As I note in the post below, the Indiana Attorney General’s office agrees (see its brief) that the State v. Brewington Indiana Court of Appeals decision was unsound. But the AG’s office argues that Brewington’s conviction should still be affirmed. This illustrates a broader issue that I thought was worth briefly discussing, though note that I’m talking about this in my capacity as an academic, and not as a lawyer for the amici that I represent in this case.
Here’s the basic matter, though somewhat stylized to highlight the interesting legal question. (For more details, see this post.) Brewington was prosecuted for “intimidation” of Judge Humphrey, which consists in relevant part of threatening the judge with retaliation for the judge’s past lawful act (his decision in Brewington’s case).
But what does “threatening” mean? Under the Indiana intimidation statute, threatening is defined to include any of several things, including (A) threatening violence or (B) threatening to expose the target to hatred, contempt, disgrace, or ridicule (which I’ll just shorten to “disgrace”). And the jury was instructed that, to find Brewington guilty, it needed to find a threat, defined in precisely those statutory terms — a threat of violence, or a threat of exposure to disgrace, or one of several other kinds of threat. The jury thus could have found Brewington guilty based on a conclusion that he threatened violence or based on a conclusion that he threatened to expose the judge to disgrace. Since the jury just returned a general verdict, we can’t tell which theory the jury followed.
The Indiana AG’s brief seems to agree that the Indiana Court of Appeals’ decision, which upholds the conviction based on a conclusion that Brewington threatened exposure to disgrace, is “overbroad.” Our amicus brief argued that a threatened-exposure-to-disgrace theory would violate the First Amendment. But the AG’s office argues that the Indiana Supreme Court should nonetheless affirm Brewington’s conviction because Brewington threatened Judge Humphrey with violence.
Now it’s not clear to me that Brewington’s speech should be seen as a constitutionally unprotected threat of violence; you can decide for yourself by reading the summary in the AG’s brief, and then perhaps compare it to the speech that was found to be constitutionally protected in NAACP v. Claiborne Hardware Co. (1982). But in any event, even if a jury could find Brewington’s speech to be such a punishable threat, we don’t know that the jury did so find, and a reviewing court can’t just assume that they jury did or would so find.
Indeed, both the U.S. Supreme Court and the Indiana Supreme Court has made clear that, “[a] general verdict can not stand when the case was tried and submitted on two theories, one bona fide and the other not.” Miller v. State, 417 N.E.2d 339, 343 (Ind. 1981); see also Wells v. State, 437 N.E.2d 1333, 1335 (Ind. 1982). “To say that a general verdict of guilty should be upheld though we cannot know that it did not rest on the invalid ... ground ... would be to countenance a procedure which would cause a serious impairment of constitutional rights.” Street v. New York, 394 U.S. 576, 586 (1969) (quoting Williams v. North Carolina, 317 U.S. 287, 292 (1942)); see also Bachellar v. Maryland, 397 U.S. 564, 571 (1970). And this makes sense: In our legal system, a conviction must generally rest on (1) a jury finding of guilt under (2) a constitutionally valid theory. A jury finding but under a constitutionally invalid theory doesn’t suffice. And a reviewing court’s finding of guilt under a constitutionally valid theory doesn’t suffice, either (at least unless it finds that any constitutional error was harmless beyond a reasonable doubt, a standard that I think can’t be satisfied here).
So if the Indiana Supreme Court agrees that the threat-to-expose-to-disgrace theory would violate the First Amendment, then it can either reverse outright (if it thinks that Brewington’s speech couldn’t be reasonably seen as a threat of violence), or reverse and remand for a new trial. It can’t just affirm, given the impossibility of knowing whether the jury’s decision rested on “the invalid ... ground” or on the “bona fide” one.