From Putnamville Prison to the Indiana Supreme Court in Eight Days. Blogger’s Freedom of Speech Case Rests with the Indiana Supreme Court

Dan Brewington walked out of Putnamville Correctional Facility at 1:08 a.m. on Thursday, September 5, 2013 and walked out of the Indiana Supreme Court courtroom at 10:00 a.m. on Thursday, September 12, 2013. Brewington’s case was heard by the Indiana Supreme Court one week after Brewington was released from jail after being incarcerated for 2 ½ years. Although no one could predict the outcome at this point, the overall feeling seemed to be one of satisfaction as to how the hearing went in terms of Brewington’s case. Spectators and the attorneys involved were all smiles and receiving congratulations from people who had attended the hearing. Non legal people might be amazed at how much serious work goes into presenting Oral Argument before the Indiana Supreme Court. Besides the countless hours of research, writing and rewriting appeal briefs and arguments, Wednesday, September 11, 2013 the attorneys presented before a Moot Court (practice court) at the Robert McKinney Law School in Indianapolis. Five very busy professional people volunteered their time to become familiar with Brewington’s case and then hear argument from Michael Sutherlin and UCLA Professor Eugene Volokh. The attorneys indicated that was a valuable piece to their preparation. Dan, Matt, and Sue Brewington were invited to attend.

Thursday morning Oral Argument was scheduled for 9:00 a.m. Brewington's side had 30 minutes. Professor Volokh took the first 10 minutes and Michael Sutherlin the next 15 minutes with 5 minutes being reserved for the end. Stephen Creason presented for the State. The hour went by quickly. Chief Justice Brent Dickson mentioned at the end that he was glad they had the extra 20 minutes because the subject was of importance and interest. Almost all oral argument before the court is 40 minutes, 20 minutes for each side. Brewington’s attorneys, Michael Sutherlin and Sam Adams, motioned the court for 30 minutes for each side and the motion was granted.

Below are links to reports about Dan Brewington and the process.

Tim Evans, reporter covering courts and the law for the Indianapolis Star
http://www.indystar.com/article/20130911/NEWS/309110057/Supreme-Court-hear-arguments-case-convicted-blogger?gcheck=1&nclick_check=1 Tim Evans article Indianapolis Star. Sept. 11, 2013 5:16 pm

Indiana Law Blog post – Marcia J. Oddi
http://indianalawblog.com/archives/2013/09/ind_courts_brew.html   Sept. 11, 2013

Mike Perleberg is the news editor for Eagle Country online, Eagle Country 99.3FM located in Dearborn County, Indiana and has been reporting on Brewington’s case since Brewington’s arraignment on March 11, 2011.

http://www.eaglecountryonline.com/news.php?nID=6302 Mike Perleberg’s Thursday am article 7:15am http://www.eaglecountryonline.com/news.php?nID=6308 Mike Perleberg’s Thursday pm article 1:26pm
Both posts were written on Sept. 12, 2013 (Notice the difference in the pictures. Dan lost 100 lbs. in prison by counting calories and exercising. He is keeping up the regimen now that he is at home)

Profess Volokh, posted on his blog, The Volokh Conspiracy, about his trip to Indianapolis for Oral Argument in Brewington's case.
http://www.volokh.com/2013/09/13/state-v-brewington-oral-arguments/

Professor Volokh's brief bio.
http://www2.law.ucla.edu/volokh/  

The Oral Argument in the Brewington case can still be viewed at: For those who are curious, the arguments are here: https://mycourts.in.gov/argume...

Once again the Brewington family wishes to thank everybody who has supported us in any way during this extended process. 

 

 

 

 

Dan Brewington Released from Putnamville Sept 5th/Indiana Supreme Court to Hear Oral Argument in Brewington Case Sept.12th

Dan Brewington was released from Putnamville (a medium security prison) after serving 2.5 years of his 5 year sentence. He received all time possible off for good behavior. His family picked him up very early on Thursday morning and he walked out of prison at 1:08 A.M.

The next step in his case is oral argument before the IN Supreme Court on Sept 12th at 9 A.M. Oral argument can be viewed online via webcast at https://mycourts.in.gov/arguments/default.aspx?court=sup. This information appeared on the Dearborn County Blog Thursday, Sept 5, 2013.

The Brewington family, Dan, Matt, and Sue are extremely grateful and gratified by the welcome home response from family, friends, and other supporters from our wonderful Norwood, OH community and around the country. Best wishes started to appear on facebook as we came in I 74 and when we arrived there was a banner in the front yard. Apparently there are numerous people in the country that feel freedom of speech is one of our most essential freedoms.

This picture was taken the next morning since we arrived home at 3:30am.

	URL: http://www.dadsfamilycourtexperience.com/Dan%20Welcome%20home%20pic.JPG
	(picture appears upside down. currently working on that SAB)

Three Toilets for 150 Men at Putnamville Correctional Facility

It has come to my attention that the A-side bathrooms in 12N have been completely closed. Previously only the showers had been closed but now roughly 150 offenders have to share 3 toilets. Simple math allows us to see that if each offender averages 5 minutes of "pooh-time" a day, that leaves only 3 toilets for 12.5 hours of poohing; not to mention 3 urinals (1 that overflows) and 4 sinks ( 3 of which do not drain properly). I hope the toilet area will be opened immediately to rectify the pooh problem. I will be sending the information to www.danbrewington.blogspot.com so the public can be aware of the health and safety concerns. Thank you.

This is a letter I wrote after finding out Putnamville Correctional Facility closed one of two bathrooms (indefinitely) in the 12 North housing facility, leaving 150 men to use 3 toilets and urinals, 4 sinks, and 8 showers. The reason for the closure is the facility refurbishing the old bathroom yet the project has been going on for roughly 2 months now. One maintenance worker referred to it as a work in progress as they were "learning as they go." With no true plan or regular work schedule, Putnamville Correctional Facility eliminated half of the bathroom facilities for a unit. From what I am told it was originally built to house less than 100 men and is currently housing nearly 150 men. Rather than lowering the population of the unit prior to construction, the facility just decided to strip inmates of proper and safe bathroom facilities. Please note there are 24 more bathrooms to refurbish. This was an issue I felt should be addressed to the public. Please feel free to contact the Commissioner of the Indiana Department of Corrections, Bruce Lemmons with any comments or concerns. As always, thank you for your continued support and please check back for updates on this issue and others as well as my upcoming release on September 5 of this year.

The Indiana Supreme Court has granted Brewington's Motion for Extended Oral Argument.

The Indiana Supreme Court has granted Brewington’s Motion for Extended Oral Argument. The usual time allotment is 20 minutes for each side, with this order both sides now have 30 minutes.  The oral argument will be held September 12, 2013, at 9:00 a.m. in the Courtroom of the Indiana Supreme Court, 317 Statehouse, 200 W. Washington Street, Indianapolis, Indiana. The argument can be seen live, on-line.

Some of Brewington’s points in the Motion:

·         “…The argument in this matter will address whether to grant Brewington’s petition to transfer as well as the merits of Brewington’s claims of error.”

·         “Brewington’s Petition raises issues regarding protections under the First Amendment to the U.S. Constitution and Article I   9 of the Indiana Constitution, as well as issues of prosecutorial misconduct at grand jury proceedings.” (Dearborn County Prosecutor F. Aaron Negangard)

·         “This Court must conduct a more thorough review of the evidence than is normally required in criminal appeals: When a case raises a First Amendment issue, “an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’”… The Court will therefore need to conduct a close review of the evidence presented at trial, and may wish to ask questions concerning the record as well as the legal issues raised in Appellant’s Petition.”

·         “Earlier this year, after briefing on the Petition to Transfer was complete, the (Indiana) General Assembly amended the intimidation statute to increase its scope.” (Senate Enrolled Act No. 361) The addition to the intimidation statute can be located at http://danbrewington.blogspot.com/2013/06/the-following-is-letter-that-is-being.html  “These amendments, which go into effect on July 1, 2013, increase the penalties for certain types of communication, and broaden the scope of conduct which gives rise to criminal liability. The intimidation statute has become more restrictive of speech.”   

To view The Motion for Extended Oral Argument and the Indiana Supreme Court’s Order

http://www.dadsfamilycourtexperience.com/Appellant%27s%20Motion%20for%20Extended%20Oral%20Argument.pdf   Appellant Motion for Extended Time

http://www.dadsfamilycourtexperience.com/Order%20granting%20extended%20time%20for%20Oral%20Argument%20for%20Sept%2012%2c%202013%20IN%20SC%20hearing..pdf  Order

 

 

 

Order for Oral Arguments from the Indiana Supreme Court

Below find a link to the official order and posts regarding oral arguments from the Indiana Law Blog.

http://www.dadsfamilycourtexperience.com/Indiana%20Supreme%20Court%20Order%20for%20Oral%20Arguments%20Dan%20Brewington%20Case.pdf

 Ind. Courts - More on "Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington"

Updating this ILB entry from June 7th, EAGLECOUNTRY 99.3FM has a story today - a few quotes:

(Lawrenceburg, Ind.) - A jailed blogger who targeted a Dearborn County judge with his internet writings will have his appeal heard by the Indiana Supreme Court.

Dan Brewington’s story has made national headlines and caught the attention of First Amendment advocates across the country. Eagle 99.3 has been covering the story since Brewington was indicted for Intimidation of a Judge and other charges in 2010. * * *

The justices’ decision would likely come weeks or months later, which might have little impact on Brewington’s stay behind bars. According to the Indiana Department of Corrections, his earliest possible release from prison is September 15.

See this March 13th ILB post and its links to access all the briefs in the appeal.

Posted by Marcia Oddi on June 10, 2013 10:16 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington"

The ILB was holding off on this, as nothing has yet been officially entered on the docket. But meanwhile, Prof. Volokh at The Volokh Conspiracy has posted the word that the Indiana Supreme Court "will hear oral argument — likely on Sept. 12 — on the matter."

[More] Here is a long list of earlier ILB posts on Brewington v. State, the jailed blogger, free speech case.

Posted by Marcia Oddi on June 7, 2013 03:11 PM
Posted to Ind. Sup.Ct. Decisions

 

 

 

What Is Panel Per Curiam and Why Did the Indiana Court of Appeals Use This for the 1st time in 50 years in the Dan Brewington Divorce Appeal?

One of the more perplexing issues concerning my divorce case was how the Indiana Court of Appeals on July 20, 2010 denied my divorce appeal “panel per curiam.” I had no idea what “panel per curiam” meant at that time. After more research I discovered my case was an isolated one, as I could not find another case where the Indiana Court of Appeals ruled panel per curiam. 

Dearborn County Prosecutor F. Aaron Negangard emphasized to the jury at my criminal trial that panel per curiam meant the entire Indiana Court of Appeals agreed with the decision on my divorce appeal.  Apparently it means that no one on the three judge panel has to sign the Appellate Decision, therefore keeping the names of the judges who ruled, secret, and that all the rest of the appellate judges are made aware of the “targeted” decision. The Indiana Court of Appeals doesn’t even have a procedure for ruling en banc, (all 15 judges sitting on a case).  The ludicrous part is that the Indiana Court of Appeals had not ruled panel per curiam since the 1960’s. What was so significant about my divorce case, where Judge James Humphrey separated two little girls from their dad, that the court felt a need to rule panel per curiam, a process they hadn’t used for a ruling in 50 years? 

Why would the judges who ruled panel per curiam want to remain anonymous? When my criminal trial went to the Indiana Court of Appeals the original panel was J Friedlander, J Brown, and J Darden. At the November 21, 2012 Oral Arguments the 3 judge panel was J Darden, J Baker, and J Riley. What happened to J Friedlander and J Brown? Is it possible that they were involved with the only anonymous (panel per curiam) decision that the Indiana Court of Appeals made in 50 years? Was it one of them who ruled that I was provided with all portions of Dr. Connor’s case file required by law even though there was no court record of what portions of his case file Dr. Connor submitted? Was it one of them who wrote, anonymously, that my internet writings during my divorce caused my ex-wife to file for protective orders on more than one occasion. (In fact she filed for only one protective order against my web content and her motion was denied by Judge Humphrey on 1^st Amendment grounds.) Why did J Friedlander and J Brown withdraw from my criminal appeal? Where is the transparency in a case where two small children were removed from a father with no record of being a bad parent?

Murderers, gang members, serial rapists, and other violent offenders petition the Indiana Court of Appeals on a regular basis. These are people who are usually considered dangerous by most members of society, not bloggers. I have no history of violence. I’ve never threatened anyone with an illegal act. Why might any judge or public official be afraid of a man behind a keyboard? Could they be afraid of me blogging them to pieces or just afraid of what others might think if I criticized their judgment? [Note: during the oral arguments in my criminal case, Judge Baker failed to provide a rational explanation as to why there was an armed officer in the courtroom when police protection is virtually non-existent in appellate oral argument hearings.] 

Many questions are left unanswered. When did Judge Friedlander and Judge Brown withdraw and did Judge Baker and Judge Riley have enough time to properly prepare for my oral arguments? Why did the three judge panel, who chose to remain anonymous in ruling on my divorce appeal, dig up something that the court hadn’t used in 50 years? Where is the transparency and integrity that we should expect from a state court of appeals?

Some time ago, I had a meeting with my attorney where he informed me that there might be some thought “out there” that the Appeals Court may have gotten it wrong on my criminal appeal. Odd. Which part of the ruling could have been the problem?  Could it have been their ruling that harsh criticism of an Indiana judge's decision is subject to criminal prosecution or realizing the absurdity of the case law that was just forged; that under the Indiana intimidation statute, a judge could have Indiana law enforcement arrest any individual whom, in a judge’s opinion, unfairly criticizes that particular judge’s decisions, simply by claiming to be afraid? It is unfortunate for me that no one realized a possible “mistake” until after the Court’s ruling on January 17, 2013 because maybe I’d be home right now. 

I would like to thank everyone for their continued love, support, and prayers.

Dan Brewington, with Sue Brewington 

News about Oral Arguments and a Letter Being Sent to Indiana Legislators

The following is a letter that is being sent to the Indiana State Legislators regarding the new Intimidation Law and Dan Brewington's current case. While writing this letter today, I learned that the Indiana Supreme Court has agreed to set oral arguments on September 12, 2013 at 9:00am. The Court will hear oral arguments before deciding if they are going to accept transfer. People will want to know if this is good news. It is to a point. Dan will be finished with his jail sentence September 4, 2013 so I guess he can go to his own oral arguments. We are disappointed that Dan had to spend 2 1/2 years in jail for something that he didn't believe was against the law but we will move forward. Thanks to everyone for all of your prayers, love, and support. Sue Brewington

Friday, June 7, 2013

Dear Legislator;

Intimidation
S.E.A. 361, P.L. 123-2013
Effective July 1, 2013
Provides that for the crime of intimidation, “communicates” includes posting a message electronically, including on a social networking web site. Provides that it is a Class D felony if the person to whom the threat is communicated is: (1) an employee of a hospital, school, church, or religious organization; or (2) is a person that owns a building or structure that is open to the public or is an employee of the person. Specifies that communicating a threat with the intent to interfere with the occupancy of certain buildings may constitute intimidation. Increases the penalty to a Class C felony if it is committed against a judge, bailiff, prosecuting attorney, or deputy prosecuting attorney.

It has come to my attention from reading the Indiana Law Blog that on April 30, 2013 Governor Mike Pence signed a law that would alter the Indiana Intimidation statute.

While I was writing this letter the Indiana Law Blog posted Ind. Courts - "Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington"
The ILB was holding off on this, as nothing has yet been officially entered on the docket. But meanwhile, Prof. Volokh at The Volokh Conspiracy has posted the word that the Indiana Supreme Court "will hear oral argument — likely on Sept. 12 — on the matter."
[More] Here is a long list of earlier ILB posts on Brewington v. State, the jailed blogger, free speech case.

Daniel Brewington v State of Indiana, Petition to Transfer, is currently before the Indiana Supreme Court awaiting a decision. Brewington is challenging the constitutionality of the current Intimidation statute. Daniel Brewington was a blogger and the blog continues in operation, http://danbrewington.blogspot.com/   The online docket appears   http://hats.courts.state.in.us/ISC3RUS/ISC2menu.jsp , the case number is 15 A 01-1110-CR-00550.

The decision by the Indiana Court of Appeals (J Darden, J Baker, J Riley who ruled after J Freidlander and J Brown recused themselves) was greeted with a great deal of consternation from both sides of the political spectrum. After the appellate decision, Brewington’s attorneys were contacted by UCLA Constitutional Law Professor and First Amendment expert, Eugene Volokh, with an offer to write an amicus brief in support of Brewington’s Petition to Transfer.

Michael K. Sutherlin and Samuel Adams filed Brewington’s Petition to Transfer on February 14, 2013.

http://danbrewington.blogspot.com/2013/02/dan-brewingtons-petition-to-transfer-to.html

There are already no controls on unscrupulous prosecutors or judges in the State of Indiana. Now you have upped the ante on anyone who might try to inform the public about an outrageous decision or prosecutorial misconduct. These people have absolute immunity right now. Dan Brewington, who had a perfect record as a father to his two young daughters (check the records) was summarily removed from their lives by Judges James D. Humphrey. Brewington chose a different way to try to inform the public about what had been done. Brewington believed that since he had not been separated from his girls more than 4 days since birth that Judge Humphrey’s action were tantamount to child abuse. Now Brewington is sentenced to 5 years in the DOC for Intimidating Judge James D. Humphrey, from Dearborn County, Indiana. Judge Brian D. Hill denied Brewington any opportunity for probation, saying  Brewington would just blog about the probation department. Brewington, besides blogging, also appealed the divorce decree to the Indiana Court of Appeals and an odd thing happened. The Court of Appeals upheld everything but instead of signing the decision they ruled Panel Per Curiam. Prosecutor Negangard mentioned this in the criminal trial. What he didn’t mention was this was the only panel per curiam decision that the Indiana Court of Appeals issued since the 1960’s, and that is still true today. Brewington was prosecuted by Dearborn County Prosecutor F. Aaron Negangard and Deputy Prosecutor Joseph Kisor. Dan, who had no previous criminal record and no indication of any violent act in his lifetime, was convicted of a D felony of Intimidating a Judge. Now, with the new legislation Dan would have been convicted of a C felony of Intimidating a Judge. This will have an incredible chilling effect on freedom of speech in Indiana.

UCLA Professor and Constitutional, First Amendment Law expert, Eugene Volokh, wrote about Brewington’s Appellate Decision on his blog, The Volokh Conspiracy, http://danbrewington.blogspot.com/2013/02/ucla-law-professor-eugene-volokh-to.html and offered to write an amicus brief in support of Brewington. The following is a partial list of people or groups that signed on as supporters of his brief:

1.       James Bopp Jr. Indiana attorney http://www.bopplaw.com/attorney-profiles   http://prospect.org/article/citizen-bopp (Republican)

2.       The Hoosier State Press Association http://www.hspa.com/

3.       The James Madison Center for Free Speech http://www.jamesmadisoncenter.org/cases/  Right to Life Issues

4.       The Indiana Coalition for Open Government http://www.indianacog.org/main.php

5.       Eagle Forum http://www.eagleforum.org/ (Right to Life Issues)

6.       The Indianapolis Star http://www.indystar.com/  (Largest Newspaper in the State)

7.       Indiana professors James W. Brown, Anthony Fargo, and Sheila S. Kennedy(former IACLU)

8.       The ACLU of Indiana – Gavin Rose, filed a separate amicus brief

9.       For a complete list see http://danbrewington.blogspot.com/2013/02/dan-brewington-receives-impressive-help.html  

Link to the Volokh and ACLU Indiana amicus briefs http://danbrewington.blogspot.com/2013/02/volokh-and-aclu-amicus-briefs-filed.html

Link to the State’s Brief http://danbrewington.blogspot.com/2013/03/the-states-brief-in-response-to.html

Link to Brewington’s Response to the State’s Brief http://danbrewington.blogspot.com/2013/03/reply-in-support-of-petition-to-transfer.html

This is written as a thank you for all that you do but also as a reminder that legislation can have unintended consequences. Both email copies and regular mail copies are being sent.

Thank you for your time.

Sue A. Brewington