Tuesday, August 30, 2016

Brewington files Motion for Summary Judgment due to Altered Grand Jury Audio

The following is the Motion for Summary Judgment filed in the case of Daniel Brewington v. Dearborn Superior Court II and Judge Brian Hill. Brewington’s motion seeks judgment claiming the material facts of the case are indisputable and Brewington is entitled to relief base on the facts presented. The Dearborn Superior Court II failed to release the entire audio record of the grand jury investigation of Daniel Brewington, which the Indiana Public Access Counselor deemed a releasable public record. The Dearborn Superior Court II altered the official audio grand jury proceedings as the Superior Court II omitted the entire record of the grand jury proceedings prior to witness testimony. Chief Court reporter Barbara Ruwe’s transcription of the grand jury proceedings differs from the audio of the proceedings. The most significant irrefutable fact addressed in Brewington’s petition is any attempt by the Defendants to argue the grand jury audio is unaltered and complete serves as an admission of criminal conduct by several Dearborn County Officials. For these and other reasons, the only remedy for Brewington is for an order demanding that the Dearborn Superior Court II release the entire unedited audio record from the grand jury investigation of Daniel Brewington.

Feel free to view the entire written content of Brewington’s Motion for Summary Judgment. Brewington’s Motion for Summary Judgment places Indiana Deputy Attorney General Joshua Lowry in the position to argue Dearborn County Prosecutor F. Aaron Negangard and the Dearborn Superior Court II selectively recorded the grand jury proceedings to assist the prosecution of Brewington or that the Dearborn Superior Court II erased portions of the grand jury audio. See below to read the motion without exhibits and appendix.





)           Case No. 15001-1607-PL050

Plaintiff Daniel Brewington (“Brewington”) files this MOTION FOR SUMMARY JUDGMENT against Defendants Dearborn Superior Court II (“DSC”) and Special Judge Brian Hill (“Hill”) in accordance with Indiana Trial Rules of Trial Procedure and in support as follows.
1.            “Grand Jury Audio” as discussed in Brewington’s Motion for Summary Judgment refers to the audio record from the grand jury investigation of Daniel P. Brewington, which took place on February 28, 2011, March 1, 2011, and March 2, 2011.
2.            On July 14, 2016, Brewington filed his pro se COMPLAINT UNDER INDIANA ACCESS TO PUBLIC RECORDS ACT (“APRA”) AND FOR INJUNCTIVE AND DECLARATORY RELIEF seeking said audio per the advice of the Indiana Public Access Counselor (“PAC”).
3.            In a letter dated July 14, 2016 (postmarked July 15, 2016) Chief Court Reporter for DSC Barbara Ruwe (“Ruwe”) informed Brewington the audio disc containing the Grand Jury Audio was available at a cost of $300.00. A copy of Ruwe’s letter attached hereto as “Exhibit A”. [Ruwe’s letter claims Brewington never confirmed he wanted copies of the grand jury audio, despite Brewington sending three letters to Ruwe dated May 23, 2016, May 23, 2016, and July 5, 2016. Ruwe also estimated the costs of preparing the audio to be $150 - $300 despite the audio files already being prepared. See “Appendix I” for copies of Brewington’s letters to Ruwe as well as information regarding how the DSC altered the official record of the grand jury audio prior to Brewington receiving the DSC order to release the audio.
4.            Brewington obtained a CD-R allegedly containing the Grand Jury Audio on July 19, 2016. A copy of CD-R containing Grand Jury Audio attached hereto as “Exhibit B”.
5.            Review of the Grand Jury Audio establishes the Dearborn County Superior Court II altered the grand jury audio, thus obstructing public access to the official record of the proceedings.
6.            It should first be noted that Hill and the DSC were both aware that the written transcription of the grand jury proceedings in question were incomplete and non-compliant with IC 35-34-2-3(d), yet took no action to address the issue. To the contrary, rather than investigate why Ruwe custom tailored the transcription of the grand jury record that Dearborn County Prosecutor F. Aaron Negangard (“Negangard”) submitted to the trial court during a hearing on August 17, 2011, the Defendants continued to generate excuses as to why release of the official audio is not appropriate. The Defendants have also failed to provide any explanation for Ruwe making unauthorized changes to the official record of a grand jury investigation.
7.            Failure to order the release of an unaltered copy of the official audio record of the grand jury record removes what few safeguards are available to the public against abuses of the grand jury process.
8.            The audio sought is a public record subject to release per the Office of the Public Access Counselor.
9.            There is no order by any court of law authorizing the omission or redaction of any material from the record of the grand jury investigation of Daniel Brewington.
10.         There are no marked redactions in the transcription of the grand jury audio. A digital copy of transcripts attached hereto as “Exhibit C”.
11.         The audio is not [emphasis added] a copy of the official audio record. The DSC omitted all audio in the grand jury proceedings that occurred prior to witness testimony.
12.         The DSC changed the format of the original audio files, deleted file names and then combined and renamed the larger audio files. “Exhibit D” is a copy of the audio from regular court proceedings occurring on September 19, 2011 and October 24, 2011 in the Dearborn Superior Court II. See “Appendix II” for an explanation of the varying recording methods used by the DSC.   
13.         There are statements in the transcripts that do not appear in the audio, which means Ruwe added additional content while transcribing the record or the DSC omitted portions of the audio that were previously available during transcription. See “Appendix III”
14.         In one instance of where the DSC edited the grand jury audio to match the transcripts from the same proceedings, the DSC removed over five minutes of audio, despite the transcripts portraying the dialogue on either side of the omitted audio to be uninterrupted. See “Appendix IV” for an explanation of how the DSC omitted portions of the grand jury proceedings by cutting and pasting the official record.
15.         In an order dated April 20, 2016, Hill stated, “It is the Court's understanding that the Grand Jury impaneled for this matter also heard evidence in four to five other Grand Jury proceedings during this time, often going back and forth between all of the cases. The audio recordings being released shall contain only the matter regarding Daniel Brewington and no other Grand Jury proceedings.” Regardless of Hill’s order, the court reporter does not have the authority to make arbitrary alterations to the official record of a legal proceeding.
16.         Despite the claims of Hill and the DSC, there are no other grand jury proceedings intertwined with Brewington’s proceedings because the audio is void of Dearborn County Prosecutor F. Aaron Negangard (“Negangard”) making any mention of being “back on record” in the investigation of Brewington. See “Appendix IV” for a table documenting how the DSC allows Negangard to disappear and reappear on the official grand jury record without notice.
17.         In Brewington v. State, 7 N.E.3d 946 (2014), current Chief Justice Loretta H. Rush wrote that during trial, “the prosecutor argued two grounds for Defendant's convictions, one entirely permissible (true threat) and one plainly impermissible (‘criminal defamation’ without actual malice). See Tr. 455-56.” at 973. The DSC omitted the true threat instruction from the grand jury record and only included the “plainly impermissible (‘criminal defamation’ without malice)” instruction. The Office of the Dearborn County Prosecutor instructed Brewington to rely entirely on the grand jury transcripts in order to subject the prosecution’s case to adversarial testing, while withholding the constitutionally permissible grounds for prosecution. Negangard and the DSC allowed Brewington’s public defender to prepare a defense against a prosecutorial argument that both Negangard and the DSC knew, or should have known, was “plainly impermissible.”
18.         “Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a fact is ‘material’ if it bears on the ultimate resolution of relevant issues.” Sony Dadc U.S. Inc. v. Thompson, 84A01-1507-CT-892 (July 13, 2016)
19.         Over twenty [20] days have expired since the commencement of the above action, per Trial Procedure Rule 56(a)
Any arguments against the above declarations requires the admission of Defendant’s illegal conduct

20.          An attempt to dispute this Motion for Summary Judgment places Defendants’ Counsel, Deputy Attorney General Joshua R. Lowry, in a precarious situation because Lowry must argue his clients, Dearborn County Prosecutor F. Aaron Negangard, and possibly others engaged in a conspiracy to deprive civil rights.
21.          No judge authorized the modification of the grand jury record during Brewington’s proceedings.
22.         Any contention that Hill’s April 20, 2016 order gave Ruwe the authority to arbitrarily modify the official audio from the grand jury audio in copying the official record is an oxymoron as the copy is no longer “official”.
23.         Hill and the DSC cannot encroach on the public’s right to access public records by simply claiming non-releasable records are intertwined with otherwise releasable records. The DSC cannot deny access to public records due to incompetence by the DSC court reporter’s failure to hit “stop” and “record” between any alleged unrelated grand jury proceedings, which would have automatically created separate digital files.
24.         The grand jury record shows Negangard instructing the grand jury that Negangard and his staff believed Brewington violated Indiana’s intimidation statute by making “over the top” and “unsubstantiated statements” about officials operating within the Dearborn County Court System, which the Indiana Supreme Court deemed to be an unconstitutional prosecutorial argument. The DSC excluded the “true threat” instruction given to the grand jury and forced Brewington to trial in the absence of any “true threat” accusation.
25.         Any claim Ruwe received judicial approval to modify the grand jury record would have been ex parte in nature. Such order could have only come from Judge Sally McLaughlin (“McLaughlin”) or Hill. An ex parte order limiting a criminal defendant’s access to charging information would amount to a conspiracy by the DSC and Negangard to sabotage a defendant’s right to a fair trial.
26.         Any argument by the Deputy Attorney General that the audio is complete acknowledges a conscious effort between Negangard and Ruwe to selectively record only portions of the official proceeding that Negangard deemed “beneficial” to the record. In the alternative, Negangard initiated a grand jury investigation and obtained indictments against Brewington under an unconstitutional criminal defamation premise then introduced an entirely different prosecutorial argument during trial, thus obliterating any potential defense by Brewington.
27.         Any contention the audio is complete also acknowledges the DSC employs a different process of recording grand jury proceedings than trial proceedings, which fails to meet the requirements of IC 35-34-2-3(d): “The evidence and proceedings shall be recorded in the same manner as evidence and proceedings are recorded in the court that impaneled the grand jury.” The official record in any DSC proceeding does not begin at witness testimony and includes all dialogue between the prosecutor, judge, and members of the jury, unlike the grand jury record in question.
28.         An argument that the audio is complete also implicates Dearborn County Sheriff Michael Kreinhop in misconduct, as Kreinhop was the witness before the grand jury in the timeframe spanning the five minutes of grand jury audio removed by the DSC. If the audio record is complete, Sheriff Kreinhop observed Negangard eliciting questions from jurors for Sheriff Kreinhop off the record and then instructing Ruwe to begin recording the proceedings at Prosecutor Negangard’s discretion; giving the appearance in the transcription that the questions appeared in real-time. The record of the grand jury proceedings demonstrate how Sheriff Kreinhop touted his experience as a law-enforcement officer and experience with the court system to assist Negangard in seeking indictments against Brewington; however, that experience would also make Kreinhop aware of the criminal aspect of a court reporter selectively recording grand jury proceedings to assist future prosecutions.   
29.         This Motion for Su­­mmary Judgment has established the DSC withheld an unknown amount of the audio from the grand jury investigation of Daniel Brewington.
30.         There is no “greater-good” standard in the State of Indiana that allows a public agency to secretly alter and/or withhold portions of public records while simultaneously maintaining the records to be complete.
31.         The record of the grand jury proceeding is void of any indication of “four to five” other intervening grand jury proceedings as claimed by Hill and the DSC. Such claim requires a declaration on record of the present case being presented to the grand jury. The absence of such declaration makes it impossible to determine the target of the grand jury investigation at any given time, thus reducing the accuracy of any transcription, not to mention potential confusion to grand jurors. 
32.         Placing any further trust in Hill and the DSC to accurately represent the grand jury record maintained by the DSC is akin to placing Bernie Madoff in charge of auditing his own investment practices in the criminal investigation of Madoff’s investment fraud.  
33.         The only means to determine whether the DSC withheld portions of the grand jury audio or whether Ruwe selectively recorded the proceedings at the direction of Negangard, is to release the entire unedited record.
34.         Anything short of an order demanding the release of the audio in its original format, gives the DSC another opportunity to obstruct the release of records from a grand jury investigation where Prosecutor F. Aaron Negangard abused the grand jury process in order to punish protected speech. Unless this Court wishes to accept the notion that the Dearborn County Superior Court II is exempt from maintaining a record of the entire grand jury process (minus deliberations) as required by Indiana law, the Dearborn Superior Court II sponsors unconstitutional and illegal grand jury investigations.
35.         Given the criminal nature associated with altering grand jury records, First Amendment retaliation, and the actions by Hill and the DSC to obstruct public inquiry into such actions, a potential conflict may arise with the Office of the Indiana Attorney General serving as counsel for the Defendants. Deputy Attorney General Joshua R. Lowry is faced with the potential conflict of representing the Defendants in a civil case where the existence of criminal conduct by the Defendants, or at least known by the Defendants, is likely, thus jeopardizing the ability of the Indiana Attorney General to investigate the matter. The best-case scenario in this situation is Ruwe and Negangard conspired to produce a partial record of a grand jury proceeding to advance the prosecution of protected speech. The worst-case scenario is Judge Brian Hill and Judge Sally McLaughlin (formerly Blankenship) played an active role in the First Amendment retaliation and then actively obstructed the public’s access to the audio from the grand jury proceedings to cover-up the illegal conduct.
36.         Defendants have a history of referring to alleged paranoia and Brewington’s criminal convictions rather than addressing the above issues. Brewington’s requests for the grand jury audio came as a member of the public. Brewington only raises the issue of his criminal proceedings as they are relevant to this request and Brewington’s above statements are far from baseless or excessive suspicions given the unauthorized modifications to the official record of the grand jury proceeding. Rather than listen to Defendants’ allegations of perceived paranoia or ulterior motives, Brewington requests this Court to keep the Defendants’ focus on issues relevant to this cause of action, such as the DSC making unauthorized modifications to the official record of grand jury proceedings.
37.         Brewington seeks disclosure of an unedited copy of the Official Audio Record from the Grand Jury proceedings relating to Cause No. 15D02-1103-FD-00084.
38.         Brewington requests all fees and expenses associated with bringing this action.
WHEREFORE, Brewington requests that this Court: (1) issue Summary Judgment in Brewington’s favor declaring that the DSC failed to comply with the laws of the State of Indiana and the rules and procedures defined by the APRA; (2) enter an injunction ordering the Court Reporter of the Dearborn Superior Court II to promptly produce the entire unedited audio record (in its original format) of the Grand Jury Proceedings relating to Cause No. 15D02-1103-FD-00084; (3) award Brewington any attorneys’ fees and costs in prosecuting this action; and (4) award Brewington any other appropriate relief.

Respectfully submitted,

Daniel P. Brewington
3 W Central Avenue
Delaware, Ohio 43015