Indiana Chief Justice Loretta H. Rush: 6th Amendment does not apply to Dan Brewington

The appointment of Loretta H. Rush to the position of Chief Justice of the Indiana Supreme Court delivers a sharp blow to the Sixth Amendment of the United States Constitution.  In the Indiana Supreme Court’s decision in Brewington v State, filed May 1, 2014, Justice Rush wrote:

“Requesting [jury] instructions on actual malice would have called the State’s attention to the distinction it repeatedly overlooked between threatening the targets’ reputations under Indiana Code section 35-45-2-1(c)(6)–(7) and threatening their safety under subsections (c)(1)–(3).”

Justice Rush acknowledged Dearborn County Prosecutor F. Aaron Negangard and his deputies failed to make the argument that the statements Daniel Brewington made about Dr. Edward J. Connor and Judge James D. Humphrey were threats to personal safety.  Negangard argued Brewington’s speech was false and constituted fighting words, which are words intended to invoke a violent reaction from Judge James D. Humphrey and Dr. Edward J. Connor.  Brewington was essentially convicted of criminal defamation, which was affirmed by the Indiana Court of Appeals.  In the opinion from the Indiana Court of Appeals, filed January 17, 2013. Justice Carr Darden wrote, “Even if the State was required to prove that Brewington knew his internet postings and other communications about Judge Humphrey were false, there is ample evidence of Brewington’s knowledge.[sic]  His public comments went well beyond hyperbole and were capable of being proven true or false.”  When the case was brought before the Indiana Supreme Court, Justice Rush wrote making “false” statements, which Judge Darden acknowledged the prosecution failed to prove were false, were constitutionally protected speech.  Rather than remand the case back to trial because the jury was never informed that Brewington could not be prosecuted for criminal defamation especially without providing proof that Brewington’s statements were false, Justice Rush went through the entire record of the case and decided what she believed to be examples of true threats to physical safety.  Even if Justice Rush’s findings about Brewington's statements were accurate, the fact still remains that it was not until after Brewington’s case reached the Indiana Supreme Court did anyone define what parts of Brewington’s speech constituted true threats to personal safety, leaving Brewington unable to prepare a defense against the alleged threats during trial.  Rush said Prosecutor Negangard made the wrong argument then went on to make an argument for the prosecution based on evidence falling outside the view of the jury, then proceeded to, in effect, affirm her own argument she made for the prosecution.

Brewington was found guilty of Intimidation for making unproven “false” statements.  The Sixth Amendment of the United States Constitution protects a defendant’s right to be “informed of the nature and cause of the accusation” of the indictments against him.  Despite acknowledging Brewington was never afforded the opportunity to know which of his statements over the course of 3.5 years constituted true threats to safety, Justice Rush wrote, “under the circumstances of this case, we find neither fundamental error nor ineffective assistance of counsel in allowing Defendant to be convicted under general verdicts that failed to distinguish between protected “criminal defamation” and unprotected “true threats.”  Even after pointing out the constitutional flaws in Rush's decision, the Indiana Supreme Court denied Brewington's Petition for Rehearing without explanation.

And Loretta H. Rush has just been named the Chief Justice of the Indiana Supreme Court.  If the Chief Justice of the Supreme Court can arbitrarily decide which citizen is allowed to enjoy the protections guaranteed to him by the US Constitution, all constitutional rights are in jeopardy in Indiana.  This November, Indiana residents need to vote Chief Justice Loretta H. Rush off the Indiana Supreme Court.

Anti-Constitutionalist Loretta H. Rush Named New Chief Justice of Indiana Supreme Court

Today the Indiana Judicial Nominating Commission convened and interviewed potential candidates for the position of Chief Justice of the Indiana Supreme Court.  After publicly and privately interviewing the candidates, the Commission chose Justice Loretta H. Rush to be the next Chief Justice of the Indiana Supreme Court.  This is the same Justice who wrote a Supreme Court decision stating that a defense attorney can waive a person’s constitutionally protected right to free speech.  Justice Rush also wrote that taking advantage of a prosecution’s weak case or argument, by not raising issues on behalf of the prosecution could waive constitutionally protected rights.  And now Justice Rush sits on top of the Indiana Judicial System. 

Newly appointed Indiana Supreme Court Chief Justice Loretta H. Rush ruled that someone can be convicted for exercising a constitutionally protected freedom if the lawyer of the accused waives the defendant’s right to exercise that protected activity.  Sound odd? It should.  Justice Rush wrote that my public defender’s “strategy” in doing nothing to instruct the jury on the principle that a person cannot be criminally convicted for defamation of character, made “it quite possible that the impermissible criminal-defamation theory formed at least part of the basis for the jury’s guilty verdicts, and the general verdict cannot indicate otherwise.”  Justice Rush acknowledged that it was “quite possible” I may have been convicted of intimidation based on constitutionally protected speech.  Rather than remand the case back to trial to ensure the First Amendment of the United States Constitution was not used as a grounds for a criminal conviction, Justice Rush began rationalizing how it is possible for someone to go to prison for exercising their constitutional rights.  Justice Rush wrote,

“Requesting instructions on actual malice would have called the State’s attention to the distinction it repeatedly overlooked between threatening the targets’ reputations under Indiana Code section 35-45-2-1(c)(6)–(7) and threatening their safety under subsections (c)(1)–(3).”

Rush went on to write the following about what she perceives to be the trial strategy of my public defender Bryan Barrett,

“Indeed, the theme throughout [Barrett’s] closing argument was that his speech was all protected political opinion, with no proof that he intended any of it to be threatening.”

Justice Rush described my public defender’s non-action in properly instructing the jury on the difference between threats to reputation and threats to safety as “strategy” yet referred to the prosecution’s non-action, in its failure to distinguish the difference between threats to reputation and threats to safety, as a repeated oversight.  Rush wrote, “In effect, that approach sought to exploit the prosecutor’s improper reliance on “criminal defamation” to the defense’s advantage.”  Rush somehow determined it was advantageous to me for the prosecution NOT to inform the jury nor the defendant exactly what conduct was considered criminal.  Even more, Rush claimed my rights to free speech were waived because my public defender did not explain to the jury which of my actions were protected by free speech and which were illegal.  Justice Loretta Rush effectively claimed that my public defender waived my rights to free speech because Bryan Barrett did not tell the jury that his client was guilty.  Rush rationalized her decision with the following,

“In effect, that approach sought to exploit the prosecutor’s improper reliance on “criminal defamation” to the defense’s advantage.”

Not only did Justice Loretta H. Rush place the burden on a defendant to do the prosecutor’s job in instructing the defendant and the jury on what actions by the defendant the prosecution believes to be criminal, she rationalized her decision by stating,

“Defendant demonstrated significant sophistication about free-speech principles long before trial in a motion to dismiss these charges, Supp. App. 1–4, and confirmed it by his post-verdict, pre-sentencing blog posts, Sent. Ex. 1 at 2–3.”

First it should be noted that Justice Rush’s above claim is false.  When my public defender, Bryan Barrett, refused to meet with me to discuss my case prior to trial, I filed three different motions on October 3, 2011, an hour before trial, to try to protect my constitutional right to free speech, fair trial, right to an attorney, etc… Despite pleading to the court that Bryan Barrett refused to call me, meet with me, provide me with evidence, discuss my explanation of events related to my case, or even provide an explanation of which of my actions constituted a crime, at no point did the trial court, Indiana Court of Appeals or Indiana Supreme Court ever investigate or even inquire into whether my statements about my public defender were true.  Justice Rush even acknowledged the grand jury indictments were vague and compared my case to the case of Bachellar v. Maryland, where there was no particular act or statement that constituted intimidation.  Rush wrote,

“Like Bachellar, the grand jury’s indictments against Defendant here do not allege any particular act or statement as constituting intimidation, instead alleging generally that his conduct as a whole “between August 1, 2007 and February 27, 2011” (as to the Doctor) and “between August 1, 2009 and February 27, 2011” (as to the Judge) was “intended to place [them] in fear of retaliation for a prior lawful act.” App. 22, 24. Nothing on the face of the indictments, then, creates confusion between protected or unprotected acts as the basis for conviction. Instead, like Bachellar, any confusion arises only because of how the case was argued and how the jury was instructed.”

An important component Rush failed to mention was the timeframe of events in the Bachellar case.  Justice Rush claimed our cases were similar because the charges did not allege any particular act of intimidation where the prosecution relied on unspecified acts in a certain period of time.  My non-defined “acts” that allegedly constituted intimidation occurred somewhere between August 1, 2007 and February 27, 2011; a period spanning 3 years, 6 months, and 26 days.  In the Bachellar decision by the United States Supreme Court, Justice Brennan wrote,

“The prosecution arose out of a demonstration protesting the Vietnam War which was staged between 3 and shortly after 5 o'clock on the afternoon of March 2, 1966, in front of a United States Army recruiting station located on a downtown Baltimore Street.”

In Bachellar, the defendant was aware that the alleged crime occurred roughly in a two hour timeframe, on March 2, 1966, and the event occurred in front of an army recruiting station on a downtown Baltimore Street.  In comparing my case to Bachellar, Justice Rush stated that as a defendant, I knew what actions of mine over the course of 3.5 years constituted a crime.  She supported her claim by referencing the motions filed on the day of trial and by my post-verdict and pre-sentencing blog posts, which were written after the trial.  Justice Rush determined my guilt based on evidence never presented to the jury.  With that being said, in Bachellar, Justice Brennen wrote,

“Thus, since petitioners' convictions may have rested on an unconstitutional ground, they must be set aside.”

In my case, Indiana Supreme Court Justice Loretta H. Rush agreed that it was “quite possible” that my convictions rested on an unconstitutional ground yet she upheld my convictions because my public defender did not tell the jury what he felt the prosecutor felt was a violation of law.  Justice Rush claimed that since my public defender went with an “all or nothing strategy,” he waived my constitutional rights because he made the argument that all my statements were protected.  Rush believed my public defender had an obligation to assist the prosecution and tell the jury which of his client’s actions were against the law.

Justice Loretta H. Rush believes United States citizens can have their rights to free speech waived if their attorneys do not represent their clients in the “correct” manner or if the attorneys try to take advantage of deficiencies in the prosecutor’s case against their clients.  This doesn't even take into account how Justice Rush ruled legal gun ownership may be considered as a factor of whether a person is likely to be more dangerous than a non-gun owner. Justice Rush also punished me for exercising my Fifth Amendment right to not testify in my own trial claiming it was part of the trial strategy that waived the same rights that were protected by the United States Supreme Court in the Bachellar case.  Rush wrote,

“His decision not to testify, thus letting the case hinge solely on the sufficiency of the State’s proof, was also consistent with an “all or nothing” defense rather than the actual-malice defense he now says he should have had.”

In the courts of the United States of America, the burden is on the State to prove someone’s guilt.  Justice Rush claimed the prosecution “repeatedly overlooked” the difference between threats to reputation and threats to safety.  Rush claimed the indictments were non-specific. Rush said the prosecutor improperly relied on the “criminal defamation” argument.  By her own account, Justice Rush acknowledges the prosecution’s argument against me was vague and unconstitutional yet I somehow waived my rights to constitutional protections because my attorney did not assist the prosecution in their case against me and because I chose not to testify because I felt the prosecution’s vague, criminal defamation argument failed to meet the burden of proof for a criminal conviction.  Justice Rush explained the public defender’s and my “strategy” based on what she believed was our keen knowledge of First Amendment law, which happened to be approximately 15 pages after she corrected the Indiana Court of Appeals for not understanding the First Amendment when they issued a decision in my case in January 2013.

This November there is a retention election for Justice Loretta H. Rush.  The above is every reason why people should go to the polls and vote to have her removed from her judicial seat.  Either Justice Rush lacks the education and intellectual reasoning to understand and interpret the Constitution of the United States of America or she maliciously violated an oath she swore to uphold.  Speak out, show up, and support the US Constitution this fall.  Vote Rush off the Bench.

For more information, check out my Petition for Rehearing and Motion for Disqualification of Justice Loretta Rush; which were both denied, without explanation, by the Indiana Supreme Court.  Please note there was never any mention of violence on my part anywhere throughout the grand jury process, criminal trial or at the Indiana Court of Appeals. Justice Rush stated I had a history of violence despite there never being any accusations of violent activity.  

Letter to my Ex-Wife

The following is a letter to my ex-wife.  This is the first time I have attempted to contact her in nearly five years.  Hopefully two evaluations and a 40 year history of non-violent behavior is enough to convince her that I am not a danger to my children.

July 20, 2014

Dear Melissa,

It has been nearly 5 years since I have seen or spoken to Mary and Audrey.  Since the time you had me arrested for telecommunication harassment, on September 11, 2009 (which was dismissed and expunged), I have made no attempts to contact you, your family, your friends, boyfriends, husband, employer(s), etc…  There has never been any evidence that I have ever presented any danger to you or the girls other than Judge Humphrey’s findings that were based on my criticisms of Dr. Connor, which were perfectly valid.  I never once challenged Connor’s findings that you should be the custodial parent; I simply challenged his conflicting statements and ethics.  Throughout our 2.5 year divorce, you never attempted to modify the amount of time I had with the girls.  There was never any evidence that the girls feared me or did not want to be with me.  I’ve been placed in a position to prove why I may not be a danger when no one has provided any reasonable evidence to suggest that I am.  Worse yet, the only reasoning the Courts have given on my “potential” dangerousness is Judge Humphrey’s interpretation of Dr. Connor’s custody evaluation, which recommended that I should be able to continue to care for the girls at least three days a week.  I think it is time to stop looking for excuses why to keep me away from the children because they need their father.  As their mother, you have the ability to expedite their ability to have their father in their lives.

For nearly the past 5 years, you have taken every opportunity to fight my path back to the girls.  You had me arrested in Cincinnati, Ohio for telecommunication harassment for trying to contact the girls when there was no order prohibiting me from doing so.  If you would not have fought the appointment of Dr. Henry Waite, I would have been able to present a psychiatric evaluation to the court in early 2010.  Your refusal to accept Dr. Waite as an evaluator and Judge Humphrey’s unethical conduct in continuing to serve as the judge in our case, while participating in a criminal investigation against me, delayed the appointment of an evaluator until January 24, 2011.  You played no small role in the investigation, arrest, and conviction in my criminal case, as you testified against me before both the grand jury and the trial jury.  On September 15, 2009, you told Dearborn County Special Crimes Unit Detective Michael Kreinhop that I made threats of violence to you.  Despite the fact that I had no violent past, you told Detective Kreinhop that you believed I was “capable of committing acts of violence.”  [See attached]  (Of course if you did not make these statements, I would hope you would take the appropriate measures to complete an affidavit in support of the truth.)  Our divorce, which you filed on January 8, 2007, lasted 2.5 years.  We went through a custody evaluation and several court hearings.  You’ve unsuccessfully attempted to hold me in contempt on several occasions.  You had me arrested in Cincinnati, Ohio.  You even filed for a (non-physical) protective order to have my web content removed, which was denied.  It wasn’t until after the custody evaluation, divorce proceedings, and you having me arrested did you accuse me of making threats of violence.  You had me arrested because I left you messages and sent you text asking you to have the girls contact me, yet you failed to take any measures to have me arrested or file for any protective orders after claiming that I made threats of violence against you.

As you may know, the Indiana Supreme Court upheld my intimidation, obstruction, and perjury convictions.  A large part of Justice Rush’s conclusions were based on what she claimed to be my history of violence against the victims and my violent behavior.  The trial record is void of any examples of violence against anyone.  Sheriff Kreinhop testified there were no findings of violence against any public official.  The only mention of violence anywhere in my criminal case were your accusations that I made threats of violence.  I recently filed a Petition for Rehearing because of the obvious mistakes of fact in the ruling of the Indiana Supreme Court.  If that fails, I am going to petition a federal court or the United States Supreme Court. 

I've never blamed you for Judge Humphrey terminating/suspending my parenting time with Mary and Audrey.  You do bear the responsibility associated with you and your attorney’s (Angela Loechel) efforts to fight the appointment of evaluators as well as taking every opportunity to damage my reputation as a good father since the filing of the divorce decree.  As such I am allowing you to decide if the children should have their father in their lives.  I am including a copy of a psychologicalevaluation completed by Dr. Christopher Sullivan.  In the report, he opines there is no reason why I should not be able to exercise unsupervised visitation with the girls.  (Please note that Dr. Sullivan requested information from Dr. Connor in order to make the evaluation as thorough as possible but Connor refused to provide Dr. Sullivan with any information.)  With the current state of my criminal case, I am not going to put myself in a position where I have to defend myself against baseless allegations that I am a danger because I criticized court officials.  I am also not going to sit in a courtroom and listen to your lawyer attack me for being a potential danger.  You know I am not dangerous.  You portray yourself to the court as a victim by requesting the Court to keep your address anonymous as if I would do something to harm you or the children.  The fact is I know where the children are because you invite my mother and her sister to the girls’ events.  You send me things in the mail from the girls.  Just recently you sent me a full update on their schooling, physical development, and other activities in their lives.  On September 6, 2009, I sent you a text message stating, “Are you going to have the girls call me?  If not, just say so and I will stop asking. Please tell the girls that I love them.”  Rather than a simple no, you just ignored me.  The following day I sent a text stating, “Tell the girls that I love them. Send me a text to let me know the girls are ok or I will be calling ur family to see if the children are ok becuz i'm worried.”  Rather than letting a father know his children are okay, you chose to ignore the simple request and then had me arrested for telecommunication harassment.  Now you send me somewhat frequent updates on the girls, which, objectively speaking suggests you do not fear me or you are taunting someone you claim to be violent and dangerous. 

You could not comprehend my life in the past several years.  I’ve gone nearly five years without speaking to the two most precious people in my life.  I spent 2.5 years in prison because your attorney initiated a criminal complaint against me on behalf of Judge Humphrey.  You could have spoken in my favor to the falsity of Dr. Connor’s statements.  You could have just sat idle and have done nothing.  Rather than take a passive stance on the issue or try to help our children’s father, you did nearly everything in your power to portray me as a bad person in an effort to send me to prison.  Your recorded statements in my criminal proceedings are either exaggerated or they conflict with your prior statements that exist in the record of our divorce.  What you failed to do during my criminal trial is testify that I threatened you with violence.  I can only assume you did not make that accusation while testifying in my criminal trial because you would have perjured yourself.  I’ve never threated you nor anyone else with violence or any other illegal activity.  People had to lie to send me to prison.  Even after spending 2.5 years in prison and not seeing Mary and Audrey for nearly five years, I still haven’t resorted to any acts of violence nor will I ever do so.  That’s who I am.  That’s who I will always be.

I am at a crossroads in life.  I am 40 years old and I have to make a decision.  How can I possibly prove that I am not a danger to you or the girls when there was no evidence suggesting that I ever was?  If you believed I was a danger, as a responsible parent you would have attempted to modify my parenting time somewhere along the line of our 2.5 year divorce.  The evaluation performed by Dr. Sullivan should be sufficient to demonstrate I am not a danger.  Dr. Connor’s recommendation of liberal parenting time should be enough as well.  If you are willing to enter into an agreed order where I would get some kind of normal unsupervised parenting time, the girls will be able to once again have their father in their lives.  If the visitation recommendations of Dr. Connor and Dr. Sullivan, my record of non-violence, combined with the fact I have not seen you or attempted to contact you in nearly five years does not convince you that I do not present a danger to anyone, then I am done.  I am not going to spend any more time and money fighting unsubstantiated and false allegations about me being potentially dangerous, especially as you have fought to keep me from obtaining the information in Dr. Connor’s case file that would definitively demonstrate that I was correct in my assertions regarding Dr. Connor’s ethics.

I live with a huge void in my heart.  You can continue to speculate to what you believe are my true intentions in everything I have done but it has always been about my love for Mary and Audrey.  Throughout the course of our 2.5 year divorce, I did not leave the girls with mom so I could go out at night.  I never asked you to take the girls on my days because I wanted to make other plans.  You continued to speculate why I might not be a good father or why I might not love Audrey and Mary rather than acknowledging that I could love them as much as you.  I’m not going to put myself at risk in continuing to argue the inarguable against you in a court system that has actively worked to put me put me in prison for 2.5 years; especially as your attorney has a reputation of successfully initiating secret criminal investigations against me.   Your lawyer made a criminal complaint on behalf of Judge Humphrey’s “welfare” then sat idly by while Judge Humphrey continued to preside over custody matters for nearly a year, delaying my ability to have an evaluator approved.  I’m not going to continue to fight with my hands tied behind my back; especially as I defend myself against a malicious Supreme Court ruling and your unsubstantiated fears as to why I may be capable of committing acts of violence when I have a 40 year record of a non-violent lifestyle.  As I am representing myself, if your attorney believes I make the wrong legal strategy, file too many motions, or if she can use one of my statements out of context, she can make another complaint to the police, where I would be susceptible to further incarceration.  So you can decide if you want me to play a role in the lives of our daughters while they are young.  Regardless of what becomes of this situation, the girls will become adults and I feel confident any lost bond will be reconnected.  Children are afraid of dangerous parents.  Neither of the girls have ever been afraid of me and you nor any other person have ever asserted that they were.  They will someday learn about the nature of the bad acts by Judge Humphrey, Prosecutor Negangard, Dr. Connor and others who put their dad in prison and worked tirelessly to lie in their efforts to do so.  The only question you don’t want the girls to ask is, “why didn’t mommy do anything to help?” 

You do whatever it is you believe to be in the children’s best interest.  I’m no longer putting myself at risk to fight baseless allegations in an unfair system that refuses to provide me with the resources to dispute the allegations.  If you want to continue to argue that I am a dangerous father who you claim is “capable of committing acts of violence,” then I guess I will see the girls when they are adults when I can definitely prove that I did not do anything to harm them or their mother.

Dan Brewington

This is what happens when Dan Brewington gets angry with judges

Hopefully this gives some people a little perspective on who I am. Indiana judges like Judge James D. Humphrey and Supreme Court Justice Loretta Rush have fallen all over themselves to tell the public I am an angry and dangerous individual. This is a snapshot of my Facebook page explaining what happens when I get angry with judges.  This is why Justice Rush and the Indiana Supreme Court  went to such extremes in their efforts to portray me as a bad guy.

https://m.facebook.com/groups/325330308839?view=permalink&id=10153341796138840

Official Psychological Evaluation of Dan Brewington Released

Results are in: My kids lost 5 years with their father for no reason.

The verdict is in and I am not am not a danger to anyone. On August 18, 2009 Judge James D. Humphrey terminated my parenting time (not parenting rights) pending a psychological evaluation to determine if I may be a danger to my children, my ex, or myself despite the fact that I had no history of violence, child abuse, etc...  Judge Humphrey stayed on my case and obstructed my ability to have a mental health evaluator approved while knowing I was being investigated by the Dearborn County Special Crimes Unit, headed by Dearborn County Prosecutor F. Aaron Negangard, for the intimidation of Humphrey.  Humphrey's delay in removing himself caused a year long delay of having an evaluator approved by the court.  When an evaluator was finally approved, Negangard had me indicted and arrested before I could seek an evaluation.  Negangard then argued in trial that I refused to get an evaluation to see my children in an effort to harm my character. In the Supreme Court's decision in Brewington v. State, Justice Rush relied on the alleged victims in my criminal case, Judge Humphrey and Dr. Edward J. Connor, for a psychological assessment of the person who was harshly criticizing their conduct. Justice Rush considered Humphrey and Connor's assessment that I was a potentially dangerous person as circumstantial evidence in determining whether or not hidden threats existed in my writings.  Please note: this isn't a situation where there was a blanket statement where someone said, "I wish harm would come to so and so" and then use psychological analysis in an attempt to determine if the statement was a true threat.  Rush did the opposite and found me to by psychologically unstable (as reported by Humphrey and Connor) and then looked for statements that may be deemed to be hidden threats.  Minus a finding of potential danger, there are no hidden threats.   Here is the evidence that I am not a threat. 

This is the psychological evaluation performed by Dr. Christopher Sullivan.  Dr. Sullivan's report states that I am not a danger to anyone and opines there is no reason why I should not be allowed immediate unsupervised visitation.  He also questions Dr. Connor's findings as there was nothing Dr. Sullivan found that would give him the impression that my writings were "similar to those who have committed horrendous crimes against their families" as Connor stated, which Justice Rush would later quote in her ruling.  Of course Dr. Sullivan sent Connor a letter requesting any information contrary to Dr. Sullivan's findings but, to my knowledge, Connor refused to respond.  Ironic how the Indiana Courts applauded Connor for his courage in not withdrawing from my case, yet when given the opportunity to give another psychologist evidence that I may be dangerous, Connor remains silent.  Either Connor never had any information to support his findings, or Connor is going to sit back and allow my daughters to be reunited with a potentially dangerous parent.  If I had this information for my criminal trial, I probably would not have been convicted.  Because of my outrageous bail and my inept public defender, Bryan Barrett, I was unable to present a psychological evaluation to the jury that would clear any speculation that I was a dangerous individual. 

Judge Humphrey and the Indiana Court system have deprived my children and me of a relationship for nearly five years so a mental health professional could reaffirm what my history has demonstrated; I am not a danger to anyone.  Dr. Sullivan's evaluation states I am not a danger to anyone.  The only possible negative reported by Dr. Sullivan is that I have narcissistic personality features because I may be indifferent to social norms and may take satisfaction in defying and challenging convention.  This may be due to the fact when the psychological tests asked if I felt people were after me, I answered "yes" except I could not pencil in who was after me; the entire Indiana Judicial System. 

Now I am stuck.  I have a positive evaluation but not sure what to do with it.  I could set a date to go to court and present the evaluation to a judge but it will once again fall before an Indiana Court.  My ex and her attorney can continue to say that I am a danger because Justice Rush and the entire Indiana Court system said I was a danger.  I have no appellate remedies to fix any adverse decision in the domestic court because it would go back to the Indiana Court of Appeals, who once ruled it was a crime to call a judge a child abuser if the judge claimed he was scared of the statement.  My goal in placing this evaluation on the public domain to show I have nothing to hide and to demonstrate how erroneous and illogical the Indiana Courts have been in their efforts to demonize Dan Brewington.  I am not a danger to children and families.  Judges like James D. Humphrey and Loretta H. Rush are dangerous to children and families as they allow themselves to rule out of anger rather than follow the law.  As always, thank you for the support and please stay tuned for more information.  

Brewington's Petition for Rehearing and Motion for Judicial Disqualification of Indiana Supreme Court Justice Loretta H. Rush

An informative perspective behind Rush's opinion in Brewington v State

Justice Loretta H. Rush and the Indiana Supreme Court have wandered into dangerous constitutional and ethical waters in their recent ruling in Brewington v State.  I have addressed some of the major points in the opinion, authored by Justice Rush, in my Petition for Rehearing and my Motion for Judicial Disqualification, both filed with the Supreme Court last week.  I decided to write and file the briefs on my own because no lawyer could obtain a knowledge of the two thousand pages of trial records necessary to refute the findings of Justice Rush.  It was a conscience decision to fill the Petition for Rehearing with fact and commonsense arguments rather than waste case law on a Court that would go so far as to manipulate the jury’s findings on my perjury conviction to help bolster the Supreme Court’s case against me.   Hopefully this blog will provide a better understanding of the minutia of circumstances used by Rush to uphold my conviction; especially for those who filed briefs to the Supreme Court in support of the First Amendment.

To put some perspective on how long the Indiana Supreme Court took to decide my case, here are some relevant dates.  On 3/26/2013, the briefs of the parties were transmitted to the Indiana Supreme Court.  On 6/11/2013, the Court set oral arguments on my case, which took place on 9/12/2013.  The Court did not issue an opinion until 5/1/2014.  The Court addressed the main concerns of the “Amici” (Latin term used for “friends of the Court”) which dealt with the ruling of the Appellate Court.  The Indiana Appellate Court ruled a true statement could be a criminal threat if it caused the target of the statement real fear.  Justice Loretta Rush was meticulous in addressing the concerns of the Amici, a body of media and legal professionals.  Justice Rush was much less candid in addressing my concerns. 

“Minutia” was a word used by the Amici to separate themselves from the First Amendment issues and any details of my divorce.  They only argued that a true statement should not be subject to criminal punishment.  Knowing this, Justice Rush carefully crafted a decision that not only satisfied the concerns of the Amici, but also gave the impression there was much more to the underbelly of my case in regards to what she considered the “true threatening” nature of my writings.  Justice Rush wrote extensively about my alleged history of violence toward the victims when the only investigator in my criminal case testified there were no acts of violence against any public official.  If there had been multiple acts of violence against a judge, the appropriate charges would have been filed.  Rush claimed I demonstrated violence in Judge Humphrey’s courtroom yet somehow I have never been held in contempt of court.  Rush fooled the Amici by writing the State could not criminally punish a true statement but the state could consider a litany of true statements to be a pattern of obsessive behavior, constituting circumstantial evidence, to demonstrate an intent to cause fear to a target of speech.  This rationalization gave the green light to the Supreme Court to take my statements out of my context and place them in the context of true “hidden” threats of physical violence.  Without intent or fear, the out of context statements are not even threats.  The Court based its finding of fear on the targets of my harsh criticism and my “intent” on my “psychological profile” as diagnosed by the targets of my harsh criticisms.  The Court acknowledged I may have been convicted on constitutional grounds but I waived my right to challenge it because the Court claimed I invited the error.  Justice Rush wrote my public defender, Bryan Barrett, invited the error by strategically doing nothing.  Justice Rush claimed Barrett’s strategy was an attempt to take advantage of the prosecution’s oversight in failing to differentiate threats to safety and threats to reputation.  Justice Rush deemed Barrett’s strategy in not properly informing the jury of the constitutional boundaries of the intimidation statute to be “a deliberate eminently reasonable strategic choice.”  Of course this is concerning because even the Indiana Court of Appeals failed to reach the correct conclusion on what constituted criminal speech.  Indiana Appellate Judges John G. Baker, Carr L. Darden, and Patricia A. Riley, all of which have a combined 65 years of experience on the Indiana Court of Appeals, failed to properly draw the line between protected and unprotected speech yet somehow Justice Rush felt her perception of Bryan Barrett’s understanding of federal and state constitutional law and Barrett’s “strategy” of doing nothing justifiably waived my rights that are normally protected by the Constitution of the United States.  Even worse, Rush placed the burden on the defendant to inform the jury which of the defendant’s acts constitute a crime and which acts are constitutionally protected; thus acknowledging that I was unable to build a proper defense in the absence of an understanding of what actions constituted a crime.  During the course of the trial, the prosecution argued my speech was not protected because they were fighting words and my intent was to bring hatred, ridicule, and disgrace to public officials.  Despite the prosecution telling the jury my intent was to harm reputations and/or invoke a violent reaction from a judge and psychologist, Rush took a different route and introduced a new argument, which I was unable to defend.  Rush claimed that my intent was to place the “victims” in fear for their lives.  Rather than remand the case for a new trial and allow a jury of my peers to decide if my actions were hidden threats of violence, Rush and a “jury” of four other Supreme Court Justices determined what would be considered true threats to judges.

Another very disturbing aspect of the ruling was the Supreme Court’s reliance on my “psychological disturbance” as diagnosed by the targets of my speech.  Justice Rush attacked me for alleging ex parte communication between the first judge in my divorce, Carl H. Taul and, and Dr. Edward J. Connor.  She criticized me for blogging about my satisfaction in having Taul removed from my case, and then wrote how Connor used my conduct in coming to the conclusion I was “potentially dangerous.”  The main problem being it was Dr. Connor who first raised the issue of the ex parte communication and Rush was well aware of this fact.  In her opinion, Rush referred to State’s Exhibit 67 on three different occasions to build the Court’s case against me.  Exhibit 67 has a copy of a letter written by Dr. Connor on 2/25/2008 where Connor claimed Taul contacted him on 2/22/2008.  There is no record of the conversation other than Connor’s letter.  (Excerpt of State’s Exhibit 67 is attached to Motion for Disqualification)  Communication between a witness and a judge outside the presence of the parties is against the Indiana Rules of Judicial Conduct.  Rather than report Judge Taul, who has been a member of the Juvenile Justice Committee with Justice Rush for at least the past six years, Rush attacked me for writing about it.  (Judge Humphrey sat on the same committee with Rush and Taul for at least five years.)

The Amici were also not aware that Rush used events occurring after my divorce hearing as evidence as how I attempted to obstruct justice in my divorce hearing.  Rush claimed my “conduct” occurring as late as November 2010 was an attempt to obstruct justice in my divorce hearing on May 27, 2009.

Probably the most frightening aspect of the Court’s opinion authored by Justice Loretta Rush is the discussion of my perjury conviction.  I was convicted for perjury for stating I did not know for sure if James Humphrey and Heidi Humphrey were married when I advised people to send concerns or opinions to Heidi Humphrey who was an advisor to the Indiana Supreme Court Ethics and Professionalism Committee.  Despite there being no evidence presented that I knew for sure that James and Heidi Humphrey were married, Justice Rush wrote that I feigned ignorance, and that I did know or should have known.  This is not the worst part.  Rush also wrote the Jury found me guilty of lying about my intentions of having people send letters to Heidi Humphrey when there was no such jury instructions and subsequently no such ruling.  The significance of Rush’s statement is found in the word “intent,” the cornerstone of the Supreme Court’s argument against me.  First it should be noted that if the Court has to work at developing an argument as to why speech isn’t protected, it probably is.  Rush argued my intent was to place Humphrey in fear for his life and to support her argument she manipulated the record to give the appearance the jury found me guilty of lying about my intent.  Justice Rush, who has been praised by the legal community for “her thoughtfully crafted and impactful opinions” fabricated a separate jury finding to strengthen her opinion against Brewington. If Rush’s misinterpretation of the perjury conviction is unintentional, then the trial record is so fractured there is no other choice than to remand the entire case back for a new trial.  If the Indiana Supreme Court cannot understand the facts of the case, how can a jury?

There is little question the actions of Justice Rush are anything but intentional and malicious.  To give Rush the benefit of the doubt casts a tremendous shadow on her competence as a Justice on the Indiana Supreme Court.  Rush’s opinion left me for dead in the eyes of the Amici because they had no reason to doubt any error in Rush’s conclusions; especially as Rush had well over a year to review the record and form an opinion.  Rather than error on the side of the Constitution of the United States of America, Justice Rush looked for every possible excuse why NOT to, at minimum, remand the case back for a new trial and allow a jury to decide what constitutes a “hidden” threat against judges rather than allow a panel of judges to decide what they believe a jury would deem to be “hidden” threats against themselves  This doesn’t even take into account the question of whether Rush should have presided over the case given my case deals with protecting judicial officers and her husband was nearly murdered during a home invasion by someone with whom Rush had a connection through the court system.  (Addressed in Motion for Judicial Disqualification.)  I hope people take note of the actions of Justice Loretta H. Rush as this calls into question her ability to rule on any matter in any judicial capacity.  In a world where people on death row are being exonerated with the advancement of science and forensic technology, Justice Rush’s inability or refusal to remain impartial can jeopardize the lives of innocent people.  Please forward this information to others.  Thank you for your ongoing support.

Justice Loretta Rush: "Brewington's public defender is a Constitutional Scholar."

In the recent opinion from the Indiana Supreme Court decision Brewington v State, Justice Loretta Rush hails my public defender, Bryan Barrett, as a constitutional scholar.  She also claims I had to build a defense against legal conduct because Prosecutor Negangard made up his own Indiana defamation law when no such law existed.  Imagine being a defendant in a criminal trial where a Supreme Court Justice claims the prosecution was not aware of what conduct actually constituted a crime.  How could one defend themselves?  In my petition to the Indiana Supreme Court, it was argued that by not informing the jury that I could not be convicted base on threats to reputation and only by threats to safety, it constituted "fundamental error."  Some courts have defined fundamental error as “errors which go to the heart of a trial and vitiate its fairness.”  It would seem like a no brainer by not informing the jury in my case that they could not convict me for constitutionally protected speech, it would go to the heart of the fairness of my trial and the protection of the 1^st Amendment.  The Supreme Court even agreed it was erroneous not to tell the jury in my criminal trial that I could not be convicted of a crime based on activities which were legal.  Justice Rush wrote:

“As discussed above, the First Amendment and the Indiana Constitution demand a showing of actual malice before the State may impinge on assertions of fact—even false ones—about public figures or issues of public concern; and rhetorically hyperbolic expressions of opinion are always protected, because they can only reasonably be understood as assertions of opinion, not of fact.”

BUT, Justice Rush dismissed the Constitution claims because….

“Were it not for that apparent strategy, Defendant’s arguments would be well taken.”

Justice Rush said the fundamental error did not apply because my lawyer invited the error.  “Invited error” precludes a party from raising an issue on appeal.  An example would be if a party agreed to the admissibility of hearsay testimony even if it violated rules of evidence.  The party could not turn around and appeal the issue because they “invited” the error.  Justice Rush said my public defender invited the error, thus waiving my rights to the constitutional protections.  Justice Rush attributed Bryan Barrett’s failure to object to the absence of jury instructions that included an explanation of constitutionally protected speech to an “all or nothing” strategy.  Mind you, this is the same public defender who never met with me to review my case before trial, did not call any witnesses, subpoena any documents, etc…  Justice Rush stated the following about Barrett’s carefully planned strategy to do nothing:

“In effect, that approach sought to exploit the prosecutor’s improper reliance on ‘criminal defamation’ to the defense’s advantage—focusing the jury on the clearly protected aspects of Defendant’s speech, and on that basis to find the ambiguous aspects of his conduct to be protected as well.”  “Instructing the jury on the text of the federal and state constitutional free-speech protections, but not actual malice, appears to have been a strategic calculation to that end—not an ignorant blunder.”

Justice Rush claimed it was an oversight on the part of Dearborn County Prosecutor F. Aaron Negangard that he failed to tell the jury what parts of my speech were constitutionally protected.  This is the same prosecutor who gave the following instruction to the jury during closing arguments:

“He could have even called him a son-of-a-bitch if he wanted, alright? That's probably okay.”  “But he can say that.  But what he can't say, he's a child abuser.” (No kidding; Page 516 Line 7 of trial transcripts)

Justice Rush said “Requesting instructions on actual malice would have called the State’s attention to the distinction it repeatedly overlooked between threatening the targets’ reputations… and threatening their safety.  Defense counsel could reasonably have anticipated that an actual-malice challenge could lead the State either to withdraw [some jury] instructions, or at least to draw sharper focus onto the statements and conduct that crossed the line and implied a true threat.”

It is Justice Rush's contention that it is the responsibility to address shortcomings of the prosecution in order to preserve issues for appeal.  She effectively stated a defendant is not allowed to capitalize on the shortcomings of an incompetent prosecutor.  Justice Rush’s decision placed the burden on my public defender to NOT take advantage of, what she claimed to be, an oversight of Prosecutor Negangard.  If Justice Rush truly believed Negangard did not know the difference between criminal conduct and constitutionally protected activity in my case, I would imagine there are due process implications if the State can force a defendant to defend himself against an unknown crime.  But Negangard was not the only Indiana official who Justice Rush said was unaware of the distinction between “threatening the targets’ reputations… and threatening their safety.”  When my case went before the Indiana Court of Appeals, Judges John G. Baker, Carr L. Darden, and Patricia A Riley, all of which have a combined 65 years of experience on the Indiana Court of Appeals, failed to make the distinction as well.  The Supreme Court had to correct the findings of the Court of Appeals because Baker, Darden, and Riley ruled if true speech scared judges, the true speech can be prosecuted.  Rush stated Prosecutor Negangard was oblivious to the distinction between threats of safety and reputation, corrected the opinion of three of the longest serving judges on the Indiana Court of Appeals because they couldn’t get it right, and then claimed my public defender from Rush County, Indiana (population 17,000) was aware of the blunder and (unsuccessfully) tried to take advantage of it.

 

This is frightening information.  What Justice Rush doesn’t want to mention is the notion that Prosecutor Negangard’s ignorance was actually the prosecution’s trial strategy; which is much more plausible suggesting a small town public defender would somehow have a much better grasp of the 1st Amendment of the US Constitution than three judges with 65 years of experience in the Indiana Court of Appeals.  It would be prosecutorial misconduct for Negangard to intentionally try to have me convicted for constitutionally protected speech.  (Negangard did have me indicted for releasing grand jury information without having any evidence.)  What makes the situation dangerous is Justice Rush knew what she was doing in writing this opinion.  By making the situation appear complicated, it wouldn’t attract any attention.  But if people take a closer look, they can see how a Supreme Court Justice can use a well written court opinion to manipulate the law to get the result she wants.  Please stay tuned as there will be much more on the unethical conduct of Indiana Supreme Court Justice Loretta Rush.