Skip to comments.Abusing Due Process
Posted on 03/11/2013 6:19:54 AM PDT by Kaslin
Totalitarianism is brewing in the heartland. An Indiana inmate is now serving two years for voicing his online opinions against a judge who took away his child-custody rights during a divorce case. I know the custody case pretty well having written about it in 2009. But I'm convinced that the free speech case that is brewing in its aftermath heaps an even greater injustice upon an existing one. And I'm convinced it is showing the darker side of a dangerous man who needs to be stopped.
Dan Brewington is justifiably angry because James Humphrey took his kids away from him based on a report by an unlicensed psychologist. During the custody battle, Judge Humphrey also failed to provide adequate justification for his decisions as mandated by Indiana law. But that just makes him a bad judge. What he allowed to happen in the wake of Brewington's reaction makes Humphrey downright dangerous.
Dan Brewington was convicted in 2011 of intimidating a judge and attempting to obstruct justice. The Indiana attorney generals office successfully argued that he exposed the judge to hatred, contempt, disgrace or ridicule." There is no question that Dan Brewington broke the law when he went online and criticized Judge Humphrey for denying him the right to visit his own children. But the law criminalizing Brewington's criticism of the judge is patently unconstitutional. And Humphrey's complicity in the prosecution is simply unconscionable.
The Indiana Supreme Court will decide after this week's filing deadline on whether to hear a second appeal of this conviction. I hope they do take up the case in order to address some arguments by the Indiana appeals court, which affirmed Brewington's conviction. The appeals court argued that some of Brewingtons claims against Judge Humphrey were false. I do not concede that point. But, regardless, there is obviously a great danger in making alleged defamation of judges into a criminal offense - much less a felony.
But other arguments by the appeals court were even more dangerous. Perhaps most disturbing was the appeals court ruling that the truthfulness of Brewington's claims were not necessarily relevant to prosecution because the harm was striking fear and intimidation in the victim, Judge Humphrey. The fact that the target of criticism experiences fear absent a specific threat is not sufficient cause to negate free speech. The courts recognize that there is no heckler's veto of free speech. Nor should there be a coward's veto of free speech. Judges who declare men to be unfit fathers are going to be criticized. If they cannot take it, they aren't fit to be judges.
At the heart of the intimidation issue is a series of online rants in which Dan Brewington called Humphrey a child abuser and corrupt and accused him of unethical and illegal behavior. This is typical of Brewington whom I consider to be a hothead as well as a bit of a petulant child. Brewington irritated me so badly after I wrote about his case that I decided to drop it, although I had promised to write a follow up column. It takes a lot to annoy me into dropping a case before it is resolved. But the fact that Brewington is a blow hard who exercises bad judgment doesn't mean Humphrey is innocent.
Brewington's argument that Humphrey's taking away his children amounted to child abuse is a childish overreaction. But court records also show that Judge Humphrey overreacted to this childishness - and in a rather childish way. Those records show he felt threatened enough to get a gun out of storage, install a home-security system, and get protection from a police detail. Absent any specific threat, none of this was really necessary.
Last week, I spoke to Dan Brewington's attorney Michael K. Sutherlin. He said his client may not have had the rhetorical skill of Thomas Paine but that he had a right "to complain about unfair treatment by an oppressive system. Indeed, he did. But now he's in prison.
Executive ordered drone attacks will not be needed to bring about the end of due process in America. It is already happening at the hands of abusive judges. And there's no more effective way to curb judicial abuses than by freedom of speech and freedom of the press. To paraphrase Justice Brandeis, sunlight is a powerful disinfectant.
Unfortunately, Humphrey was not the only judge who abused his authority in the Brewington matter. The conduct of the judge presiding over the criminal case also has some questions to answer. We turn to him in the next part of this series.
To be continued...
Stuff like this makes me very worried. All it takes is one man or woman no matter how justified they think they might be to go Judge hunting. Once that happens the judicial system will go into over-drive in destroying the second amendment, (not that they aren’t trying anyway).
I was told many years ago by a wise man that when the people find out that the Judicial system doesn’t respect them then they will no longer respect it. Once that happens it’s no longer “the rule by law” but “the rule by men”. And then its only going to be civil strife that will restore the rule of law.
psychologists spouting off garbage in court really irritates me. Also guardian ad litem appointees that take the first impression as the reality
Kaslin ~:” Executive ordered drone attacks will not be needed to bring about the end of due process in America. It is already happening at the hands of abusive judges. And there’s no more effective way to curb judicial abuses than by freedom of speech and freedom of the press...”
We already have legislative ‘elites’.. called Congress
now can we add judicial elites to that list .. ? /sarc
Here is the other thing: I heard it from another attorney, but I have found it is true more often than not, whether or not it should be true more often than not and that is this: the most reasonable person in the room wins.
So if you feel like frothing at the mouth in court or when meeting with the “custody evaluator” (eye roll), you will hurt your case. It is better to say absolutely nothing. Your big mouth and waving your hands, sighing, stamping, laughing wryly will not help your case. Judges hate it.
I have even had a judge yell at me “No emotion!” and I am the lawyer. So, as a litigant, keep calm, shut up and say ok and you will do fine. Chew through the evidence and yes, it will take longer than you think reasonable, but an angry reaction is usually a sign of impatience. Just cool off and don’t give up. People will say to me in custody cases: “I’m done!” and I have to tell them, “No, you are not done, you have to walk this out step by step”; it may be frustrating but any visible frustration damages the case. Act like a sleepwalker, you are being watched.
‘There is no question that Dan Brewington broke the law when he went online and criticized Judge Humphrey for denying him the right to visit his own children.’
Apparently Freedom of Speech is no longer Constitutional in Indiana. Who knew?
yldstrk ~:” psychologists spouting off garbage in court really irritates me.”
An ‘unlicensed ‘ psychologist has no legal standing in that court , and should be considered little more than ‘heresay”.
There is a legal purpose and reason for licenseing that has been overlooked by the court , perhaps purposely .
This is all going down in the county where I live and is quite interesting.
even the licensed ones are merely giving opinions based on their myopic lens
The guy needs to keep his temper to himself. He is free to express grief and sadness, oh, by the way, custody is not about the parents, it is about the kids. He sounds like his focus is on himself and his parenting time, it is supposed to be the kids’ parenting time with dad and the kids’ parenting time with mom. When the client says to me “It’s MY time”, I always correct them and say “It is your child’s time with you”. It is not about the parents who were idiots enough to get a divorce and compound their problems. It is about making life good and if possible, stable for the kids.
Since the start of this I have thought there was a middle ground where the two sides could meet and resolve this. I have to say the judge’s behavior here surprised me from the start. I have interacted with him in social settings several times and didn’t expect it.
“All it takes is one man or woman no matter how justified they think they might be to go Judge hunting. Once that happens the judicial system will go into over-drive in destroying the second amendment, (not that they arent trying anyway).”
I think your fears are overblown, because plenty of people have already gone “judge hunting”. That’s one of the hazards of taking a job where you can ruin peoples’ lives with the strike of a gavel.
Possibly so... But now there is another big push for “Gun Control” at all levels. It doesn’t take much for the MSM and the politicians to go into high gear.
As the old Chinese curse goes; “May you live in ‘interesting’ times”. I think that we are either in them or on the cusp. One way or another it’s doesn’t look to good I think.
Most judges are not so capricious and probably at least half of all litigants are on the verge of going judge hunting by the end of their court time.
When a few judges get knocked off and even when the hunters get caught and punished it will perhaps help the remaining judges to be a little more careful in rendering unfair decisions.
The capriciousness of judges is one of the biggest problems with our 3 branches of government, nobody looks over their shoulder until months or years after a decision. I would like to see all court cases, ALL, backed up by a jury to approve a judges decision instead of the other way around.