Transcribing the Trial of Brett Kimberlin v. Walker et. al (Part 1)

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.

Make some popcorn and how
about kick a few bucks over
to Bomber Sues Bloggers, eh?

Now as has been my tradition in the last few posts, I am going to start off by asking for your help in paying for the real, full transcript from this week’s proceedings by donating to Bomber Sues Bloggers!  While I am about to transcribe some of it, my plan is to leave out large parts of it.  If you want to see the whole thing (except for a few redactions), then donate!

And bluntly, we need this transcript, so we can present it in the RICO case.  It will hopefully give us collateral estoppel on numerous issues, especially the ones where he is seeking a preliminary injunction against us, since the primary argument is that we have been calling him a pedophile.

Blegging out of the way, this post begins a new series of posts where I will share some highlights from the court earlier this week.

By way of background, Brett had sued myself, Robert Stacy McCain, Ali Akbar, William J. J. Hoge, Lynn Thomas and Peter Malone for a number of causes of action including harassment, stalking, malicious prosecution, abuse of process, intentional infliction of emotional distress, defamation and false light invasion of privacy.  Thomas and Malone are two of the people Brett accuses of being the online persona known as KimberlinUnmasked.  Now not all of that was on trial this week.  First, Thomas and Malone were not directly on trial because Brett has had trouble serving them.  With this loss, the case against them should close as a matter of course, because of collateral estoppel, but they were not directly on trial.  Meanwhile, every cause of action was dismissed except defamation and false light on a motion for summary judgment.  That is a finding on the merits that no one had committed any of those torts—indeed in the case of harassment and stalking it was decided they are not torts at all.  So the trial on Monday and Tuesday was to figure out if I, McCain, Akbar, or Hoge committed defamation or false light against Brett Kimberlin.

As an overview, day one was mainly about picking a jury and day two was the meat of the matter.  But that is not to say nothing interesting happened on day one, but there you go.

I will add that the purpose of this exercise is not to cover every twist and turn.  If you want to get that, go here.  Instead, the point is to share interesting parts.  And let me add that I am not a professional stenographer.  I do not know how much you include the um’s and ah’s we all make in our speech.  For the most part I cut them out, and other similar verbal flubs.  And as always I will defer to the official transcript when it comes (psst! donate to Bomber Sues Bloggers!) unless there is something radically wrong with it.

In terms of covering the arguments, I am not going to go through the whole argument about whether he could testify.  But in the middle of that discussion, we had this exchange which I found interesting:

Court:              Are you a lawyer?

Kimberlin:       I feel like it, but no, I didn’t get my law degree.

Most likely because he would never pass the character portion of the bar exam, assuming he could fulfill the competency requirements.  I mean anyone can go to law school, even if they don’t plan to be a lawyer, but lawyers are required to have good character (stop laughing), and while obviously that is not a high bar, most felons are barred from the profession.  Brett is very good at sounding like a lawyer, but I think as you will see, he doesn’t comprehend basics in the law.

One of Brett’s motions was to suppress all discussion of his criminal past.  This is one of those parts where I just am not sure how much the judge knew about Brett’s criminal history.  Its long, but it is worth reading:

Court:              How do you intend as Plaintiff to prove up the defamation without talking about the allegations that the Defendants make against you.  How do you do that?

Kimberlin:       I am going to talk about the allegations.

Court:              My question is, how do you intend to do that?

Kimberlin:       How do I intend to?

Court:              In other words, you want to keep your... you want to keep your past history [away from the jury (?)]... this is what this is about, correct?

Kimberlin:       No, it’s not about my past history at all.  It has nothing to do with my past history.  It has to do with defamatory statements that these defendants have made about me.  Crimes, crimes...

Court:              Okay, what defamatory statements?

Kimberlin:       Crimes that I have never been charged with, convicted of, or anything.  These men, on a daily basis, every single day, for the last several years…

Court:              Well, you’re arguing your case and you will get a chance to that, [unintelligible]

Kimberlin:       The called me a murderer.  I’ve never been involved with murder.  I’ve never done murder.  They called me a terrorist.  I’m not a terrorist.

Court:              Now let me stop you there.  How are you going to... they must plan... there’s something that has been said, about you…

Kimberlin:       Lots of things.

Court:              …some conduct, alright,  that you were allegedly involved in, that’s what they’re talking about, correct?

Kimberlin:       No, they seem to be made out of whole cloth.

Which is obviously a lie.  First, I haven’t called him a murderer and I don’t believe my co-defendants have, either.  I have said that according to Mark Singer and the Indianapolis Star he was suspected of murder, and that according to public records he caused the death of Carl DeLong, but neither is a claim that he is actually a murderer.  And the suggestion that there is no basis for us to call “The Speedway Bomber” a terrorist is beyond silly.  They go on to discuss the claims of pedophilia, but I want to return when they discuss terrorism again.  Here is where I really wonder if Johnson had looked up his record, he broke off from talking about pedophilia to go here, but then he doesn’t seem to command all of the facts.  I mean that isn’t a knock on him: it is observably difficult for most people to keep track of it all.  But read this exchange:

Court:              What is it about your past that your past conduct that, your alleged past conduct, that would give rise to the comment about being a terrorist.  What conduct do they stand on, to show that?

Kimberlin:       Well, I don’t know.  I don’t know.  But a terrorist—

Court:              Well, you must know what they are accusing you of or you can’t defend it.

Kimberlin:       Oh no, I can defend it.

Court:              Okay, what is it that, what is it that, they allege that you did that would be terrorist activity.

Kimberlin:       I can’t speak for them but I assume what they’re saying is because I was convicted of a crime, thirty five years ago for detonating explosive an explosive device, that I’m a terrorist.  But that is not terrorism.  That is not terrorism.

To break in for a moment, dear reader, I wish there was video so you could see the “are you kidding me?” look on Judge Johnson’s face at this point.  But at the same time, I believe Johnson didn’t have a handle on the whole story or else he wouldn’t have said this:

Court:              That’s an argument.

Kimberlin:       That’s an argument, for the jury.

Court:              Now, what I am trying to get you to focus in on how are you going to allege that what you are saying, i.e. that you’re a terrorist is not accurate unless you talk about what it is that they’re saying?  You can’t say to the jury, they’re saying something about me, and the something that they’re saying is not true.

Kimberlin:       Okay.

Court:              So, in other words the jury would have to know what it is that’s said that’s not accurate.  So as soon as those words are uttered…

Kimberlin:       Right.

Court:              That’s when the problem begins.

Kimberlin:       Okay.

Court:              You don’t agree with that?

Later on he talks about the pedophilia thing again.

Court:              Are they saying you were arrested for pedophilia?

Kimberlin:       They’re saying I’m a pedophile.

Court:              But one of the things that will make trials go a lot easier, and this is something you try to get witnesses to understand, when asked a question, either answer the question that was asked, or say you don’t understand or something.

Kimberlin:       Except, except, except…

Court:              My question is were you ever arrested for any sexual child abuse?

Kimberlin:       Never.

Court:              You were never arrested for that.  Do they say you were arrested for that?

Kimberlin:       They say that I was charged with that.  They say I am that.

Court:              Is that a yes, they say you were arrested for pedophilia.  If you were charged it was an arrest, so... is that what they said?

Kimberlin:       They say that I’m a pedophile.

Court:              But my question is do they say you were arrested or charged with pedophilia.

Kimberlin:       [audible sigh]

Court:              It’s not a hard question.

Kimberlin:       [inaudible] it kind of is, just because they have created this meme that’s so bizarre involving my wife.

Court:              Were you arrested for...?

Kimberlin:       Never!

It goes on like this for a bit, and they get off that topic, but return to explosives and terrorism:

Court:              Let me see if I understand your sort of theory.  You want to prevent the defendants from establishing whatever basis they believe they have for making these statements about you.  In other words, if they say you were a terrorist, whatever that they mean by that, you want to prevent them from talking about your conviction for detonating explosives.

Kimberlin:       Judge...

Court:              It’s not a hard question.  You want to prevent them from doing that.

Kimberlin:       No.  I don’t.  [AW: Yes, he asked for that in his motion.]

Court:              No.

Kimberlin:       I don’t want that.  My conviction for detonating an explosive is not terrorism.  It’s not terrorism.

Court:              Hold on a second, that is argument.  That’s not...  That’s for whoever the alleged fact finder is to determine.  The question is you want to prevent them from showing, from getting into that.  In other words, you are going to say they say I’m a terrorist and I’m not a terrorist.  You want to stop them from saying we say he’s a terrorist because he did this, this, and this.  Is that what you want to do?

Kimberlin:       I’m saying.

Court:              I ask easy questions.  Is that what you want to do?

A bit later he starts talking about his eldest daughter testifying and the judge asked what she would testify about.

Kimberlin:       But she’s going to testify about pedophilia.

Court:              How’s she going to testify about that?

Kimberlin:       Because—

Court:              The allegation is that she was the victim of it?

Kimberlin:       [Laugh]  That’s what they’ve, they’ve said.  Yeah.  Yeah.

Court:              You want a fifteen girl to be brought in...

Kimberlin:       Judge, judge...  my daughter is fifteen years old.  She has been bullied out of two schools, two high schools.  Bullied.  By these guys.

Okay, I admit it.  I roughed her up for lunch money once.  /sarcasm.  Seriously, what the f---?  Pathological lying on display.

Later on, Ostronic speaks up and corrects the record, telling the judge that he didn’t want to get into pedophilia, but if Brett brings it up...

Ostronic:         If he asks any of my clients about the charge of pedophilia, it’s out there.

Court:              It is.

Ostronic:         There it is, after he’s brought it in there.  And what I don’t want to happen here is to relive this... he’s going to bring his daughter in here, and I’ll have some motions later on about he can or cannot, should or should not call, I would certainly not want her to have hear all of that, again.

Court:              Yeah, wouldn’t want a 15 year old...

Kimberlin:       Your honor.

Court:              … to be subjected to that.

And then Brett tells another set of whoppers:

Kimberlin:       Last year, these guys harassed us so much, came to our house, sent proxies to our house, took pictures of daughters, filed multiple, multiple criminal charges against me, peace orders against me, one it was in front of you.  And, and it drove my wife crazy, she had a nervous breakdown.  So, what did I do?  I did what any loving husband would do.  I sought to get her help, to get her an evaluation.  She had been institutionalized before.  This is what I did.  This is what loving husbands do.  These guys came to the court, came to the hearing, they saw it on the case cite because they’ve been stalking me, they watch everything...

Ostronic:         You’re honor, he’s testifying.

Kimberlin:       Okay, I’m trying to lay the groundwork, here.  So, these guys come to the court.  Judge, I think her name is Mitchell, pull my wife, put her in handcuffs, pull her in the back and said, what you’re doing is...

Ostronic:         Now, he’s talking about the court.

Kimberlin:       Yeah, okay, she said, I either lock you up for evaluation or you get help.

Ostronic:         Again, your honor, there’s nothing on the record.

Kimberlin:       Okay, I’m not, I’m just trying to give you...  so what they do... she comes out of the courtroom... they contact her shortly thereafter, and what do they do?  They say, ah, we know how you can keep from going back for a mental evaluation...

Court:              You won’t be able to testify to any of that.  Even if you weren’t... didn’t have this perjury issue, you wouldn’t be able to as to those statements.

Kimberlin:       No, they’ll testify to it.  I’ll get them to testify to it.

Court:              Good luck with that.

Next up, there was an argument over discovery.  We complied, fully.  Brett did not.  But Brett tried to make it sound like we didn’t comply:

Kimberlin:       Secondly, on July 10, as ordered by Judge McGann, I turned over probably 3,000 pages of documents.  3,000 pages.  You know how many pages they’ve turned over to me?  One.  One single email.  When I filed a motion to compel their compliance with discovery, they objected and it was denied.  I got nothing.  Zero.  Except one small, tiny email.

I don’t recall sharing anything with him, truthfully, but the reason we turned over so little is because he asked very poor questions, not because we were unlawfully evading anything.  For instance, at least half the interrogatories sent to me were about the identity of KimberlinUnmasked, and what I know about him/her/them is covered by attorney-client privilege.

And we get Brett whining about the process.

Kimberlin:       And it’s been like this from the get-go... and it’s all been technicalities.  Let’s knock him out on this technicality, knock him out on this technicality, and here it is again.  I want a jury trial on the merits.  I deserve that.

...which probably had the judge rolling his eyes.  No, Brett doesn’t get a trial because he wants one.  Due process is not a mere technicality.  The technicalities are supposed to weed out cases that shouldn’t go to trial.  And I suspect by the end of it, Judge Johnson believed it should have been.

Brett really doesn’t like technicalities, and Judge Johnson is not particularly fond of a certain circuit:

Kimberlin:       The Supreme Court and Maryland appellate courts have all said, you can’t hold a pro se litigant to these stringent things that...

Court:              Well, you’re going to need a case, then, cite that says that.

Kimberlin:       Out of the Supreme Court?

Court:              Out of any court, except maybe the Ninth Circuit.  You’re going to need a case that says that.

Kimberln:        Well, Haynes v. [unintelligible]

Court:              No one can do that, just stand up in court and make these bold declarations.  You can do that in almost any other institution in America.  But not in court.  If you say something you need to back it up.

You can’t hear it but John had to stifle a laugh at that comment about the Ninth Circuit.  And of course requiring Brett to back up his claims with citations is like kryptonite to him.  I will also note I am ignoring a lot of cross-talk from Kimberlin.  We also have some cross talk when the judge says this.

Court:              We don’t have two sets of rules, one rule book for pro se litigants and one for lawyers.  That would be an absolute disaster.  There is no requirement that a person has a lawyer.  Speaking of the constitution, one has the right to represent oneself if one chooses to do so.  But you’re not going to get any special dispensation just because you choose to represent yourself.

The Court goes on to discuss why a person might represent themselves.

Court:              But it would be fundamentally unfair if people could come in off the street and represent themselves in cases where the other side is represented by counsel and the court would set aside the rules for the person who is representing him or herself and then hold the side with the lawyer to the rules.  That would be fundamentally unfair.

This is just off the cuff statements but it should be quoted to every judge who deals with him in the future, early and often.  Now the gist of the issue is this.  Brett submitted a joint pre-trial statement listing some witnesses.  But in the interrogatory when he was asked to name witnesses and what they are likely to say, he named none.  Brett argued that since he named them once he didn’t have to name them again.

Court:              Well, the interrogatories are a little bit more detailed than that.  There is a purpose for these rules that have been time tested.  That is the reason for interrogatories and depositions.  And it has to do with preparing for trial.

The reason why I wanted to highlight that passage, is it was the first time I realized that Judge Johnson is what we call a “Judicial Conservative.”  This is different than a political liberal or conservative.  I mean it just doesn’t relate.  What Johnson is, is a man who believes that the system essentially works the way it is, and does not believe in upsetting the apple cart too much.  He believes that the law should evolve slowly, not in leaps and bounds, and values precedent more than, say, a Clarence Thomas might.

Again, don’t confuse this with politics or even policy.  It doesn’t even appear on that axis.  This is just about judicial philosophy.

One point that Ostronic made is that Brett had made a lot more appearances in court than he has, which prompted this humor from Judge Johnson:

Court:              Just because you appear in courts a lot of times doesn’t mean that... some people have ten years experience and some people have the same experience ten times.

And then I think this is the first time Brett started to realize he was in trouble:

Kimberlin:       And of course truth is the defense that they have to come up with.

Ostronic:         No, no.  Truth is not a defense.

Kimberlin:       Well, truth is a defense to defamation.  And they cannot prove anything about pedophilia.  Nothing.  Zero.

Ostronic:         I hope Plaintiff doesn’t think that we have to mount a defense of truth.  Plaintiff has to prove falsity in this case and he will have a problem with that.

Court:              The opposite of falsity is truth and when you allege someone has made a false statement, you have to show it is false.  And if the statement if false, that is the end.

Kimberlin:       Right.

Court:              If you can prove that.

Frankly I went longer in writing this post than I intended.  Future editions will be shorter.  Hope you enjoyed it.  And there are many goodies I am not covering.

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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 purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.