Thursday, May 1, 2014

Indiana Supreme Court upholds conviction for public condemnation of players in Indiana child custody case - Interview of Dan Brewington

01 May 2014

The Indiana Supreme Court upheld the conviction of Dan Brewington in an opinion handed down today. The case, State of Indiana v Dan Brewington, originated from Brewington's public condemnation of players in his Indiana child custody case.

Last year a judge to whom I am well acquainted moved into family law court from the criminal courts. While we were talking about this one day he mentioned that he is not going to need to have a deputy continually at his side. I retorted that he will now be entering a far more hostile environment and he may want a few deputies. While defendants facing a significant loss of freedom may spontaneously attack they are not as dangerous as the parent who endures separation from a child and plots revenge.

Parents who have had adverse outcomes in family court, like most people, will first look elsewhere to lay blame for their predicament. Sometimes rightly so. I have seen the aftermath of custody and parenting time decisions that were clearly against the well-being of the children and ravaged what had otherwise been a healthy parent-child relationship. There is myriad of causes for these decisions, each nearly unique. A common root is litigation procedure which maintains due process as an overarching goal, not eliciting the truth and circumstances surrounding the parenting decision which the court ultimately imposes. Likewise, some of the third-party agitators are due some of the greatest scorn for their intentional efforts to sabotage healthy parent-child relationships. I have previously written about hired guns like Dr Richard Lawlor who performed custody evaluations and made recommendations commensurate to his personal biases or financial incentives. Then there is also Attorney Cynthia Dean of Child Advocates, Inc., who deliberately informed a father to violate the court's custody order.

As a policy advisor it is my charge to analyze these decisions and publicize the results not only to the stakeholders who can implement or alter policy but the public at large who can persuade the policy makers. In the case of State of Indiana v Dan Brewington we are challenged with; what are the limits of expressing outrage about the litigious nature and nearly unchecked authority of a judge in child custody proceedings?[fn1]

In establishing that Brewington committed the crime of intimidation because people alleged that they were fearful of him he counters that there is “no psychological basis of fear.” That is a subjective standard. What induces fear in one person may not in another -- snakes, heights, the dark, etc. It does concern me that there is not a more objective standard such as would a reasonable person interpret the actions of the speaker as being for the purpose of inducing fear in an average person? This is precisely what Brewington claims as the problem in his trial in stating “these crimes are subjective.” The judge in Brewington's custody case appeared as a witness before the Grand Jury and provided his legal conclusion to the members that Dan Brewington crossed the line. Brewington protests that the Grand Jury is a rubber stamp that “needs to be shut down.” Having been through it and indicted myself I can't say that he is off the mark on that claim.

The Indiana Supreme Court expressed its opinion that Brewington overstepped the boundaries of legitimate public discord. I asked him if he felt the same but he differed with the justices in saying “I didn't take it too far. I stepped on some toes.” Interestingly for a judge who was supposedly in fear of Mr. Brewington the state accused Brewington of threatening to burn down the judge's house prior to the final hearing in the custody case but the judge sought no protection. In charging Brewington based upon statements made on-line the State of Indiana seems to imply that disagreements should be settled face-to-face rather than expressing comments on-line. That, I feel, is a dangerous precedent to set.

It could be claimed that Brewington was a threat because of the ongoing nature of his discord with the family law court system as opposed to a single outburst of sudden passion. The Indiana Supreme Court in upholding Brewington's convictions adhered to that contention of the State. The justices held that the depth and duration Brewington's postings about the players in the case “may be even more insidious because they show a persistent, single-minded obsession, not just an isolated outburst or mere venting.”

This all originated from a hearing in which his children were suddenly removed from his care and support. I asked what he saw as the greatest contributor to improper or unjust child custody and parenting time decisions. The response was initially one word – “Ambushed.” After a pause he then explained that “allegations should be plead” before being raised in the court. Hearing issues not plead is a due process violation as the US Supreme Court has found[fn2] but that is not what the Indiana Supreme Court was ruling on today. Instead it was about alleged intimidation of the judge who heard that custody case. Brewington's method of objection didn't follow the procedures of court but that makes it no less meaningful. As Brewington continues to claim, “They make stuff up and when I put on-line that they are lying they call it intimidation.”

As part of Mr. Brewington's parole in Ohio the State made a condition that he is not allowed to use social media. That term has since expired.

Since this criminal conviction was purportedly about intimidation I asked Dan if he has been intimidated by the judicial system. That is, was he going to temper his criticism of the court process or stand by his personal conviction of exposing what he sees to be an injustice “I will continue full steam ahead” without regards for their feelings or if it may bruise their egos.

Look for more about the family law court system coming from Dan Brewington in his blog.
I have client meetings today but will provide a complete analysis of this ruling in the near future.

1] We review custody modifications for an abuse of discretion “with a preference for granting latitude and deference to our trial judges in family law matters.” Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011) (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)), trans. denied. 2]

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