Wednesday, June 18, 2014

Brewington Petition for Rehearing and Request for Recusal of Justuce Loretta H Rush

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

Brewington's Request for Rehearing


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. 


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.


                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 







I verify that this Petition for Rehearing contains fewer than 4200.







                                                                                    Daniel P. Brewington

                                                                                    Appellant pro se







I certify that I served the foregoing on counsel by U.S. Mail at the following addresses on June 3, 2014.



Stephen R. Creason


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









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



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,



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.


“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  “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.  


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.) (  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








I, Daniel Brewington, verify under penalties of perjury that the foregoing statements and representations are true to the best of my knowledge and ability.










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).










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


Indiana Government Center South, 5th Floor

302 W. Washington,

Indianapolis, IN 46204








No comments: