July 5th, 2012 by Robert Franklin, Esq.
An Indiana man faces five years in prison because he criticized the judge and the custody evaluator in his divorce and custody case. Here’s Dan Brewington’s website and here’s a link to his brief appealing his criminal convictions.
Dan and Melissa Brewington were married in 2002. They had two daughters before Melissa filed for divorce in early 2007. Both parents sought primary custody of the children, but Melissa was awarded primary custody during the pendency of the case. Dan had visitation three days each week. During the entire course of the two and a half year custody case, no allegation of violence, physical or sexual abuse, neglect, drug or alcohol abuse was ever leveled at Dan Brewington. And of course he had his daughters three days a week, so someone must have thought he was a pretty good dad.
But despite all that, when Judge James Humphrey issued his final order in the case, he stripped Dan Brewington of all rights to see his children. He was entirely denied visitation and, when he called them on the telephone, that mode of contact was denied him as well. So, the question arises “what did Dan Brewington do to lose his children and get himself put in prison?” More to the point, how can a man against whom there is no finding of unfitness as a parent come to be denied all contact with his children? Doesn’t that violate Supreme Court precedent?
It looks like it does, but the answer to all those questions is simple; Dan Brewington harshly criticized both Judge Humphrey and the court’s hand-picked custody evaluator, Dr. Edward Connor. Now, I know what you’re thinking. You’re thinking that Dan Brewington, like all Americans, has freedom of speech. Moreover, you’re thinking that, because Judge Humphrey is a public figure, anyone can say pretty near anything about him that’s isn’t known to be false, without consequences. You’d be right about both those things, and into the bargain, you’d be saying very much what Brewington’s appellate lawyers say in their brief. Dan Brewington can say bad things about a judge and a psychologist. It’s the American way.
Apparently, Dr. Connor didn’t evaluate the custody matter the way Brewington thought he should, so he began asking questions. He learned that, contrary to Indiana law, Dr. Connor was serving an Indiana court without being licensed to practice in Indiana (he was licensed in Kentucky). Moreover, the original judge in the case had ex parte contact with Dr. Connor and Brewington, who was representing himself, called him on it and forced the judge to recuse himself.
Then Brewington started demanding to see the entire case file in Dr. Connor’s possession. He didn’t want just his final report, but wanted to know how he’d arrived at his conclusions. That’s something every trial lawyer is entitled to and, since Brewington was acting as his own counsel, he should have gotten it, but he never did even though at one point Dr. Connor promised it to him.
So, having been denied custody of his children as well as the reasons for the denial, Dan Brewington got mad. Despite his anger, he never threatened anyone, never stalked anyone, never acted violently. No, what he did was to seek redress of his grievances as he’s entitled to do under the First Amendment to the United States Constitution. He filed motions, all of which were denied. He wrote letters to Dr. Connor. He threatened filing suit, although he never did. He complained to a professional disciplinary body in Kentucky.
It’s true that he often used intemperate language. He called the judge a ‘child abuser’ because he took his children from him without reason. He suggested that Dr. Connor is a ‘pervert’ because, in his interviews with clients, he asks sexually specific questions of women but not of men.
But as we all know, even intemperate language can be protected speech. The First Amendment doesn’t protect only words acceptable to the Women’s Christian Temperance Union; it protects lots of speech that many deem offensive, and that’s particularly true when the speech is directed at public figures like Judge Humphrey. As Brewington repeated time and again on the websites that were his main mode of communicating his opinions, his goal was to reveal and condemn the terrible dysfunction of family courts. (Don’t we all?) And that, my friends, is protected speech. We Americans get to criticize our public officials and our public institutions; it’s one of the greatest things about this country.
But Judge Humphrey and the local prosecutor don’t agree. They think that speech that’s critical of judges and their hired experts should be stamped out if at all possible. Otherwise, people might get the idea that, well, the family court system is dsyfunctional and needs to change, and we can’t have that.
So the DA trumped up six charges against Brewington that frankly were designed to punish protected speech. With the assistance of the trial court that issued jury instructions that failed to remind the jury about the protections afforded by the First Amendment, and with the ineffective conduct of his trial lawyer, Brewington was convicted of five of the six counts and sentenced to serve five years in prison.
Family judges tell us pretty much nonstop about their concern for children’s welfare. According to them, they’ve never taken a breath that wasn’t in “the best interests of the child.” But of course that’s pure nonsense, and this case shows it. The fact is that Brewington was an obnoxious litigant. I’m sure he was a pain to all concerned. But if Judge Humphrey were truly concerned with the man’s two children, he’d have set aside whatever animosity he had toward Brewington and recognized that the girls need their father. Again, there was never a claim that Brewington was violent, hurtful, neglectful or in any way less than a loving, caring, capable father.
But now his girls won’t see him for five years and probably not even then. That’s because this judge wasn’t concerned about their welfare; he was concerned about showing Brewington, and all others who may be similarly inclined, just what kind of power family courts have. Question that at your peril. Assert your rights only if you dare. That’s the message to which two little girl’s well-being was sacrificed.