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
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
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
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
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.
Mike Adams is a criminology professor at the University of North Carolina
Wilmington and author of
Letters to a Young Progressive: How To Avoid Wasting
Your Life Protesting Things You Don't Understand, due out in