Indiana Appellate Court Punishes Me for Trial Clerk's Mistake

Just when you think it couldn't get any dumber, the Indiana Court of Appeals deems my Appellant Brief and Appendix untimely because the Dearborn Superior Court II screwed up again. On February 5, 2018, I filed my appellant brief and appendices with the Indiana Court of Appeals. On February 12, 2018, the Clerk of the Indiana Court of Appeals filed two notices in my appeal: a Notice of Defect re: untimely Appellate Brief, and a Notice of Defect re: untimely Appendix from the Indiana Supreme Court stating,

The Clerk’s Office has received your Appellant's Brief [and Appendix] tendered on 02/05/18, for filing in the above-referenced appeal. Your document has not been filed because it has been tendered after its due date. See Appellate Rule 45(B).

I checked Appellate Rule 45(B):

Appellant's Brief. The appellant's brief shall be filed no later than thirty (30) days after: (a) the date the trial court clerk or Administrative Agency serves its Notice of Completion of Clerk's Record on the parties pursuant to Appellate Rule 10(C)

So, then I checked Appellate Rule 10(C):

C. Notice of Completion of Clerk's Record. On or before the deadline for assembly of the Clerk's Record, the trial court clerk or Administrative Agency shall issue and file a Notice of Completion of Clerk's Record with the Clerk and shall serve a copy on the parties to the appeal in accordance with Rule 24 to advise them that the Clerk's Record has been assembled and is complete.

And then I checked Appellate Rule 24:

24(C). Manner and Date of Service. All E-Filed documents will be deemed served when they are electronically served through the IEFS in accordance with Rule 68(F)(I). Documents exempted from E-Service will be deemed served when they are: (2) deposited in the United States Mail, postage prepaid

The Case Summary of my appeal on the website of the Indiana Supreme Court provides the following as to when the Notice of Completion of Clerk’s record was filed: “File Stamp 01/04/18.” I called the clerk for the Indiana Court of Appeals to get a grasp on the logic. The woman explained my filings were untimely because my 30-day time frame to file my appellant brief and appendix began on 01/03/18; the date listed on the Notice of Completion of Clerk’s Record and attached Certificate of Service filed by Rick Probst, Clerk of the Dearborn Superior Court II:

I certify that on January 03, 2018, I served a copy of this document upon the following person(s) by MAIL.

The certificate of service listed the Office of the Indiana Attorney General, Daniel Brewington, and Clerk of the Appellate Court as recipients of the clerk’s Notice. The problem is Probst failed to mail the Notice until the day after the date Probst certified the Notice as being mailed and served.

Appellate Rule 25 states the computation of time for deadlines begins on the day following an order or applicable act. Thirty days after the January 4^th filing of the Notice of Completion landed on Saturday February 3, 2018, which advances the deadline to the following business day; Monday February 5, 2018. When I called the Clerk of the Indiana Court of Appeals, she said I missed the deadline.

The woman claimed I should have begun computation of time from the date stamped on the trial clerk’s Notice, not the date shown as being filed with the Indiana Supreme Court/Court of Appeals. After inquiring as to why the Clerk of the Appellate Courts showed the Notice as being filed on January 4^th She told me the Appellate Court filing date was dictated by the date of the postmark, which was January 4^th. She then suggested that Rick Probst may have been a day late mailing the Notice to the Court of Appeals. I told her both the Appellate Court and I were copied to the certificate of service and my envelope was also was post-marked January 4, 2018. The woman instructed me to be sure to include a copy of the postmarked envelope in my Motion to File a Belated Appeal.

“Belated Appeal?” I can’t make this up. I get punished because the Dearborn Superior Court II mailed the Notice of Completion the day after the date listed on the Certificate of Service. The Indiana Court of Appeals said my appellate filings were untimely claiming my computation of time began on the day before the Court could recognize the Notice as being filed. Seriously. “Documents exempted from E-Service will be deemed served when they are...deposited in the United States Mail.” The Notice of Completion of Clerk’s Record was postmarked January 4, 2018. The entry on the case summary from the Indiana Court of Appeals also includes a memo stating, “Certificate of Service-Mailed 01/03/18.” If the Notice was mailed on 01/03/18, the Court’s case summary would also show the Notice as being filed on 01/03/18. The absurdity of the situation is beyond comprehension:

The Indiana Rules of Appellate Procedure precluded the Indiana Supreme Court from file stamping the Notice of Completion of Clerk’s Record prior to the postmark date; however, the Court ruled my Appellant Brief and Appendix were untimely because I should have recognized that the computation of time started the day before the Supreme Court could recognize the Notice as being filed.

There really are no words. I guess I’ll just keep fighting the good fight and file what I need to file. Stay tuned for more information.

It looks like the Indiana Supreme Court is cheating again

On October 8th, my lawyer filed a petition to transfer my case to the Indiana Supreme Court. Like clockwork, an IP address from the Supreme Court appears on my website. The same thing happened when my case was in the appellate court. I thought this was the land of the free and home of the brave or something. I thought we had the greatest court system in the world. This is what they want you to think. The Indiana Courts want you to think that justice is blind while they are Googleing ex parte evidence during legal hearings. Word to the wise, stay away from Indiana Courts

Here's to playing fair, Indiana.

I went 1 for 25 in my motions being granted by the court. That is the stat of the day. For the past four days, I have been going through all of my legal files; organizing and condensing. Yesterday I organized all of the orders from the court and I figured out that the court only granted one of my motions in over a year and a half. I got slammed by both the trial and appellate courts for filing many "frivolous" and "baseless" motions. The only motion that was granted was my Motion for a Change of Judge. That was probably due to the fact that Judge Taul was required to do so after violating the Indiana Judicial Code of Conduct by engaging in ex parte communications with custody evaluator, Dr. Edward J. Connor.

So that leaves about twenty-four other filings that Dearborn Circuit Judge James D. Humphrey and the Indiana Appellate Court deemed to be frivolous. I wonder if that gives weight to a civil rights suit. Not only were my motions denied, but the Courts displayed a noticeable amount of animosity towards me for filing them. The Courts even accused me of intentionally delaying the trial because I filed a motion for a change of judge as if it were my fault that Judge Carl H. Taul violated the Indiana Judicial Code of Conduct by having private conversations with Dr. Connor. The only means that I had to respond to the ex parte communication was to address the problem in numerous motions.

The courts accused me of trying to intentionally run up my Ex's legal fees by filing frivolous motions. During the course of the divorce, I filed no contempt charges against her, didn't subpoena her or any of her family, didn't accuse her of being a bad parent, and I didn't attack her character. The only thing that I did was try to get a copy of Dr. Connor's case file from his custody evaluation per the law and Dr. Connor’s contract. They refused to provide me with a copy of the file claiming that they were afraid that I would release her medical/psychological information to the world. Dr. Connor, my Ex, and the Courts have convinced themselves that I am some kind of diabolical and evil villain whose only goal in life is to release my ex-wife's health records. It's rather ridiculous to think that the person that they accuse of not being able to focus and stay on track is the same person who they claim to be the mastermind of a two and a half year plan to misuse someone’s health records. Actually, I just want to know what information Dr. Connor used to come to the conclusion that I couldn't communicate and that my writings were confusing and difficult to follow. Dr. Connor refused to look at my health records when I offered them to him. He said I was entitled to the case file; it's not my problem that he put my Ex's health records in the file.

I find it troubling that the Indiana Appellate Court seems to have some kind of animosity towards Dan Brewington. I know it seems ridiculous to think that the Indiana Appellate Court would go after me for some reason but I can't figure out any other reason why the Appellate Court would fabricate information in their ruling. They claimed that my right to take possession of my parent's farmland was fixed and certain. No it isn't; it can be sold at anytime and there is nothing I can do about it. The Court claimed that my internet writings made it necessary for my Ex to file for protective orders (non-violent) on more than one occasion. Check the record. She filed one motion requesting Judge James D. Humphrey to force me to take down my internet content. There was a hearing and Judge Humphrey denied her motion. Why did they make this stuff up? Either they ruled on erroneous information or their bias prohibited them from accurately absorbing the information. My guess is that they were pissed off about my web site.

On July 26, 2010, I posted a blog regarding the Indiana Appellate Court’s decision in my case. I also made mention of quite a few IP addresses that recently visited my website from the Indianapolis/Indiana area. I wrote that if the appellate court didn't rule on my case using fact and law, then I would be subpoenaing the IP addresses that visited my website. For some reason, quite a few IP addresses suddenly stopped visiting my site on that day. I bet there are a few government officials and media personnel that would like to know who the IP addresses belong to. If the public discovered that the Indiana Appellate Judges were conducting their own investigations while they were on a case, it would fracture the integrity and public trust of the entire Indiana Judicial System which serves as the foundation for the judicial branch of government. It would call into question the integrity of all of the rulings by the Indiana Appellate Court. (On a side note, I do have all of those IP addresses and their history backed up)

So now I have to wait on a Petition for Rehearing. One of the best lines from my lawyer's Petition deals with the Courts' accusations that I tried to intimidate the staff of the trial court. My lawyer wrote:

"Absolutely no evidence or testimony from court staff was ever presented at final or other hearing regarding this finding, and Husband never had any chance to refute such an allegation. One can only surmise that such information was obtained ex parte creating grounds for retrial. See Garrard v. Stone, 624 N.E,2d 68 (Ind. App. 1993) where case was remanded for retrial for Judge’s failure to step down after receiving evidence outside the presence of the parties."

Either Judge Humphrey lied, his staff lied, or both. It doesn't even matter who was telling the truth because it is against the law for a judge to gather information outside of the proceedings. Besides, I didn't do anything harassing or menacing and I have proof. I had a recorder going every time that I stepped foot into the Dearborn County Courthouse just in case something like this would come up. Were they intimidated by me? Probably. Not because they felt that I presented a physical danger to them; they probably felt that I was a legal liability because they knew they were doing something illegal and they figured out that they couldn't bully me into submission.

Now we wait. Let the Indiana Appellate Court ponder if they want to punish my children even more because they hate my children's father. While they are pondering whether to continue to abuse my children, let them ponder what information that I have on the Indiana Court System and what contacts that I have gained. I wonder if they will continue to assume that they can continue to stomp on the rights of the little guy and his fatherless little girls. The scary thing for the Indiana Appellate Court is that no judge on the bench can say for sure that the IP address of the person next to them isn't saved on my external hard drive. It only takes one. If the Indiana Appellate Court chastises me for my internet writings while someone from the court has visited my website, it will be worthy of a Mike Wallace story on 60 Minutes. If anyone reading this thinks that I am attempting to intimidate the Indiana Appellate Court by writing this; I'm not. Why would they be intimidated? They aren't supposed to be here anyway. Here's to playing fair, Indiana.

"Serpico"; and how the good guys are somehow the bad guys

Last night I watched the 1973 film “Serpico” starring Al Pacino. “Serpico is based on a true story about an honest New York police officer, Frank Serpico, who blew the whistle on widespread police corruption. Serpico did not set out to bring down bad cops; the bad cops turned on him when he would not accept bribes and payoffs. Serpico’s actions in standing up to crooked officials in the police department and city government only got him labeled as a “bad cop.” When nobody in the system would do anything about rampant police corruption, Frank went to the newspaper. Shortly after the New York Times published a front page story about the corruption in the New York City Police Department, Serpico was sent to the dangerous ranks of the narcotics unit where he was shot in the face by a drug dealer while his fellow officers did nothing. Luckily Frank Serpico survived the incident and it brought forth sweeping reform to the department. Unfortunately, Serpico was still seen as a traitor amongst other police officers and received little recognition from the New York City Police Department for his bravery.

How can government spiral so far out of control to the point where the “majority rules” mentality kicks in and decides that if the bad guys outnumber the good guys, then the bad guys are right? “Serpico” is somewhat of a metaphor for government corruption on many different levels. I can liken it to my experiences in dealing with the Indiana Court System. One thing I feel that I share with Frank Serpico is a public perception of naivety. If individuals stand up against government corruption and civil rights violations in matters which the majority perceives to be impossible, the individuals are often labeled as being naïve. If the “naïve” individuals start asking too many questions, they are considered to be a threat. If the “threatening” individuals’ persistence begins to attract the ear of the public, then they are deemed dangerous. “Dangerous” is a label that dishonest officials place on people who pose a serious risk to their convenient unethical and/or illegal activity. In three simple steps, the new naïve guy in the system can somehow evolve into a danger to society. Corrupted officials need to label their opponents as being dangerous because it provides a means of justification to take almost any action necessary to eliminate the danger.

“You can’t beat the system.” I’ve heard that many times during the course of my dealings with the Indiana Court System and Dearborn County Law Enforcement. What people fail to understand is that I’m not trying to beat anything. I just want to be able to exercise all of my rights guaranteed to me by the US Constitution and I want those who are in a position to enforce the law to OBEY the laws they swore to protect. I was punished because I questioned the ethics of the Court’s expert, Dr. Edward J Connor. I was punished because I got Judge Carl H Taul to recuse himself because he violated the Indiana Judicial Code of Conduct by communicating with Dr. Connor outside the presence of the parties. I was punished for publicly writing about Dr. Connor and Judge Taul’s unethical/illegal conduct. Then I was punished for being persistent in trying to obtain the evidence against me. When I continued to question the system, I became the subject of a “secret” investigation by the Dearborn County Special Crimes Unit. When I began to request public records pertaining to the secret investigation and Judge James D. Humphrey, Dearborn County Prosecutor Aaron Negangard sent me an email where Mr. Negangard threatened to “make every effort to prosecute” me if I break any laws. Why is the Dearborn County Prosecutor threatening me? Is he threatening me because he believes I am dangerous, or is he threatening me because I am naïve? I guess it depends on what side of good or bad Mr. Negangard falls on.

Frank Serpico left the New York City Police Department after recovering from a gunshot wound to the face. The New York Times did an article on Mr. Serpico earlier this year. Frank Serpico was a victim of the NYPD yet he was viewed as a villain by many in the NYPD. The only thing Mr. Serpico was guilty of was failing to distinguish the difference between the criminals on the street and the criminals on the police force. Frank Serpico’s “inability” to differentiate the “good” criminals from the “bad” criminals prematurely ended his law enforcement career. In the January article by the New York Times, Frank Serpico said, “They took the job I loved most. I just wanted to be a cop and they took it away from me.” In a sense, I feel that I can relate to Mr. Serpico. Why should a person be punished because other people are angry that the person follows the law? I haven’t broken any laws in Indiana yet Indiana treats me as if I am a criminal. Indiana took the job I loved most. I just wanted to be a dad, and Indiana took it away from me.

The Indiana Appellate Court doesn't tell the truth

I think the Indiana Court of Appeals is under the impression that we live in a place like Russia or China. I got a ruling [Click here to see the Appellate decision] from the Indiana Court of Appeals and apparently they are in the business of abusing children and taking away First Amendment Rights as well. Rather than deny my appeal because I did not preserve my right to appeal matters while representing myself or claim that my lawyer did not make the correct argument, the Appellate Court did just what the two trial court judges did; they lied.

Dearborn Circuit Judge James D. Humphrey terminated my ability to see my children on August 18, 2009, based primarily on the testimony and evaluation of child custody evaluator Dr. Edward J. Connor. The one thing that I have had difficulties understanding is why the state of Indiana makes laws if the state does not have to follow them. Indiana Code (IC) 31-17-2-12 deals with the procedures regarding custody evaluations for custody hearings. IC 31-17-2-12(b) states the evaluation and the testimony of the investigator may not be excluded in court on the grounds as hearsay if the requirements of subsection (c) are met. IC 31-17-2-12(c) states:

(c) The court shall mail the investigator's report to counsel and to any party not represented by counsel at least ten (10) days before the hearing. 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.

I tried to get a copy of Dr. Connor’s case file for fifteen months before the final hearing. Judge Taul said he would not release the file because he was not aware of Kentucky law. I still wonder why an Indiana judge would think that the laws of Kentucky govern the release of information in Indiana trials. When Judge Taul recused himself after participating in ex parte communication with Dr. Connor, Judge Humphrey stepped in to take over violating my rights to due process. Judge Humphrey said he was not going to let me have Dr. Connor’s file because he thought that I wanted to use it to hurt the children’s mother. [Please note that throughout the two and a half year divorce, I was never accused of harassing or menacing behavior by any party.] Judge Humphrey allowed Dr. Connor’s report and testimony to be admitted as evidence despite my objections that the evidence is hearsay because I was not provided a copy of Dr. Connor’s case file. Judge Humphrey terminated my parenting time based on Dr. Connor’s testimony and report.

Appellate judges are fair, right? What motivation would they have not to perform their duties in an honest and unbiased manner? The Indiana Appellate Court sounded like they did not like me in their ruling. As a lot of people know, appellate rulings can take several months or even years. The Indiana Appellate Court took just eighteen business days from the time they received the trial court record to make a decision. How did they rule on my appeal regarding me not having access to Dr. Connor’s case file per IC 31-17-2-12(c)? They affirmed the trial court’s decision.

I thought the Indiana Code was pretty clear; if I did not have a copy of the case file, then the evaluation was not admissible to court because it was hearsay. The Appellate Court disagrees. The Indiana Appellate Court stated, “We first note that IC 31-17-2-17(c) does not require that Dr. Connor’s entire case file be provided to Daniel.” The Appellate Court did not offer any statute or case law to support their opinion that “investigator’s file of underlying data and reports” did not mean Dr. Connor’s entire case file. When I researched cases involving IC 31-17-2-12(c), I was unable to find any case precedence that defined exactly what the “investigator’s file of underlying data and reports” consisted of. Immediately after the Appellate Court stated that the “investigator’s file of underlying data and reports” did not mean Dr. Connor’s entire case file, the Appellate Court wrote, “All the items specified by statute were provided.” Somehow the Indiana Appellate Court ruled that the investigator's entire file of underlying data and reports, under IC 31-17-2-12(c), did not refer to Dr. Connor's entire case file.

Despite there being no definitive explanation as to what Dr. Connor’s file of underlying data and reports” represented, the Appellate Court stated I was provided all of the information. Apparently, the Appellate Court did not review the transcripts from the May 27, 2009 hearing. When I questioned Dr. Connor on the stand about why he did not give me a copy of my responses to the questionnaires I filled out for the evaluation, Dr. Connor responded, “I don’t know. That should have been included and I will see to it that you get that, if you like.” From a legal standpoint, I hope that the Indiana Appellate Court understands that the only way that they could be sure that I was provided with all of “the items specified by statute” is if I was provided with a copy of Dr. Connor’s entire case file or if a Judge reviewed the case file and determined what information that I was required to have under IC 31-17-2-12(c). Since I did not get a copy of Dr. Connor’s case file; and no judge reviewed the contents of Dr. Connor’s case file; and Dr. Connor admitted in testimony that he did not provide me with some information; the Indiana Appellate Court just conjured up a story in an effort to deny my appeal.

Why would the Indiana Appellate Court lie just to hurt me? It appears that they don’t take kindly to people exercising their rights to freedom of speech and exposing unethical and/or illegal conduct of the Indiana Court System. I am not a lawyer and I represented myself at the trial court level. When the trial court failed to protect my rights to due process and to a fair trial, I created a website and a blog page to share my experiences. The Indiana Appellate Court demonstrated their disapproval of my internet material in their decision by lying about the court record in an effort to “build” a case against me.

Near the end of the appellate decision, the Indiana Appellate Court wrote, “During the pendency of the proceedings, Daniel posted information concerning the dissolution on his website and blog, in response to which [Wife] sought a protective order and a temporary restraining order on more than one occasion.” During the course of a trial, all motions, orders, and everything else that is filed with the court is logged into the Chronological Case Summary or CCS. The CCS from my case demonstrates that my ex-wife only filed ONE motion for a protective order/restraining order that requested the Court to force me to take down my internet material. The motion was filed on April 16, 2009 and there was a hearing on the motion on April 29, 2009. On May 14, 2009, Judge James D. Humphrey denied her motion because she failed to demonstrate how my writings were dangerous, harassing, and/or harmful to her or my children. Not only did the Appellate Court condemn me for something that the trial court already ruled did not harm my children or their mother, the Appellate Court fabricated a story that my ex-wife sought protective/restraining orders on more than one occasion, to strengthen their argument against me.

The Appellate Courts condemnation of my internet content that criticized the trial court came just three weeks after their June 29, 2010 decision, where the Indiana Appellate Court overturned a trial court ruling that prohibited a mother from exercising her First Amendment Rights in challenging the trial court. After the mother’s story about her court proceedings was published in the Indianapolis Recorder, the trial court issued a restraining order prohibiting her from speaking about the court hearings. In T.N. vs. B.D., the Indiana Appellate Court wrote:

“Freedom of speech is a fundamental right. De Jonge v. Oregon, 299 U.S. 353, 364 (1937). And the right to challenge the government, inherent in freedom of speech, is at the foundation of our Constitution. Thus, we decline to say that Mother’s right to freedom of speech must yield absolutely to all facets of what the juvenile court broadly described as “a confidential matter.”

So not only did the Indiana Appellate Court make up the story about my ex-wife having to file for multiple restraining/protective orders because of my web material that criticized the trial court, the Appellate Court condemned me for publicly challenging the government just three weeks after the Appellate Court wrote, “The right to challenge the government, inherent in freedom of speech, is at the foundation of our Constitution.”

So I guess the fight goes on. I’m researching options and talking to my lawyer because this is a matter that cannot be ignored. The Indiana Appellate Court is taking away my rights and the rights of my children because I exercised my fundamental right to freedom of speech, which is at the foundation of our Constitution. I can see why the Appellate Court doesn’t want me to talk about this, because people will know that the Court is vindictive and doesn’t tell the truth. Now they will probably punish me and my children even more for exercising my right to free speech. If the Indiana Appellate Court issues anymore rulings on my case containing information which is not in the official record and are not based on law, I will subpoena the IP information of the people in Indiana who have been frequenting my websites lately. I will be able to determine if anyone associated with the Indiana Appellate Court was doing their own research on a pending appellate case. It has been documented that an Indiana Supreme Court IP address has been frequenting my website. If you are a judge and you are reading this; there is a record of it. Subpoenaing Indiana IP addresses that have visited my websites can lead right to someone’s computer, Blackberry, netbook, IPad, etc... If we cower to corruption, what lesson does that teach our children? “The penalty good men pay for indifference to public affairs is to be ruled by evil men.” –Plato. I love you girls. Daddy is still fighting for you.

On a side note, page 14 of the Appellate decision states that my conduct during the trial court hearings made it necessary for a Sheriff's Deputy to be present in Judge Humphrey's courtroom for all three days of of the final hearing. Judge Humphrey lied about that in his brief as there was no special security in Humphrey's courtroom during the final hearing on May 27, June 2, and June 3 of 2009; just the normal bailiff. I am currently trying to obtain police and court records to prove that Judge Humphrey lied in his efforts to further deny my children of their father.