for concern about her mental stability.”

Not only did Chief Justice Rush acknowledge the State forced me to hand over property I purchased after my wife left me, she used the firearm scare tactic in her decision:

“There would be no doubt about that conclusion if Defendant, all in a single episode, had violently shouted and slammed piles of books in the courtroom, shaken his fist at the Judge and the Doctor, and told them, ‘You crooked child abusers! I’m a pyromaniac, I have guns and know how to use them, I’d like to beat you senseless, I know where you live, and I’m going to hold you accountable!’ Under those circumstances, it would be obvious that Defendant was making an unprotected ‘true threat’ against the victims, even if the phrase ‘crooked child abusers’ was protected speech. Defendant’s threats neither lose force, nor gain protection, merely because he built them up over the course of a years-long campaign of harassment.” 

Rush stated my “skill in the use of firearms, and long-running expressions of hostility towards” Judge Humphrey was reason for Judge Humphrey to fear me.  This was just another one of Indiana Supreme Court Chief Justice Loretta H. Rush’s assaults on the United States Constitution.  I may have been able to harshly criticize Judge Humphrey but if all of my other legal activities, such as law-abiding gun ownership, are taken into account, Chief Justice Rush opined my criticisms became threats.  Somehow a combination of legal acts became an illegal act.  In the math world, no matter how many times you multiply one times one, it will always equal one.  In the world of Indiana Chief Justice Loretta Rush, one times one equals whatever she wants.  (NOTE: Justice Rush and Judge Humphrey served on the Indiana Juvenile Justice Improvement Committee for at least six years.  Judge Humphrey, who was the alleged “victim” in my case, attended committee meetings with Justice Loretta H. Rush at the same time my case was being decided by Justice Rush.  Chief Justice Rush refused to recuse herself from the case.)

So now, I am a felon and cannot possess firearms.  The fact that I cannot shoot recreationally anymore does not bother me as much as the fact that the Indiana Judicial System has a complete and utter disrespect for the United States Constitution.  The gun issue pales in comparison to the fact these people are responsible for my children being fatherless for the past five years.  On the bright side, now I can criticize Chief Justice Loretta H. Rush and the other four concurring justices in my case as much as I want because I am no longer dangerous because I have lost the ability to possess firearms.  Seem ridiculous?  Why do you think I keep writing?

 

I am appealing my case to the US Supreme Court and welcome any support from individuals and/or groups who still believe in the United States Constitution.  Help send a message to Justice Rush about the importance of the First and Second Amendments of the United States Constitution.  Please note Loretta Rush is up for a retention election in November.  Get out and vote.  Please forward this to other gun owners and supporters of the Second Amendment.  If you have any questions about my integrity or the facts of my case, please feel free read more info on my blog.  You can also email me with any questions or concerns at contactdanbrewington@gmail.com as transparency is very important to me.  

Child Custody Evaluation Report by Dr. Edward J. Connor, 8.29.2007

The Custody Evaluation that started it all.  As the issue of the custody evaluation deals with an unbelievable amount of information and the history of both my divorce and criminal cases, I will be writing separate blogs about different aspects of the custody evaluation.  On August 19, 2009, I received word that I no longer could exercise parenting time with my 3 and 5 year old daughters.  Without warning Judge James D. Humphrey terminated my parenting time with my daughters claiming that I was potentially dangerous.  Humphrey’s Decree, filed on August 18, 2009, based his findings on selected portions of the child custody evaluation completed by Dr. Edward J. Connor of Connor and Associates on August 29, 2007, but unfortunately Humphrey did not rely on the section where Dr. Connor recommended I could continue to care for my daughters nearly half of the time as I had during the course of my 2.5 year divorce.  He relied on Connor’s analysis of my criticisms of Dr. Connor. Humphrey wrote, “The Court is most concerned about Husband's irrational behavior and attacks on Dr. Connor. Frankly it appears that these attacks have been an attempt at revenge for taking a position regarding custody contrary to Husband.”  The problem is I never questioned Connor’s decision; I questioned how an unlicensed psychological professional doing custody evaluations for courts could claim he had difficulties understanding a person with ADHD.  I questioned how a psychologist could file a report with “numerous errors and oversights” and then charge the parties to correct his errors.  Most of all I questioned how a court and psychologist could deny a father the evidence in Dr. Connor’s case file that I would be entitled to if I had a lawyer.

When I appealed Judge Humphrey’s divorce decree to the Indiana Court of Appeals, the Court ruled on my divorce panel per curiam, which means the three judge panel remains anonymous.  From everything I have researched and been told, that was one of the first anonymous per curiam decisions from the Court of Appeals since the 1960’s.  It was only during my incarceration for the criminal conviction that I learned who actually wrote the decision.  My criminal appellate lawyer Michael Sutherlin informed me that Appellate Judge John Baker pulled him aside at some gathering and told him Judge Ezra Friedlander wrote the anonymous decision upholding Judge Humphrey’s ruling.  The reason I lost my children and went to prison was I criticized Dr. Connor and the Courts for giving conflicting reasons as to why I was not entitled to the case file from Dr. Connor’s report.  Indiana Code (IC) 31-17-2-12(c) states:

The investigator shall make the following available to counsel and to any party not represented by counsel:

(1) The investigator’s file of underlying data and reports.

(2) Complete texts of diagnostic reports made to the investigator under subsection (b).

(3) The names and addresses of all persons whom the investigator has consulted.

Justice Friedlander went on to write:

“We first note that I.C. § 31-17-2-12(c) does not require that Dr. Connor’s entire case file be provided to Daniel. All the items specified by statute were provided. Other than his belief that I.C. § 31-17-2-12(c) was violated, Daniel asserts no other basis on which to find that Dr. Connor’s report and testimony were inadmissible or should have been excluded from evidence.”

Judge Friedlander lied.  It was impossible for him to know what Dr. Connor provided me because there was no official record of what I was given.  Judge Baker even told my lawyer he should file a complaint against Friedlander for his actions in writing the decision.  The proof that I did not receive the information to which I was entitled did not come until after I was arrested when Dearborn County Prosecutor F. Aaron Negangard submitted Dr. Connor’s evaluation as evidence against me in my criminal trial.  The problem was it was Dr. Connor’s own personal marked up copy documenting the mistakes.  The other problem was that everyone claimed I was irrational and dangerous because they claimed I posted sensitive information about custody evaluation report on the internet.  It was one of the reasons Humphrey took away my parenting time.  After Judge Friedlander wrote I had all the information to which I was entitled, Dr. Connor gives Prosecutor Negangard a piece of evidence I was prohibited from receiving during my divorce proceedings.  Connor’s marked up copy demonstrates there were errors in the report, which Connor charged $700 to fix.  What is even more remarkable is the fact Connor, the Court, and my ex-wife fought tooth and nail to prevent me from having the information because they said I would put it out in public, yet neither Prosecutor Negangard, Connor, nor my ex took any precautions to protect the confidentiality of the report before it was submitted as exhibit 9 in my public criminal trial.

So take the opportunity to browse Dr. Connor’s copy of the child custody evaluation report in my divorce.  Pay attention as there are many concerning aspects to this report.  For example: Dr. Connor wrote that my ex’s parents “expressed a concern whereby Mary (3 years old at the time) stated that Audrey (17 months) ate some of Tansy's cat food and Daddy ‘spanked her real hard.’”  The question that begs an answer is what is the significance of the statement?  Connor never asked me about it.  Connor did not report the issue as child abuse. Connor never interviewed Mary about the incident.  Connor never explained how it was relevant.  If Connor felt I was beating the children for eating cat food, he should have done something about it immediately.  The only thing the statement does is confuse the reader which is the exact opposite of what Dr. Connor is paid to do.  Just as Connor stated the concerns about my daughters getting hurt if they wandered in to the old barn unattended.  Connor claimed he had concerns about me being able to keep the children safe from the barn, which was 45 yards from the house yet he made no mention of any concerns of me being able to keep the girls safe from the road, which was 15 yards from the house.  The most important thing to note is Connor’s parenting recommendation:

“We again believe that Melissa should be the primary residential parent and that children should have time with their father during the times that their mother works.  If Dan can arrange his schedule accordingly, then we believe this would be a benefit to the children.”  “Currently, Dan has the children every Wednesday during the day and overnight and every Friday during the day and overnight and every third Monday during the day and overnight and equal weekend time.  Therefore, if our calculations are correct, Melissa generally cares for the children four days a week. We see no reason why this schedule should not remain intact at this time.”

Despite the professional opinion of his own expert stating it was the best interest of my children that I should be able to continue to care for them nearly half of the time, Judge James D. Humphrey arbitrarily decided I was too dangerous for even supervised visitation with my daughters and cut off all parenting time without warning.  And Indiana Supreme Court Chief Justice Loretta Rush said I was dangerous because I obsessed on the internet about Judge Humphrey eliminating a very capable parent from the lives of two little girls. 

Read on and be sure to take the information in Dr. Connor’s report with a grain of salt because I do not know how much of the information is accurate, which is why I always claimed they went to such lengths to keep the case file out of my hands.  Stay tuned as more information will be posted soon.

Brewington's Official Criminal Record but still no Violence as alleged by Chief Justice Loretta H Rush

In the criminal case Brewington v State of Indiana, Indiana Supreme Court Chief Justice Loretta H. Rush made numerous references to the violent history of Dan Brewington in her opinion she authored for the Court.  Rush wrote,

“Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to both of his victims during his years-long vendetta against them.”  -Page 2 of Brewington v State of Indiana

Justice Rush wrote Brewington demonstrated violence toward Judge James D. Humphrey and psychologist Dr. Edward J. Connor over the course of Brewington’s “years-long vendetta against them.  Any acts of violence against anyone are serious violations of law.  A violent act against a judge by someone who lives in a different state usually constitutes a federal crime.  Following his convictions and prior to sentencing, the Dearborn County Probation Department prepared a Presentence Investigation Report for the Dearborn County Superior Court II.  Page 4 of the Report gives a description of Brewington’s criminal history, which would include any convictions resulting from violent actions against judges.  The Report demonstrates that prior to Brewington’s criminal trial in Dearborn County, Brewington’s criminal record consisted of an OVI conviction in Campbell County, Kentucky in 1995-96.  As there is no mention of violent behavior of Brewington prior to the opinion authored by Rush, one could only look to Rush’s opinion to find examples of violence Brewington demonstrated against Judge Humphrey.  Rush gave the following example of what “reasonable people” in Judge Humphrey’s situation would deem “dangerous”:

“Reasonable people in the Judge’s situation would also view Defendant’s erratic, volatile, and violent courtroom behavior – ‘yell[ing] out things,’ ‘thr[owing] his papers’ and shouting ‘I demand justice in this courtroom,’ and ‘laughing inappropriately,’ Tr. 319-as part of that pattern of escalation.” Page 23 Brewington v State.  [Rush later changed “throwing papers” to slamming “piles of books” despite there being no testimony or evidence that Brewington even had “piles of books” during Brewington’s divorce proceedings.  It is unclear whether Rush confused the facts or made up the books story.]

And that’s about it for any examples of violent behavior against Judge James D. Humphrey given by Justice Loretta Rush as the divorce hearings were the only place Humphrey and Brewington crossed paths.  What Chief Justice Loretta H. Rush found to be a major component to a crime of speech, Judge Humphrey, the "victim" in the case, failed to find to be severe enough to warrant holding Brewington in contempt during a divorce hearing.  Rush gave no examples of Brewington acting out violently in the presence of Dr. Connor.  Rush wrote how Brewington’s actions were so vile, that Judge Humphrey even had to threaten to hold Brewington in contempt of court in Brewington’s divorce hearing, but Humphrey never did.  Rush wrote “reasonable people” in Judge Humphrey’s situation would view Brewington’s actions as violent behavior toward Judge Humphrey and the basis of a criminal intimidation conviction despite the fact Judge Humphrey did not deem the conduct to be worthy of holding Brewington in contempt of Court.

Indiana Supreme Court Chief Justice Loretta H. Rush has effectively left Brewington without the ability to obtain legal counsel, or in the least, find an attorney that can present an effective case to the Supreme Court of the United States of America because of the need to demonstrate that many of Rush’s conclusions are drawn from information that appears nowhere on the record of the case.  Any attorney that would suggest Rush made up the content in her decision would face immediately disciplinary action if admitted to practice in the State of Indiana.  Now Dan Brewington has to defend allegations of violence against the victims, which were never raised during trial.  Brewington never had the chance to defend himself against allegations of violent actions because no one ever alleged Brewington committed any acts of violence prior to Rush’s decision.  Hopefully the United States Supreme Court has a little more respect for the United States Constitution than Chief Justice Loretta Rush and the Indiana Supreme Court.   

Comment on an article praising Chief Justice Loretta Rush

Dave Stafford of the Indiana Lawyer wrote a piece on Loretta Rush and how people around the State of Indiana where singing her praises.  I wrote the following comment questioning why Loretta Rush gets a free pass on ignoring the protections normally guaranteed by the US Constitution:

"I find the media ignoring Rush's participation in Brewington v State to be repulsive. Loretta Rush sat on the Juvenile Justice Improvement committee with one of the victims of the case, while she was writing the opinion for the case. If this was a situation where a judge served on a board of directors of a bank with a victim or litigant in a criminal or civil trial, no one would find it proper for the judge to preside over the case; especially if the judge and the victim served on the board together for at least 6 years. This doesn't even take into account how Justice Rush claimed Brewington had a history of violence toward Judge Humphrey, her fellow committee member of 6+ years. There is no record or mention of violence in the trial record or at the appellate level; only in Rush's opinion. Looking at the situation objectively, how could an individual, with no criminal record, have a "history" of violence against a judge without any arrests or without anyone attempting to obtain a restraining order? If someone committed just one act of violence against a judge it would most likely be a federal case but Brewington was never arrest for violence because Dearborn County Sheriff Michael Kreinhop testified that no violence ever occurred. Worst of all Justice Rush wrote that a defendant may waive their rights to constitutional protections that prohibit unconstitutional prosecutions by inviting the error, by assuming any non-objection to the unconstitutional prosecution was trial strategy and not ineffective assistance of counsel. Rush went through the record of the case and picked out partial statements she believed to be threats and used them to support her written decision. On the surface this appears to be appropriate except if the Supreme Court is the finder of what is considered threatening then, by default, the defendant was deprived his 6th amendment right to know which of his actions brought forth the charges against him. The United States court system doesn’t allow a prosecutor to admit tens or hundreds of thousands of word into a court record so the high courts can establish the existence of any possible threats. If this were true, a prosecutor could indict Stephen King, admit all of his horror novels, and allow a higher court to pour through hundreds of thousands of pages in search of a few statements that the court deems to be threatening and then justify the “threatening” nature of the statements by claiming Stephen King was dangerous because he kept writing about horrific situations; all the while barring King from building a defense against the alleged threats because the threats were not defined until after trial. This is exactly what happened in Brewington; where even the appellate court did not establish Brewington’s statements were threats to safety but rather ruled Brewington’s statements, while possibly true, frightened the alleged “victims,” thus satisfying the Appellate Court’s bar for intimidating statements. This fails to take the common sense factor into account that Brewington was convicted of effectively terrorizing the alleged victims for as long as 3.5 years yet no one attempted to obtain a restraining order and Brewington was never held in contempt of court in his divorce proceedings. If Brewington’s threats were clear and worthy of prosecution then the threats were definitely grounds for seeking protective orders. As for the threat of arson, the word does not appear in the grand jury transcripts nor the trial record and Humphrey never expressed any fear nor did he mention that he believed Brewington’s statement about being a pyromaniac was directed toward Humphrey and his family. I have no idea why Loretta Rush receives a free pass on this but the citizens of Indiana should be wary of their constitutional rights before the gavel of the newly appointed Chief Justice, Loretta H. Rush."

This is what makes Dan Brewington a Dangerous Man

In Brewington v State of Indiana, newly appointed Supreme Court Chief Justice Loretta H. Rush based part of the Court’s decision in upholding my intimidation and attempted obstruction of justice of my divorce convictions on Dr. Edward J. Connor’s findings that I was “potentially dangerous.”  Why did Dr. Connor say I was dangerous?  Because Dr. Connor wrote a letter indicating he had ex parte communication with the first judge in my divorce, Carl H. Taul, and I told people about it.  Chief Justice Rush said my conduct in sharing the information caused the alleged victims in my case to experience rational fear.

In a letter to my wife’s and my attorneys, dated February 25, 2008, Dr. Connor wrote:

Other than Dr. Connor’s own account, there was no record of the alleged conversation.  [NOTE: Dr. Connor claimed Judge Taul was in agreement with charging the parties for correcting errors made by Dr. Connor]  Judge Taul made no attempt to include the parties of the conversation or notify the parties of the supposed communication.  On November 30, 1993, the Indiana Court of Appeals wrote the following in its decision in Garrard v Stone:

“Ind. Judicial Conduct Canon 3(B)(8) provides: A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties, concerning a pending or impending proceeding....”

Judge John Baker went on to write:

“Indeed, ‘[e]x parte communications by their nature suggest partiality.’ Tyson v. State (1993), Ind., 622 N.E.2d 457, 459 (Shepard, C.J., explaining recusal).”  “Because the trial court conversed with Page outside the presence of the parties, we have no knowledge of their exchange or how it affected the trial judge's decision. Even the later testimony of a witness cannot cure the appearance of impropriety created by the trial judge's earlier initiation of an ex parte communication. Regardless of the witness' later testimony, the public cannot be sure that the court is impartial and not privy to information unavailable to the parties. It is the possibility that the trial judge gained knowledge not available to the parties which creates the appearance of impropriety.”

According to the Indiana Court of Appeals and the Judicial Code of Conduct, Judge Taul’s correspondence was unethical, or in the least improper.  I thought posting the information on the internet was a public service.  Dr. Connor said it was an indicator of my psychological disturbance.  In Brewington v State, Justice Loretta H. Rush wrote:

“Moreover, he accused the Doctor and Carl Taul, the original divorce judge, of improper ex parte communications with each other, until Judge Taul eventually recused and appointed Judge Humphrey as special judge. See Ex. 120 (Order Naming Special Judge). Defendant considered his campaign a success as to Judge Taul, referring to the recusal frequently in subsequent blog posts.  Exs. 160, 162, 167, 171, 191, 194. But even though those actions had led the Doctor to the professional opinion that Defendant was ‘potentially dangerous,’ he remained in the case.  The Doctor ultimately opined that Defendant is paranoid, manipulative, ‘manic-like,’ ‘unwilling to accept responsibility for his behavior,’ self-centered, unreceptive to criticism, and ‘has difficulty seeing an issue from another’s perspective’—again, ‘a degree of psychological disturbance that . . . does not lend itself to proper parenting.’”

Despite Dr. Connor recommending I have liberal parenting time, Judge Humphrey terminated all my parenting time indefinitely pending a psychological examination and then proceeded to obstruct my ability to petition the Court for an approved evaluator.  So I kept writing.  Rather than acknowledge I was just writing about unethical conduct on the part of an Indiana judge and a Kentucky psychologist not licensed in the State of Indiana, Justice Rush claimed it was malicious conduct that helped lead to the alleged victims’ reasoning that I may try to abduct or murder their families.  Justice Rush was aware of the ex parte communication because she referred to reviewing at least three different documents I authored; all of which included Dr. Connor’s letter dated February 25, 2008.  Justice Rush turned a blind eye to the unethical conduct of Judge Taul and claimed my writings were a basis for fear.  Justice Rush also said it was an attempt to obstruct justice in my divorce.  It should be noted that Justice Rush served on the Juvenile Justice Improvement Committee with Judge Carl H. Taul and Judge James D. Humphrey for at least six years.  Justice Rush continued to sit on the committee with Taul and Humphrey in 2014; several months after the Supreme Court heard oral arguments in my case on September 12, 2013 and before she issued an opinion on May 1, 2014.  Putting it simply, the newly appointed Chief Justice of the Indiana Supreme Court, Loretta H. Rush, did not find it to be improper to continue to sit on a committee with a colleague/friend who was a “victim” in a criminal case while she was writing the opinion on the criminal case involving the same colleague/friend/victim for the Indiana Supreme Court.  This may explain where Justice Rush received her reports of my alleged violence toward Judge Humphrey despite there never being any such claim anywhere in the trial record.  The day after the Indiana Supreme Court filed their opinion written by Justice Rush, attacking me for telling people Judge Taul and Dr. Connor engaged in unethical communications, Justice Rush was sitting with Judge Taul at the May 2, 2014 meeting as fellow members of the Juvenile Justice Improvement Committee.  And they claim my psychological dysfunction increases with every word I write about them.  Please join me on my #RunAgainstRush this November to help raise awareness of the Constitutional deficiencies of the Indiana Supreme Court. 

Indiana Chief Justice Loretta H. Rush: 6th Amendment does not apply to Dan Brewington

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.

Anti-Constitutionalist Loretta H. Rush Named New Chief Justice of Indiana Supreme Court

Today the Indiana Judicial Nominating Commission convened and interviewed potential candidates for the position of Chief Justice of the Indiana Supreme Court.  After publicly and privately interviewing the candidates, the Commission chose Justice Loretta H. Rush to be the next Chief Justice of the Indiana Supreme Court.  This is the same Justice who wrote a Supreme Court decision stating that a defense attorney can waive a person’s constitutionally protected right to free speech.  Justice Rush also wrote that taking advantage of a prosecution’s weak case or argument, by not raising issues on behalf of the prosecution could waive constitutionally protected rights.  And now Justice Rush sits on top of the Indiana Judicial System. 

Newly appointed Indiana Supreme Court Chief Justice Loretta H. Rush ruled that someone can be convicted for exercising a constitutionally protected freedom if the lawyer of the accused waives the defendant’s right to exercise that protected activity.  Sound odd? It should.  Justice Rush wrote that my public defender’s “strategy” in doing nothing to instruct the jury on the principle that a person cannot be criminally convicted for defamation of character, made “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.”  Justice Rush acknowledged that it was “quite possible” I may have been convicted of intimidation based on constitutionally protected speech.  Rather than remand the case back to trial to ensure the First Amendment of the United States Constitution was not used as a grounds for a criminal conviction, Justice Rush began rationalizing how it is possible for someone to go to prison for exercising their constitutional rights.  Justice Rush wrote,

“Requesting 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 went on to write the following about what she perceives to be the trial strategy of my public defender Bryan Barrett,

“Indeed, the theme throughout [Barrett’s] closing argument was that his speech was all protected political opinion, with no proof that he intended any of it to be threatening.”

Justice Rush described my public defender’s non-action in properly instructing the jury on the difference between threats to reputation and threats to safety as “strategy” yet referred to the prosecution’s non-action, in its failure to distinguish the difference between threats to reputation and threats to safety, as a repeated oversight.  Rush wrote, “In effect, that approach sought to exploit the prosecutor’s improper reliance on “criminal defamation” to the defense’s advantage.”  Rush somehow determined it was advantageous to me for the prosecution NOT to inform the jury nor the defendant exactly what conduct was considered criminal.  Even more, Rush claimed my rights to free speech were waived because my public defender did not explain to the jury which of my actions were protected by free speech and which were illegal.  Justice Loretta Rush effectively claimed that my public defender waived my rights to free speech because Bryan Barrett did not tell the jury that his client was guilty.  Rush rationalized her decision with the following,

“In effect, that approach sought to exploit the prosecutor’s improper reliance on “criminal defamation” to the defense’s advantage.”

Not only did Justice Loretta H. Rush place the burden on a defendant to do the prosecutor’s job in instructing the defendant and the jury on what actions by the defendant the prosecution believes to be criminal, she rationalized her decision by stating,

“Defendant demonstrated significant sophistication about free-speech principles long before trial in a motion to dismiss these charges, Supp. App. 1–4, and confirmed it by his post-verdict, pre-sentencing blog posts, Sent. Ex. 1 at 2–3.”

First it should be noted that Justice Rush’s above claim is false.  When my public defender, Bryan Barrett, refused to meet with me to discuss my case prior to trial, I filed three different motions on October 3, 2011, an hour before trial, to try to protect my constitutional right to free speech, fair trial, right to an attorney, etc… Despite pleading to the court that Bryan Barrett refused to call me, meet with me, provide me with evidence, discuss my explanation of events related to my case, or even provide an explanation of which of my actions constituted a crime, at no point did the trial court, Indiana Court of Appeals or Indiana Supreme Court ever investigate or even inquire into whether my statements about my public defender were true.  Justice Rush even acknowledged the grand jury indictments were vague and compared my case to the case of Bachellar v. Maryland, where there was no particular act or statement that constituted intimidation.  Rush wrote,

“Like Bachellar, 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. Instead, like Bachellar, any confusion arises only because of how the case was argued and how the jury was instructed.”

An important component Rush failed to mention was the timeframe of events in the Bachellar case.  Justice Rush claimed our cases were similar because the charges did not allege any particular act of intimidation where the prosecution relied on unspecified acts in a certain period of time.  My non-defined “acts” that allegedly constituted intimidation occurred somewhere between August 1, 2007 and February 27, 2011; a period spanning 3 years, 6 months, and 26 days.  In the Bachellar decision by the United States Supreme Court, Justice Brennan wrote,

“The prosecution arose out of a demonstration protesting the Vietnam War which was staged between 3 and shortly after 5 o'clock on the afternoon of March 2, 1966, in front of a United States Army recruiting station located on a downtown Baltimore Street.”

In Bachellar, the defendant was aware that the alleged crime occurred roughly in a two hour timeframe, on March 2, 1966, and the event occurred in front of an army recruiting station on a downtown Baltimore Street.  In comparing my case to Bachellar, Justice Rush stated that as a defendant, I knew what actions of mine over the course of 3.5 years constituted a crime.  She supported her claim by referencing the motions filed on the day of trial and by my post-verdict and pre-sentencing blog posts, which were written after the trial.  Justice Rush determined my guilt based on evidence never presented to the jury.  With that being said, in Bachellar, Justice Brennen wrote,

“Thus, since petitioners' convictions may have rested on an unconstitutional ground, they must be set aside.”

In my case, Indiana Supreme Court Justice Loretta H. Rush agreed that it was “quite possible” that my convictions rested on an unconstitutional ground yet she upheld my convictions because my public defender did not tell the jury what he felt the prosecutor felt was a violation of law.  Justice Rush claimed that since my public defender went with an “all or nothing strategy,” he waived my constitutional rights because he made the argument that all my statements were protected.  Rush believed my public defender had an obligation to assist the prosecution and tell the jury which of his client’s actions were against the law.

Justice Loretta H. Rush believes United States citizens can have their rights to free speech waived if their attorneys do not represent their clients in the “correct” manner or if the attorneys try to take advantage of deficiencies in the prosecutor’s case against their clients.  This doesn't even take into account how Justice Rush ruled legal gun ownership may be considered as a factor of whether a person is likely to be more dangerous than a non-gun owner. Justice Rush also punished me for exercising my Fifth Amendment right to not testify in my own trial claiming it was part of the trial strategy that waived the same rights that were protected by the United States Supreme Court in the Bachellar case.  Rush wrote,

“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.”

In the courts of the United States of America, the burden is on the State to prove someone’s guilt.  Justice Rush claimed the prosecution “repeatedly overlooked” the difference between threats to reputation and threats to safety.  Rush claimed the indictments were non-specific. Rush said the prosecutor improperly relied on the “criminal defamation” argument.  By her own account, Justice Rush acknowledges the prosecution’s argument against me was vague and unconstitutional yet I somehow waived my rights to constitutional protections because my attorney did not assist the prosecution in their case against me and because I chose not to testify because I felt the prosecution’s vague, criminal defamation argument failed to meet the burden of proof for a criminal conviction.  Justice Rush explained the public defender’s and my “strategy” based on what she believed was our keen knowledge of First Amendment law, which happened to be approximately 15 pages after she corrected the Indiana Court of Appeals for not understanding the First Amendment when they issued a decision in my case in January 2013.

This November there is a retention election for Justice Loretta H. Rush.  The above is every reason why people should go to the polls and vote to have her removed from her judicial seat.  Either Justice Rush lacks the education and intellectual reasoning to understand and interpret the Constitution of the United States of America or she maliciously violated an oath she swore to uphold.  Speak out, show up, and support the US Constitution this fall.  Vote Rush off the Bench.

For more information, check out my Petition for Rehearing and Motion for Disqualification of Justice Loretta Rush; which were both denied, without explanation, by the Indiana Supreme Court.  Please note there was never any mention of violence on my part anywhere throughout the grand jury process, criminal trial or at the Indiana Court of Appeals. Justice Rush stated I had a history of violence despite there never being any accusations of violent activity.