This is the latest post in what I half-jokingly call The Kimberlin Saga®. If you are new to the story, that’s okay! Not everyone reads my blog. The short version is that Kimberlin has been harassing me for over two years, his worst conduct being when he attempted to frame me for a crime. I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word. You only have to believe your eyes. And more recently when his wife came to us claiming that this convicted terrorist had threatened her harm, we tried to help her leave him, and for that, he is suing myself, John Hoge, Robert Stacy McCain and Ali Akbar for helping his wife and he is suing Hoge, McCain, Akbar, DB Capital Strategies, Michelle Malkin, Glenn Beck, James O’Keefe III, Patrick “Patterico” Frey, Mandy Nagy, Lee Stranahan, Erick Erickson, Breitbart.com, the Blaze, Mercury Radio Arts, Red State, the National Bloggers Club, and Simon and Shuster alleging that we are all in organized crime for reporting factually about the spate of SWATtings committed against myself, Frey and Erickson. So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.
This was actually cited as
evidence of my supposedly
evil intent. I am not joking.
Tuesday in Maryland free speech won and Brett Kimberlin lost. And so did the safety of children. I have not blogged about the case as much because our able attorney, Patrick Ostronic, Esq., did ask us not to publish much of the documents, as an application of the Napoleonic principle of not interfering with one’s enemy while they are making a mistake. As the mantra has been for a while: case first, blog second.
And before I get further in it, let me do a bleg. After our victory in Maryland, we need a transcript of the trial. It is going to cost an estimated $880 to get it. We have ordered it, and Bomber Sues Bloggers, our defense fund is willing to pay for it, but we need the money to fully pay for it. So please donate to Blogger Sues Bloggerstoday and if you do, I promise we will share a copy with you!
(Though we reserve the right to redact some information to protect the innocent.)
So let’s play a little catch up. At this point, the case was about defamation and false light, essentially the claim that we have been saying false things about Kimberlin. While there are technically six defendants in the case, the trial was only between Brett as the plaintiff and myself, John Hoge, Stacy McCain and Ali Akbar. The other two defendants, whom Brett accused of being KimberlinUnmasked, was Lynn Thomas and Peter Malone. They are father and daughter. If we lost they would be tried later. Now, it appears that the case against them should go away on collateral estoppel.
The actual statements we were being required to defend, meanwhile, revolved around terrorism (yes, really), pedophilia, the loss of my job, and a few more minor points. The big ticket was obviously pedophilia.
Last Thursday we had a motion for summary judgment hearing. This was before Judge Jordan. Previously, Judge Jordan had sat in the case of Kimberlin v. Allen that started all of this. I have previously written that I thought that Jordan had figured out what was really happening by the end of the hearing, that he figured out this was an abusive lawsuit. I will say bluntly, I must have been wrong. I am not going to bother to get that transcript because all of this is now water under the bridge, but basically things started to go sideways very early. Patrick made the simple point that (paraphrase) “Brett literally would have no evidence of falsity, so why should we waste the court’s time?”
This was because Brett gave us literally no information at all in his discovery, and that effectively precludes him from offering evidence. And as you might remember, Md. Code Cts. & Jud. Proc. §9-104 states that “a person convicted of perjury may not testify.” I pointed this out to Slate’s Dave Weigel, and he said something to the effect of “has he been convicted of that. It’s hard to keep track of all that he’s been convicted of.” Well, yes, he has been.
So Brett couldn’t even get on the stand and deny that he did any of the things he claims we accused him of, and with no other witnesses, he had literally no evidence in his favor. Or so Ostronic's argument went.
And then things started to go wrong. When Patrick cited that rule that perjurers couldn't testify, Judge Jordan all but said he thought that the law was unconstitutional. He specifically said he had serious doubts that it would be held constitutional if challenged. But he also very specifically said he was not making a ruling.
So I think in Jordan’s mind, the reasoning from there went like this. He assumed that if Brett could testify that he would deny it (a reasonable assumption), so the judge treated this as if Brett had put in an affidavit swearing he is not a pedo, etc. So that creates an issue for trial where otherwise there was none. I also think that Judge Jordan was just thinking “look we are four days away from trial, so why not just do that?”
Finally, in a truly bizarre twist, he mentioned that he had dealt with Kimberlin in what he described as a “despicable” attempt to destroy Kimberlin. He went as far as to say that even if he could be the trial judge (and scheduling prevented him from doing so), he would recuse himself from the case. Which begs the question: why the hell was he sitting in this hearing, if he felt that something in his prior interactions with Kimberlin made him biased, apparently in Kimberlin’s favor?
So there was some frustration at knowing that we were going to trial the following Monday (August 11), and I remembered talking to a family member about it. We did not know who the judge was for the trial, and I joked, “if we get Nelson Rupp or Eric Johnson, you will know God loves us and is taking care of us.” It was about half an hour after saying that that I found out who our judge was:
Eric Johnson. That’s a picture of him on the left. Arguably my prayer had been answered.
Long time readers might recognize that name. He’s been a player in this drama before. As you might recall in my monster post that started it all discussing how Brett Kimberlin tried to frame me for a crime there was a peace order before the famous, flagrantly unconstitutional one that reallyshot this story into the stratosphere. There I lost in the district court where they don’t follow, like, the rules of evidence, and then we got to Circuit Court where they follow the rules of evidence. Judge Johnson sat in that case, dismissed the peace order and gave Brett a ten minute lecture on the meaning of free speech. It was good stuff. You can read the transcript for it, here.
So I was all smiles. I was doing my happy dance. The other defendants were skeptical, but I was certain that this was good news.
So that takes us to Monday. As an overview, that day was mainly about two things: motions and seating a jury. Brett filed two motions. First, he filed a motion to declare that Md. Code Cts. & Jud. Proc. §9-104 was unconstitutional or inapplicable. In an act of supreme irony, he started off his motion arguing that he could be trusted to testify honestly by lying about what Judge Jordan said and ruled. He falsely said that Jordan had ruled that §9-104 was unconstitutional and made up a quote Jordan didn’t actually say. You know, typical Brett behavior. I will document this stuff in coming days.
The second motion was kind of all over the place. It starts by arguing that we can’t talk about his convictions at all, and then says we can’t talk about them for impeachment purposes. Now, the latter is utterly reasonable and in line with the rule. The rule says that you can’t use convictions older than fifteen years, and this was older than fifteen years. If I was the judge I would rule in his favor. But that only applies to impeachment. In other words, if I want to tell the jury “you can’t trust what Brett Kimberlin says because he is a bomber” that is verboten. But if you want to say, “it is not defamation to call Brett a bomber because he did in fact set off bombs” that rule is not going to prevent you from bringing it up. In other words, the truth has no expiration date.
So with that set up came the argument. Judge Johnson went over the claims that Kimberlin was pressing. First, Brett complained that we had called him a pedophile and the judge started asking him “have you ever been arrested or charged with” the various laws that relate to sex with children. Brett danced around whether he had been charged (he had been), and correctly denied he had ever been arrested.
Then the judge asked what else we called him and Brett said, “terrorist.” Judge Johnson said (paraphrase) “why do they call you a terrorist?” Brett pretended at first he had no idea, but I don’t know if the judge was aware of Brett’s background—maybe by remembering my prior encounter or having otherwise perused the public record—or if Johnson’s BS detector was going off, but he drilled Brett until he got Brett to admit something to the effect of, “I have a conviction for setting off explosives but that doesn’t make me a terrorist.”* As usual he made it sound like he only did this once, but dear reader, you should have seen the incredulous look on Judge Johnson’s face, reacting to the fact that Brett thought he could prove he was being defamed by us by calling him a terrorist despite his convictions for explosives. And of course the idea of actually keeping us from talking about his past was a non-starter. The judge said something to the effect of, “you can’t say, ‘they defamed me by calling me a terrorist’ and then say they can’t talk about how you set off explosives.” That wording is off by quite a bit, but that was the gist and Brett said something to the effect that he realized making the case about whether or not he is a terrorist was a non-starter.
Mind you, we have not shown this publicly before now, but Brett had actually claimed in interrogatories that it was defamation to call him a bomber. Yes, really. Let me quote him in full. He was asked “if you contend that the titles ‘BomberSues’ and ‘Bombersuesbloggers’ are inaccurate or misleading, explain why.” His response:
Plaintiff is not a bomber. Title appears to be current. Highly misleading in the same way that a title about Nelson Mandela would be: “Murderer Becomes President of South Africa.” Many of the titles of the Defendants’ Posts and Tweets are misleading the same way making Plaintiff appear odious as if engaged in the criminal activity today.
So if you have seen me making jokes comparing Brett Kimberlin to Nelson Mandela recently, that is why. And of course his argument was feeble. I can’t say what the laws of South Africa might say but if Mandela was alive today, and you wanted to talk about his violent actions, you had the right. It might not be morally fair, but it is not tortious.
Patrick had a pair of motions, too. One was to prevent Brett from testifying and the other was to prevent pretty much all of his witnesses from testifying. This is because when Brett was told to identify all fact witnesses in interrogatories, he refused to do so, and ordinarily that means the witnesses would be excluded. On the latter issue, the judge said he would rule as the trial progressed.
But on the issue of Brett testifying, Judge Johnson said that Brett could testify. His logic was flawed, but not crazy. First, he pretty much nixed the idea of calling the statute unconstitutional. But he did make an argument based on statutory construction. Let’s recall the language in the statute: “a person convicted of perjury may not testify.” Well, the judge reasoned like this. Ordinarily in law the word “shall” is mandatory, while the word “may” is permissive. So the judge felt that “may not” was a permissive negative: that is the judge may, or may not exclude such testimony.
That is not an unreasonable reading of the statute, but it is my opinion wrong. As I said on Lee Stranahan’s program, I am not trying to beat up on the judge, but I do disagree on this point and I think the legal argument is pretty solid on this point. First there is Md. Code Art. 1, § 26 (2014), which says:
§ 26. Meaning of “may not”
In this Code and any rule, regulation, or directive adopted under it, the phrase “may not” or phrases of like import have a mandatory negative effect and establish a prohibition.
That seems pretty solid to me, but there is also the fact that the subtitle of the Maryland Code that contains the prohibition on perjurers testifying also uses the words “may not” in cases where the judge clearly would not have discretion. For instance Md. Code Cts. & Jud. Proc. §9-107 says, in relevant part, “[a] person may not be compelled to testify in violation of his privilege against self-incrimination.” The privilege against self-incrimination is an absolute right, to the extent that it applies. That is if you demonstrate that your answer might incriminate you, and they don’t remove that danger by immunizing you appropriately, it is unconstitutional to force you to testify. And obviously the Maryland legislature didn’t intend to violate the Constitution. Other privileges, such as spousal privilege, attorney client privilege, and media privilege have similar “may not” language, but were plainly not intended to be discretionary.
So overnight we found that kind of stuff and as I understood it, Patrick Ostronic presented it to the judge the next morning. For whatever reason, though, Judge Johnson was not persuaded. I didn’t hear what he said, so I won’t even attempt to evaluate Johnson’s reasons. I just know the result.
And yeah, I was not happy. I said something like this to Dave Weigel, who was covering this: “this is the difference between unreliable evidence and no evidence. Obviously you would prefer to have no evidence.” Weigel is expected to have a full write up later today, so if he quotes me on this point I will defer to his reportage.** But it turned out to be a blessing in disguise as you will see going forward.
Let me be clear. Johnson was wonderful over the last two days. But even wonderful judges get things wrong, as I think he did, but he is one of my favorite judges over there. For instance, when Brett started doing his I’m-just-a-poor-ignorant-pro-se-give-me-slack routine. Judge Johnson’s response was so nice, I will probably quote him in the RICO case. He said it would be “fundamentally unfair” to give pro se’s any special dispensation in the rules. He kept saying “we can’t have one rule for people represented by attorneys and one for pro se’s.” I think in practice Johnson was not following that reasoning strictly, but most of the slack he gave Brett came in the form of explaining the rules to him.
Finally, the judge wanted to know if there were any other issues we anticipated being an issue in the trial that we should hash out immediately. But Judge Johnson accidentally forgot himself for a moment saying, “are there any other ticking time bombs—oh, that is a poor choice of words.” Again that is a paraphrase and I will get the exact wording eventually, but literally we all burst out laughing. It had been a long day by the time he said that.
And then we went through voir dire, which is basically whittling down around 60 potential jurors down to the six and two alternates who would hear the case. For those not familiar with legal parlance, an alternate juror is best understood as being like a “spare tire” for the jury. You are supposed to have six jurors in this context (and their verdict would have had to be unanimous), but sometimes things happen. Like a juror’s mom might suddenly be on death’s door and the court would want to excuse that person to be with her mom. In my “spare tire metaphor,” this is like a juror “blowing out.” So what happens in that situation is that the juror is dismissed and then one of the two alternates sits in his or her place. Really, the process was straightforward but we ended up with a jury I pretty much liked. There are reasons why I liked them, but I think I will keep that to myself. After all, this is not the only litigation Brett has filed against us, and we don’t want to educate the midget...
Oh Brett, try to be more gracious in defeat!
...so I won’t explain right now.
One thing that was funny was when the judge asked the potential jurors about their exposure to social media and blogs. The last time I was before Johnson, he admitted he didn’t know what a blog was, but he imagined it was like a magazine, proving you don’t have to be technically savvy to be right on the First Amendment. As further set up, the way it was being conducted he would often just ask questions to the group and see if anyone raised their hands. Like he would ask “do you know anything about the parties?” and look to see if anyone raised their hands. If necessary he would ask individual potential jurors follow up questions.
So Judge Johnson asks the group something like “are any of you aware of what blogs and/or twitter is?” Suddenly so many hands go up, the judge is not certain if anyone of them aren’t up. So he says instead to raise your hands if you didn’t know what blogs and/or twitter was. And one man, out of around sixty people, raised his hand and he was a little embarrassed about it. After determining that this wouldn’t be a problem for him, next the judge asked if any of them actually blogged or tweeted. Around 75% of the room, by my estimate, raised their hands. So that seems to tell us something about the penetration of these forms of media.
Anyway, by the time we got through all of that, it was around 3:30 in the afternoon, so the judge decided the best thing would be to do the whole trial the next day from opening statements to the end of the trial.
So yeah pretty much all of this up until now has been prelude and that brings us up to yesterday.
As a sideline early on in the day the judge had to deal with two criminal matters. I didn’t see the first one, but the second involved a family who wanted their son to get a reduced sentence. After that hearing was over, the father goes up to John and says he is a fan of Hogewash!and wanted him to know he was rooting for him. Not one single juror had heard of any of us, but this random guy there for a completely different case happened to be a fan. The world can be funny, sometimes.
So first up we had to finish arguing about bringing in witnesses. One key point of contention was bringing in Brett’s eldest daughter, who shall remain nameless. As I have repeatedly said, as much as possible I am going to avoid having his daughter suffer because of Brett’s misconduct. Brett might not care about how this is affecting his kids (you will see more evidence of how he seems more concerned with his passion play than actually taking care of them as we progress), but I am going to try to shield them from as much of this ugliness as possible, consistent with my desire to hold Brett accountable.
One thing that struck me in that discussion was Johnson very skeptical of the entire idea. He said something to the effect of “you are going to put your daughter on the stand?” He all but told him he was being a bad father. And even Patrick Ostronic expressed concern. So literally, in a moment of surrealness, Ostonic and Johnson came off as more concerned about the welfare of Brett’s daughter than Brett.
And then the event that made me cringe at first: Ali Akbar decided to technically fire Ostronic as counsel. He wanted to proceed pro se. I won’t lie, I was worried. I didn’t think he intended to throw us under the bus as Team Kimberlin claimed, but there are more subtle dangers in representing oneself. But a person aggrieved really wants to hear someone make their case, and I think Ali didn’t want to let someone else do that for him. I can understand that, even as I cringed at the idea. Call it fear of the X factor—I had no idea how good or bad he would be, so I feared for the worst. As I jokingly say, “I obey every law, including Murphy’s.”
But in the end, Ali’s self-confidence was well-placed. Just like John Hoge, he is a gifted amateur. Then again, just like John, Ali has a lawyer in the family so some of it might have rubbed off on him. He definitely didn’t hurt the case, and there is a really good chance that he scared Brett away from testifying, in which case that decision was critical to victory. As a rule of thumb I am not sure I could have ever recommended it and if he asked me I would’ve told him not to do it. But Ali knew something I didn’t: how good he actually would be. And with that better information, he made the right decision.
So after all that was settled we got to opening statements. Brett’s, as you might imagine, went on and on, often on irrelevant topics, about how he claims he was an innocent man, even suggesting he got a double secret exoneration. After a while the judge told him to actually get to the issues.
And just to catch people up who have not been paying attention, the issues were defamation and false light, related to whether we falsely accused him of murder, terrorism, pedophilia, or costing me my job. He previously had sued us for five other causes of action including harassment, stalking, abuse of process, malicious prosecution and intentional infliction of emotional distress, but they were all previously dismissed on a motion for summary judgment because Brett produced literally no evidence on key elements of each claim (or in the case of harassment and stalking, there is no civil cause of action for it in the first place). This will be a familiar refrain.
So basically his narrative was that we lied about him being a pedophile. There may have been other issues, but that is what I remember most. That, and him pleading to the jury that this was the opportunity to stop us.
As for Ostronic he went for the classic “the First Amendment protects even unpopular or offensive speech” routine. Brett spent a lot of time talking about his travels to Russia and Ukraine and Ostronic brought up his travels to Eastern Europe in order to discuss how suppression of freedom of speech goes along with dictatorship. I am frankly not capturing by a long shot the eloquent way he put it, but that is the general thrust. And that was it. Ostronic is very much a minimalist in court. In case you haven’t noticed, I am not.
So after some more wrangling, Brett called me to the stand. Now, you are smart enough to know that objectivity just ain’t possible here. I am either going to think I was more awesome, or more terrible than I was. And this piece will probably sound a bit like the “Aaron Walker show” because I talk more about my own performance than anyone else. For whatever reason I remember more about it, and it was the longest testimony in the case.
So with that in mind... I think I did pretty good. I think I was less calm than I wanted to be in the beginning, but we are talking about things like him stalking my wife, so it was hard to remain calm. And I was truthful to a fault. I could see Ostronic shake his head when I said “I can’t remember the last time I said anything positive about you.” Of course it is well-earned, but I am not sure he was thrilled with that answer.
It is now settled law that I did not place
Brett Kimberlin in a false light by using
this PedoBrett image.
But I knew things were going to go very bad for Brett when he asked me the question “why do you believe I am a pedophile?” You do not ask a guy with a semi-photographic memory a question like that. So I went over Jessica/Debbie Barton, another fifteen year old girl he told singer he had been “romancing,” his teen dream, and then as I was getting to his wife, I got interrupted, but I got to that story a few minutes later. He did not enjoy, for instance, hearing me recite the story his wife told me about her walking in on him kissing her twelve year old cousin. In short I was able to recite most of the facts laid out in this post (which this title is riffing off of) and he clearly regretted it.
Brett was also unpleasantly surprised when he discovered that attorney-client communications applied to myself and his wife, because as I have told you I became her attorney. What he sought to introduce can’t be told here, because I am not free to waive my client’s confidences, but I will say that I have never done anything unethical in my representation of her (or anyone else, for that matter).
I will also add that he kept portraying his wife as mentally ill. I regret that I had no opportunity to expose that claim as the cheap lie I believe it is. I have had enough interactions with her to know that she is a bright and mentally stable person. There is not a thing wrong with her.
He also chose this as the “hill to die on” on the issue of my termination. He has been claiming for some time that I lied when I said that he caused my wife and I to lose our jobs. He chose to make that claim where there was only one witness to call on the subject: me. I mean he couldn’t say anything about why I was fired: he wasn’t there. And no one else showed up to testify. He tried to subpoena my two old bosses but as best as I know, they both live out of state—specifically in my state: Virginia. There’s a way to compel attendance by witnesses out of state, but Brett didn’t do what he had to do. So the president of the company I worked for had a lawyer file a motion to quash, while the former CEO just ignored it. I had some information that suggested he was no longer even working for the company anymore, anyway, and might not even be living in the area. But one way or the other, they didn’t show up. So it was Brett grilling me on why I was fired and me giving the only evidence on the subject that it was because of him.
He also asked about my participation in the Everyone Draw Mohammed Day protest, and I presented it, I think, well. But bluntly, I think I did a better job in my prepared Mission Statement, which you can read here.
One thing that kept occurring, also, is Brett kept expecting me to spontaneously blurt out his narrative, rather than, you know, reality. So he asked me if I said that we should destroy his daughter’s life “because of the corruption of the blood?” All of this comes from having written this post which, as you might notice, does not say that at all. So I remember specifically answering “no, I have literally said the opposite. I have said that we should as much as practicable shield your daughter from the effects of your misconduct.” I went on to briefly explain the theme of piece, saying that one of the things that makes America great is how we are judged not by who your father is, or who your child is, or what your race, religion or whatever is. We judge you for you. That is an extremely loose paraphrase, but when we get the actual quote I think you will see it is the gist of it. So it gave me a chance to positively rebut the narrative that I hate Muslims or something.
Brett tried to claim that I falsely accused him of having his wife arrested when in fact it was an attempted civil commitment (that Judge Mitchell quickly put a stop to), so he argued that it was not an arrest. I responded saying something close to “actually, it is a seizure under the Fourth Amendment and therefore it is an arrest, either way.” That shut him up on that point. Besides, I did make it clear why she was arrested as soon as I knew, and even inserted a correction into that post, but I didn’t get to say that. I might not like Brett Kimberlin, but I will never knowingly say something inaccurate about him, whether he can validly sue me for it, or not.
And I got to talk about things like Mr. Kimberlin stalking my wife, taking pictures of her and putting them on the internet. Incidentally she was in the courtroom, and she tells me some hired muscle Brett brought along appeared to try to take her photograph, but she evidently frustrated the attempt. I took several opportunities to gesture toward her, so the jury could see that I had people who loved me. And I talked about Brett’s attempt to frame me for a crime.
And that raises another point. Brett had his family there, too. Of course his wife—I do believe they are legally married even if they are separated—was not there. Brett kept trying to suggest she is not separated from him but evidence I will not disclose tells me she is long gone. Which is tragic, but I find it understandable. But Brett’s mother was there, as was his two daughters. The eldest was eventually a witness, so under court rules she was excluded from the courtroom. But the youngest sat through the whole thing. Yes, even hearing the evidence that her father was a pedophile. Indeed, he had me read one particular raw and dark joke I told on Twitter where I said “[t]hat was so funny #BrettKimberlin accidentally pull[ed] out [o]f his preteen girlfriend laughing.” McCain reported to me he had a hard time preventing himself from bursting out laughing over that one, but the more serious point is that Brett had me read that in front of his ten year old daughter. Why on earth didn’t he ask his mother to take her out of the room?
(And to be fair, maybe I should have raised that as a point, but I was kind of “in the moment,” and forgot she was there (especially as I couldn’t even see her from where I sat). I can’t not tell the truth because a little girl is there, but I can say, “your honor, should we have this child here?” I wish I had remembered she was there and said something like that.)
I kept telling people I was up there for three hours. John Hoge says it clocked in at more like an hour and a half, and I will guess that his perception is more accurate than mine. But there was little doubt that the majority of Brett’s venom. Next up was Mr. Hoge and he did a very good job dealing with Brett’s issues. What particularly stood out is that Hoge was asked about Everyone Blog About the Howard County (Md.) State’s Attorney Day, and John got to talk about their outrageous behavior toward my wife. I don’t even know what it was relevant to, but there you go.
The big barb that the next, witness, Ali Akbar, got in was the accusation that Brett had Craig Gillette, a convicted child pornographer, shoot publicity photos of Brett’s eldest daughter. He told me he saw one juror’s eyes bug out when he said that. I didn’t see that, but I believe him. Also right out of the gate Brett started talking about Ali’s criminal past, the judge saying, “why is this relevant?” Brett explained it was to prove Ali was less than honest, and the judge said “you’re calling your witness and impeaching him?” Basically Ali’s past was off limits. Now if we put on a defense and Ali called himself to the stand, I think most of it would come in to impeach him. But not as Brett’s witness.
And besides my own testimony, easily the highlight was watching Stacy McCain go at it. He started out by very forcefully saying, “so help me God,” when asked if he swore to tell the truth. Stacy was mad, but his sense of humor was sharp, albeit angry. I don’t say it to criticize him: the lawsuit was outrageous. I only say it to give you a sense of what it was like to listen to it live. Even when I show the transcript for you, the bare text is unlikely to capture all the colorfulness of that.
One particularly odd moment was when Stacy was forced to read from both Rule 4 and 5 of his piece “How to Get a Million Hits on Your Blog in Less Than a Year.” So Rule 5 is now a matter of law, I suppose. Joking aside, Brett’s supposed point was that 1) he was making an enemy to drive traffic, and 2) he was talking about sex to “sell” his blog. Well, yes, sex sells when it is adults involved. But apparently for Brett it is self-evident that stories about sex with teenagers makes a person more likely to read a blog. Ponder that.
Stacy was also required to read his criticism of the Washington Post’s coverage of Kimberlin after which he asked Brett “do you want me to tell you what I think of the New York Times?” And early on he added “a sense of humor is not a crime in this country.” I think on balance the jury was actually entertained and kind of liked him for all his colorfulness as a witness.
At one point, Brett tried to argue that Stacy was a racist. Johnson shut that down completely. His attitude was that this is about false statements and he didn’t care if he is a Grand Dragon of the KKK, that doesn’t help us figure out if he said anything false about Brett. His exact words were milder, but I am willing to bet he would agree with that sentiment. What little attempt was made to paint Stacy as a racist was rebutted ably by Mr. Ostronic, who asked Stacy to name the person in the room who was his closest friend. That was Ali Akbar.
Not only that but as Brett argued with Judge Johnson, Stacy spontaneously scowled and said, “you’re white, by the way.” As in, why are we talking about racism when we are both of the same alleged race? There was no question at the time, but I was certainly amused.
And he had a particularly “Stacy” way of responding to Brett’s refrain that somehow having charges “nolle prossed” (essentially “dropped”) was somehow equivalent to being exonerated. Stacy replied that “I’ve had speeding tickets nolle prossed. That doesn’t mean I wasn’t going 80 miles per hour.”
Finally, Brett tried to turn Stacy against us. The way he did this was that Brett tried to draw a contrast between Stacy, who talked about much of the evidence I cited, but didn’t call Brett a pedophile, and John and myself who said that I thought based on the evidence that he was. Stacy resisted Brett’s attempt to turn us against each other ably.
Finally we got to Brett’s eldest daughter. I will not disclose her name and frankly the majority of her testimony just wasn’t germane and won’t be disclosed, either. Brett went on and on about her music career and even got in how Stacy once said she can’t sing. The judge didn’t care and excluded that kind of information. As Judge Johnson said, “she’s not a party to this case.” The only thing of interest is that she said that Brett has never tried to touch her, which I am glad for. It is worth noting that Patrick didn’t cross examine her at all, because she said nothing useful to Brett’s case.
And that is when Brett rested his case. Yes, without testifying. Why didn’t he testify? One can only speculate so... I will. Ali reports to me that when he asked to go pro se that Brett accused him and Ostronic of scheming to introduce evidence that Ostronic wouldn’t introduce himself. Which earned him an incredulous look from Judge Johnson, according to Ali, which makes sense. I mean isn’t the whole point of firing your lawyer and representing yourself is because you want to do something different? So what? He’s allowed to do that, as long as the information is relevant, etc.
(And as an aside, I will quibble with Stacy. Stacy suggests that Ali would fight as dirty as Brett would. I have seen no evidence of it. But, the deeper truth Stacy hits on is that Brett might have been afraid Ali would.)
Ali believes then that Brett was so worried about something Ali would ask him about that he refused to take the stand. That seems reasonable given the consequences of not taking the stand, and the only reason I can think of for Brett to do that is because he was afraid of being asked about Ali’s allegations that Brett called him the n-word. Specifically when Ali happened to be in the vestibule outside of a courtroom he claims Kimberlin said that word to him. Which closely matched a story that Jay Elliot told me: when he was in the vestibule just before the first peace order hearing between them, Brett called him that. And of course there is this bit from Singer’s book on Kimberlin (via the Other McCain):
For three months, Kimberlin resided at the federal prison in prison in Terra Haute, Indiana, in a unit reserved for convicts awaiting long-term assignments to other institutions. . . . He had resisted a sexual predator by tossing powdered chlorine cleanser in his face. The predator was African American, Kimberlin told me, and as he fended him off he shouted, ‘You f–king n–r! You motherf–kng n–r! Get the f–k away from me! I’ll kill you, you motherf–r!’ Kimberlin enjoyed telling this story.
Hey, look, presuming Brett is telling the truth in that passage (ahem), I don’t blame him for getting mad at a potential rapist, but why is that an occasion to get all racist?
Anyway, the point is that there were credible allegations that he had said this racist thing to my friend. Some might say it is particularly bad because three of the jurors and the judge are black. Obviously, I can’t imagine what it feels like to be a black person called the n-word (I’m white), but I can say that most people are extremely appalled by that language, regardless of race.
But here’s the other thing about that. Why would Brett call Ali and Jay the n-word? My guess is that he believes in the stereotype that if you call black people that, they will automatically lose control and hit you. I don’t doubt that it might make many black people mad, but people (black or not) are not automatons who respond unthinkingly to input. So I think he was hoping that these two gentlemen would lose control and hit him, so he could then file charges.
So if Brett thinks Ali and Jay can’t control themselves, what does he think about the judge and the black members of the jury? I would guess that he thinks if they think he called someone the n-word, they won’t be able to control themselves, either. Which greatly underestimates everyone involved, but there you go.
Anyway, for whatever reason, Brett decided not to take the stand. Popehat has his own speculation and while I like my theory, they are all just guesses. I am particularly skeptical of any theory premised on Brett Kimberlin not wishing to appear foolish, because the desire not to appear foolish generally requires the capacity for shame.
But however you slice it, Brett literally had no evidence to offer that he was not a pedophile or on any of the other issues. Staying focused on the pedophilia issue, yes, he offered evidence that he didn’t victimize his own daughter, but if accepted that only proves he didn’t abuse one underage girl: it didn’t prove he didn’t abuse any underage girls, and it didn’t prove he didn’t even have the desire. The judge stressed over and over again that pedophilia was a state of mind, and not a crime. Yes, very often pedophiles commit the crime of what we typically call “statutory rape.” But pedophilia is not itself a crime; indeed, I don’t think Maryland could make it a crime, as vile as it is. (See, e.g., Robinson v. California, stating that while a state can outlaw drug use, it cannot outlaw being an addict as a mere state of mind.)
Because it was not a crime in the judge’s mind, it also wasn’t defamation per se. In defamation per se cases, the court assumes that the statement harms your reputation, without proving it. Brett argued that this counted and the court felt it did not. But then the court said, more or less, “even if it is defamation per se, you still lose because you have no evidence of falsity.”
So based on this fundamental lack of evidence, the judge granted what is called a directed verdict. That is, the judge found that because Brett failed to offer any evidence on a necessary element of the claim. And whether you are talking defamation or false light, falsity is a necessary element.
So a directed verdict was granted and the jury never had to bother with the case.
So what now? Well here is my legal opinion. First, we get collateral estoppel. That doctrine means that every fact tried in this case cannot be retried. For us, I guess we can’t deny that we called him a pedophile. But for Brett, he cannot say it is false to call him a pedophile, or to say he cost me my job, and a few other things he will have to discover over time.
Logically, this should be the end of the case against Lynn Thomas and Peter Malone as well. A defeat would not prejudice them, but they can reap the benefits of victory. And, I would argue that any person in any courtroom, at any time can benefit. Brett is an adjudicated pedophile, in my opinion. So he does not have a cause of action against anyone calling him that ever again, just as Bill Schmalfeldt has no cause of action against a person who calls him an adjudicated harasser.
See, that is one of the dangers of a defamation suit. You file it presumably to save your reputation, but that only works if you win, or at least don’t lose on the issue of falsity. If you lose on the issue of falsity, then you have actually confirmed what they said about you and if you are particularly unlucky this whole thing might generate a Streisand effect as people now know that as a matter of law this was a frivolous case (with a directed verdict and all), and so they ask, “well, what was the accusation that wasn’t false, that he sued to try to silence?” It calls attention to the very facts he was trying to suppress.
I see also that Brett made two bold pronouncement to Dave Weigel after the trial. The first is that he had a solid appeal on the issue of whether it is defamation per se to call him a pedophile. Bluntly, he does not. The judge made it crystal clear that even if he was right on that issue he still loses. So the appellate courts will see immediately that even if an error was made, it was a harmless one.
And for that matter, this is where there Judge Johnson’s decision to allow Brett the right to testify was a blessing in disguise. Since he could testify, but chose not to, he loses that issue for a potential appeal. I doubt the Court of Appeals would strike down the statute prohibiting perjurers from testifying, but it’s the difference between no chance for an appeal versus some chance.
Finally, I have also seen him declare that we will be sued for the rest of our lives. Besides massively supporting an effort to get him declared a vexatious litigant, I think in truth, it is simply an expression of impotent rage. He just got his teeth kicked in by the courts and he just saw us stare him down. He was feeling powerless, so he wanted to feel big. I suspect that like much of what he says, he is not being sincere. And sincere or not, the courts will soon start to take away his ability to abuse the system.
And if you want to help in that effort, Popehat has an idea.
So a major victory against Brett Kimberlin’s continued campaign of lawfare, a major victory for freedom of speech. And a major victory for protecting our children. During the trial and in court documents Brett states that other parents will not allow their children to sleep over at his house. Brett thinks we should be ashamed of this, but honestly, I couldn’t be more proud. At least the other parents are warned. At least they are taking precautions. Whether you think this adjudicated pedophile is actually a pedophile or not, I would never let any underage girl alone with him if I had any choice in the matter, just out of an abundance of caution. I mean you can’t put your children in the equivalent of one of those gerbil balls...
They put in air holes, right? Right?!
...well, at least not all the time, but some risks are unacceptable. And while we might feel sad about how that might affect his children, the blame falls solely on Brett Kimberlin. Seriously, what are we supposed to do? Not warn them?
Donate to Bomber Sues Bloggers,
pop some popcorn, and enjoy the
transcript you helped us pay for!
Finally, let me repeat my begging: if you are looking to read the transcript, donate! We need a transcript of the trial. It is going to cost an estimated $880 to get it. So please donate to Blogger Sues Bloggerstoday and if you do, I promise we will share a copy with you!
It is totally Popcorn-Worthy!®
---------------------------------------
* Unless stated otherwise, all quotes are paraphrases. I believe they are all fair paraphrases, and I tried to match what was actually said as best as I could given my memory and notes, but when I go over the the actual audio, I will naturally correct my version of these quotes, most likely in a new post.
** As a lawyer I am genetically compelled to add this disclaimer “unless it is wildly different from my memory” but my sense is that this won’t be a problem.
---------------------------------------
My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years. I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence. If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right. And thank you.
Follow me at Twitter @aaronworthing, mostly for snark and site updates. And you can purch