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Abusing Due Process

The opinions expressed by columnists are their own and do not necessarily represent the views of

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 general’s 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 Brewington’s 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...

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