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.