In the recent opinion from the Indiana Supreme Court decision Brewington v State, Justice Loretta Rush hails my public defender, Bryan Barrett, as a constitutional scholar. She also claims I had to build a defense against legal conduct because Prosecutor Negangard made up his own Indiana defamation law when no such law existed. Imagine being a defendant in a criminal trial where a Supreme Court Justice claims the prosecution was not aware of what conduct actually constituted a crime. How could one defend themselves? In my petition to the Indiana Supreme Court, it was argued that by not informing the jury that I could not be convicted base on threats to reputation and only by threats to safety, it constituted "fundamental error." Some courts have defined fundamental error as “errors which go to the heart of a trial and vitiate its fairness.” It would seem like a no brainer by not informing the jury in my case that they could not convict me for constitutionally protected speech, it would go to the heart of the fairness of my trial and the protection of the 1st Amendment. The Supreme Court even agreed it was erroneous not to tell the jury in my criminal trial that I could not be convicted of a crime based on activities which were legal. Justice Rush wrote:
“As discussed above, the First Amendment and the Indiana Constitution demand a showing of actual malice before the State may impinge on assertions of fact—even false ones—about public figures or issues of public concern; and rhetorically hyperbolic expressions of opinion are always protected, because they can only reasonably be understood as assertions of opinion, not of fact.”
BUT, Justice Rush dismissed the Constitution claims because….
“Were it not for that apparent strategy, Defendant’s arguments would be well taken.”
Justice Rush said the fundamental error did not apply because my lawyer invited the error. “Invited error” precludes a party from raising an issue on appeal. An example would be if a party agreed to the admissibility of hearsay testimony even if it violated rules of evidence. The party could not turn around and appeal the issue because they “invited” the error. Justice Rush said my public defender invited the error, thus waiving my rights to the constitutional protections. Justice Rush attributed Bryan Barrett’s failure to object to the absence of jury instructions that included an explanation of constitutionally protected speech to an “all or nothing” strategy. Mind you, this is the same public defender who never met with me to review my case before trial, did not call any witnesses, subpoena any documents, etc… Justice Rush stated the following about Barrett’s carefully planned strategy to do nothing:
“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 Defendant’s speech, and on that basis to find the ambiguous aspects of his conduct to be protected as well.” “Instructing the jury on the text of the federal and state constitutional free-speech protections, but not actual malice, appears to have been a strategic calculation to that end—not an ignorant blunder.”
Justice Rush claimed it was an oversight on the part of Dearborn County Prosecutor F. Aaron Negangard that he failed to tell the jury what parts of my speech were constitutionally protected. This is the same prosecutor who gave the following instruction to the jury during closing arguments:
“He could have even called him a son-of-a-bitch if he wanted, alright? That's probably okay.” “But he can say that. But what he can't say, he's a child abuser.” (No kidding; Page 516 Line 7 of trial transcripts)
Justice Rush said “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. Defense counsel could reasonably have anticipated that an actual-malice challenge could lead the State either to withdraw [some jury] instructions, or at least to draw sharper focus onto the statements and conduct that crossed the line and implied a true threat.”
It is Justice Rush's contention that it is the responsibility to address shortcomings of the prosecution in order to preserve issues for appeal. She effectively stated a defendant is not allowed to capitalize on the shortcomings of an incompetent prosecutor. Justice Rush’s decision placed the burden on my public defender to NOT take advantage of, what she claimed to be, an oversight of Prosecutor Negangard. If Justice Rush truly believed Negangard did not know the difference between criminal conduct and constitutionally protected activity in my case, I would imagine there are due process implications if the State can force a defendant to defend himself against an unknown crime. But Negangard was not the only Indiana official who Justice Rush said was unaware of the distinction between “threatening the targets’ reputations… and threatening their safety.” When my case went before the Indiana Court of Appeals, Judges John G. Baker, Carr L. Darden, and Patricia A Riley, all of which have a combined 65 years of experience on the Indiana Court of Appeals, failed to make the distinction as well. The Supreme Court had to correct the findings of the Court of Appeals because Baker, Darden, and Riley ruled if true speech scared judges, the true speech can be prosecuted. Rush stated Prosecutor Negangard was oblivious to the distinction between threats of safety and reputation, corrected the opinion of three of the longest serving judges on the Indiana Court of Appeals because they couldn’t get it right, and then claimed my public defender from Rush County, Indiana (population 17,000) was aware of the blunder and (unsuccessfully) tried to take advantage of it.
This is frightening information. What Justice Rush doesn’t want to mention is the notion that Prosecutor Negangard’s ignorance was actually the prosecution’s trial strategy; which is much more plausible suggesting a small town public defender would somehow have a much better grasp of the 1st Amendment of the US Constitution than three judges with 65 years of experience in the Indiana Court of Appeals. It would be prosecutorial misconduct for Negangard to intentionally try to have me convicted for constitutionally protected speech. (Negangard did have me indicted for releasing grand jury information without having any evidence.) What makes the situation dangerous is Justice Rush knew what she was doing in writing this opinion. By making the situation appear complicated, it wouldn’t attract any attention. But if people take a closer look, they can see how a Supreme Court Justice can use a well written court opinion to manipulate the law to get the result she wants. Please stay tuned as there will be much more on the unethical conduct of Indiana Supreme Court Justice Loretta Rush.