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.
IN THE SUPERIOR COURT OF
DEARBORN COUNTY, INDIANA
DANIEL
BREWINGTON,
Plaintiff,
v.
DEARBORN
SUPERIOR COURT II
JUDGE
BRIAN HILL
Defendants.
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) Case No. 15001-1607-PL050
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PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
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.
TIMELINE OF
EVENTS
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.
FACTS
SURROUNDING THE INCOMPLETE RECORD
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.”
SUMMARY
JUDGMENT IS APPROPRIATE
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.
NO ALTERNATIVE REMEDIES
AVAILABLE
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.
Remedy
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
contactdanbrewington@gmail.com
