Over the course of the last twenty years, I have taught hundreds of cases highlighting constitutional violations in criminal investigations and adjudications. Some of the cases are so outrageous that it is hard to believe they actually happened in America. Until recently, I considered the 1964 juvenile adjudication of Gerald Gault to be unparalleled as a mockery of due process.
Gault was accused by a neighbor, Ora Cook, of making a lewd phone call that would have been punishable by a maximum of two months in jail and a fifty dollar fine had Gault been an adult. But he was only fifteen. So the state of Arizona set up a kangaroo court that initially sentenced Gault to reform school until the age of twenty one.
Things got off on the wrong foot when Gault was taken in for questioning without his parents' knowledge and without the assistance of counsel. A judge released him after a preliminary hearing left him confused about what was actually said to Mrs. Cook and whether Gault was the one who actually said it. There was cause to believe that Gault's friend Ronald Lewis might have actually made the lewd phone call.
When the judge finally decided to bring Gault back in for an adjudication hearing, other important players were absent. The victim was absent. Gault's friend, who may have made the call, was also absent. Even the court reporter was absent making it impossible for Gault to preserve an accurate record for appeal. All of this resulted in a teenager losing years of his freedom for one phone call he may or may not have actually made. It all could have been avoided if Gault had a chance to confront his accuser and to have her cross-examined by effective counsel.
Those who have been following the Indiana prosecution of Dan Brewington cannot fail to see the similarities between his case and the juvenile prosecution of Gerald Gault. In my last column, Abusing Due Process, I talked about the criminal case that began after Brewington lost a child custody battle with his wife. Because of the testimony of an unlicensed psychologist, Brewington was denied visitation rights altogether.
By now, many are aware of the fact that Brewington's online criticism of the judge who denied him visitation has resulted in a felony conviction. But few people are aware that the bulk of the evidence used to convict Brewington of the felony was actually gathered by the same unlicensed psychologist who testified in the custody case. It wasn't enough for him to deprive Brewington of his kids. Stung by the criticism of his lack of qualifications, he had to help the state take away Brewington's liberty, too.
After Brewington's online speech was gathered and used to charge him with the felony of "striking fear" into a judge, he got a public defender to represent him. The prosecution, in stark violation of the Sixth Amendment Confrontation Clause, refused to allow Brewington's attorney to see the hundreds of pages of blog posts gathered by the unlicensed psychologist and produced as evidence against his client.
To make matters worse, the still unlicensed psychologist got up and testified at the criminal trial. Brewington's lawyer was not able to effectively cross-examine him because he had not seen the blog posts. So when the prosecutor got up to give his closing arguments, he was able to get away with lying to the jury about the content of those crucial blog posts.
And lie he did. Big time.
After Brewington called the judge a "child abuser" in one post, the prosecution changed the wording to "child molester" in his closing argument before the jury. Brewington's attorney could have defended the abuser remark because the judge had arguably hurt the children by tearing them away from their father. But there was no defending the molester remark, which, of course, Brewington never actually made.
And so the stacked jury of five women and one man convicted Brewington and sentenced him to five years in prison. Note the major similarities between the cases of Gault and Brewington:
1. Both were convicted under statutes so vague that they violated the due process clause. Blog posts that "strike fear" into the reader are about as hard to define as phone calls deemed "lewd" by the listener. No one can really be sure when he is or is not violating such a law.
2. Both were denied an opportunity to confront and cross examine crucial evidence. If Brewington could have confronted the psychologist, and Gault could have confronted Mrs. Cook, we could have identified what words were actually spoken by each defendant. And we could have learned what words were actually spoken by someone else and falsely attributed to the accused.
3. Both were given long term incarceration for what amounted to poor taste. People should never be sentenced to long terms of imprisonment because they used words that were in poor taste but did not contain threats of violence. Neither Brewington nor Gault ever threatened anyone.
Since I am not a citizen of Indiana, I am free to state the obvious fact that Judge Hill, who presided over the Brewington criminal matter, is an abuser of his authority. In fact, he is a molester of the United States constitution. His conduct in convening kangaroo courts designed to imprison those who criticize judges strikes fear into the hearts of freedom loving people everywhere.
In fairness, there ought to be a law that criminalizes the publication of judicial rulings that "strike fear" into the hearts of Indiana citizens. Such a law is needed to take Judge Hill out of his black robe and put him in an orange jumpsuit. Clearly, we need to protect our constitution from dangerous predators.