Attorney General
Robert H. Jackson once said, “The prosecutor has more control over life,
liberty, and reputation than any other person in America. His discretion is
tremendous. . . While the prosecutor at his best is one of the most beneficent
forces in our society, when he acts from malice or other base motives, he is
one of the worst.” A prosecutor has almost unilateral, unchecked ability to
destroy the lives of those he charges. – Sidney Powell - All the
President’s Muses: Obama and
Prosecutorial Misconduct 6/13/2014
Below is a copy of the
Petition for Rehearing filed to the Supreme Court of Indiana by Dan Brewington.
Following that is a copy of his Request for Recusal of Justice Loretta H. Rush
who wrote the Supreme Court Opinion in his First Amendment Case.
Christine Brauer
Mueller
Lawrenceburg Township
SUMMARY
The Court should grant rehearing to
address several errors and oversights in the majority opinion that led the
Court to improperly adjudicate Brewington's claims. First, Brewington files his Motion for
Judicial Disqualification of Justice Rush, given Justice Rush’s horrific
experience with a home invasion and the attempted murder
of her husband. Interpretation of
judicial security and judicial privacy are a component of this matter. Second, the Court’s ruling has raised new
structural errors that were not able to be addressed prior to the Court’s
ruling. Third, the Court erred in
applying Jernigan to the current case, as the violation of Brewington’s
constitutional rights was not a procedural one, but a fundamental everyday
right of a United States citizen.
Finally, the Court’s ruling is replete with factual inaccuracies and
confusion of events in time; many of which are a product of the fouled trial
process. As the Court did not officially
rule that the criminalization of harsh criticism of public officials was
unconstitutional or establish the parameters of determining “veiled threats”
until May 1, 2014, Brewington has not been able to address the constitutional
flaws littering the entire criminal proceedings until now. The Court’s findings that circumstantial
evidence obtained from the record can be used to determine the dangerousness of
Brewington, in the absence of a professional psychological expert during trial,
leaves this petition as the only remedy to address the new findings. Rehearing is necessary to address these
concerns to protect Brewington’s rights protected by the First, Second, Fifth,
Sixth, and Fourteenth Amendments of the United States Constitution.
REASONS TO GRANT REHEARING
I
Recusal
of Justice Rush is necessary.
Brewington has filed a Petition for
Recusal requesting Justice Loretta Rush withdraw from any further participation
in the current matter. After receiving
the opinion authored by Justice Rush in this matter, it came to Brewington’s
attention that Justice Rush was a victim of a crime involving a home invasion
and the attempted murder of her husband by a former ward of the state, for whom
Justice Rush formerly served as a GAL. Swaynie v. State, 762 N.E.2d 112 (Ind.
2002) (DICKSON, J., not participating.)
Given the already difficult position of the Court to balance First
Amendment protections of speech and the safety or reputations of Indiana judges,
Justice Rush’s “impartiality might reasonably be questioned” by any reasonable
person. Ind. Judicial Canon
2.11(A). Justice Rush also served on the
Juvenile Justice Improvement Committee with “victim” James Humphrey and Carl
Taul at least between the years of 2008-2013.
Justice Rush and Humphrey graduated together in 1983 from the Indiana
University School of Law-Bloomington. The
Court’s reliance on a “reasonable person, similarly
situated” test for fear, only further demonstrates the need for
recusal. The “similarly situated” review
is also erroneous as the Court should not accept a more stringent First
Amendment review standard than a jury of peers.
II
The
Court’s ruling raises Structural Error.
A)
Brewington
was convicted for engaging in constitutionally protected activity.
1)
The
Court ruled State’s argument of criminal defamation did not pass constitutional
constraints.
From
the beginning of the grand jury process and criminal investigation before that,
the focus of the prosecution had been on the notion that the State could
criminally punish “false” opinions. The
State’s argument has centered on censoring Brewington. During Brewington’s arraignment, Judge Sally
Blankenship set Brewington’s bond at $500,000 cash and $100,000 surety, despite
having no criminal record. Deputy
Prosecutor Joseph Kisor argued Brewington’s writings “show an absolute disdain
for the Court and for the prosecution.”(Trans. Arr.29, 5-6) The state failed to present any illegal act
leading to the commission of the alleged crimes. (Judge Blankenship quickly recused herself
stating it would be improper for any Dearborn County Judge to hear the matter. Despite Judge Blankenship’s feelings of
impropriety, Dearborn County Prosecutor continued to prosecute Brewington. Negangard made Brewington the target of a
grand jury investigation on January 15, 2011; five days after Justice Shepard
dismissed the complaint Brewington filed against Negangard with the State.) Throughout the trial, the State argued
Indiana law prohibited lies in public speech.
“These threats weren't just little opinions, little criticisms. You know
maybe they were….But when you do this over and over and over again with only
one purpose to harass and bring them to ridicule and put them in fear, that is
not an appropriate exercise of speech. That's a crime. That's a bunch of crimes.”(Trans
.449, 22-23; 450, 2-6) This Court ruled
Brewington’s statements calling Humphrey and Edward Connor “child abusers” and
“criminals” were “protected by the First Amendment because there is no proof of
actual malice.” Brewington v. State, 15S01-1405-CR-309. Less the understanding that Brewington did
not commit “a bunch of crimes” Brewington probably would not have been indicted
in the first place. Because Brewington
was indicted and detained for constitutionally protected activity, the criminal
process was fractured at the very foundation of its structure.
2)
The
Court using conclusions supported by Brewington v. Brewington, 930 N.E.2d 87
(Ind.App. 2010) (trans. denied) in determining Brewington’s guilt places the
Court in an adversarial role to defend the Court’s decision to deny transfer in
Brewington’s divorce as a reason why Court is correct in affirming Brewington’s
convictions.
In
Brewington v. State, 15S01-1405-CR-309, the Court failed to conduct a true de
novo review of the record. The heart of
this matter lies at the foundation of the First Amendment of the United States
Constitution and the rights of citizens to criticize public officials. Brewington’s writings revolve around what
Brewington’s believes to be injustices in the Indiana Family Court System. The Court acknowledged the importance of de novo review in addressing the
concerns of the Amici regarding protected speech but did not extend the same
privilege to Brewington in the Court’s de
novo review of trial record. Rather
than assume arguendo that judges
and/or court officers were abusing their positions, this Court concluded
Brewington’s speech was false rather than placing the burden on the target to
disprove the speaker. The Court regarded
Humphrey and Connor’s findings as fact and then further strengthened Humphrey’s
rulings by saying the Appellate Court affirmed Humphrey’s decree, and “We” denied
transfer. The Court used the psychological
analysis from the targets of Brewington’s critical speech as circumstantial
evidence in determining what segments of Brewington’s heightened rhetoric about
targets Humphrey and Connor had constituted a crime. The Court acknowledged a “veiled” threat
would be non-existent in the absence of fear of Brewington’s mental health; as
“diagnosed” by Humphrey and Connor. By
not reviewing the record with the belief that Brewington’s allegations could be
true, by default this Court assumes an adversarial and prejudicial role against
Brewington and not a role as an impartial judicial body; raising substantial
due process issues. NOTE: a quick review of State’s Tr Ex 67, Brewington’s letter to
Prosecutor Negangard dated May 2, 2009, demonstrates the importance of an
independent review. The first exhibit of
Brewington’s complaint contains a letter from Connor, dated February 25, 2008,
where Connor accuses Taul of ex parte communication. This letter appears in the criminal trial
record on at least three occasions. This
Court punishes Brewington for blogging about Taul’s recusal while claiming that
writing about Taul’s recusal “had led the Doctor to the professional opinion
that Defendant was ‘potentially dangerous.” This issue could not be addressed
prior to the Court including it as circumstantial evidence in determining
veiled threats.
B)
The
State never provided Brewington with any examples of Brewington’s conduct that
constituted a threat of immediate harm to property or individual safety, a
violation of the Sixth Amendment.
1)
State
failed to provide any examples of
alleged illegal threats by Defendant throughout the entire pretrial process.
It
is of the utmost importance to fair justice to understand Brewington never
threatened Humphrey with arson, acts of pyromania, etc. The trial record clearly shows the prosecution
never asserted the allegation. Humphrey
never expressed any fear of such threat.
The record is void of the word “arson” until it was first raised in the
brief of the appellee. The State made no
mention of threats during pre-trial hearings.
It was impossible to prepare a defense against true threats, because the
alleged “indirect” threats were not defined until this Court’s opinion. If the State would have acknowledged that it
was detaining and prosecuting Brewington for calling public officials “child
abusers,” Brewington would have had grounds for challenging his
unconstitutional detention. It is virtually
impossible to address the Court’s finding that the State “overlooked”
differentiating threats of physical harm and threats to reputation without
leaving the criminal trial and revisiting the entire criminal process. The
Court’s “reasonable person in a ‘similar circumstance’” veiled threat analysis,
placed the burden on Brewington to preemptively base any potential trial
strategy on speculation of what the Indiana Supreme Court would consider a
hidden threat; and not a jury of his peers.
The Court’s sua sponte determination
of what the Court deemed to be threats to personal safety combined with the
Court’s new finding of “facts” leaves Brewington with only this Petition or the
United States Supreme Court as means to challenge the new interpretation of
threats.
2)
Brewington
was left to decide what conduct in 3.5 year time span constituted a threat of
physical harm.
In
the name of due process, it is the responsibility of the State to define true
threats rather than flood the record with material so a higher Court can “cut and
paste” quotes to construct what the Court deems a true threat to other judges
outside the presence of a jury. If the
responsibility falls on Brewington to determine which of his actions
constitutes a crime or to seek a psychological evaluation to contest the claims,
then Barrett’s failure to object is clearly ineffective assistance of counsel
and the error was plain, fundamental, gross, and/or structural. Failing to provide a defendant with an
understanding of the charges against him cannot be invited error; especially while
the Court alleges Brewington suffers from some psychological dysfunction. Neither the Trial Court nor Barrett did
anything to address Brewington’s multiple pleas to acquire an explanation of
what actions of Brewington constituted a crime.
On September 19, 2011, Judge Hill stated “I’m going to deny your motion
for continuance… there isn’t anything that the State’s going to offer that’s
not going to be available to you by the end of this afternoon. So you’ve got two (2) weeks to confer with
counsel and we’ll get started with the jury trial on October 3rd at
9:00 a.m.”(transSept.19,11 81,4-12)
Brewington addressed not knowing what actions constituted a crime on
July 18, 2011, (Trans,13-22), September 19, 2011, (Ex Brew letter) and in
Defendant’s Motion to Dismiss, filed October 3, 2011. Judge Hill allowed Brewington fourteen days
to review 2000 pages of evidence with Barrett; all while being incarcerated.
C)
The
Court’s findings that the Prosecution “repeatedly overlooked” the distinction
between threats to reputation and threats to safety raises prosecutorial
misconduct.
The Court
stated the Prosecution “repeatedly overlooked” defining what speech constituted
a threat to safety, thus raising prosecutorial misconduct. Prosecutor Negangard’s (he is currently vice
president of the Indiana Association of Prosecuting Attorneys) failure to provide
Defendant the scope of the criminal actions constituting the indictment cannot
be considered incidental. The Court
raised the issue sua sponte in an effort to speculate how the State’s constitutionally
defective jury instructions were somehow invited by defense counsel. Rather than protecting Brewington’s Sixth
Amendment Right to charging information and a fair jury trial, the Court speculated
the prosecution’s “innocent” non-action
somehow spurred Barrett’s “strategic” non-action
in not objecting to the general jury
instructions, which somehow helped invite error. The Court’s speculation cites no law or
reasonable logic and only gives the appearance of advocacy against Brewington.
III
The
Supreme Court was erroneous in finding fundamental error was invited.
A)
The
Court’s speculation on Barrett’s trial strategy hinges on the Court’s speculation
of Barrett’s speculation of the Prosecution’s trial strategy.
The
Court’s reasoning in ruling that the fundamental error, in not protecting
Brewington’s right to fair and constitutionally protected jury instructions,
was somehow invited defies logic. The
Court reasoned defense counsel “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.” It
wasn’t until this Court’s ruling that there were any examples of threats, which
were subjectively determined by a panel of Justices based on context the
Justices felt may be intimidating to a judge and court psychologist. The Court’s logic serves to doom Brewington
by encouraging prosecutors to not
give defendants adequate charging information then correcting the prosecution prior
to closing arguments. This places the
defendant in peril as it requires the defendant to not give the appearance of trying to capitalize on “oversights” by
the prosecution or risk waiving an otherwise appealable issue. The argument that withdrawing the proposed
harassment jury instructions should fall on deaf ears as well. The argument would be more plausible if the
lesser offense would be easier to obtain but harassment as defined by IC
35-45-10-2 does not include permissible
contact and does not “include statutorily or constitutionally protected
activity.” At no point did any of the
alleged victims tell Brewington not to contact them. Even if Barrett had not withdrawn the
harassment instructions, the statutory and constitutional provisions were not
included. If a jury would have found
Brewington guilty of harassment, Barrett’s failure to include the statutory and
constitutional provisions may have waived the defendant’s ability to appeal the
matter.
B)
Invited
Error cannot be applied to cases where there is no crime.
The
Court’s reliance on U.S. v. Jernigan, 341 F.3d 1273 (11th Cir. 2003) to
argue invited error can apply to constitutional protections is unfounded. Jernigan argued “that the district court erred
by allowing the introduction of” a co-defendant’s post-arrest statements to
police officers implicating Jernigan; thus violating the Sixth Amendment's
Confrontation Clause. The arrest
statements came in the form of two recordings.
The Eleventh Circuit rejected Jernigan’s constitutional claims citing
invited error because Jernigan had made an agreement with the US Attorney to admit
recorded hearsay testimony. The Court based
its assumption of Barrett’s “strategy” on what Barrett’s assumption of the
trial strategy of a prosecutor, who failed to provide Brewington, the Court, or
the jury with any distinction between threats to safety and threats to
reputation. Brewington’s case does not
deal with a constitutional trial rule, it deals with constitutionally protected
activity. Brewington’s acquittal would
mean that no crime was committed. This
doesn’t take into account this case is one of first impression. The Court concluded that Barrett’s “strategy”
of waiving Brewington’s constitutional right to a properly informed jury, in a
criminal defamation trial, while rolling the dice on a “hunch” that the
prosecutor would not address the issues during closing arguments, was not just
adequate; it was “a deliberate eminently reasonable strategic choice.” [Emphasis]
C)
The
record of the case has created confusion for even this Court.
It
is understandable how the record of this case could be confusing as it took two
years and input from a politically diverse group of amici to reach the
conclusion that it was not unlawful to call a judge a child abuser. The Court upheld Brewington’s convictions
stating “we have independently reviewed the record de novo, and are convinced
beyond reasonable doubt that Defendant fully intended to make ‘true threats’
against his victims.” The Court somehow
overlooked how the State and Connor argued Brewington’s intent was not to
threaten safety but to harm reputation. During
closing arguments, Deputy Prosecutor Joseph Kisor claimed “Subsection C6” was
the “one he just could not stop doing-exposing the people that he was
threatening through the hatred and contempt and disgrace and ridicule. That was his whole intent. That's his only intent.” (Trans
455,25; 456, 1-4) Kisor even claimed
Brewington’s actions were threatening to judges but not prosecutors. Kisor stated, “Now it's one thing, you know,
look, Mr. Negangard, and there's some evidence here that there's been some
things toward him and toward our office and whatever. That's, you know, we're big boys. You know,
we're combatants, we're adversaries. We expect to be, take a few on the chin. But a
Judge, he's not an advocate for anybody. He serves you. He doesn't deserve to
be threatened.” Trans470,3-7) What is not threatening to a prosecutor is
not threatening to a judge; however, if the conduct is threatening to a prosecutor, Kisor claimed Brewington committed
a crime against Prosecutor Negangard, the lead prosecutor in Brewington’s
criminal trial. As for Connor’s
assessment of Brewington’s “intent,” Connor testified, “For four years you have
made it your job to obsess over me, with the internet, with the intent of damaging
my professional reputation, and practice.”
(trans.Oct.24,11,6,12-14)
D)
Perjury
conviction must be overturned or remanded.
The Court’s confusion in upholding Brewington’s perjury
conviction requires, at minimum, remand back to trial. The Court’s handling of the perjury raises
two major concerns. First, the evidence
and trial record was so fractured, even the Indiana Supreme Court could not
decipher the nature of Brewington’s
perjury charge. The second concern is
how the Court reworded the nature of the perjury conviction to justify
upholding Brewington’s other convictions.
The Court stated, “And the jury’s perjury verdict implicitly recognized
that intent, finding that Defendant lied to the grand jury about his true
motives for posting the Judge’s address” and “[W]e find Defendant’s publication
of the Judge’s home address to be particularly telling—not least, because
Defendant’s perjury to the grand jury about his purpose in doing so implies
that truthful testimony on that point would have been incriminating.” Brewington’s perjury conviction stemmed from
his partial grand jury testimony where Brewington stated the following about
Brewington’s knowledge of James and Heidi Humphrey’s marital status, “it very
well could be a possibility. I'm not from Dearborn County. I don't know but the
thing is...” and then was cut off by Negangard. GJ tran 166 ln 17-18. The State failed to provide any evidence to
demonstrate that Brewington could definitively say he was certain James
Humphrey and Heidi Humphrey were married.
Brewington could have been tried and convicted of perjury if he would
have testified he was certain beyond any reasonable doubt that James and Heidi
Humphrey were husband and wife just because their names appeared on the same
tax record on the website of the Dearborn County Tax Assessor. Short of a statement saying otherwise, there
is no way to definitively prove Brewington lied about his knowledge of the Humphreys’
marital status. Forcing a defendant to
testify in trial to clarify a partial answer, caused by a prosecutor, deprives
the defendant of the Fifth Amendment prohibition against required
self-incrimination. As for Heidi
Humphrey, the website of this Court listed Heidi Humphrey as a public official
with the Ethics and Professionalism Committee, which provides insight to this
Court and the public on different judicial issues and the prosecution in the
case demonstrated during trial that her address was public record. At no point
did Brewington tell people it was the home address for James Humphrey or even Heidi
Humphrey for that matter.
E)
Brewington
is not violent or dangerous.
Because the State failed to present an expert to evaluate
Brewington, Brewington was unable to address the recent finding of the Court
regarding Brewington’s mental health. It
is irresponsible for the State to allow a victim of harsh public criticisms to
advise a criminal court on the mental state of the speaker. The Court stated, “Defendant
had also demonstrated… violence, and genuine dangerousness directly to both of his victims during his years-long vendetta
against them.” During trial, Sheriff Kreinhop
testified his investigation made no finding that Brewington committed any acts
of violence against public officials.
Tran 410 18-21. Connor did not
believe Brewington was a danger to society because Connor recommended
Brewington have “liberal” unsupervised parenting time. (decree) Humphrey did not believe Brewington posed an
immediate danger because Humphrey allowed Brewington continue to care for his
daughters three days a week in the 2.5 months between the final hearing and the divorce decree. There were no reports of domestic violence,
no restraining orders; not even an attempt to modify custody during the 2.5
year divorce. Brewington did not know
Humphrey feared Brewington because it would be an ethical violation if Humphrey
remained on Brewington’s case while fearing for his life. Failure to withdraw demonstrates a lack of
real fear. The 3.5 year timeframe on
indictment, with no evidence of violence, demonstrates Brewington is not
violent.
There is no record of Brewington’s
throwing of books nor violent behavior during the final hearing of Brewington’s
divorce. Brewington has never been held
in contempt. The Court’s use of legal
gun ownership as circumstantial evidence to link defendant to criminal activity
is a violation of Second and Fourteenth Amendments. There is no evidence Brewington made any
illegal or threatening references to gun use.
No one raised concerns of Brewington’s other firearms appearing in the
divorce decree, just a .357 Magnum. A
dangerous person with a gun is dangerous with any firearm.
F)
The
Court lost its way in making an argument against Brewington for obstruction of
justice.
The Court relied heavily on Connor’s
“perception” of Brewington’s level of “dangerousness” based upon Brewington’s
criticisms of Connor. During trial,
Connor mentioned being very concerned with Brewington’s pyromaniac
analogy. Connor testified he saw the
comment on “the same web-site where [Brewington] was posting about all this
information about me and the divorce issues and everything.” Connor then stated, “I knew that I needed to
pay attention, not only to for myself but for my family, my children, the
office, our house. To make this type of comment, I wasn't sure this was a
threat or just an attempt of intimidation or taunting or what have you but it
concerned me enough to really pay a lot of attention.” (Trans158,3-9) The post never appeared on a website. The pyromaniac analogy appeared on
Brewington’s private Facebook page. [ See DECREE and Humphrey testimony.] Connor also testified he did not have a
Facebook account. As Brewington spent 2.5
years in prison and has been years removed from his young daughters because he
criticized Connor, the Court should not take this lightly as Connor made up a
story about seeing the pyromaniac quote and then claimed it caused him to fear
for the lives of family and employees, in an effort to have Brewington
criminally punished for criticizing him. The Court declined to address the
attempted obstruction of justice and relied on the intimidation statute to demonstrate
the attempted obstruction of justice as the same evidence was argued for both
charges. If the Court were to readdress
the attempted obstruction of justice upon rehearing, Brewington hopes the Court
would put little weight on any of Connor’s statements. The Court made the case that small segments
of Brewington’s internet writings, which accounted for less than one percent of
Brewington’s total writings were threatening.
The problem which arises is the web posts the Court refers to came after the final hearing in Brewington’s
divorce making it impossible for the writings to be an attempt to prevent
Connor from testifying in the divorce. There
is no record of any contact between the alleged victims and Dearborn County law
enforcement after Kreinhop filed his investigative report on October 28,
2009. Negangard made Brewington a target
of a grand jury investigation for intimidation without any record of contact
from the alleged victims. Without a
finding of fear or direct threat, there is no intimidation. Neither Humphrey nor Connor took any measures
to obtain restraining orders against Brewington.
E)
By
assigning Brewington with the burden of preemptively defending his speech, the
State has violated Brewington’s First and Fifth Amendment rights.
Not
only was Brewington put in a position to preemptively defend his speech, the
State hit him with the burden of speculating what a panel of judges would deem
to be veiled threats against judges. But
where the Court’s “true threat” argument against
Brewington truly fails, is the State argued threatening “hatred and contempt
and disgrace and ridicule” “was [Brewington’s]
whole intent. That's his only intent.[emphasis
added]” Given Connor’s questionable [emphasis added] testimony,
Kisor’s claim that Humphrey isn’t as tough as prosecutors, and the fact this
case revolves around free speech and the ability to express harsh criticisms of
the courts, any reasonable person would conclude that for transparency and the
image of the court system, decisions about the ability to criticize judges
should be decided by a jury made up of a diverse group of citizens, not a panel
of judges.
CONCLUSION
Due to
the numerous errors in the trial record, which confused even this Court,
reliance on false pretense of fear to define threats; and the structural,
fundamental, gross, and/or plain errors that deprived Brewington of nearly
every constitutional protection during his criminal case, the Court should
grant rehearing and reverse all convictions or remand the matter back for a new
trial.
Respectfully
submitted,
Daniel
P. Brewington
Appellant
pro se
WORD COUNT
CERTIFICATE
I verify that this Petition for Rehearing contains fewer
than 4200.
Daniel
P. Brewington
Appellant
pro se
CERTIFICATE OF
SERVICE
I certify that I served the foregoing on counsel by U.S.
Mail at the following addresses on June 3, 2014.
Stephen R. Creason
OFFICE OF THE ATTORNEY GENERAL
Indiana Government Center South, 5th Floor
302 W. Washington,
Indianapolis, IN 46204
Daniel
P. Brewington
Appellant
pro se
Daniel P. Brewington
2529 Sheridan Drive
Cincinnati, OH 45212
513-383-3136
RECUSAL REQUEST FOR JUSTICE LORETTA H RUSH
TABLE OF CONTENTS
I.
BACKGROUND………………………………………………………………………...3
II.
LEGAL STANDARD
REQUIRING RECUSAL…………………………………….....4
A.
The Indiana code of judicial conduct sets out
clear standard requiring recusal....4
B.
The circumstances requiring recusal include but
are not limited to whether a reasonable person might doubt the impartiality of
the judge or whether the judge has extrajudicial knowledge of the matter before
him or her………………………………...5
C.
The test is objective and the circumstances
requiring recusal are to be viewed through the lens of someone outside the
judiciary……………………………………….6
D.
There are important policy goals for
recusal…………………………… ……….6
III.
ARGUMENT…………………………………………………………………………….7
A.
A normal person could reasonably question
Justice Rush’s ability to be impartial in light of her being a victim of a
violent home invasion by someone she had a connection to through the juvenile
court system……………………………………..…..7
1.
A former ward of the state, John
Swaynie, for whom Justice Rush served as a GAL, broke into her home and
attempted to murder her husband……………….7
B.
A normal person could reasonably
question Justice Rush’s ability to be impartial in light of her professional,
if not personal, relationship with one of the victims in Brewington’s case,
Judge James D. Humphrey as well as Judge Carl H. Taul, a judge who is a subject
in the case………………………………………………………….……9
1.
Justice Rush served on the Juvenile Justice
Improvement Committee with “victim” James Humphrey and Carl Taul at least
between the years of 2008-2013. Justice
Rush and Humphrey graduated together in 1983 from the Indiana University School
of Law-Bloomington. …………………………………...…….9
C.
A normal person could reasonably question
Justice Rush’s impartiality in reviewing Rush’s opinion regarding Brewington’s
perjury conviction and how Rush has already caused tremendous harm to
Brewington’s constitutional rights as well as the rights of other people
falling under the jurisdiction of the Indiana Court system …...10
IV.
CONCLUSION…………………………………………………………………..………13
V.
Word Count Certificate…………………………………………………………….…….15
VI.
Certificate of
Service……………………………………………………………...……..15
TABLE OF AUTHORITIES
Cases
Bell v. State, 655 N.E.2d 129 (Ind. Ct. App. 1995)...................................................................
5
Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct.
App. 2012) ........................... 6
In re Martin–Trigona, 573 F.Supp. 1237 (D.Conn.983)
........................................................... 6
In re Mason, 916 F.2d 384 (7th Cir.1990)
.................................................................................6
In re Wilkins, 780 N.E.2d 842 (Ind.
2003)...............................................................................5,6
Mahrdt v. State, 629 N.E.2d 244 (Ind. Ct. App. 1994)
.............................................................. 5
Patterson v. State, 926 N.E.2d 90 (Ind.Ct.App.2010)
................................................................ 6
Pennsylvania v. Druce, 796 A.2d 321
Pa.Super.Ct.2002).......................................................... 6
Tyson v. State, 622 N.E.2d 457 (Ind. 1993) ........................................................................5,6,13
United States v. Jordan, 49 F.3d 152 (5th Cir.1995)
.................................................................. 6
Other Authorities
Randall T. Shepard, The Special
Professional Challenges of Appellate Judging, 35 Ind. L. Rev.381, 385 (2002)
....................................................................................................................
1,
Rules
Ind. Judicial Conduct Rule 1.1 (2011)
.........................................................................................
4
Ind. Judicial Conduct Rule 1.2 (2011)
.........................................................................................
4
Ind. Judicial Conduct Canon 2 (2011)
........................................................................................4,6
Ind. Judicial Conduct Rule 2.4(B) (2011)
...................................................................................
4
Ind. Judicial Conduct Rule 2.11 (2011)
......................................................................................
5
Ind. Judicial Conduct Rule 2.11(A) (2011)
...............................................................................4,5
Daniel P. Brewington, Appellant pro se,
respectfully moves for the recusal of Justice Loretta H. Rush from this matter
to redress an appearance of impropriety and to protect and preserve public
confidence in Indiana’s highest court.
I.
BACKGROUND
Brewington’s motion for rehearing
involves a case which places the most watchful eye of the public on the
judiciary as it deals with the safety of judicial officers and other
professionals operating within the court system as well as a person’s right to
free speech and the ability to harshly criticize those officials. Brewington was convicted of Intimidation of a
Judge, James D. Humphrey (“Humphrey”); Intimidation of Dr. Edward J.
(“Connor”); Intimidation of Heidi Humphrey (“Heidi”); Attempted Obstruction of
Justice of Brewington’s divorce; and Perjury.
On January 17, 2013, the Indiana
Court of Appeals overturned Brewington’s convictions of Intimidation of Connor
and Intimidation of Heidi, but upheld the other convictions. Brewington v. State, 981 N.E.2d 585
(Ind.App. 2013). On May 1, 2014, this
Court granted transfer and issued an opinion authored by Justice Rush. Brewington
v. State, 15S01-1405-CR-309. Upon
review of the opinion authored by Justice Rush, there was concern about the
errors in material facts. Brewington
researched the author of the opinion and found Justice Rush had been a victim
of a home invasion November 18, 1998, where her husband was nearly
murdered. The man responsible for the
crime was a former ward of the state, John Jesse Swaynie, for whom Justice Rush
served as his guardian ad litem during juvenile proceedings in the 1980s.
Brewington’s case has been plagued with
constitutional problems, changes of judges, numerous attorneys, etc., due to
the fact that one of alleged victims of the non-violent “crimes of speech” is
an active judge. Brewington’s case is
further complicated by the fact he is known as a person who openly criticizes
public officials on the internet as he has developed websites and a blog
designed to criticize court officials.
What may set this case and Motion for Disqualification apart from others
is it requests Justice Rush to disqualify herself from a case in which she
already authored an opinion. Brewington
is requesting a rehearing, due to the confusing and adversarial nature of
Justice Rush’s opinion.
II.
LEGAL
STANDARD REQUIRING RECUSAL
“Appellate courts routinely deal
with broad issues and set precedents that significantly affect many lives. The
high stakes in these cases inevitably create heightened ethical
responsibility.” Randall T. Shepard, The Special Professional Challenges of
Appellate Judging, 35 Ind. L. Rev. 381, 384 (2002). Indeed, the stakes here are very high – this
case concerns the most fundamental right passed down from the framers of the
Constitution of the United States; our First Amendment right to free speech.
A.
The
Indiana Code of Judicial Conduct sets out clear standards requiring recusal.
“A judge shall comply with the law,* including the Code of
Judicial Conduct” and “shall act at all times in a manner that promotes public
confidence in the independence,* integrity,* and impartiality* of the
judiciary, and shall avoid impropriety and the appearance of impropriety.” Ind.
Judicial Conduct Rule 1.1, 1.2. “A judge shall uphold and apply the law,* and
shall perform all duties of judicial office fairly and impartially.*” Jud.
Cond. R. 2. “A judge shall hear and decide matters assigned to the judge,
except when disqualification is required by Rule 2.11 or other law.*” Id.
(emphasis added). As discussed infra, recusal is proper here.
Under the Code of Judicial Conduct (“CJC”), “A judge shall
not permit family, social, political, financial, or other interests or
relationships to influence the judge's judicial conduct or judgment.” Jud.
Cond. R. 2.4(B). Furthermore, “A judge shall disqualify himself or herself in
any proceeding in which the judge’s impartiality might reasonably be questioned
. . .” Jud. Cond. R. 2.11(A) (emphasis added). The CJC is clear there “is no
question that a judge is required to disqualify him or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned.
The Canon demands it.” In re Wilkins, 780 N.E.2d 842, 845 (Ind. 2003) (emphasis
added). See also Bell v. State, 655 N.E.2d 129, 132 (Ind. Ct. App. 1995)
(“judge must disqualify himself where his impartiality might reasonably be
questioned”)(citing Tyson v. State, 622 N.E.2d 457, 460 (Ind. 1993)); Mahrdt v.
State, 629 N.E.2d 244, 248 (Ind. Ct. App. 1994).
B.
The
circumstances requiring recusal include, but are not limited to, whether a
reasonable person might doubt the impartiality of the judge or whether the
judge has extrajudicial knowledge of the matter before him or her.
The enumerated circumstances under which a judge shall
recuse include, but are not limited to: (1) whether the “judge has a personal
bias or prejudice concerning a party or a party's lawyer” or (2) whether the
judge “has personal knowledge of facts that are in dispute in the proceeding.”
Jud. Cond. R. 2.11(A)(1). The circumstances under which a judge shall recuse
also include whether the judge, “(a) served as a lawyer in the matter in
controversy . . .” [or] “(b) served in governmental employment, and in such
capacity participated personally and substantially as a lawyer or public
official concerning the proceeding. . .” Jud. Cond. R. 2.11(A)(6).
Those enumerated circumstances are not exhaustive, or even
necessary, for recusal. The Comments to Rule 2.11 expressly state that “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.” Jud. Cond. R. 2.11 cmt. 1 (emphasis added).
Furthermore, the standards for recusal do not require actual bias or proof of
bias – “the mere appearance of bias and partiality may require recusal if an
objective person, knowledgeable of all the circumstances, would have a rational
basis for doubting the judge's impartiality.” Bloomington Magazine, Inc. v.
Kiang, 961 N.E.2d 61, 64 (Ind. Ct. App. 2012)(citing Patterson v. State, 926
N.E.2d 90, 94 (Ind.Ct.App.2010)).
C.
The
test is objective and the circumstances requiring recusal are to be viewed
through the lens of someone outside the judiciary.
In the context of recusal, a “reasonable person” has been
described as “the proverbial average person on the street with knowledge of all
the facts and circumstances alleged in the motion to recuse....” In re Wilkins,
780 N.E.2d at 848 (citing In re Martin–Trigona, 573 F.Supp. 1237, 1243
(D.Conn.1983)). As Justice Rucker noted, “disqualification of a judge is
mandated whenever a significant minority of the lay community could reasonably
question the court's impartiality.” Id. (citing Pennsylvania v. Druce, 796 A.2d
321, 327 (Pa.Super.Ct.2002), appeal granted in part, 809 A.2d 243 (Pa.2002)).
The test is based on the “possibility” that someone
“particularly outside of the legal community” would question the judge’s
impartiality. In re Wilkins, 780 N.E.2d at 848 (citing United States v. Jordan,
49 F.3d 152, 157 (5th Cir.1995) (noting that the average person on the street
as “an observer of our judicial system is less likely to credit judges'
impartiality than the judiciary”)); In re Mason, 916 F.2d 384, 386 (7th
Cir.1990) (observing that a lay observer would be less inclined to credit a
judge's impartiality than other members of the judiciary).
D.
There
are important public policy goals for recusal.
Justice Shepard noted, “Substantial concerns about fairness
arise when a judge who arguably should disqualify remains as a voting
participant” and “a judge who sits on a case notwithstanding legitimate grounds
for recusal can damage public confidence in his impartiality for years to
come.” Tyson, 622 N.E.2d at 460 (citations omitted). Thus, “Indiana practice
has always leaned toward recusal where reasonable questions about impartiality
exist.” Id. Subsequently, Justice Shepard noted that, “[A] court which acts
outside its own rules does so at peril to public confidence.” Id. at 461.
Moreover, that peril extends to cases even when the rules do not directly
address the specific facts. “[A]s professionals, [judges] must promote judicial
integrity out of respect for the institutions [they] inhabit, even when [the]
written codes of conduct do not speak directly to all of the situations [they]
encounter.” See Randall T. Shepard, The Special Professional Challenges of
Appellate Judging, 35 Ind. L. Rev. 381, 385 (2002).
Granted, “a judge [should] not use disqualification to avoid
cases that present difficult, controversial, or unpopular issues.” Jud. Cond.
R. 2. However, this provision is a protection against a judge shirking his or
her duty because the case is one that the judge would rather avoid or for which
he or she would rather not associate. Purposefully avoiding difficult cases
would reflect poorly on the courts. However, that is not the case here.
Both the Code of Judicial Conduct and established precedent
require recusal or disqualification of Justice Rush in any proceeding in which
a normal person could reasonably question her impartiality and where he has
been involved with the subject matter and/or has personal or “extrajudicial
knowledge” of facts that are in dispute in the proceeding.
III.
ARGUMENT
A.
A
normal person could reasonably question Justice Rush’s ability to be impartial
in light of her being a victim of a violent home invasion by someone she had a
connection to through the juvenile court system.
1.
A former
ward of the state, John Swaynie, for whom Justice Rush served as a GAL, broke
into her home and attempted to murder her husband.
“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 v.
Superintendent, 3:08-CV-122
Justice
Rush has dealt with many cases before her dealing with violent situations
despite her horrendous encounter with John Swaynie. The case of Brewington v. State of Indiana
raises concerns about Justice Rush’s ability to remain impartial as the case
deals with activity that may walk a fine line between our most precious
constitutional right, freedom of speech, and protecting those who administer
justice in the courtrooms. The case,
though not similar from a violent perspective, deals with a judge’s fear of
someone he crossed paths with in a court setting. The judge, James D. Humphrey, had been
appointed Special Judge in Appellant Brewington’s divorce. Brewington, unhappy with the Humphrey’s
rulings, harshly criticized Humphrey over a long period of time on the
internet. Though there had never been
any evidence Brewington would cause any physical harm, Humphrey expressed
fears, whether rational or not, of having to defend himself from physical
attacks from Brewington. This case dangerously intertwines harsh criticisms and
what the State considers “veiled threats,” which require an objective
mind. Humphrey and other alleged victim,
Dr. Edward J. Connor claim Brewington’s conduct crossed the boundaries of free
speech and the First Amendment because Brewington posted too much already
public information on the internet and/or posted false opinions about the
men. This caused them to feel fear in
their homes, though it was not entirely certain whether they actually feared
Brewington or feared Brewington’s criticisms may somehow incite others. As Humphrey had a gun repaired to protect
himself and his family from any potential home invasion, a reasonable person
would see at least the appearance of impropriety in Justice Rush presiding over
the case. As the element of fear of
potential violence by a court official in their own home is a component in
determining what constitutes a veiled or hidden threat, Justice Rush’s ability
to remain objective may be questioned.
B.
A
normal person could reasonably question Justice Rush’s ability to be impartial
in light of her professional, if not personal, relationship with one of the
victims in Brewington’s case, Judge James D. Humphrey as well as Judge Carl H.
Taul, a judge who is a subject in the case.
1.
Justice
Rush served on the Juvenile Justice Improvement Committee with “victim” James
Humphrey and Carl Taul at least between the years of 2008-2013. Justice Rush and Humphrey graduated together
in 1983 from the Indiana University School of Law-Bloomington.
Not only does the subject matter of the case give the
appearance of potential impropriety, but also the fact Justice Rush has a
working professional relationship with Judge Carl H. Taul and the alleged
victim, Judge James D. Humphrey as they served on the Juvenile Justice
Committee for at least five or six years. Justice Rush and Judge Taul still
remain on the committee. (The website of
the Indiana Supreme Court Juvenile Justice Improvement Committee can be found
here http://www.in.gov/judiciary/center/2382.htm). “Appearance” of impropriety took on new
meaning in Rush’s opinion. In Brewington
v. State, Rush wrote:
“Moreover,
he accused the Doctor and Carl Taul, the original trial judge, of improper ex
parte communications with each other, until Judge Taul eventually recused
and appointed Judge Humphrey as special judge. See Ex. 120 (Order Naming
Special Judge). Brewington considered his campaign a success as to Judge Taul,
referring to the recusal frequently in subsequent blog posts. Exs. 160, 162,
167, 171, 191, 194. But even though those actions had led the Doctor to the
professional opinion that Brewington was “potentially dangerous,” Tr. 131–32;
Ex. 132 at 7, he remained in the case.”
Rush attacked Brewington for accusing Taul and Connor of
participating in ex parte communication.
Rush slammed Brewington for writing about being successful in causing
the recusal of Taul. Then Rush wrote how
this conduct led Connor to the opinion that Brewington was “potentially
dangerous,” which the Supreme Court considered as circumstantial evidence
toward Brewington’s “intent” in order to determine if hidden threats
existed. Rush failed to mention Connor
was the first person who raised the issue of Connor and Taul’s ex parte
communication. In a letter dated
February 25, 2008, Connor informed Brewington’s then attorney and the attorney
of Brewington’s wife that Taul had been in contact with him. Connor wrote, “With this letter please be advised that Hon. Judge
Carl Taul contacted me on 2/22/08 to convey his agreement for the review of the
above-captioned case.” This letter
appears in State’s Exhibit 67 as well as a letter authored by Brewington
explaining its significance [pg. 1-19 of State’s Exhibit 67 attached hereto.] Humphrey is also well aware of the document
as it appears in some of the many documents Brewington filed in Humphrey’s
court during Brewington’s divorce. One
might question whether Rush reviewed Exhibit 67 except Rush referred [emphasis added] to State’s Exhibit 67 on three different occasions
throughout the opinion. Rather than
acknowledge Brewington was correct in stating there was ex parte communication
between Connor and Rush’s fellow Juvenile Justice Committee member Taul, Rush
attacked Brewington. This adds another
tier of objective questionability to the appropriateness of Justice Rush’s
participation in Brewington v. State.
C.
A
normal person could reasonably question Justice Rush’s impartiality in
reviewing Rush’s opinion regarding Brewington’s perjury conviction and how Rush
has already caused tremendous harm to Brewington’s constitutional rights as
well as the rights of other people falling under the jurisdiction of the
Indiana Court system.
The best way to demonstrate the reasoning for Justice Rush’s
disqualification and request for rehearing is to address Justice Rush’s
handling of Brewington’s perjury conviction.
Brewington first maintains the following error calls into question
Rush’s participation in any capacity
as a judicial officer; especially as a member of the highest court in the State
of Indiana. Brewington participated in
his own grand jury investigation on February 28, 2011. During the course of his
testimony, Brewington was asked if whether he knew Heidi Humphrey was married
to James Humphrey when Brewington encouraged people to contact Heidi Humphrey
with any questions or concerns about the state of the family court system as
Heidi Humphrey was listed as the Dearborn County Advisor to the Indiana Supreme
Court Ethics and Professionalism Committee.
Brewington stated, “it very well could be a possibility. I'm not from
Dearborn County. I don't know but the thing is...” when he was abruptly cut off
by Dearborn County Prosecutor F. Aaron Negangard. Though Negangard was responsible for the
incomplete statement, Negangard obtained an indictment for perjury from the
grand jury and Brewington was convicted of perjury for lying about not being
100% sure James and Heidi Humphrey were married. On May 1, 2014 the Supreme Court affirmed the
perjury conviction.
Brewington is obviously troubled as to how someone can be
found guilty of perjury saying he does not know for sure, less an admission
from the speaker stating otherwise. This
could be compared to convicting someone for claiming the glass is half-empty
when it is actually half-full, but this is not the reasoning behind the
argument for recusal. Brewington is most
concerned with the fact Rush writes Brewington was convicted of committing two
different acts of perjury. In addressing
Brewington’s perjury conviction, which the Court summarily affirmed when
accepting transfer, Justice Rush spoke of the trial jury “convicting Brewington
of perjury for feigning ignorance in his grand-jury testimony of whether Heidi
Humphrey was the Judge’s wife, and that her address was his address.” Though “feigning ignorance” doesn’t seem to
meet the beyond a reasonable doubt requirement, it is the ruling of the
Court. Serious questions are raised when
Justice Rush wrote another account of the perjury conviction. “And the jury’s perjury verdict implicitly
recognized that intent, finding that Brewington lied to the grand jury about
his true motives for posting the Judge’s address.” Brewington was only convicted of one perjury
charge yet Justice Rush claimed there were two.
Not only did she claim there were two different findings of perjury by
the jury, she fused motive with a black and white finding of fact to help
rationalize affirming another conviction of Brewington’s. There is no need to determine why or how
Justice Rush came up with a separate yet adversarial perjury conviction. Judges are human and make mistakes but this
is not just a misstatement of fact. Even
if someone else had written the statement incorrectly, it should raise the
eyebrows of any competent traffic court judge.
Short of making two opposing statements regarding intent, it is
impossible to affirmatively prove someone could be lying. Even then, intent is subjective and facts are
not. Something that is also not subject
to interpretation is the fact no jury found Brewington to be guilty of lying
“about his true motives for posting the Judge’s address.” Rush not only altered the nature of the
perjury conviction but she crafted the sentence in a way to harm Brewington’s
case to demonstrate some form of intent.
The absence of intent not only means Brewington is not guilty of a
crime, the absence of intent means there is no crime. Justice Rush was actively working as an
advocate for the prosecution of Brewington in trying to build a stronger case
against Brewington. The fact Rush felt
she needed to add weight to the evidence against Brewington only further
demonstrates Brewington’s innocence.
Regardless of whether Rush’s actions resulted from her loyalty to
Humphrey and Taul or the inability to separate herself from the emotional
trauma associated with the attempted murder of her husband in 1998, any
reasonable person could conclude Justice Loretta Rush’s participation as a
judge in any capacity should be questioned.
Rush knew Brewington did not lie about Taul and Connor engaging in ex
parte communication yet Rush took a Lance Armstrong-ish approach and tried to
bully the finder of fact rather than acknowledge her colleagues acted in an
unethical manner. One might try to offer
Rush the benefit of the doubt except Rush’s opinion also stated that Brewington
demonstrated violence directly to both of his victims when Dearborn County
Sheriff testified there were no findings of violence against any public
official during the entire investigation.
It is implausible to think that someone could have a history of
demonstrating violence toward a judge and not be subjected to federal
investigations and/charges. Any reasonable mind would see the appearance of
impropriety existed, but any legal mind could see Rush’s actions were a
malicious attempt to bring harm to Brewington in affirming his conviction while
intentionally polluting the appellate record, thus harming Brewington’s ability
to petition to the Supreme Court of the United States and by discouraging any
potential Amici from assisting Brewington.
IV
CONCLUSION
Joel Schumm, professor at Indiana University's Robert H.
McKinney School of Law, wrote the following about Rush on the Indiana Law Blog,
“She has wowed the legal community and beyond with her thoughtfully crafted and
impactful opinions.) (http://indianalawblog.com/archives/2013/11/ind_courts_a_re_3.html.) There is no doubt that Rush “thoughtfully
crafted” the opinion in Brewington; Rush just failed to craft the opinion in a
manner consistent with the integrity standards set forth by the rules of
judicial conduct. Justice Loretta H
Rush’s findings in Brewington v. State have already caused great harm to
Brewington’s constitutional rights as well as the rights of other people
falling under the jurisdiction of the Indiana Court system. Free speech and the ability to criticize
judicial officers are at the heart of Brewington’s case. For this and the above reasons Justice Rush
should cease any further participation a case with such broad constitutional
ramifications. Continuing to sit on this case notwithstanding legitimate
grounds for recusal will damage public confidence in her impartiality for years
to come. See Tyson v. State, 622
N.E.2d 457, 460.
WHEREFORE, Daniel P. Brewington respectfully moves Justice
Rush be recused or disqualified from this proceeding and for all other relief
just and proper.
Respectfully submitted,
_________________________
Daniel P. Brewington
Appellant, pro se
2529 Sheridan Drive
Norwood, Ohio 45212
(513) 383-3136
dbrewy@gmail.com
VERIFICATION
I, Daniel Brewington, verify under penalties of perjury that
the foregoing statements and representations are true to the best of my
knowledge and ability.
____________________________
WORD COUNT CERTIFICATE
The undersigned counsel verifies that the foregoing Motion
(excluding cover page, table of contents, table of authorities, signature
block, word count certificate, and certificate of service) contains no more
than the 4,200 words permitted by Ind. Appellate Rule 34(G)(2).
__________________________
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the
foregoing document was served upon the following by way of First Class United
States mail, postage prepaid, this 4th day of June, 2014.
Stephen R. Creason
OFFICE OF THE ATTORNEY GENERAL
Indiana Government Center South,
5th Floor
302 W. Washington,
Indianapolis, IN 46204
____________________________
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