The Lie of "Invited Error" in Brewington Case

It is truly frightening that a state supreme court justice would set out to write an opinion that was void of precedence and law in an effort to restrain free speech.  Even worse is that a justice would dare to construct the language and context of her ruling in such a manner to provide a façade of judicial legitimacy.  When I first read the decision of the Indiana Supreme Court in my case, written by Justice Loretta Rush, I verbalized how I felt Justice Rush threw Dearborn County Prosecutor F. Aaron Negangard under the bus for failing to instruct the jury of the difference between what were considered threats of reputation and threats of violence.  Since then my opinion has changed. Justice Rush wrote it was trial strategy by my public defender, Bryan Barrett, to NOT inform jurors the difference between threats to safety and threats to reputation. On the surface it appears Rush believed that Negangard somehow slipped up and failed to mention the difference during trial and Barrett saw the blunder and took advantage of it by not doing anything about it. Rush rationalized Barrett not doing anything was a strategic decision. Rush argued that bringing attention to the difference between threats of reputation and threats of safety would have made Negangard aware of his "blunder" and then he would have been able to argue the difference. This in itself is ridiculous because any appeal could be denied by "invited error" because Rush placed the responsibility on the Defendant's counsel to correct (what Justice Rush perceives to be) the prosecutor's "flawed" trial strategy or risk waiving the ability to appeal an issue. As I said earlier, my thoughts have changed about Negangard being thrown under the bus. After rereading Rush's opinion and trial transcripts, Rush just made up the argument to affirm the opinion. Negangard did not forget to inform the jury of the difference between threats to safety and reputation because Negangard never argued that I ever made a threat of illegal conduct of any kind. He argued all of my speech was intimidating because it was over-the-top, false, etc... He said my words were "fighting words" made to invoke a violent reaction.  He also argued that Indiana law allowed criminal prosecution for libelous speech in extreme circumstances. Negangard never made the argument that I made a threat of violence or illegal activity against anyone. The whole "arson" allegation was never raised until after the trial. My "pyromaniac" analogy, about my ability to challenge the family court system (which was posted several months prior to Humphrey ruling on my divorce), was read during trial without saying when it was made or without any speculation as to whom they felt it was directed. During the appeal process, the AG called it a threat of arson to Humphrey, which is ridiculous. At the time the post was made, Humphrey had barely been on my divorce case and had not made any substantial rulings. Looking at it objectively, even if you contend that I am some sort of diabolical madman, why wouldn't someone assume the threat would have been directed at the original judge in the case, Judge Taul, or Dr. Connor whom I had been harshly criticizing? Why wouldn't someone assume I directed it toward my ex or her attorney, Angela Loechel? Because they needed the statement to be used against Humphrey because that was the only thing the AG and the higher courts could find in any of my writings that they could distort to resemble a threat against Humphrey.  We’re talking somewhere in the vicinity of over a quarter-of-a-million written words and that was the only statement Justice Rush and the AG could come close to claiming was a threat to personal safety.  As for the threat against Dr. Connor, claiming that my analogy drawing the difference between a complaint about a plumber and a psychologist was a threat against Dr. Connor is absurd. Even if I had written “I want to punch Dr. Connor in the mouth,” my history of non-violence would lead a reasonable person to believe the statement was an expression of anger or frustration.  With that being said, saying you “want” to do something and saying you are “going” to do something are two different things altogether.  But the court introduced the “context” argument which allowed Justice Rush to determine her opinion of the context of my opinions.  This is the same woman whose Husband was almost murdered by one of her former clients in a home invasion.  This is the same woman who graduated with Humphrey and served on committees with Humphrey for over four years.  Justice Rush did not throw Negangard under the bus, she just lied about Negangard failing to explain the difference between threats of harm to reputation and threats of harm to personal safety because Negangard never claimed there were threats to personal safety.  If I would have made a threat of violence, my trial would have lasted 10 minutes.  “Dan Brewington wrote, ‘I am going to … blah, blah, blah…’ Ladies and gentlemen of the jury, here is the threat.”  That would have been it.  There was no threat and no invited error.  Justice Rush chose to protect Humphrey over upholding the 1^st Amendment of the US Constitution.

Sheriff Kreinhop's testimony demonstrates Justice Rush lied in Supreme Court Opinion

In the Indiana Supreme Court decision of Brewington v State, Justice Rush wrote the following, “And Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to both of his victims during his years-long vendetta against them.”  She went on to use the words volatile violent, violence, etc… approximately 20 times in her opinion to help rationalize the Court’s decision to uphold my convictions.  A casual reader of the opinion would conclude there must have been substantial evidence to support the claim I demonstrated violence against both Dr. Edward J Connor and Judge James D. Humphrey.  Actually there was none.  The word violence, or any derivative of the word, appears only four times throughout the course of my criminal trial.  Prosecutor Negangard used the word to explain to the jury the “fighting words exception” to the First Amendment.  Negangard stated:

“The thrust of the fighting words exception is become whether an objective standard, the words were stated as a personal insult to the hear [sic] and language and (inaudible) likely to provoke a violent reaction.” (Page 506 of trial transcripts)

Negangard uses the word “violent” three times in two sentences during the Prosecutor’s questioning of Judge James D. Humphrey when inquiring about Humphrey’s experience as a judge and former prosecutor.  Negangard asked the following to Humphrey:

“In your years as prosecutor have you had to prosecute murderers, rapists, child molesters, drug dealers and violent criminals?”

“In your years of Judge, have you had to sentence violent criminals, murderers, rapists, child molesters, drug dealers and violent criminals?”

There was only one mention of violence that pertained to my behavior during the entire four day criminal trial.  It came during my public defender’s questioning of Sheriff Michael Kreinhop, the only Dearborn County Law Enforcement Officer who participated in the investigation.  Public Defender Barrett asked the following of Sheriff Kreinhop (Page 410 of transcripts from criminal trial):

MR. BARRETT: Um, your investigation didn't reveal any acts of violence that Mr. Brewington committed against any public officials did it?

SHERIFF KREINHOP: No.

And that’s the evidence against me.  There is little doubt why Justice Loretta Rush attacked me by claiming I demonstrated violence against the victims.  It would throw any potential First Amendment supporters off the trail.  First Amendment Amici like James Bopp, Sheila Kennedy, The Indianapolis Star, and Eugene Volokh wouldn’t think of continuing to support me if Justice Rush claimed I committed acts of violence against Judge Humphrey or Dr. Connor.  So Justice Rush lied.  Rather than protect the First Amendment, Justice Rush conjured up stories of alleged violence to protect one of her own from being criticized.  (It is important to note that Justice Loretta Rush graduated with Judge James D. Humphrey from Indiana University School of Law, Bloomington in 1983.  The two also served together, along with the first judge in my divorce, Carl H. Taul, on the Juvenile Justice Improvement Committee in at least 2009, 2010, 2011, 2012, and 2013.)  This may not seem like a big deal to many but how can Justice Rush be trusted in any case; especially cases dealing with the death penalty.  Albert Einstein said, “Whoever is careless with the truth in small matters cannot be trusted with important matters.”  It’s depressing to think Indiana Supreme Court Justice Loretta Rush believes the First Amendment is a small, inconsequential matter, but how can this Supreme Court Justice be trusted to be fair in any decision coming before Indiana’s high court?  I would encourage people to be vigilant and outspoken but Justice Rush would rule that conduct as circumstantial evidence as to obsessive behavior, which can be used by judges and prosecutors to find more “hidden” threats in my writings that the general public is not smart enough to see for themselves.  (PLEASE NOTE, THE INDIANA SUPREME COURT’S DECISION ALSO ALLOWS LEGAL GUN OWNSHIP TO BE USED AS A BASIS FOR FEAR TO DETERMINE POTENTIAL HIDDEN THREATS IN CRITICAL SPEECH.  FEEL FREE TO CONTACT 2^ND AMENDMENT PROPONENTS.)  I guess my message to people is to be wary of taking action because Justice Rush and the Indiana Supreme Court have made it possible to label nearly any statement as a hidden threat if accompanied by a history of “obsessive” criticisms of public officials. 

Check out the blog post Trial Transcripts from 3/29/12 and do a search on any variation of the word “violence.”  If you have the time, read the several hundred page document and try to find any accusation by the prosecution that I threatened violence against anyone.  Feel free to review any court transcripts and/or evidence from my 2.5 year divorce to see where there are no allegations of domestic violence, child abuse, or threats of violent behavior.  Documents and history can be found on www.danbrewington.blogspot.com and www.danhelpskids.com.   

Should the attempted murder of Justice Rush's husband have disqualified her from writing the opinion in Brewington Case?

Should Indiana Supreme Court Justice Loretta Rush have disqualified herself in the case of Brewington v State of Indiana?  Indiana Judicial Code of Conduct Rule 2.11 (A) states, “A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.”  Judicial Canon 2.11 also states, “Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply.”  One of the key elements in the Brewington prosecution was the fear factor.  Without real fear, there is no threat.  Was it the intent of Dan Brewington to cause Judge James D. Humphrey and Dr. Edward J. Connor to fear for their lives and the safety of their families?  Perhaps a better question is could Justice Rush deliver an impartial opinion on the matter given her experience with a violent encounter with a former ward of the state for whom she served as a guardian-ad-litem (GAL).  In 1998, the former ward of the state broke into her home and tried to murder her husband.  In 2014, she wrote the opinion involving what Justice Rush considered to be hidden threats against Judge James D. Humphrey and his family.  Were Brewington’s statements true threats, or did the 1998 home invasion and attempted murder of her husband skew her objectivity?

Justice Rush wrote the Supreme Court’s opinion in upholding Dan Brewington’s convictions claiming Brewington’s writings were cleverly disguised threats aimed at Judge James D. Humphrey and Dr. Edward J. Connor.  One of the glaring discrepancies between the opinion written by Justice Rush and the record of Brewington’s divorce hearings and criminal trial was that Justice Rush wrote Brewington had a history of violence, when there had been no previous mention of violent behavior.  In writing the Court’s opinion, Justice Rush used the word “violence” three times in referring to Brewington, “violent” seven times, and the word “volatile” seven times.  Justice Rush cited Brewington’s actions in 2010 as evidence of how Brewington attempted to dissuade Dr. Connor from testifying in Brewington’s divorce although Dr. Connor had already testified in Brewington’s hearing on May 27, 2009.  There were other inaccuracies as well.  Brewington never bragged about having or knowing how to use firearms.  There was no record Brewington ever threw books in a legal proceeding.  Brewington has never been diagnosed with any mental disorder.  How did Justice Rush get all of this information wrong in her attempts to demonize Brewington?  Maybe she was haunted by her past experience. 

The early morning hours of November 18, 1998 were a very scary time for Loretta Rush.  In the 1980’s, Loretta Rush served as the GAL for John Swaynie when he was a ward of the state.  On the morning of November 18, 1998, 26 year old Swaynie broke into Rush’s home.  According to the Opinion and Order by the United States District Court of the Northern District of Indiana (dated April 24, 2008) on a Writ of Habeas Corpus filed by John Swaynie, the following took place at Rush’s home on November 18:

“In the early morning hours of November 18, 1998, Swaynie broke into the home of Loretta Rush (“Mrs. Rush”), who had served as Swaynie’s guardian-ad-litem in the 1980s when he was a minor.  Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002). When her husband Jim Rush (“Mr. Rush”) came downstairs to investigate, Swaynie attacked him, pinning him on the floor and choking him, while yelling up to Mrs. Rush, “I’m killing your husband.” Id. When Mrs. Rush could not get the telephone to work to call the police, she jumped out a window, breaking her shoulder in the process, in order to get help from a neighbor. Id. The neighbor ran to the Rush home and discovered Swaynie choking Mr. Rush. Id. He was able to pry Swaynie’s hands away and pin him down while Mr. Rush called the police. Id. The police arrived and arrested Swaynie.”

Swaynie was convicted of burglary and attempted murder and subsequently sentenced to 70 years in prison.

The District Court’s opinion also included information from a ruling from the Indiana Court of Appeals which stated, “Swaynie filed an amended pro se petition for post-conviction relief, asserting that during his pretrial incarceration, a jail physician examined him because he was exhibiting ‘volatile behavior.’”  Justice Rush used the word “volatile” seven times in writing the Brewington decision despite Brewington having no history of violence.  Justice Rush obsessed about Brewington’s level of psychological disturbance as reported by the custody evaluation of Dr. Connor yet failed to understand Dr. Connor recommended Brewington should be able to continue to care for Brewington’s one and three year old daughters at least three days a week.  During the criminal trial Dr. Connor reiterated that he recommended Brewington have “liberal parenting time” with his daughters.  Despite Dr. Connor’s professional opinion that Brewington was a very capable parent, Justice Rush cited Connor’s findings while claiming Brewington was a violent and dangerous man.

A person could only try to imagine the emotional trauma associated with seeing someone trying to murder a spouse, not to mention the physical pain associated with breaking bones from having to jump out of a window in an attempt to save the life of a family member.  Did the Brewington case cause Justice Rush to relive some of those horrid memories?  It may serve to explain how Justice Rush confused so many facts in Brewington’s case.  Justice Rush claimed Brewington threatened arson against Humphrey in retaliation for suspending Brewington’s parenting time but Brewington’s reference to pyromania came before the final hearing in Brewington’s divorce so it was impossible for Brewington’s statements to be retaliation for a prior lawful act.  The same goes for Justice Rush’s accounts of Brewington’s actions against Dr. Connor.  Brewington’s actions referenced by Justice Rush came after Dr. Connor’s testimony in Brewington’s divorce hearing so the actions could not have been an attempt to dissuade Dr. Connor from testifying because the testimony had already taken place.  It appears that Justice Rush (who happened to graduate from Indiana University’s Maurer School of Law with Judge James D. Humphrey; class of 1983) got so caught up in her own tragic experiences that she lost track of the facts of the Brewington case.  One can definitely feel for Justice Rush and the traumatic events that occurred in her home on November 18, 1998, but she still has a responsibility to remain impartial as a Justice of the Indiana Supreme Court.  If Justice Rush is unable to realize her traumatic experience compromises her ability to interpret facts or causes her to confuse cases, then she should probably step down from the bench.  Please feel free to contact state or federal officials with any concerns about Indiana Supreme Court Justice Loretta Rush.

First analysis of Indiana Supreme Court decision in Brewington v State of Indiana case

This blog will be breaking down the latest ruling by the Indiana Supreme Court in my case Brewington v State of Indiana.  Given the cut and paste hack-job, for the lack of a better word, in Justice Rush’s attempt to make me look like a mentally deranged individual, this is going to take some time to read, absorb, and cross-reference.  This ruling is very dangerous to the average person because it strips him/her of the ability to criticize judges.  This ruling, while claiming to separate threats to reputation and threats to personal safety as criminal acts, gives the State of Indiana the ability to determine what constitutes a “hidden” threat.  The ruling then allows the State to use constitutionally protected speech as circumstantial evidence to make an argument that the speaker is angry and a potential threat, because without anger and an element of fear, there is no threat or intimidation.  So when the State finds a statement or blog post it wants to deem a “hidden threat” against a judge or other elected official, the State can turn around and use any and all previous constitutionally protected writings to establish anger which is a key component in prosecuting someone for “hidden” or “secret” threats.  The following is an example how Justice Loretta H. Rush, who wrote the opinion, pieced together partial quotes from my blogs to help bolster the Supreme Court’s argument against Dan Brewington.

On page 6 of the Supreme Court decision, Justice Rush wrote the following:

He wrote in one post that the Doctor “may be a [p]ervert,” Ex. 181; and in another about a supposedly hypothetical “Dr. Custody Evaluator” who “made me so mad I wanted to beat him/her senseless” and “punch Dr. Custody Evaluator in the face.”  Then after that, Defendant showed up at an unrelated hearing where the Doctor was testifying, bragging afterward that his presence made the Doctor “a little nervous and from a psychological standpoint he probably should have been.”

Sounds a lot worse if taken out of context.  In a blog post written on January 20, 2010 titled, “Dr. Edward J. Connor may be a Pervert” I questioned Dr. Connor’s practice of asking women sexually explicit questions during custody evaluations without asking men the same questions.  I was simply questioning the fairness of only asking a woman sexual questions because the man would never be able to respond or give his perspective of the incident or situation in question.  Then Justice Rush proceeds to provide partial quotes from two other writings of mine without providing any context or timeframe as to when they were written.  On May 11, 2010 I wrote a blog titled “You wouldn’t lose your children because you criticized a plumber would you?”  In this blog I addressed two emails I received from individuals who were concerned about my situation.  I used an analogy that no one would think someone was crazy if, after a plumber failed to fix a plumbing problem, tracked mud through the house, while overcharging for the services, the person verbalized being so mad at a bad plumbing job that could punch the plumber “in the face.”  I then said if the person said the same thing about a custody evaluator and evaluation, the person could lose their children.  Justice Rush went on to write that I then wrote about seeing Dr. Connor at an unrelated court hearing where I wrote my presence caused Dr. Connor to appear “a little nervous from a psychological standpoint he probably should have been.” By itself it sounds like it could be a little over the top except I provided an extensive explanation of my statement.  In the blog post “Sometimes Ed says the craziest things,” written November 17, 2010, my explanation was as follows:

“As a psychologist, he probably believes that aggression or violence would be a common reaction for parents who had their children ripped from them without any warning or justifiable reason. As Dr. Connor was the one who maliciously attacked my credibility in an effort to hurt my children and me after I informed the public that Dr. Connor conducted himself in an unethical and illegal manner, he was probably concerned that I would be in the majority of parents who would have let anger take over. Fortunately for Dr. Connor, I do not fit into the demographic that would want to cause physical harm to someone who lied to hurt their children. I was just taking a legal approach to getting a better perspective of how Dr. Connor operates in other situations.”

This is how Justice Rush and the Supreme Court of the State of Indiana legally suppress free speech while dragging me through the mud.  Justice Rush took three out of context quotes from three blog posts written in a year’s time and pieced them together to make me look irrational.  In issues concerning free speech, the best way to discourage potential supporters of my cause is to make me appear irrational.  The Indiana Supreme Court is the irrational party here for attempting to compartmentalize political speech in an effort to punish those who pick on their own kind.  What is even most disturbing is Justice Rush used this information to support the Court’s decision to uphold my conviction of Attempted Obstruction of Justice.  These events occurred several months to well over a year after Dr. Connor’s testimony in my divorce case.  The Supreme Court argued I tried to prevent Dr. Connor from testifying in my divorce hearing over a year after the hearing took place. 

Stay tuned because I will be breaking down the Court decision to further demonstrate the atrocities Justice Loretta Rush and the Indiana Supreme Court have committed against the First Amendment of the United States Constitution.  I would like to thank all of the people who have continued to support me and my family through this whole ordeal.  Feel free to contact Indiana officials with any concerns about how the Indiana Supreme Court decision in Brewington v State goes against the liberties protected by the US Constitution. 

Five Easters without my little girls

Five Easters without my daughters just hit me. If you are a parent of a divorce or custody "battle" think about your children. There shouldn't be battles over children. I can't get back the last five Easters with my little girls. Children are not ropes to be used for tug-of-war. Children should be shared and loved by both parents and their families. I have talked to many parents and I have yet to hear one story where the children have benefited from an unnecessary nasty custody battle. Don't be one of those parents. Don't give a judge an unnecessary reason to restrict parenting time. I wouldn't wish losing one's children on the people who took mine from me. If you have to carry hate for the other parent, do not let it bleed down to the children as it will only serve to breed more hate. Love and dignity are key ingredients to raising strong children. Be honest with yourself because your children will someday know the truth if they haven't already figured it out. Never underestimate the importance of the time your children need with the other parent. Evenings, days, and weekends add up to years. Then you blink and your children are adults. Cherish what little time you have with your kids. Be fair to your children raise them in a world with both parents.

Indiana Appellate Judge John G. Baker: "It was Judge Ezra H. Friedlander who filed the Anonymous Decision in Brewington Divorce Appeal."

Sometimes it’s hard to narrow a topic down for a blog post given there are so many complex disturbing facets to my case.  One subject deserving attention is Indiana Appellate Court Judge Ezra H. Friedlander.  Judge Friedlander has played a major role in both my criminal and divorce appeals.  Friedlander’s actions in my case have also remained relatively anonymous, until now.  Former Chief Judge of the Indiana Appellate Court John G. Baker was the person who brought this matter to the attention of my lawyer.  What is truly scary about my current criminal case is if the Supreme Court upholds the verdicts in my criminal appeal, Judge Friedlander will be able to initiate criminal proceedings against me for criticizing him in this blog post.

Many people have had difficulties following all of the events in my divorce and criminal hearings, which is very understandable due to the complexity and also the absurdity of the entire situation.  On August 18, 2009, Judge James D. Humphrey filed the Decree of Dissolution in my divorce, which abruptly terminated my parenting time with my 3 and 5 year old daughters pending a psychological evaluation.  Humphrey’s decree also stated I had to pay my ex-wife over $122,000 for my future interest in farmland that my parents purchased over the course of a 28 year marriage.  The property was placed in a trust prior to my father’s passing in 1998; a year before I met my ex-wife.  I appealed Judge Humphrey’s ruling on the termination of parenting time and the inclusion of the trust assets as marital property in the divorce.  In 2010, the Indiana Appellate Court upheld all of Humphrey’s findings.  The Indiana Supreme Court denied transfer of my divorce case.  What was most peculiar about my divorce appeal was the Court of Appeals ruled “Panel Per Curiam,” which means the Appellate Judge who authored the decision in my divorce appeal remained anonymous; until now.

When the Indiana Court of Appeals filed its opinion in my divorce case on July 20, 2010, I didn’t know what panel per curiam meant.  I found a common consensus was that panel per curiam rulings were issued by judges looking to avoid conflict or criticism.  After some research, I discovered my appeal was the only case in 2010 the Indiana Appellate Court ruled per curiam.  It was only after the conviction in my criminal case that I found out the Appellate Court’s 2010 per curiam ruling in my divorce case was the first per curiam ruling in nearly 50 years.  It wasn’t until January 2013 that I found out the author of the panel per curiam ruling in my divorce was Judge Ezra H. Friedlander.  How did I find out?  Former Chief Judge of the Appellate Court, John G. Baker told my lawyer.  Judge Friedlander would not only sabotage my appeal of my divorce decree but would also later interfere with the appeal of my criminal conviction as well.

When Judge Friedlander issued the anonymous decision in my divorce appeal, he filed the ruling “Not for Publication” meaning the decision “shall not be regarded as precedent or cited before any court.”  In layman’s terms, “not for publication” usually deals with cases involving already established case law, which was always mind boggling in my case because there were no cases prior to my divorce appeal that directly dealt with the issues at hand.  My main complaint throughout the course of my divorce was Dr. Edward J. Connor never provided me with the case file that Dr. Connor relied upon to support his findings in the custody evaluation he performed in my divorce.  Indiana Code (IC) 31-17-2-12 states a custody evaluator’s report may not be excluded as hearsay or otherwise incompetent if the following requirements are met:

(c) 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.

(d) Any party to the proceeding may call the investigator and any person whom the investigator has consulted for cross-examination. A party to the proceeding may not waive the party's right of cross-examination before the hearing.

There’s been quite a bit written about Dr. Edward J. Connor’s inability to tell the truth, especially regarding my attempts to obtain Connor’s case file.  When the issue regarding IC 31-17-2-12c was placed before Friedlander, Judge Friedlander wrote:

“We first note that I.C. § 31-17-2-12(c) does not require that Dr. Connor’s entire case file be provided to Daniel. All the items specified by statute were provided. Other than his belief that I.C. § 31-17-2-12(c) was violated, Daniel asserts no other basis on which to find that Dr. Connor’s report and testimony were inadmissible or should have been excluded from evidence.”

That’s it.  That’s all Friedlander wrote.  The first question one would ask is what does IC 31-17-2-12(c) require Dr. Connor to release?  There hasn’t been any previous court rulings or legislation that further define the original legislative intent of IC 31-17-2-12(c).  Someone not familiar with the case would just assume Judge Ezra Friedlander was aware of what Dr. Connor provided me and was content that the information was sufficient per IC 31-17-2-12(c).  The problem is there was never any court record of what information Dr. Connor provided.  There was no way to tell what portions of Dr. Connor’s file were required to be released under IC 31-17-2-12(c) without, at least, Judge Humphrey reviewing the contents of the file; which never occurred.  How did Friedlander know I was provided with everything required by IC 31-17-2-12(c)?  He didn’t.  For whatever reason Friedlander did not want to deal with the issue and dismissed my entire legal argument with three sentences.  It wasn’t until my criminal trial that I discovered Dr. Connor released information from Connor’s case file to Prosecutor Negangard that Connor failed to release to me during my divorce.  But from a legal standpoint, this wasn’t the worst of Friedlander’s actions.

In August 2009, Judge Humphrey ruled I owed my ex-wife over $122,000 for what the court called a future vested interest in farmland my parents placed into a trust before the death of my father.  This is where the situation gets very complicated/ridiculous.  Humphrey did not rule that my ex-wife was entitled to my parents’ farmland; he just ruled that I was required to pay my ex-wife $122,000 for my future interest in the farmland.  When my father was dying of cancer in 1998, he and mom placed their property in a trust that would provide for mom throughout her lifetime with any remaining assets falling to dad’s “legal issue” upon mom’s passing.  Dad named his brother as the trustee of the trust and mom was the beneficiary.  Humphrey’s ruling that I was to pay my ex-wife $122,000 was not contingent on the death of my mother, I was responsible for paying the $122,000 when the ruling was issued on August 18, 2009.  Every banker and trust attorney gasped when they saw the ruling.  Most were very confident the ruling would be overturned.  Then Judge Friedlander came into play.

It is truly disturbing how a judge of a state appellate court would go out of his way to rule against a party petitioning the court.  In my appellant brief, my lawyer directed the Court to review the case of Fiste v. Fiste when considering the matter of including a future interest in a trust as a marital asset.  In regards to Fiste, Friedlander wrote:

“We determined in that case that because the husband had no present possessory interest in the land and because his interest was subject to complete defeasance if he predeceased his mother, his remainder interest in the real property was too remote to constitute marital property.”

It seemed exactly like my situation.  If I died before mom, I wouldn’t be entitled to anything in the trust.  Upon mom’s death, any assets that would have gone to me would pass to any of my children.  But Friedlander said my case was different.  Friedlander wrote:

“[Dan’s] interest is not subject to a condition subsequent and as such, his interest is not subject to complete defeasance should he predecease his mother. Per the terms of the trust, Daniel’s remainder interest will pass through him regardless of whether he predeceases his mother.”

Friedlander worked hard in his attempts to discredit the legal arguments in my appeal from my divorce case.  The easiest way to discredit Friedlander’s reasoning is to look at my brother’s interest in the trust.  If my brother died before the death of my mother, what happens to his share of the trust when mom passes?  The answer is he doesn’t have a share; he’s dead.  No assets pass through my brother’s estate.  What would potentially have been his share would just become mine.  Because I have children, if I were to predecease my mother, my share would fall to my children per the terms of the trust.  If for some reason (I’m obviously using worst case scenario to demonstrate a point) my children and I predecease my mother, my “half” no longer exists and my brother gets everything upon mom’s death.  It’s all rather morbid but there really isn’t another way to explain it more clearly.   And even more ridiculous “what if” scenario is if my father happened to have another family or children to which we were not aware.  Anyone bearing a birth certificate listing my dad as the father would also be entitled to an equal share of the trust.

But Friedlander claimed my case was different.  Friedlander wrote my situation was similar to the case of Moyars v. Moyars where the court “likened a vested future interest in land to vested pension benefits.”  Friedlander went on to write:

“As in Moyars, Daniel had no current possessory interest in the land, as his mother held a life estate therein. Daniel’s right to take legal possession of the land at some point in the future was fixed and certain.”

There are many troubling aspects with Friedlander’s logic.  For one, Friedlander compared my interest in a trust to a man who was actually listed on the deed of a property.  David Moyars and two other siblings were willed property upon the death of David’s father.  He was on the title of the property which could be “sold or otherwise alienated, transferred or mortgaged.”  David was not able to take full possession of the property until the death of his mother but he was listed as an owner of the property and it was subject to marital division.  If David predeceased his mother Geneva, his interest in the property would go to his estate upon the death of Geneva.  I, on the other hand, have no right to any assets in my father’s trust.  Of course Friedlander failed to address how Judge Humphrey stated in the original ruling that I had a possessory interest which may be sold, transferred, or mortgaged.  I had no control of the assets in my father’s trust because the trust specifically designates the Trustee as the only person with the authority to sell, transfer, or mortgage property within the trust.  Friedlander relying on Moyars is even more flawed because the trial court would have been required to join all parties who had an interest in the property in question.  In the Moyars decision, the Appellate Court wrote, “the trial court joined Geneva Moyars and David's two siblings in the dissolution proceeding as persons needed for a just adjudication.”  Humphrey would have been required to join to the divorce proceedings as interested parties, the trust, trustee, beneficiary, and any other individuals with a future interest, which would include my uncle, mother, brother, children and me.  In stretching to compare my case with Moyars, Friedlander ignored the requirement that all interested parties be added to the dissolution as was properly done in Moyars.  A recent ruling by the Indiana Supreme Court concerning trusts further demonstrates the flaws in Friedlander’s ruling.  The Court recently ruled in Fulp v. Gilliland that a trustee cannot serve two masters.  The current responsibility of the trustee in my father’s trust is to provide for the beneficiary at the trustee’s discretion.  I am not a beneficiary.  My mother is the beneficiary.  If the trustee believes it is necessary to dispose of all the assets of the trust to care for the beneficiary, then I get nothing.  This is written plainly in the terms of the trust yet Friedlander stated my right to the property in the trust was “fixed and certain.”  By Friedlander’s account, if a complete stranger assigned a future interest in property by means of a trust to someone involved in an Indiana divorce, the person’s spouse would only have to place a monetary value on the property in order to include the future interest as a marital asset.  It would then become the responsibility of the poor soul who was unknowingly given the future interest to refute the value of the property.  Not only would the person have to retain their own appraisal, but he would have to subpoena banking information, acquire tax information, research liens, etc., in order to refute the value of something he never agreed to take on.  From a constitutional standpoint Friedlander’s ruling is deplorable because the ruling allows a third party (trust agreement) to place a financial burden on someone without giving the person the financial means to deal with that burden.  A person can choose whether to work for an employer with a pension fund.  A person who is willed property or money has the value of the acquired assets to defend against any claims.  In a trust like the one in my divorce, a person has neither the right to refuse the obligation of the trust nor the ability to access the assets.  Not only did I not have a right to the assets in the trust, Friedlander’s ruling made me financially liable for arguing the value of assets to which I had no claim.

Near the end of Friedlander’s ruling he wrote, “We commend the trial court for its thorough findings, each of which are supported by the record.”  If Humphrey’s findings were so thorough, why did Friedlander have to go to such lengths to affirm Humphrey’s findings?  And what record was Friedlander referring to?  Friedlander’s opinion had the same common undertone as other legal officials with whom I have crossed paths in my experiences with the Indiana court system.  Friedlander wrote:

“During the pendency of the proceedings, Daniel posted information concerning the dissolution on his website and blog, in response to which Melissa sought a protective order and a temporary restraining order on more than one occasion.”

I did post information about the events of my divorce on a blog and website and my ex-wife subsequently sought a protective order and temporary restraining order requesting Judge Humphrey to force me to remove my internet writings.  My ex-wife did this once and Humphrey properly denied her petition because my web content was not harmful to her or my children.  Friedlander simply made up the part about my ex-wife filing for protective orders on more than one occasion while ignoring the fact that her petition was properly denied.  Friedlander chastised me for prevailing in a matter involving free speech where there was no evidence that the speech was harmful to my children.  The major question is why did Friedlander write a “panel per curiam” decision?  This is what seemed to bother Judge John Baker the most.  All appellate rulings are required to have at least a panel of three judges.  Given the obvious flaws in Friedlander’s ruling, it is hard to conceive that two other Judges from the Indiana Court of Appeals could review the record of my divorce and come to the same conclusion as Friedlander; especially as Friedlander’s decision is not supported by the facts of my divorce case or Indiana law.  This might explain why someone with an IP address registered to the Indiana Supreme Court was visiting my website while Friedlander was writing my appeal.  I believe Friedlander’s unilateral ruling on my divorce appeal and blatant disregard for proper appellate procedure is what most angered Judge John Baker.  But my divorce appeal did not mark the end of Judge Ezra Friedlander’s involvement in my experiences with the high courts of the State of Indiana.

When I was first arrested in Dearborn County, Indiana, Judge Sally Blankenship set my bond at $500,000 surety and $100,000 cash based on the prosecution’s argument that I did not respect the Court and the prosecutor’s office and would probably continue writing about my case if I was released.  Judge Brian Hill refused to lower my bond and refused to grant a bond between my conviction at trial and my sentencing hearing.  Judge Hill then denied my motion for a bond pending the appeal of my case.  When I took the matter to the Indiana Court of Appeals, my motion was denied.  One of the Judges listed on the order denying Appellant’s Verified Motion for Bail Pending Appeal dated May 11, 2012, belonged to Judge Friedlander.  There was no explanation why the Court denied the motion, just a flat denial.  What findings did Friedlander rely on in discussing the denial of my motion for bail with Judges Crone and Sullivan; the other two judges on the panel?  Did Crone and Sullivan review the motion or did Friedlander unilaterally rule on the matter as he did in my divorce appeal?  Did Friedlander base his decision on the record of the case or did he rely on outside sources?  Maybe Friedlander based his opinion on the fact he believed my ex-wife had to file for multiple protective orders even though it never happened.  What we do know is Friedlander eventually decided he should not preside over the appeal of my criminal case because he felt there was a conflict because he wrote the decision in my divorce appeal.  When did Friedlander withdraw?  Less than a day before the oral arguments in my case were to begin.

Judge James D. Humphrey seemed to have this problem.  Dearborn County Prosecutor F. Aaron Negangard, and later the Indiana Attorney General, argued Judge Humphrey feared Dan Brewington posed a real danger to the lives of Humphrey and his family in August 2009 and possibly earlier.  Even though Humphrey claimed he thought I posed a real risk of murdering his family, he continued to preside over my case for nearly a year.  (This subject never ceases to amaze me.)  Humphrey waited until less than a week before the June 14, 2010 hearing on the approval of a mental health evaluator to recuse himself.  Friedlander did the same thing.  In an order from the Indiana Court of Appeals, dated August 21, 2012, the Court set the oral arguments in my case for 11:00 am on November 21, 2012.  The order also set the panel to hear the case, which included Senior Judge Darden, Judge Brown, and Judge Friedlander.  On the day of the hearing, the proceedings were delayed for approximately a half an hour.  It was a couple months later in an informal setting that Judge Baker informed my appellate lawyer the delay in the hearing was due to a last minute search for judges to hear my case.  Judge Baker claimed Judge Elaine B. Brown withdrew from my case because she feared for her own safety.  Baker said Friedlander withdrew because Friedlander claimed ruling on my divorce created a conflict of interest.  At the last minute, the Indiana Court of Appeals was scrambling to find judges to hear my case, finally settling on Judges Darden, Riley, and Baker.  Friedlander presided over my bond appeal prior to May 11, 2012.  On August 21, 2012 he was named a member of the three judge panel to hear oral arguments in my case on November 21, 2012.  Rather than recuse himself immediately, Friedlander denied my ability to post bail and get out of prison during the appeal of my case and then waited until the last minute to withdraw, leaving the replacement judges unable to properly prepare to hear my case.  (Note: I have no idea why my case would cause Judge Elaine Brown to fear for her personal safety.  I assume she has handled many cases involving violent criminals, yet I guess her fear of bloggers is much greater.) 

Dearborn County Prosecutor F. Aaron Negangard argued I was a threat to the United States Judicial System.  I’m not a threat.  Judges like Friedlander are a threat to the integrity of the judicial system; I just write about their conduct.  If you back up through the whole story and claim Friedlander’s rulings were truly based on fact and law, the “Panel Per Curiam” fact still remains.  Friedlander placed a question of doubt on the decision in my divorce appeal when he issued the first anonymous decision in nearly fifty years.  Then Friedlander continued his involvement in my criminal case until removing himself just prior to the oral arguments in my criminal appeal.  I have no idea why Judge Baker would tell my lawyer these things especially as Baker knows I went to prison for 2.5 years for criticizing the court system on the internet.  I hope Judge Baker would expect a lawyer to share this type of information with the lawyer’s client because not doing so would be unethical.  Blogging about judicial conduct is what landed me in prison but why should I suffer consequences for writing about the conduct of members of the Indiana Judiciary?  I have a right to free speech, do I not?  Maybe not in Indiana.  If the Supreme Court upholds my convictions, then people will no longer be able to criticize the actions of judges in the State of Indiana without fear of prosecution.

Dealing with Another Unethical Mental Health Professional

This really appears to be one of those “here we go again” moments.  I had a hard time coming up with a title for this post because this new ordeal is so mind-boggling.   When I was incarcerated at Putnamville Correctional Facility, my Indiana criminal appellate lawyer began taking measures to help reunite me with my daughters.  He found Dr. D. Mark Snelson, M.D., a psychiatrist from Indianapolis, and obtained prior approval from Judge Ted Todd that Snelson could evaluate me.  (For those new to my story, in August 2009, Judge James D. Humphrey terminated my parenting time with my 3 and 5 year old daughters, until I underwent a psychological evaluation to determine I was not a potential danger to anyone.  I underwent an evaluation in October 2009, but could not get a court date to have the evaluator approved until November 24, 2010; over a year later.  Judge Todd denied that psychiatrist because he wasn’t pre-approved.)  My lawyer checked around and came up with Dr. Snelson.  Per the Court’s order, Snelson’s job was to determine if I posed a potential risk to my daughters, their mother, or myself so that I may then participate in supervised visitation with my girls under the supervision of another mental health provider.  My lawyer and Snelson agreed that Snelson would meet with me in prison to expedite the process of being reunited with my daughters.  I had my doubts about being evaluated by anyone in Indiana given my experiences with the Indiana Courts but I was talked into ignoring my “paranoia” and going ahead and meeting with Snelson.  I mean, lightening couldn’t strike twice, could it?  Bang.

Judge Humphrey terminated my parenting time for exactly what I am doing in this blog post.  One lawyer advised me not to post this because it could be perceived as me attacking everyone I run across in the court system.  As a reader, I ask you to decide if this is worthy of public criticism.  Read the letter of Dr. D. Mark Snelson, dated February 12, 2014.  Snelson met with me at Putnamville for 1 ½ hours on August 20, 2013.  He then recommended I undergo a thorough psychological evaluation with psychologist Dr. “Chris.”  (“Chris” is the first name of the psychologist.  I was going to go with “Dr. C” but I did not want people to confuse the psychologist with Dr. Connor.  I underwent a battery of psychological testing and was interviewed on several occasions by Dr. Chris.  Dr. Chris was very professional and his fees were what I believe to be very acceptable.  Dr. Chris issued an evaluation opining I was not a danger and could have unsupervised visitation with my daughters.)  Snelson claims to have performed a psychiatric evaluation of me as requested by the Court.  He also alleges he conducted an extensive review or the court records from my criminal trial in October 2011.  In all, he wrote 237 words; the last 16 being “I you have further questions, please feel free to contact me at the above listed number.”  The fee for this 237 word “psychiatric evaluation”: $3,692.  And who did Dr. Snelson address this letter to?  Judge James D. Humphrey.

 

Before the few detractors start crying about me not agreeing with professionals who do not side with me, take a close look at Dr. Snelson’s 237 word letter/report.  There is no recommendation.  The first thing to note is he addressed the letter to Judge James D. Humphrey who hasn’t presided over my case since June 2009.  Snelson would have known this if he would have actually reviewed any records.  Snelson referred me to a psychologist for an extensive evaluation (which cost $3,700) yet never mentions reviewing the evaluation; just phone consultations with Dr. Chris.  Snelson wrote “[Supervised visitation] was agreeable to Mr. Brewington as his stated goal was ‘my job is to prove I'm not going to become a danger and get visitation of my girls’!”  Read that sentence aloud, then read it aloud again.  My high school English teacher Mrs. Z (to whom I am eternally grateful!), would crucify me for that type of sentence structure.  I couldn’t even imagine what she would have done if she paid me $3,692 to write something so ridiculous.  Snelson then states he did not have the opportunity to meet with me or my daughters after my release from prison.  Interviewing the children was not part of the order and why would he need further interviews with me when the evaluation of the psychologist Snelson referred me to states I was not a danger to the children.  So Snelson writes a letter addressed to Judge Humphrey with no professional recommendations and ends the letter with “I you have further questions, please feel free to contact me at the above listed number.”  To put some perspective on how alarming this is, imagine what would happen if an expert ballistics witness in the trial of George Zimmerman just told the judge in the case to give him a call if he had any questions.

Before going any further, I do want to clarify that Snelson’s evaluation did not actually cost $3,692.  The price tag was actually $2,692.  The extra grand came when Snelson scheduled an appointment to meet with me at the prison without notifying my lawyer or me.  When he finally told my lawyer about scheduled appointment, my lawyer told Snelson I was not ready to meet with him.  Snelson charged $1,000 to cancel because it was past the allotted time frame to cancel appointments.  Snelson set up an appointment to see me, failed to tell my lawyer or me about the appointment until the day before, and then charged $1,000 because Snelson wasn’t given advanced notice of the cancellation.  (I wasn’t made aware of this until recently.  I would not have gone through any evaluation with someone exhibiting questionable ethics at the onset of the evaluation process.)  After already paying roughly $7,400 for the evaluation process, Snelson tries to extort more money by trying to schedule more evaluations with me and my daughters before he could determine if I was safe enough to pay another mental health professional to supervise visitation per the current court order.  When my lawyer questioned the additional sessions and informed Snelson the order did not include an evaluation of my children, Snelson wrote a letter to a judge who hasn’t presided over my case in nearly 4 years.

This is why I write.  This is why Joe Sorge made the documentary Divorce Corp.  How often does professional misconduct on the part of mental health professionals in custody proceedings occur when it’s happened to me twice?  To any detractors I ask, how is this my fault?  Sure I could have gone through more evaluations.  I’m sure someone could have dragged my kids from Cincinnati, Ohio to Indianapolis, Indiana for evaluations.  That would have cost another $8,000-$10,000.  Then I would have to pay another few thousand to cover the costs of a mental health professional to supervise visitation.  So in order to determine I am not a potential danger to my children and capable of unsupervised parenting time, (as always I like to remind people that there were never any reports of abuse, neglect, etc., and Dr. Connor recommended liberal parenting time in his testimony during my divorce) Dr. Snelson believes I should have to spend somewhere in the range of $20,000 to become an “unrestricted” parent once again.  (Please note the $20,000 estimate could soar if my ex-wife forces me to subpoena all of these professionals to appear in court to prove I am not going to be a potential danger to anyone.)  Rulings in family courts, like Judge Humphrey’s, turn parents into chum that are thrown in shark infested waters.  All the mental health professionals have to do is state they want to be super-duper sure the children are safe and the sky is the limit.  (Once again I want to reiterate the professionalism of “Dr. Chris” and his fair billing and am in no way lumping him in with unscrupulous individuals like Dr. Connor and Dr. Snelson.)  Judge Humphrey took away my children because I criticized Dr. Connor on the internet.  Humphrey testified to this in my criminal trial.  I went to prison for 2.5 years because I criticized Humphrey.  Now I am criticizing Dr. D. Mark Snelson M.D. for his conduct.  Hopefully, the right people will begin to listen.