Thursday, May 01, 2014

Brewington conviction upheld

Fellow angry dad Dan Brewington took his free speech case to the Indiana supreme court, and it has just upheld his conviction.

The reasoning is strange. The court agreed that the Indiana law, as applied by the judge and appeals court, is unconstitutional, that the jury was improperly instructed, that Brewington had a free speech right to make the individual statements that he did, but that he is somehow guilty anyway because he showed a "persistent, single-minded obsession" with wanting to see his kids and because his lawyer failed to educate the judge on how the Indiana legal system had been miscontruing the First Amendment.

This makes no sense. He has already served his 3 to 5 years in prison, and is now a free man, but he did not deserve to be a convicted felon. It appears to me that the judges just don't like his attitude, and will twist the law any way they can to punish him.

Update: UCLA law professor and free speech expert writes:
The court also concluded that defendant’s accusations of “child abuse” and “abducti[on]” against the judge, which the lower court viewed as factual falsehoods, were instead constitutionally protected opinion. “Reasonable readers would understand ‘child abuse’ or ‘abducting’ as Defendant’s exaggerated opinion of the decree’s custody ruling — not factual assertions that the Judge actually beats or kidnaps children.” That too is an important conclusion, for reasons given here.

And the court concluded that even threats of violence are punishable under Indiana law only if they are intended to put the target in fear (and not just sufficient to put a reasonable person in fear). In the process, the court suggested that the First Amendment precedents are best interpreted as requiring such a conscious purpose; there is a disagreement among lower courts on the question. ...

I can’t speak to whether this decision is correct given the trial record and the state of Indiana “invited error” law. But I am glad that the Indiana Supreme Court recognized and reversed the legal error in the Indiana Court of Appeals opinion — the thing that my clients (who were the amici, not the defendant) were concerned about. Threatening to harshly criticize people’s actions, and thus to expose them to ridicule and disgrace (at least outside the special case of blackmail) is legal again in Indiana.
Volokh is being polite by not speaking about "invited error". The only way Brewington "invited error" was by standing trial under an unconstitutional law.


Anonymous said...

I hope Dan Brewington takes his case up to the US Supreme Court on the grounds the Indiana courts violated his civil liberties and rights protected under the Constitution. If a law is found to be unconstitutional, the trial court denied proper due process and protections, then the entire case and sentence should be vacated. This further demonstrates the warped ethics typical of today's legal system - simply, it's the tyranny of government run amoke without accountability.

George said...

No chance. The US Supreme Court does have the power to hear cases like this, because US constitutional rights were denied, but it never does. There will be no further court action.

Anonymous said...

I'm confused by your perspective, so please help me understand. If LBGT interests get their day in the US Supreme Court over their civil rights, how is it that Dan Brewington's case which clearly involved a violation of his Constitutional rights, won't be heard? Dan is a citizen of Indiana, but he's also a citizen of the United States; the US Supreme Court has every power to hear his case.

Activist courts, perhaps? Or is it due to a lack of popular support of Dan's circumstances? Regardless, are you saying the US Supreme Court does not have jurisdiction to hear Dan's case, or that it will simply refuse to hear his case - that's two different explanations ...

George said...

The US Supreme Court would have jurisdiction, but would refuse to hear it. The main reason is that the SC sees its role as making precedents for future cases, not remedying particular injustices. Because the Indiana SC has conceded a free speech right to criticize judges, the US SC would say that a satisfactory precedent has been set for the future. The US SC really has no interest in the facts of Dan's case, or whether he served improper jail time.

Same-sex marriage is different because of political pressure, and a desire by judges to get on the leading edge of social trends. And the US SC is supposed to hear cases where the lower courts have contradicted each other, as they have with same-sex marriage.