GirlChat #387838
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I wanted to share a few more aspects of the legal proceedings I am involved in with those interested.
I could not have asked for more in terms of support from my community - blue and pink - during the past two years. Whenever I needed it, a friend was there with a kind word, a hopeful sentiment, or helpful advice. Many of you sacrificed to come spend a weekend, or a week, or months with me, and I needed that support and benefited from it. I never felt alone, I never felt like a friend was farther away than the sound of the telephone ringing: Hey Kevin, I just wanted to make sure youre okay . Ours is a community of strength and mutual concern, and expresses much of what is good in the nature of man. We are good, decent people. Ive been granted the rare privilege of being completely out with everyone who comes into, or through, my life. I am at ease with it now. The legal proceedings were transferred by the Indiana Supreme Court from the Juvenile Court to Superior Court on October 20, 2005. I was given a panel of three judges and allowed to strike one; the state was allowed to strike one, and the remaining judge is presiding over my divorce. My sole criterion was that the selected judge be of my political party, and I was afforded that: she is a senior (25-years experience) elected Republican judge. Ive wondered often if my decision on that was wise. There have been things that havent felt fair in the trial. I entered into an agreement a while ago with a published author (and gifted writer) to tell my story, and that process (as well as the trials) have caused me to stand in the shoes of the other people involved in this and try to really understand how they perceive it. I spent a day last week listening to the recordings of the past hearings and was completely stunned by a realization that I missed when it occurred. I have no doubt that this Judge intends to provide me with a fair trial procedurally. Last June, Dr. Richard Green and Dr. Claire Morris flew in from London to testify on my behalf as expert witnesses. They stayed a week and I learned a lot about my orientation from them. Dr. Green was the instrumental player in removing homosexuality from the DSM in the early 1970s, and Dr. Morris is a criminologist at Cambridge who intends a career in the field of British public policy on the issue of pedophilia. I deeply fear alienating them; the trip was somewhat of a disaster because of United Airlines. They were scheduled for depositions with my adversaries two days before the hearing. They ended up spending essentially 48 hours sitting on the tarmac of various airports and were completely unavailable (though by accident) for discovery before the hearing. I struggled financially as my agreement was to provide them lodging, meals, and entertainment during their week here. My opponents objected to the expert testimony on grounds of no discovery at the June 21, 2006 hearing -- a completely legitimate grievance. The Judge over-ruled the objection, allowed the testimony, and extended the power of the Court to compel whatever my adversaries needed after the hearing. I cant imagine what grief the Court might have endure trying to enforce its power of subpoena over an international witness if my adversaries had exercised that right (it is now waived). The Court did not have to do that; it was a discretionary decision; it went my way; it was huge. Dr. Greens interest was this: Dr. Green was a member of the working committee that drafted the current American Psychiatric Association (APA) definition of Pedophilia, DSM-IV § 302.2. His interest in the neglect proceeding was that the APA has now constituted the working committees for DSM-V, expected for publication in 2010. This neglect and dissolution proceeding is being presented to the § 302.2 revision committee for evaluation of how the DSM is being applied in family-law cases. So now the neglect complaint -- that Kevin Brown continues to support the sexual exploitation of children -- is on appeal to the Indiana Court of Appeals, Second District. My arguments are as follows: (1) Whether the complaint is one capable of repetition yet evading review. To appeal, there has to be a live controversy. There is not in the neglect complaint; the state succeeded in depriving me of a hearing. The situation occurred in Roe v. Wade, where the U.S. Supreme Court found a right to privacy existed with respect to abortion in the first and second trimesters of a pregnancy. Roe was not pregnant by the time the case came to the U.S. Supreme; she had delivered the child, and therefore had no standing to appeal (the relief she sought, an abortion, would have been ineffective). In my case, I contended all along that the state intentionally didnt state their true complaint (that I am mentally disordered under the DSM due to pedophilia) to preserve it for repetitive neglect complaints in case I won the first go-round. Immediately after the neglect complaint was closed, my wife called the state CPS supervisor and thats exactly what he testified to -- and that testimony is on the appeal record (it happened in the same hearing). So I think Im on pretty strong ground to extend Roe to this case. (2) Whether the complaint is void-for-vagueness, overly-broad, or otherwise constitutionally infirm. Before Dr. Green and Dr. Morris testified, my counsel made an oral motion to the court on a motion to dismiss for failure to state a claim. The argument was that the complaint violated the First Amendment (it derived from my telephone call to a talk-radio station), and that the First Amendment applied to the state by the Fourteenth Amendment. It was an eloquent 45-minute presentation replete with several exhibits. The transcript that Lux prepared of the interview with Rick Roberts was authenticated into evidence. My counsel was a city assistant prosecutor for years, and I couldnt have asked for more competent counsel. At the end, the Judge over-ruled the motion by extending another case to the facts of mine, Parker v. Monroe County Dept. of Public Welfare, 533 N.E. 2d 177 (Ind. App. 1st Dist. 1989) (welfare department and court need not wait until tragedy occurs or children are irretrievably ruined by parent who is out of control in order to take action). My argument in the appeal of the neglect proceeding, and in the constitutional challenge to the divorce custody and visitation statutes, is identical: Because the statutes are being applied directly to an act of political and public speech of Mr. Brown, they are unconstitutionally vague, Connally v. General Constr. Co., 269 U.S. 385, 391 (1925) (A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law"). The statutes vest unbridled discretion in caseworkers enforcing the dissolution statutes, Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927) (involving so many factors of varying effect that neither the person to decide in advance nor the jury after the fact can safely and certainly judge the result"). It is the arbitrary enforcement of the statute in this case at issue, rather than actual notice, Kolender v. Lawson, 461 U.S. 352, 357 (1983) ("we have recognized recently that the more important aspect of vagueness doctrine 'is not actual notice, but the other principal element of the doctrine -- the requirement that a legislature establish minimal guidelines to govern law enforcement.'") (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)). The vague laws impermissibly delegate basic policy matters to caseworkers and judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application, Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). The argument concerns whether membership in a lawful pedophile political organization is a right that those sexually attracted to minors have, or if that is a valid basis to remove their children and order supervised visitation until the child is grown. (3) Whether the following statutory components of Indianas interlocking child abuse and neglect scheme are unconstitutional, as applied to the facts of the case: Ind. Code § 31-34-1-1 (2005) (circumstances under which a child is a child in need of services); I.C. § 31-34-11-1 (2006) (hearing requirement); I.C. § 31-34-9-2(2) (2006) (request for authorization to file petition). All fifty states have similar provisions because of federal model legislation that state schemes have to comply with to get federal money for foster care. My argument against the first statute (circumstances) is similar to the argument against the actual allegation brought: it allows a caseworker to bring a complaint of parental unfitness under any theory that CPS can dream up. Theyve gotten away with it to-date, in all fifty states, because when theyve gone out on a limb theyve always at least had a sound theory, such as with emotional abuse theories, and because what they sought in the way of relief didnt deprive the parent of anything fundamental -- like ordering them to attend anger management classes to retain custody after a period of supervised visitation. This case is very different. While the state testified that they believe there is hope to convert me into a normal heterosexual, it was not convincing or based on any evidence. What they are seeking does deprive me of fundamental rights -- they denied me the right to petition Congress. They want supervised visitation until my son is sixteen or so. They are asking the Court to remedy speculative and uncertain future harm with certain and deliberate present harm. The second statute (hearing requirement) requires trial by fact-finding, which is where the judge is also the prosecutor. The judge has no restrictions on ex parte communications; can call and question witnesses; etc. The Supreme Court found this unconstitutional in Michigan where a judge who presents a case to the grand jury also presides over the resulting criminal trial. The civil law systems (like Louisiana and United Kingdom) that employ a prosecutorial judge require two judges; once probable cause is established and the case investigated, it is turned over to an impartial second judge for trial. There has never been a constitutional challenge to this statute in the fifty states. The third statute (request for authorization to file petition) feels like one of those Chinese finger traps when you cross over its procedural rails. In other types of cases (both civil and criminal), you can assert an affirmative defense at the initial probable cause hearing. Affirmative defenses say regardless of whether the complaint is true or not, it doesnt apply to me. An example would be CPS complained about the same thing before and lost, so this is claim is barred. Under the statute, though, CPS asks the court to require them to file a complaint; because they are responding to an order of the court, the parent has no rights, except those provided by statute (to affirm or deny the complaint). I have a reasonable argument that (a) the complaint was estopped because the Federal court considered the same thing before and ruled in my favor; (b) the complaint was a perjury; (c) the removal of my son was unlawful because it was not a life or limb emergency and they did not get a warrant, and instead sat around their office all afternoon discussing how to make sure they could get into my house if I refused them at the door, and I was fundamentally harmed by the statute. I believe a finding that these three components of the neglect statute are unconstitutional would return fundamental fairness to neglect or abuse allegations. I understand the other sides concern; they want to be able to respond when a child is at risk of being hurt, and that is a laudable goal. However, absolute power corrupts absolutely, and it did so in my case. I mentioned I have raised a constitutional claim in the divorce proceeding against the custody statute and the visitation statute. I attack it from four directions, all under the Fourteenth Amendment. I will publish my trial brief, the response brief from the Indiana State Attorney General, and any amici briefs once the issue is fully briefed. I believe I will win. I know, youve heard that one before .. But, I have now studied law intensely for two and a half years. I understand more than I did before. I am really at awe of the judiciary; it is truly an alternative to war and diplomacy between men. What an awesome achievement of man to replace trial by ordeal or trial by combat with rational argument. My federal lawsuit is an embarrassment to me now. It was, At 1,751 paragraphs and 160 pages, susceptible to dismissal on the ground that it is unintelligible, as In his complaint, Kevin Brown moves from a history of parens patriae (going as far back as 52 B.C. where he recites a rare story of Gaius Julius Caesar being moved by the fate of women and children during one of his conquests). A defendant noted that Julius Caesar, not unfamiliar with violent practices of annihilating entire villages and their inhabitants, as he self-reports in among others, the Gallic War, and came, saw and conquered under a philosophy that was rather indiscriminate when it came to killing men, and defenseless women or children in his ambition to establish a Roman Empire. The complaint was poor quality. The District Court did not dismiss it for its unintelligibility, however. When I wrote it, I was ignorant and under a heavy time deadline (thirty days). I believed I would waive any issue I did not raise, and I was correct. So I raised them all, in eventually, 82 counts against all defendants. And despite my ignorance, time has proven the complaint valid. A clearly biased and partial judge who found an outlet in the editorial columns of The Indianapolis Star recused herself because of it. You cannot raise constitutional claims on appeal that are not raised in the trial court, and I preserved my right to raise my valid claims after I was deprived a trial because of the lawsuit. The National Center responded with an answer that was dripping with invidious venom, and took advantage of the gag order to get a private law passed in Congress against me. On all counts, my amateur effort was successful in helping to preserve and secure my rights for adjudication. I took the allegations of unintelligibility seriously. It was not my intent. I took a class on writing trial briefs. Ive read hundreds now; I feel like Adam Sandler in Happy Gilmore -- Happy learned to putt. My arguments are sound and strong, and my problem lies in effectively presenting them. My constitutional challenge in the divorce proceeding conforms to the smallest detail to the technical requirements of brief-writing; is concise and on-point; and is physically attractive and inviting to read. I took a quote on it when I started my research that proved I had to proceed pro se ($12,000), and the quality of my work is not that far short of what a professional law practice would have produced. My goals at this point are as follows. I believe I will win the constitutional challenge in the trial court, and that decision is likely 60-90 days out. I do not expect to get everything I want: Mr. Brown requests that this Court enter declaratory judgment holding: Ind. Code § 31-17-2-8 (2002) is unconstitutional, as-applied to the facts of this case, as complaint of parental unfitness that is actionable under I.C. § 31-34-1-1 (2005) must meet a standard of proof that is clear and convincing to deprive a party of a presumption of fitness for primary custody. and: Ind. Code § 31-17-4-1 (a) (2005) is unconstitutional, as-applied to the facts of this case, as complaint of parental unfitness that is actionable under I.C. § 31-34-1-1 (2005) must meet a standard of proof that is clear and convincing to deprive a party of a presumption of fitness for custodial visitation rights. I expect the Court might hold a preponderance of the evidence standard required instead, or to narrow the scope of complaint of unfitness that would necessitate a standard of evidence under the custody and visitation statutes, or to hold my relief applicable to the visitation statute and not the custody statute. I sought relief in the alternative so that the Court can enter the relief that is in my favor, even if incomplete to the full relief I seek. I believe the statute will be held unconstitutional in the trial court, and if that happens the Indiana State Supreme Court will have exclusive and mandatory jurisdiction of the appeal, and the State Attorney General is bound by law to appeal it (i.e. it skips the Court of Appeals). The appeal would be taken immediately because of the mechanism that the Court has to rule a statute unconstitutional (Declaratory Judgment). My intention, if that happens, is to apply to the Indiana State Supreme to transfer my appeal from the neglect proceeding to the Supreme, and to combine the two cases. My constitutional claims were denied in the trial court in the neglect proceeding (the Judge denied all pending motions when it was transferred to the Superior Court, without prejudice to renewal, because the case was a mess with a dozen motions that had died on the docket). I am probably on good ground for the transfer because all of the evidence is common to the two cases; the issues presented are substantially the same; etc. Ordinarily, there is not much chance that the U.S. Supreme will accept a petition for certiori to hear an appeal. I imagine sitting in the Supreme and looking out over the land -- 300 million people clamoring the scarce resources of [that] Court. The cases they hear typically fall into the following categories: (1) Certain mandatory appeals, such as suits between states; (2) Situations where the Federal Circuit Court of Appeals have become divided on the interpretation of some finding of law, and there is contradictory precedent outstanding; (3) Situations where precedent in one state will lead to undesirable outcomes under the state law of other states, and that precedent is a Federal question (i.e. under the U.S. Constitution); (4) Some manifest and conscience-shocking injustice. My case presents strong grounds under (3) and (4) for the U.S. Supreme to hear the appeal. If the custody and visitation statutes are held unconstitutional, it would encourage people to move to Indiana for divorces, and the question is Federal in nature (Fourteenth Amendment). If the neglect statutes are held unconstitutional, it would place Indiana in non-compliance with the Federal model legislation for juvenile procedures and thereby prevent Indiana from feeding substantiated cases of neglect or abuse into the national child abuse registry. It has been 130 years since a state government deprived a citizen of the right to petition Congress on a matter affecting their interest; even the foreign Guantanamo Bay terrorism detainees are afforded this right. The last case was United States v. Cruikshank, 92 U.S. 542, 552 (1876) (right peaceably to assemble a subordinate and instrumental right to right of petition). The Future I feel somewhat like Linda Hamilton in Terminator: The road ahead lay unwritten. What will it mean if pedophiles are treated equally under the law in Indiana? What will it mean if we can live as human beings amongst our peers here, without fear of arbitrary and capricious state discrimination based on an invidious animus to our sexual orientation? What will it feel like to be free? I truly cannot imagine. I expect that if that occurs, the river of emotion I have sublimated will burst forward -- that I will not stop crying for days. I quit crying when I was a child because circumstances were hard. I dont have any particular feeling about it one way or another, but I have only cried a couple of times in my life since then. I look forward to that release. Because there is truth to the concept of emotional distress. Some of you came to Indianapolis and dragged me outside when that distress held me a prisoner in my own home. I retreated indoors when you left, scared of my neighbors, scared of people in general. The fear I have endured - from being physically assaulted after each time the case was in the media, from my opponents circulating flyers with my picture on it and making false reports to the Indianapolis Police Department, causing them to harass me in good faith at my visitations with my son - has been utterly crippling. I have lost years of my life to that stress. It dissipated a little after the neglect proceeding was closed, but not much. Today is a bright, sunny day; full of the promise of life; my stomach is so upset from filing the constitutional challenge and notice of appeal that I have not eaten in four days, and probably wont today. My neck aches and my heart pounds loudly in my chest. I still feel like a stranger in the light of day. I ache for humanity, for my place at the table among my peers as a respected and valuable member of society. Now Ive been happy lately, thinking about the good things to come I hope the same for you, my friend. Love, Kevin Brown Indianapolis, Indiana p.s. It appears that the "MAA Daily Lives" research project is moving closer to securing approval of the University's ethic committee and becoming a reality. |