Humphrey to Brewington, “It’s either the First Amendment or your kids!”

Dearborn Circuit Judge
James D. Humphrey

“I think you better consider what you're doing because I may consider this as reflecting on what's really important to you, making these web-site postings or your children.” –Testimony of Dearborn Circuit Judge James D. Humphrey during criminal trial of Dan Brewington.  This is the ultimatum/warning Judge James D. Humphrey claimed to have given Dan Brewington before stripping Brewington of his ability to see his children.  Unfortunately, Brewington’s divorce record is void of Humphrey giving Dan any such ultimatum.

On April 29, 2009 Judge James D. Humphrey held a hearing on a petition for a protective/restraining order filed on 4/16/2009 by the attorney of Dan Brewington’s ex-wife.  Brewington’s ex-wife complained about Dan sharing his experiences on the internet in dealing with lawyers, judges, and psychologist through the course of the divorce was bad for her and the children.  Brewington filed a Response to her petition and argued the writings were not harmful to the children and their mother and the content was protected by the First Amendment of the United States Constitution. On May 14, 2009 Humphrey’s order on the petition for protective order stated “said Motion should be and hereby is DENIED at this time.”

When a Judge rules in favor of a litigant, one would think the law falls on the side of the litigant.  Humphrey also added the following to the order denying the protective order:

“The Court may consider issuance of an Order regarding public distribution of matters involving the Dissolution or Custody Evaluation as part of the Court's Decree of Dissolution in considering the best interests of the children. The Court may also consider evidence presented at this hearing regarding the temporary restraining order in regard to the Court's decision as to visitation and custody and how Respondent's actions may affect the best interests of the children now and in the future.”

Judge Humphrey stated the motion should be and was denied, and then went on to write how he “may” consider an issuance of a different order regarding public distribution of the divorce case at another time.  He also said he “may” take into consideration Brewington’s actions in determining visitation and custody.  What actions?  The actions Brewington took to demonstrate his writings were not harmful to the children or his ex-wife were what caused Humphrey to deny her petition asking Humphrey to force Dan to take down his internet content.  What Brewington did not know at the time was Humphrey was giving Dan an ultimatum; stop writing telling people what goes on within the family court system in Southeastern Indiana or I will take your children away from you.  Humphrey had the power to order Brewington to remove the internet content if it was dangerous to his children.  Humphrey refused to do so because the web writings were not damaging to the children; they were damaging to him.

During cross-examination of Humphrey in Brewington’s criminal trial, Brewington’s public defender, Bryan Barrett, asked Humphrey for his recollection as to why he denied the petition for a protective order.  Humphrey had a different and more specific explanation as to why he denied the protective order.  Judge Humphrey stated:

“The reason that I denied it because, I think there were probably two reasons: #1, your client was indicating this was my first amendment right to say what I want to say and I was going to let him do it and the second reason was and in my order I also indicated I think to paraphrase, I think you better consider what you're doing because I may consider this as reflecting on what's really important to you, making these web-site postings or your children and I think by your client's continued actions, he made it very clear he was more interested in his web-site postings than his children.”

James Humphrey may be a vindictive and evil judge be he is not a dumb judge.  Humphrey was well aware of the fact that he could have ordered Brewington to remove his internet content if the information was damaging to Dan’s children.  Humphrey also knew he could have issued an order protecting aspects of the divorce from public dissemination.  Humphrey did not issue a protective order because there was no evidence Brewington’s writings were dangerous to the children or harassing to their mother.  Judge Humphrey’s testimony states the intention of his order was to tell Brewington to choose between his children or his First Amendment protected criticisms of the court system.  Humphrey knew he couldn’t give Brewington that kind of direct ultimatum in a court order because it would have been a very appealable issue and would have likely brought some media attention.  Humphrey knew the content was not dangerous to the children because the content is still on the internet to this day.  It was Humphrey’s own contention that he sent Brewington a hidden message saying “stop writing or you won’t see your children.”  No evidence was ever presented that Brewington’s writings were damaging to his children.  Humphrey’s own contention is he felt Brewington should have heeded Humphrey’s warning that was hidden in the order.  Humphrey claimed Brewington chose his writings over his children yet Humphrey did not make it clear to Brewington that Humphrey even posed the ultimatum.  Brewington would have been better suited to choose one freedom over another if Humphrey would have made it clear to Brewington that he was not going to allow Dan to have both his free speech and his children.

The irony of the situation is, during Brewington’s criminal trial, Humphrey testified his May 14, 2009 order contained hidden threats to take away Brewington’s children if Brewington did not cease exercising his First Amendment Right to criticize the family court system.  Brewington was convicted of D Felony Intimidation because Prosecutor Negangard successfully argued Brewington’s writings about Judge Humphrey’s termination of Dan’s parenting time were considered hidden threats and were made in retaliation for a prior lawful act; Humphrey’s terminating Dan’s parenting time.  Because Brewington wrote about how Humphrey retaliated against him in taking away his children because Brewington did not cease to exercise his First Amendment Right in criticizing the courts, Dan was prosecuted for retaliating against Judge James D. Humphrey.  The scary part to the story is if the Indiana Supreme Court upholds Brewington’s conviction, all someone like Judge Humphrey has to do go to the local prosecutor and cry about how a blog post like this scares him and claim he’s intimidated and the writer can be prosecuted.  Only in Indiana.

You wouldn't lose your children because you criticized a plumber would you?

This past weekend I received emails from two mental health professionals who read my web content. For convenience I will refer to them as Jack and Jill. Jack's memo was relatively short. His message read:

"Hi Dan, thanks for sharing your story. I actually do hear horror stories from some of my clients who are going thru divorces and child custody issues so I know it exists and is heartbreaking. Look forward to your updates."

Jill took a different approach. Some of the things in Jill's message(s) read:

I don't think the approach of your website is the right way to go. I am a child psychologist and I know that fathers often get screwed in custody arrangements. I also think you were probably screwed. and treated unfairly. I do not think your website comes across the way you intend. When I read your website, I could feel your anger, which is justified. I felt a lot of bitterness in your statements and it seemed to me like you were feeling victimized. I don't think that's the tenor you want on a website trying to get your kids back.
__________

Dan as attorney: You don't know who's in "bed" with whom else in family court. You have to play the game and not come across as having a chip on your shoulder and a bone to pick. The whole section reads as anger and sarcasm.

__________

Cross examination- I'm not sure what the purpose of posting this is... the whole section on Dr. Connor sounds like a waste of your energy and like you are going after him-- psychologists generally don't question other psychologists since they weren't in the room at the time of the evaluation. You're more likely to get a diagnosis than support from posting this information.,

__________

This really needs to be about how you are going to prove to the courts that your girls seeing you is in their best interest, not about how the procedure wasn't fair to you. That's what those reading your site will use to as additional "proof" the diagnosis of narcissism, fair or unfair.

Jack just offered a few word of support and wished me luck. Jill provided me with a lot of information in an effort to help me see my girls. Both messages were heartfelt, sincere, and honest, but Jill’s message is based on, as she stated, having “to play the game.”

This is the thinking that needs to be changed if there is ever any chance of reforming the family courts. I don’t want to play games with my children’s lives. I shouldn’t have to “play ball.” I’m not contending for a lucrative government building contract, I’m trying to be a father. She said that the section regarding Dr. Connor is a waste of my time and it sounds like I am going after him. She expressed concerns about my website making me appear paranoid, angry, and/or narcissistic because it could hurt me in court. The sad thing is, all of her concerns are very valid.

Let me give you a scenario. Let’s say that you had a drain line back up into your basement. You call a national drain cleaning service to fix the problem. While at your house, the workers were rude, tracked dirt across your upstairs carpet, and that was after they were four hours late for the scheduled time. When you got the bill for the services, they charged you twice of what they said they were going to charge. A few weeks later the drain backed up again. When you called about the “satisfaction guaranteed” clause of the contract, they said that they were not going to honor it. You decided to post you thoughts on the internet to tell people what happened when you used that particular company. You write things like:

“Those lousy sons of bi#$hes tracked dirt all over my house. They made me so mad I wanted to beat them senseless. The dirty pieces of S*@T would not honor their contract and left me in a worse situation even though they over charged me. Every time I see the stains in my carpet, it makes me want to punch them in the face.”

If you showed that to a social worker, psychologist, and/or judge, they would say, “There’s no way I would ever use that drain service.” But what if the story went like this:

“That lousy son of a bi#$h, Dr. Custody Evaluator, lied in his report. He made me so mad I wanted to beat him/her senseless. The dirty piece of S*@T would not honor his/her contract and left me in a worse situation even though he/she took my money. Every time I think about the evaluation report that contained ‘numerous errors and oversights’, it makes me want to punch Dr. Custody Evaluator in the face.”

Rather than say, “There’s no way I would use Dr. Custody Evaluator”, the social worker, psychologist, and/or judge may begin to think that the person who wrote the review is a danger to their own children because there is a lot of aggression. Dr. Custody Evaluator has been doing this for years so the person who wrote the spiteful web post must suffer from some sort of reality distortion. Feelings of wanting to “punch” or “beat” Dr. Custody Evaluator raise some real concerns about the person possibly posing a danger to his/her own children. I think this person is in need of anger management, an extensive psychological examination, and possible medication to help deal with the observed behavior before the parent can exercise any parenting time with his/her children.

No one has ever lost the ability to see their own children because they wrote an angry review of a plumbing company. Why should someone’s parenting abilities be questioned if they write an angry review of a custody evaluator? That’s what happened to me; except I have never written about any thoughts of causing physical harm to anyone.

This is what has to change in the system. The Indiana Appellate Court ruled

“Thus, although a court may modify a parenting time order when the modification would serve the best interests of the child or children, a parent’s visitation rights shall not be restricted unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development. Id. (citing Ind. Code § 31-17-4-2). Even though the statute uses the word “might,” this Court has previously interpreted the language to mean that a court may not restrict parenting time unless that parenting time “would” endanger the child’s physical health or emotional development.”

Show me the studies that link negative consumer reviews to child abuse. There aren’t any; so why are so many people in the family court system trained to think this way? It’s because there is a giant snowball barreling down the mountain that doesn’t have any checks and balances. The snowball will run over anyone that stands in its path. The system is trapped in a box with its own methodology and science that it bewilders people on the outside. The first step in reforming the family court system is forcing the system out of its box.

Update on Getting back to the Girls

We finally got the appellate brief filed. It's a relief to have a lawyer that I feel comfortable with. Finding a good lawyer can be like finding a good bar/restaurant. There are sports bars with a billion TVs and there are unknown bars with one TV in the corner. One is expensive; one isn't. One bar is owned by a national chain and the other bar is owned by a family or a couple of friends. The national chain can rely on advertising and notoriety to bring in business; the small bar relies on reasonable prices and good service to keep business.

My first attorney was a female who came from a family of lawyers from Bateville, IN. She failed to submit the required information to Court. My second attorney was part of the firm Wood and Lamping in Cincinnati, OH. He claimed he did not know if Dr. Connor's report was bad because he was not a psychologist. He fired me (by email) after I picketed my first attorney's office. My first appellate attorney was a female from a large firm in Bloomington, IN. She didn't give me any idea about a strategy in handling the appeal. She said that she would represent me in the trial court but said I had to pay an additional $5000 retainer (in addition to the $5000 retainer she already received) for her to do so because she said it was separate from my appeal. She advised me to take down my website because it could anger judges. She later fired me (by email) because I wanted to raise the issue of judicial vindictiveness. No phone calls or questions, just fired me. She sent me an email stating, "The extension has been granted for filing your appellate brief to and including February 16. Hopefully, that will give you time to either obtain other counsel or prepare the brief yourself." Thanks. If I wanted to file it myself, I wouldn't have paid you $10,000 to review it, or whatever it was you said you did with the money before you fired me.

I was to the point where I was going to file my own appeal. I tried big firms, small firms, a male attorney, two female attorneys, out of town lawyers, etc... and all they did was take my money. I found the firms that claim that they fight for you often will fight for you unless it is inconvenient to them. I was to the point where I did not trust any lawyer in the state of Indiana; until I saw a post on Facebook.

I saw a post from a lawyer on Indydad.com's Facebook page. He said he was just moving out on his own and starting his own practice. He graduated from Notre Dame Law School in 2003. He grew up with divorced parents. He is the father of a young daughter. Sounded promising. I contacted the lawyer and he found my case compelling. He said he would accept my case so I sent him my information. Then we set up an appointment to meet near the courthouse so he could meet with me and then go review the court record. Oh yeah, I forgot to mention that he accepted my case, reviewed my information, and drove over an hour to meet me and review the court record before he collected a dime. The best thing he did was listen to me.

I'm not a lawyer but I know a little about the law. This was the first Indiana attorney that I met that did not appear to be threatened by my knowledge of the law. He saw my internet postings as being informative; not threatening. He didn't say "this happens all the time." I felt that this was the guy.

My attorney filed the appellate brief yesterday and then called me today to talk about the strategy in going back to the trial court to get visitation from the girls. He too is puzzled about how the court can base its decision in terminating the time I have with the girls on the evaluation and testimony of Dr. Edward J Connor without allowing me to review Dr. Connor's case file. How can I fight something when I don't know what I am fighting against? Now I have someone who believes in me and someone who believes in right and wrong. I have a lawyer who is willing to get in the huddle and form a game plan. Strategy, what a novel idea. Why does the lawyer with the least professional experience seem to have the best understanding of the situation and the most passion? I feel that I not only found a good lawyer, but I found a good human being. I found out that going with big names and big money sometimes buys you expensive crappy service. I took a gamble on an unknown family establishment and received quality services from a person who cares.

I have a court date on June 14, 2010. Judge Humphrey said I needed an evaluation to see if I presented any danger to the children. Judge Humphrey said he had to approve any evaluator, so he scheduled a hearing three months after my attorney filed the motion to approve a psychiatrist. Judge Humphrey is really doing everything he can to expedite my ability to see my children. Hopefully my ex will agree to the evaluator in an effort to speed up the process of allowing the girls to have visitation. Probably not but I can always hope.

I knew this wasn't going to be an easy process but it's nice knowing that I have someone that I can trust. Dr. Connor's report nearly three years old and it's been nearly a year since his testimony. I haven't seen the girls since August 18, 2009. Judge Humphrey and my ex are going to have a hard time in continuing to make the argument that I "might" be dangerous when I haven't placed anyone in danger throughout the course of the divorce that began in January 2007. When will the "he mights" be replaced with the "he hasn't"? I hope that Judge Humphrey and my ex wife don't continue to make me defend myself against something that I "may" do because there is no defense to it. I can say George Clooney "may" drive a car through a crowed playground. I could pay a "professional expert" to evaluate George. The psychologist can say "Mr. Clooney's psychological profile is similar to individuals who have committed horrendous crimes against children." How does someone fight that? At least I have a good lawyer who will fight against the accusations of what I may be capable of doing. If you go by the facts of the record, I'm capable of caring for and loving my little girls. The longer I go without doing any of the things that Dr. Connor, Judge Humphrey, and my ex claim that I am capable of, only proves that they were either wrong about their suspicions or they were fabricating their stories and beliefs. Either way, it's time for them to stop fighting to keep two little girls fatherless, because my new attorney and I are not giving up on my little girls.