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UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION

WILLIAM SCHMALFELDT, Case No. 2:15-cv-01516-NJPlaintiff,

v.

SARAH PALMER, ET AL.,

Defendants.

JOINT OPPOSITION TO THE PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL(DOCKET #18) AND MOTION TO STRIKE THE SAME

NOW COME Defendants Sarah Palmer and Eric Johnson, by their counsel Aaron J.

Walker, Esq., in the above-styled case for the sole purpose of challenging personal and subject

matter jurisdiction and service of process, without waiving any rights of jurisdiction, notice,

process, service of process, joinder, or venue. They hereby file this Joint Opposition to the

Plaintiff’s Motion to Disqualify Counsel (Docket #18) and Motion to Strike the Same and state

the following:

1. On March 7, 2016, the Plaintiff filed a “Motion to Disqualify Defendant’s [sic]

Attorney, Aaron Justin Walker, for Alleged Violations of the DC Bar Association Rules of

Proffesional [sic] Conduct, as Well as the Fact He is Likely to be Called as a Witness by the

Plaintiff, or Joined as a Defendant” (Docket #18) (hereinafter “MTDQ”). In his motion the

Plaintiff argued that undersigned counsel should be disqualified 1) because of alleged falsehoods

in the “Memorandum of Law in Support of the Joint Motion to Dismiss and Opposition to Leave

to Amend Filed by Defendants Sarah Palmer and Eric Johnson” (Docket # 12) (hereinafter the

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“Joint Memorandum of Law”), 2) because of alleged other misstatements out of court, and 3)

because undersigned counsel might suddenly be a witness or a party. All three of these

contentions are without merit. Further, this motion should be stricken as nothing more than a

naked attempt to prejudice this Court with irrelevant ad hominem attacks against counsel.

I.

THE PLAINTIFF HAS OFFERED NO VALID JUSTIFICATION TO DISQUALIFY

COUNSEL

2. The Plaintiff’s MTDQ should be denied because there is no basis for it, factually

or legally. The rule against attorneys acting as witnesses does not apply to these present facts.

Further, the Plaintiff has not demonstrated that the undersigned counsel made any false

statements to this Court. Finally, the Plaintiff cites a non-rule to attempt to argue that out of

court alleged falsehoods justify disqualification and then goes on to falsely accuse the

undersigned counsel of publishing falsehoods. For all of these reasons, the MTDQ should be

denied.

A. The Rule Against an Attorney Being Involved in a Case Where He is Likely to be a

Witness only Applies to Trials and Necessary Witnesses

3. First, the Plaintiff argues that the D.C. CODE OF PROF’L CONDUCT R. 3.7 bars the

undersigned from serving as counsel. It reads as follows:

(a) A lawyer shall not act as advocate at a trial in which thelawyer is likely to be a necessary witness except where:

(1) The testimony relates to an uncontested issue;

(2) The testimony relates to the nature and value oflegal services rendered in the case; or

(3) Disqualification of the lawyer would worksubstantial hardship on the client.

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This language is virtually identical to the language found in W IS. CODE OF PROF’L CONDUCT

R. 3.7. The Plaintiff reasons from this that because the undersigned counsel may eventually be a

witness, he cannot represent Defendants Palmer and Johnson at this point in the case. There are

several problems with that.

4. First, the plain language of this rule states that the rule only applies at trial . That

is precisely how this Court read the Wisconsin rule in Olson v. Bemis Co., Case No. 12-C-1126

(E.D. Wis. April 26, 2013). Olson concerned a suit surrounding a collective bargaining

agreement, and the Plaintiff was represented by Peter Culp, Esq. The defendants in that case

sought to disqualify Mr. Culp and his firm from representing Olson because Mr. Culp had helped

negotiate the collective bargaining agreement at issue. This Court held, however, that Mr. Culp

could continue to personally represent Mr. Olson at every stage prior to trial even if Mr. Culp

was deposed during discovery, because the rule only applied to trials. Applied to the instant

facts, the Plaintiff’s motion is meritless because this case is still at the pleading stage, and it is

very likely to be dismissed on jurisdictional grounds.

5.

Second, the Plaintiff cannot show that counsel is likely to be a validly-called

witness. At best, the Plaintiff speculates that

it is entirely possible that during the discovery phase of this trial, Plaintiff willlearn more about Mr. Walker’s involvement in the alleged defamation byDefendants, and he could be called as a witness or even be added to the list ofdefendants.1

1 The Plaintiff’s claim that undersigned counsel might be added as a defendant is plainly a ployto attempt to disqualify the undersigned as counsel and perhaps to intimidate him. The Plaintiffhas claimed that the undersigned has defamed him for years, but it is only after the undersignedfiled a motion to dismiss in this case, threatening the future of this litigation, that the Plaintiffsuddenly decides the undersigned might potentially be a defendant. The Plaintiff, in essence, believes that he should be allowed to veto these Defendants’ decision to hire Mr. Walker ascounsel with a strategic decision to name the undersigned as a Defendant. The Plaintiff shouldnot be allowed to do this.

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MTDQ, p. 4. This comes nowhere near the plain language of Rule 3.7, which requires a showing

of likelihood.

6. Third, is it not clear on the face of the pleadings that the undersigned is a

necessary witness to any of the events of this case as required by Rule 3.7. This entire case is

based on what people have said, mainly on the Internet, about the Plaintiff. Eric Johnson lives in

Tennessee, Sarah Palmer lives in North Carolina, and undersigned counsel lives in Virginia. It

should not be surprising to this Court that counsel did not witness the Defendants posting

anything on the Internet, making any phone calls, sending any emails, or engaging in other forms

of communication that might or might not have occurred. So, outside of privileged

communications, counsel doesn’t have any more knowledge about what these Defendants wrote

and said than any other member of the general public (for instance, by reading what was

allegedly written by the Defendants on various public websites). In Olson, this Court noted that

Mr. Culp might not be the only witness to relevant events and, therefore, might not be a

necessary witness. Id. at *6-7. Applied here, the Plaintiff has made absolutely no showing that

counsel has any non-privileged information relevant to this case that is possessed only by

counsel making him a necessary witness.

7. Finally, even if counsel was likely to be a necessary witness, disqualification of

counsel would work a substantial hardship on these Defendants. As stated in the attached

Declarations of Aaron Walker and Sarah Palmer, the undersigned counsel is the only pro bono

attorney available at this time. Depriving them of the undersigned counsel would effectively

strip Mrs. Palmer of having any attorney at all.2

2 Mr. Johnson, meanwhile, would be required to pay thousands of dollars to defend his right to“free” speech, to his prejudice.

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8. In Powell v. Alabama, 287 U.S. 45, 68-69 (1932) , the Supreme Court expounded

on the usefulness of counsel as follows:

The right to be heard would be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel. Even the intelligent and educatedlayman has small and sometimes no skill in the science of law. If charged withcrime, he is incapable, generally, of determining for himself whether theindictment is good or bad. He is unfamiliar with the rules of evidence. Leftwithout the aid of counsel he may be put on trial without a proper charge, andconvicted upon incompetent evidence, or evidence irrelevant to the issue orotherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guidinghand of counsel at every step in the proceedings against him. Without it, thoughhe be not guilty, he faces the danger of conviction because he does not know howto establish his innocence.

While the stakes for these Defendants are not as high and the need is not as dire as they were for

the “Scotsboro Boys,” the Defendants’ finances and their right to express themselves freely is on

the line and, without counsel, they risk losing both—despite the fact that they have done no

wrong. Accordingly, taking away from these Defendants the only pro bono attorney available to

them would be a substantial hardship.

9.

In summary, Rule 3.7 doesn’t apply to the facts of this case. It doesn’t apply

because this case is not yet in trial and because the Plaintiff has not shown that the undersigned

counsel is likely to be a necessary witness. Finally, even if the rule did apply, the undersigned

counsel should still be allowed to represent these defendants because it would impose a

substantial hardship on these Defendants if he were disqualified. Accordingly, the Plaintiff’s

argument based on Rule 3.7 is meritless, and his motion should be denied.

B. Undersigned Counsel Has Not Made False Statements in the Joint Memorandum of

Law (Docket # 12)

10. A second reason why the Plaintiff claims disqualification is justified is because

the undersigned allegedly made two misrepresentations in relation to non-party Brett Kimberlin

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in the Joint Memorandum of Law. Specifically, on page 13 of the Joint Memorandum of Law,

undersigned counsel wrote the following:

Turning back to the lone phone conversation, Mr. Johnson also denies the

allegation in paragraph 39 of the original complaint that he called the Plaintiff aterrorist—he only noted that Mr. Schmalfeldt is associated with the convictedterrorist Brett Kimberlin. See, e.g., Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993) (detailing how Mr. Kimberlin bombed a town for nearly a week,costing one man his life).

The Plaintiff claims that two alleged falsehoods are packed into this passage: first, that Brett

Kimberlin is a “convicted terrorist,” and, second, that Mr. Kimberlin’s bombing campaign cost a

man his life.3

11. As an initial matter, it is permissible to refer to Mr. Kimberlin as a “convicted

terrorist.” By way of background, this is how the Sixth Circuit described Mr. Kimberlin’s

bombing campaign:

Kimberlin was convicted as the so-called “Speedway Bomber,” who terrorized the city of Speedway, Indiana, by detonating a series of explosives in earlySeptember 1978. In the worst incident, Kimberlin placed one of his bombs in agym bag, and left it in a parking lot outside Speedway High School. Carl Delong

was leaving the high school football game with his wife when he attempted to pick up the bag and it exploded. The blast tore off his lower right leg and twofingers, and embedded bomb fragments in his wife’s leg. He was hospitalized forsix weeks, during which he was forced to undergo nine operations to complete theamputation of his leg, reattach two fingers, repair damage to his inner ear, andremove bomb fragments from his stomach, chest, and arm. In February 1983, hecommitted suicide.

Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993) (emphasis added). Most people would

believe that the crimes Mr. Kimberlin was convicted of—detonating eight bombs in six days

under circumstances that “involved [a] substantial risk of devastating personal injury to innocent

3 The Plaintiff admits that he is friends with Mr. Kimberlin on page 1 of his MTDQ as follows:“Mr. Walker makes the provably false statement that Plaintiff’s friend, Mr. Brett Kimberlin ofBethesda, Maryland is ‘a convicted terrorist.’”

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by-standers,”4 —amounts to terrorism.5 While it is true that the statutes under which Mr.

Kimberlin was convicted didn’t label the crimes he committed “terrorism,”6 often statutory titles

do not reflect common names. For instance, in Wisconsin if one has sex with a person without

his or her consent, that person can be convicted of “sexual assault” in violation of Wis. Stat. §

940.225. Most people, however, call that rape. Would the Plaintiff have this Court disqualify an

attorney who referred to a person convicted under § 940.225 as a “convicted rapist?”

12. Meanwhile, the Plaintiff’s claim that it is false to state that Mr. Kimberlin’s

bombs cost a man’s life is even more ridiculous. The Plaintiff writes that:

A person was, in fact, terribly injured in that bombing, which resulted in the amputationof a leg. But it wasn’t the bombing that killed him. It was the carbon monoxide from hiscar engine in a closed garage by which he intentionally took his own life in 1983, fiveyears after the bombing. Thus the claim that Mr. Kimberlin’s act cost this unfortunateman his life is incorrect[.]

This callous assessment of the cause of Mr. DeLong’s death closely reflects the interpretation

that Mr. Kimberlin himself asserted in Kimberlin v. DeLong , 637 NE 2d 121, (Ind. Sup. Ct.

1994). In that case, Sandra DeLong, the widow of Carl DeLong, sued Mr. Kimberlin for both

causing both her own injuries and her husband’s suicide. “[A] jury trial resulted in judgments

against defendant-appellant Brett Coleman Kimberlin in the sum of $360,000 for personal

injuries to Sandra Sue DeLong and $1,250,000 for the wrongful death of Carl David DeLong.”

Id. at 123. Mr. Kimberlin argued before the Indiana Supreme Court that the suicide was an

4 Kimberlin v. White, 798 F. Supp. 472, 474 (W.D. Tenn. 1992)5 Kimberlin v. Walker , Case Nos. 1553, 2099 and 0365 (Md. App. 2016) is also relevant on this point. In that case, Mr. Kimberlin sued the undersigned counsel and three others for allegedlydefaming him as follows: “Mr. Kimberlin claimed that the Appellees falsely portrayed him as‘engaging in criminal activity, being a pedophile, rapist and domestic terrorist[.]” See Exhibit A.As noted in the Maryland Court of Special Appeals decision, Mr. Kimberlin lost on the issue oftruth.6 The U.S. Code doesn’t appear to have had a statute defining terrorism before 18 U.S.C. § 2331was adopted in 1992.

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intervening cause of Mr. DeLong’s death, and, therefore, he was not responsible as a matter of

law for Mr. DeLong’s suicide. The Indiana Supreme Court brushed this argument aside and

affirmed his liability for Mr. DeLong’s death by modifying the common law of Indiana so that

suicide was no longer considered an intervening cause of death from an intentional tort such as

this as follows:

In the present case, the complaint alleged intentional injury. Kimberlin’s federalcriminal conviction ... establishes his conduct as malicious and thus intentionalrather than negligent. Moreover, Carl’s DeLong’s death, although occurring morethan four years after the explosion, was within the scope of harm intended byKimberlin’s intentional criminal conduct. Under such circumstances, we declineto treat suicide as independent intervening cause protecting a highly culpable

defendant from liability for his victim’s death. We hold that an action may bemaintained for death or injury from a suicide or suicide attempt where adefendant’s willful tortious conduct was intended to cause a victim physical harmand where the intentional tort is a substantial factor in bringing about the suicide.

Id. at 128-29. In short, Mr. Kimberlin is responsible for Carl DeLong’s death as verified by the

Indiana Supreme Court. Therefore, the undersigned counsel’s statement was correct.

13. More fundamentally, the Plaintiff does not cite any law or rule that says that if an

attorney makes one false statement (or two) she must be disqualified from appearing in a case.

He cites the District of Columbia’s Rules of Professional Conduct, but that doesn’t suggest a rule

of automatic disqualification in a particular case. Therefore, the Plaintiff has not asserted any

factual basis for disqualification or any legal basis for disqualification. For this reason the

Plaintiff’s motion should be denied because it is frivolous.

C. Undersigned Counsel’s Comments Unrelated to Any Case Before This Court Do Not

Disqualify Him as Defense Counsel.

14. In the second section of the Plaintiff’s MTDQ, the Plaintiff cites a non-rule,

writing the following heading “VIOLATIONS OF THE ABA MODEL CODE OF

PROFESSIONAL RESPONSIBILITY” and then quoting the following alleged rule:

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EC 9-6 “Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; toobserve the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers insupporting the organized bar through the devoting of his time, efforts, and financial

support as his professional standing and ability reasonably permit; to conduct himself soas to reflect credit on the legal profession and to inspire the confidence, respect, and trustof his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.

In fact, what the Plaintiff is citing is not a rule and has never been a rule. First, the ABA model

rules are not rules in and of themselves. Second, the Code of Professional Responsibility has

been abolished in each of the jurisdictions implicated by counsel’s representation: Virginia, the

District of Columbia, and Wisconsin. Third, what the Plaintiff has cited is Ethical Consideration

9-6. As stated in the Preliminary Statement to the ABA Model Code of Professional

Responsibility, such considerations are “aspirational” and that “[t]he Disciplinary Rules, unlike

the Ethical Considerations, are mandatory in character.” What the Plaintiff has cited is at best an

ideal, not a rule.

15. The Plaintiff then uses this non-rule as an excuse to engage in a broadly based ad

hominem attack on the undersigned counsel’s character in general. It would take a two hundred

page motion and a mini-trial to fully rebut the stream of falsehoods the Plaintiff and his declarant

write, but the untrustworthiness of the Plaintiff’s presentation can be shown with relative ease.

In short, the Plaintiff’s ad hominem attacks on undersigned counsel as having defamed him is

legally irrelevant and false.

A. The Plaintiff Falsely Claims that Undersigned Counsel has Defamed Him.

16. In the MTDQ and its exhibits, the Plaintiff repeatedly and falsely accused the

undersigned counsel of making false accusations against him outside of a courtroom context. In

the MTDQ, for instance, the Plaintiff accuses counsel of falsely accusing the Plaintiff of making

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a rape threat. Meanwhile, Exhibit 4 to the MTDQ is described by the Plaintiff as “Defamatory

Tweets7 from Defendant’s Counsel Aaron Walker About Plaintiff Going Back to 2013.”

MTDQ, Exhibit 4, p. 1. Thus, the Plaintiff is representing to this Court that each and every one

of these messages are defamatory. However, each and every message he quoted has a basis in

fact—aside from those which are obviously pure jokes not to be read as serious statements of

fact. While this Court surely doesn’t want to have a “mini-trial” regarding each and every

negative statement the undersigned counsel has made about the Plaintiff, there are a few

instances where the proof is relatively easy to obtain.

17.

For instance, one of the more bizarre examples of the so-called defamation is

found on page 3 of the Plaintiff’s Exhibit 4, where the Plaintiff accurately quotes counsel as

asking a third party named Roger Shuler, “did you ever denounce your friend Bill Schmalfeldt

for seeking a prior restraint on his ‘enemies?’” The most ridiculous element of that accusation is

that the Plaintiff apparently is asserting that it is defamation to say that he has sought a prior

restraint on freedom of expression in a document filed in this case where he is presently seeking

a prior restraint on freedom of expression. Even if the accusation that he was seeking a prior

restraint was untrue when counsel first said it, it is true now.

18. Further, it was true when counsel wrote it. This can be determined by examining

publicly available court records. The message accusing the Plaintiff of seeking a prior restraint

on freedom of expression was written on July 23, 2015. Earlier that month, on July 2, 2015, the

instant Plaintiff filed an amended complaint in Schmalfeldt v. Grady, et al. (I), Case No. 1:15-cv-

01241-RDB (D. Md. 2015)8 (Document #13 in that case), one of many cases the Plaintiff has

filed alleging harm by the expression of the various defendants. On page 12 of that amended

7 A “Tweet” is a short message, delivered via Twitter, to the world at large.8 This case is the second case styled Schmalfeldt v. Grady, et al.

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complaint, the same Plaintiff sought “[a]n order enjoining defendants from engaging in further

harassment.” Since the alleged harassment consisted primarily of writing things the instant

Plaintiff didn’t like in Internet postings to the world at large, this request amounted to seeking a

prior restraint on those defendants’ freedom of expression. Nor was this the only example of the

instant Plaintiff filing lawsuits in order to try to silence his critics by equitable relief. Thus, what

counsel wrote was true at the time it was written.

19. On page 25 of Exhibit 4, the Plaintiff accurately quotes undersigned counsel as

accusing the Plaintiff of “racistly” insulting the undersigned counsel’s wife. By way of

background, undersigned counsel is in an interracial marriage, celebrating more than a decade of

matrimony with an Asian-American woman. Meanwhile, the Plaintiff had the following crude

conversation about counsel and his wife:

(Curse words censored). Asian American women endure being constantly and falsely

stereotyped as prostitutes or mail order brides. The Plaintiff’s false assumption that undersigned

counsel’s wife is a “mail order bride” is but one example of the racist comments he has made

about her.

20. Another, more serious example of the instant Plaintiff’s propensity for targeting

his “enemies’” families becomes relevant when confronting the accusation that the undersigned

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counsel falsely accused the Plaintiff of making a rape threat. Specifically, on pages 2-3 of the

MTDQ, the Plaintiff writes:

an individual in Texas ... falsely accused Plaintiff of posting a rape threat on his

blog. Even after local police responded to this individual’s complaint, examinedPlaintiff’s computer and found nothing that could remotely be called a threat, Mr.Walker continued to assert on his “Allergic To Bull” blog that Plaintiff hadindeed made such a threat. Plaintiff suggested to Mr. Walker that he stop tellingthis lie or face legal ramifications.

In short, he is accusing an unnamed individual of falsely accusing him of making a “rape threat”

and accusing the undersigned counsel of repeating the allegation. Upon information and belief,

that unnamed individual is veteran journalist Lee Stranahan and his attached Declaration, along

with the Declaration of Aaron Walker, establish that the allegations the undersigned counsel

made were well-founded in fact. Specifically, a third party threatened to post Mr. Stranahan’s

address on the Internet so that someone could go to his house and rape his wife while he was

away on business. The Plaintiff defended that conduct by saying that this person didn’t actually

post the Stranahans’ address on the Internet. Then the Plaintiff posted the Stranahans’ address

on the Internet. The Plaintiff later wrote a vile fantasy in which Mr. Stranahan was raped. The

undersigned counsel accurately reported on this threatening conduct and expressed opinions

about the Plaintiff’s behavior. While the Plaintiff may not agree with undersigned counsel

opinion, counsel did not once defame the Plaintiff by falsely claiming he made a rape threat.

21. On page 12 of Exhibit 4, the Plaintiff accurately quotes the undersigned counsel

as saying “[a]pparently Schmalfeldt is so demented he forgot he told Judge Grimm that he was

demented.” That was in response to Mr. Schmalfeldt writing that: “Mr. Hoge might want to

consider the impact of calling a man suing him for defamation ‘admittedly demented.’ I

admitted no such thing.” The fact that the Plaintiff has admitted to having dementia is verified

by records found in PACER. Attached as Exhibit B to this Opposition is a letter the Plaintiff

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wrote to Judge Grimm of the U.S. District Court for the District of Maryland, in the case

currently styled Kimberlin v. Frey, Case No. 8:13-cv-03059 (D. Md. 2013)9 in which he tells

Judge Grimm on page 2 the following about the state of his health: “There are other outward and

not-quite-so-visible signs of increased degeneration, including the onset of early Parkinson’s

disease dementia.” In other words, the accusation that the Plaintiff has admitted to having

dementia is true—based on publicly available court documents.

22. Finally, the most ridiculous example of supposedly defamatory comments by the

counsel are those which contain jokes to the effect

that the Plaintiff is fat. However, the Plaintiff has

made light of his weight himself. For instance, one

of his many autobiographical books is entitled No

Doorway Wide Enough: 2000-2010, My

Parkinson’s Decade. If there is any doubt that this

title is a “fat joke” at the Plaintiff’s own expense,

the cover of the book has been inserted on the right,

and this image is worth a thousand words.10 The

picture on that cover depicts the Plaintiff from

behind. The Plaintiff’s claim that undersigned

counsel defamed the Plaintiff by suggesting he was

9 By way of background, Mr. Schmalfeldt’s friend Brett Kimberlin sued the undersigned counsel

and around two dozen others for an alleged RICO conspiracy. The case was originally styled Kimberlin v. National Bloggers Club (I), but every claim against every defendant but PatrickFrey was dismissed. Thus it became Kimberlin v. Frey. Further, in the two and a half years thecase has been pending, Judge Grimm has stepped aside to be replaced by Judge Hazel.10 This image taken from the Google Books listing, available at https://books.google.com/ books/about/No_Doorway_Wide_Enough.html?id=im-pbwAACAAJ&source=kp_cover&hl=en

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fat was obviously made in bad faith.

23. The same is true for all of the remaining allegedly defamatory statements by the

undersigned counsel. In each instance, the statements at issue are either 1) an obvious joke not

to be taken as a statement of fact, 2) a statement that does not disparage of the Plaintiff,11 or 3) if

it is disparaging and presented as a statement of fact, then the statement was true. The claim that

the undersigned counsel wrote anything defamatory about the Plaintiff is, therefore, both

irrelevant, and false.

A. This Court Should Credit the Declaration of Aaron Walker and Disregard the

Declaration of Brett Kimberlin as Non-Credible.

24. The Plaintiff also attaches the Declaration of Brett Kimberlin as Exhibit 1 to the

MTDQ. However, the Declaration is contradicted on every relevant point by the Declaration of

Aaron Walker. Thus, it becomes a contest of “he said, he said,” but the Plaintiff has presented

no evidence why undersigned counsel is not to be trusted, while there is plenty of reason to doubt

the word of Mr. Kimberlin.

25.

To begin, Mr. Kimberlin is not only a convicted terrorist, but also a convicted

perjurer. See Kimberlin v. Dewalt , 12 F. Supp. 2d 487, 490 n.6 (D.Md. 1998). That same case

also demonstrates a more recent deception. As noted above, the widow DeLong won a judgment

against Mr. Kimberlin for over $1 million for her injuries and the wrongful death of her husband.

In DeWalt , the court described how after being paroled, Mr. Kimberlin had engaged in “deceitful

maneuvers to hide his ability to pay” the widow DeLong. Id . at 494. The DeWalt court goes on

to outline how “[d]espite a healthy income” the Plaintiff attempted to avoid paying the woman

he wounded and widowed by creating a shell corporation, BKE, Inc., which Mr. Kimberlin

11 For instance, on page 19 of Exhibit 4, undersigned counsel is quoted as saying that BrettKimberlin was present for a hearing and looked “like a disheveled homeless man.” This is astatement only disparaging of Mr. Kimberlin.

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maintained 100% control over. Id. at 491. Using that corporation, Mr. Kimberlin funneled his

income into BKE, Inc.’s bank accounts, and then used corporate money to pay for personal

expenses. Id . at 493. In addition to all of that, he also committed loan fraud as follows:

Following the Supreme Court’s denial of certiorari [in the DeLong case] , petitioner continued to ignore the outstanding judgment. On May 16, 1996 hesubmitted a mortgage loan application denying that he had any “outstanding judgments” against him. A $308,000 mortgage loan was approved for the purchase of a house in Bethesda, Maryland.

Id. at 491. In short, he did his level best to cheat a woman he wounded and widowed out of a

judgment meant to repair some of the damage he had done to her, and he obtained a bank loan

without disclosing to them that he owed her that money. Indeed, his conduct was so outrageous

that his parole was revoked.12

26. Turning to more recent events, in 2013, the Plaintiff sued about two dozen

individuals and corporations in Kimberlin v. National Bloggers Club, et al. (I), today referred to

as Kimberlin v. Frey (hereinafter “ Kimberlin v. NBC (I)”).13 The Plaintiff evidently intended to

sue Twitchy, LLC, then a Colorado media company, but neglected to include the company in the

caption.14 Accordingly, that court did not issue a summons for Twitchy, LLC. Mr. Kimberlin,

who has also been convicted of crimes related to document forgery,15 decided to forge a

summons for Twitchy. Attached as Exhibit C is Mr. Kimberlin’s “Verified Response to March

4, 2014 Order to Show Cause” filed in that case where he admitted to forging the summons and

offered the thin excuse that because he was a pro se plaintiff, he didn’t know he shouldn’t forge a

12 The DeWalt case is primarily about challenging his parole revocation.13

This case was previously discussed in footnote 9.14 This can be seen by examining, for instance, the First Amended Complaint in Kimberlin v. National Bloggers Club, et al. (I), Case No. 8:13-cv-03059 (D.Md. 2013) which is Docket #2 inthat case. The caption of the case does not include Twitchy, LLC, but the list of parties includesTwitchy, LLC. See ¶ 25.15 See, e.g., United States v. Kimberlin, 805 F. 2d 210, 228 (7th Cir. 1986) (detailing how Mr.Kimberlin was caught at a print store with forged documents and attempted to eat the evidence).

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court document. Apparently, Mr. Kimberlin thinks that one needs three years of law school to

learn not to falsify court documents.

27. That same excuse—that he is just a pro se who didn’t know any better—was

offered by Mr. Kimberlin in another case, Kimberlin v. Walker, et al., No. 380966V (Md. Mont.

Co. Cir. Ct. 2013) aff’d in Case Nos. 1553, 2099 and 0365 (Md.App. Feb. 2, 2016). In that case,

Mr. Kimberlin submitted two different filings purporting to show that he had performed initial

service of process on a Defendant named Ali Akbar. Both filings included a copy of a certified

mail “green card.” In the first filing, the green card checkbox next to “restricted delivery” was

empty. In the second, the green card was marked “restricted delivery.”

16

Attached as Exhibit D

is a transcript of the April 9, 2014 hearing in Kimberlin v. Walker, et al.,17 in which Mr.

Kimberlin admitted to altering the green card, again offering his pro se status as an excuse.

28. Indeed, Mr. Kimberlin has even misstated the truth regarding his own exhibits.

For instance, attached as Exhibit E is an Opposition that Mr. Kimberlin filed in Kimberlin v.

NBC (I). In paragraph 48, the Plaintiff claims that he received a message (allegedly from a

sheriff’s office) that read: “LEAVE HIM ALONE. DON’T GO THERE.” Mr. Kimberlin stated

in that document that he “interpreted this as a threat to leave Mr. Frey alone and not to contact

his supervisors.” Id. However, if one examines the exhibit he presents which allegedly proves

the claim—attached as Exhibit F—the entirety of the phrase is “Don’t go there.” The phrase

“leave him alone,” was wholly made up. Thus, he changed the capitalization of the message and

added an entire sentence to it. Indeed, even after the undersigned counsel pointed out this

16 The difference is significant because under Maryland law, initial service of process can be performed by mail, but only if it is sent by certified mail, restricted delivery, to ensure that thesummons and complaint does in fact reach the defendant’s hands.17 As suggested by the PACER notations above, this transcript was originally filed as an exhibitto a motion filed in Kimberlin v. NBC (I).

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17

discrepancy to Mr. Kimberlin,18 Mr. Kimberlin continued to repeat this falsehood without

making any effort to explain the discrepancy.19

29. Finally, Mr. Kimberlin has misstated the truth about Mr. Walker when the proof

he made a false statement is right in front of him. In the same Opposition attached as Exhibit E

above, Mr. Kimberlin writes in ¶ 41 (pp. 31-32) that “Defendant [Aaron] Walker has even

imputed in a recent blog post that Plaintiffs daughter is fair game for destruction because of

‘corruption of blood.’ Exhibit z.” Attached as Exhibit G to this filing is his Exhibit Z, which is

an email where he extensively quotes from a piece the undersigned wrote as saying.

For me, one of the great underappreciated clauses of our Constitution is in theTreason clause. It says: “but no Attainder of Treason shall work Corruption ofBlood, or Forfeiture except during the Life of the Person attainted.” The second part of that is fairly easy to understand, but what about the first[?] What the helldo they mean by the corruption of the blood?

Well, the answer is they are saying you cannot punish the family of a traitor asthough they were traitors, too. It is a talisman of what makes this country great.Fundamentally we don’t care who your ancestors were. They could have beenkings, they could have been beggars. They could have been heroes and theycould have been terrorists. We don’t care. Because you are judged as you.

So not knowing this girl, she enjoys the presumption of innocence that belongs toall strangers. Given the way Brett Kimberlin lies about everything, I have noreason to think he is telling her the truth about what is going on and therefore Ihave no reason to think she approves of what is actually happening here. If sheknew the truth she would know that her father has been working for years tosuppress the truth about his illegal and immoral conduct, and his criminal andimmoral conduct, combined with his attempt to silence his critics, has brought allthis attention on his family.

18 See “Defendant Walker’s Motion to Strike Plaintiff’s Oppositions, Notification and

Declaration,” Docket #54, pp. 4-5 in Kimberlin v. NBC (I) (outlining how Mr. Kimberlin’s ownexhibit contradicts his claims).19 See Second Amended Complaint, Docket #135, at ¶ 116 (p. 41) in Kimberlin v. NBC (I)(repeating the claim, contradicted by his own exhibit, that he received a message from a sheriff’soffice saying “LEAVE HIM ALONE. DON’T GO THERE” even though his exhibit contradictsthis claim).

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18

But allegedly a few people have harassed her online, on her facebook and the like.There is always concern, of course, that Brett or his allies might be faking a lot ofthat behavior . But regardless, if any person draws any negative conclusion about her

based on her father, they are not being charitable enough. They are forgetting thateven when we are talking about Benedict Arnold, we do not hold the childresponsible for the conduct of the father.20

In short, the undersigned wrote that Mr. Kimberlin’s self-described daughter should not suffer

because of Mr. Kimberlin’s misconduct because in America we reject the principle of the

corruption of the blood. Mr. Kimberlin’s claim that undersigned counsel said that one should

target her under the principle of the Corruption of the Blood is knowingly false. Further, just as

with the alleged message from the sheriff’s office, this discrepancy was pointed out to Mr.

Kimberlin,21 and Mr. Kimberlin has repeated the false remark without any effort to explain the

discrepancy.22

30. With most ordinary people, it is reasonable to assume that if they make an

accusation about someone that there must be some truth to it—that it cannot be made up from

whole cloth. In Mr. Kimberlin’s case, it is not safe to make that assumption. These are strong

words, but they are justified by the forgoing. He will misstate the truth even when the truth is

only a few page turns away. Further, he has a track record of misstating the truth about what the

undersigned has said and done.

20 All of this is a mostly accurate cut and paste from a piece the undersigned wrote called“EXCLUSIVE: My Motion to Dismiss Convicted Terrorist Brett Kimberlin’s RICO Suit”available at http://allergic2bull.blogspot.com/2013/12/exclusive-my-motion-to-dismiss.html.The only relevant difference is that whenever the original had a link to a webpage, the Plaintiffhad somehow pasted a copy of that link right after, surrounded by arrow points (“”).Otherwise it was the same text that the undersigned wrote.21 See “Defendant Hoge’s Reply to Plaintiff’s Oppositions,” Docket #56, pp. 16-17 in Kimberlinv. NBC (I) (outlining how Mr. Kimberlin’s own exhibit contradicts his claims).22 See Second Amended Complaint, Docket #135, at ¶ 249 (p. 75) in Kimberlin v. NBC (I)(repeating the claim, contradicted by his own exhibit, that the undersigned counsel believed Mr.Kimberlin’s daughter should be targeted because of the corruption of the blood).

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19

31. The Declaration of Aaron Walker contradicts Mr. Kimberlin’s declaration in

nearly every particular, and because Mr. Kimberlin has no credibility, his Declaration should be

discounted in its entirety. In addition to the difficulties of credibility, Mr. Kimberlin testifies as

to the circumstances of undersigned counsel’s termination from a job, an event he did not

witness. He also includes a copy of an email that was supposed to remain confidential under a

court order in the Circuit Court of Prince William County, Virginia,23 and, in any case, since it is

unsworn, it is hearsay.

32. The truth is that the undersigned is a graduate of Yale Law School and an attorney

in good standing in two jurisdictions who has been admitted to practice before three federal

courts, including this Court. The undersigned counsel has never been disciplined by a bar

association, and he has never committed any crime worse than a traffic infraction. Further, he

has achieved all of this despite his hidden disabilities and the prejudice and discrimination they

inspired. To the extent that the undersigned counsel’s record could be “put on trial” in this case,

he gladly would measure his life and character against that of the Plaintiff or Mr. Kimberlin.

The undersigned counsel’s worst “offense” would seem to be engaging in off-color humor

outside of the courthouse.

33. In summary, the Plaintiff has moved to disqualify the undersigned counsel based

on a non-rule and without evidence that counsel has actually fallen short of the aspirations of his

profession. Further, as noted previously in this filing, the Plaintiff has failed to properly invoke

the rule against attorneys serving when they might be witnesses, and has falsely accused the

undersigned counsel of lying in court documents. Accordingly, the Plaintiff’s motion to

disqualify counsel has no basis in law or fact. It is frivolous, and it should be denied.

23 A copy of this order is attached as Exhibit H.

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20

II.

THE PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL SHOULD BE STRICKEN

34.

In the prior pages, the Defendants have demonstrated that there is no basis in law

to disqualify the undersigned as counsel. The Plaintiff has cited rules that don’t apply or don’t

exist and made false accusations of dishonesty in order to argue for disqualification. What is

manifestly obvious from the forgoing is that the Plaintiff is not only wrong, but also that he is

arguing in bad faith.

35. As noted in Environ Products, Inc. v. Total Containment, Inc., 951 F.Supp. 57,

59-60 (E.D. Pa., 1996), “[m]otions to strike ‘usually will be denied unless the allegations have no

possible relation to the controversy and may cause prejudice to one of the parties.’ Wright &

Miller, § 1382 at 685-90 (emphasis added).” This improper and frivolous motion precisely fits

the exception to the rule. The Plaintiff’s MTDQ has no possible relationship to the case, and it is

plainly designed to cause prejudice to Defendants Palmer and Johnson by their association with

counsel. See, e.g. Raghavendra v. Trs. of Columbia Univ., 686 F. Supp.2d 332, 336 (S.D.N.Y.,

2010) (striking a large number of motions, including a motion to disqualify counsel, because

they were “replete with ad hominem remarks and irrelevant materials”); Jorgensen v. Prudential

Ins. Co. of America, 852 F.Supp. 255, 260 (D.N.J., 1994) (striking a voluntary dismissal because

it “was filed for an improper purpose”); and Fleming v. Parnell , Case No. C13-5062 BHS at 8,

(W.D. Wash. April 17, 2014) (granting a motion to strike where information related to

confidential settlement negotiations were included for an “improper purpose”). The court in

Alvarado Morales v. Digital Equipment Corp., 669 F.Supp. 1173, 1187 (D.P.R., 1987) reminds

us that “[t]he federal courts do not provide a forum for mudslinging, name calling and

‘privileged’ defamation.” Toward this end, “a court has inherent power to strike scandalous

matter from any document submitted to it.” In the Matter of REA Holding Corp., 447 F.Supp.

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21

167, 171 (S.D.N.Y., 1978). The Defendants respectfully request that this Court exercise that

power and strike the Plaintiff’s MTDQ.

36. Further, even if this Court was not convinced that the entirety of this motion

should be stricken, at the very least the Plaintiff’s Exhibit 3 should be stricken, because the

entirety of that exhibit consists of documents obtained in a case where a protective order had

been put into place as noted supra page 19.

WHEREFORE, this Court should deny the Plaintiff’s motion to disqualify counsel, strike the

motion in its entirety (or at the minimum, Plaintiff’s Exhibit 3), and provide all other relief that is

just and equitable.

Tuesday, March 8, 2016 Respectfully submitted,

s/ Aaron J. Walker Aaron J. Walker, Esq.

Attorney for Defendants Johnson and PalmerVa Bar# 48882DC Bar #481668P.O. Box 3075Manassas, Virginia 20108(703) 216-0455(No fax)[email protected]

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22

VERIFICATION

I, Aaron Walker, state under penalty of perjury under the laws of the United States ofAmerica that the foregoing is true and correct and that all exhibits are true and correct copies ofthe originals.

Executed on Tuesday, March 8, 2016.

s/ Aaron J. Walker

CIVIL L. R. 7(A)(2) CERTIFICATION In compliance with Civil L. R. 7(a)(2), I certify that no separate supporting memorandum

or other supporting papers except those already attached to this opposition will be filed in

relation to this opposition.

CERTIFICATE OF SERVICE

I certify that on the 8th day of March, 2016, I served copies of this document on WilliamSchmalfeldt by email by consent.

s/ Aaron J. Walker

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EXHIBITA

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IN

TH

COURT

OF

SPECIALAPPEALS

FOR

MARYLAND

SEPTEMBER

T RM

2014/2015

Nos.

September

Term

2014- 1553, 2099

September

Term

2015- 365

BRETT KIMBERLIN,

Appellant,

AARONWALKER,

WILLIAMHOGE,

ALI AKBAR,

and

ROBERT STACY MCCAIN,

Defendants.

Appeal from the Circuit

ourt of

Montgomery County

Eric Johnson, Presiding)

BRIEF

OF

APPELLANT BRETT KIMBERLIN

BRETT KIMBERLIN

8100 Beech Tree Rd

Bethesda, MD 20817

301) 320 5921

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T LE

OF

CONTENTS

STATEMENT OF THE CASE

QUESTIONS PRESENTED FORREVIEW

STATEMENT OF FACTS

ARGUMENT

I COURTS ARTICLE

9-104

IS UNCONSTITUTIONAL

AND THE LOWER COURT S FAILURE TO FIND IT

UNCONSTITUTIONAL DEPRIVED APPELLANT OF

DUE PROCESS EQUAL PROTECTION AND

MEANINGFUL ACCESS TO THE COURT

II

THE TRIAL JUDGE ERRED ON THE LAW AND THE

FACTS WHEN RULING THAT APPELLANT DID NOT

PROVE DEFAMATION AND FALSE LIGHT

III. THE TRIAL COURT INVADED THE PROVINCE OF THE

JURy

AND FAILED TO FOLLOW MARYLAND

L W

REGARDING DIRECTED VERDICTS

IV. THE TRIAL COURT PREJUDICED APPELLANT Y

DEPRIVING IDM OF THE RIGHT TO PUT ON

EVIDENCE TO PROSECUTE HIS CASE

V. JUDGE MCGANN PRETRIAL IMPROPERLY

DISMISSED THREE CLAIMS ON APPELLEES

MOTION TO DISMISS

CONCLUSION

CERTIFICATE OF SERVICE

1

1

2

20

23

3

32

33

34

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TABLE

O

CITATIONS

Cases

American Stores

v.

Byrd,

181

A2d 333 Md. 1962 26

Batson

v.

Shiflett, 325 Md. 684

1992

24

Baufiled v. Safelite Glass Corp, 831 F. Supp. 713 D. Minn. 1987 27

Bochan v.

La

Fontaine, 68 F. Supp. 2d 692 D. ED Va. 1999 27

Brown v. Farkas, 511 NE d 1143 Ill. 1986 26

Bouie v. Rugged Wearhouse, Inc., 2007 WL 430752 D.

Md.

2007 26

Carter v. Aramark Sports and Ent Services, Inc.,

153

Md. App. 210 2003 26

Conner v. Scruggs, 821 So 2d 542 LA App. 2002 26

Dorszynski v. United States, 418 U.S. 424 1974 9

Faretta

v.

California, 422 U.S. 806

1975 21

Farnum

v.

Colbert, 293 A2d 279 DC 1972 26

Geschwendt v. Yoe, 174 Md. 374,381, 198 A. 720651 1938 31

Hanrahan v. Baltimore, 114 Md. 517,535 1911 31

Haskins

v.

Bayliss, 440 F.Supp.2d 455,461

D.

Md. 2006 26

Hearst Corp. v. Hughes, 297 Md. 112, 125, 1983 26

Jordan

v.

State, 591 A.2d 875 Md. 1991 22

Kilpa

v.

Board

of

Education, 54

Md.

App. 644 1983 30

Langville

v.

Glen Burnie Coach Lines, Inc., 233

Md. 181

1963

31

Longebehn v. Schoenrock, 727 NW 2d 153 Minn, CA,2007 25

Mazeer

v.

Safeway, 398 F. Supp. 412

D. Md.

2005 29

Miles

v.

Ramsey,

31 F.

Supp. 2d 869

D.

Co. 1998 27

Myers v. State, 496 A.2d 312 Md. 1985 21

Plitt v. Greenberg, 242 Md. 359 1966 31

Pettitt

v.

Erie Insurance Exchange,

117 Md.

App. 212 1997

19

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Pollitt v. Brush Moore Newspapers, 136 A2d 573 (MD 1957)

Rock v. Arkansas, 483 U.S. 44 (1987)

Rosen v United States, 245 U.S. 467 1918

Samuels

v.

Tschechtelin, 763 A.2d 209 (Md. 2000)

Shaprio

v.

Massengill, 105 Md. App 743 (1995)

Smack v. Jackson, 238 Md. 35 37 (1965)

Smith v. Bernfeld, 226 Md. 400 (1961)

Smith v. Danielczyk, 928 A2d 795(Md. 2007)

Wesko v. GEM Inc, 272

Md.

92 (1974)

Washington

v.

Texas, 388 U.S. 14 1967)

Womack

v.

Eldridge,

2 5

Va.

338

(1974)

Statutes and Rules and ther uthorities

Md. Rule 9-104

Md. Rule 5-601

Md. Rule 5-609(b)

Md. Code 3-1503(b)(1)

18 U.S.C. 5005-26

18

U.S.C. 5010(b)(2)

2012 House Bill 926

2012 Senate Bill 673

Black s Law Dictionary 5

th

Ed, West 1970

26

21

22

26

18

31

31

26

34

22

34

pasSIm

23

23

23

9

21

21

27

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STATEMENT OFTHE CASE

Appellant Brett Kimberlin filed a complaint for damages against five

individuals in Montgomery County Circuit Court, alleging defamation, false light,

intentional infliction

of

emotional distress, abuse

of

process, conspiracy to abuse

process, stalking, harassment and malicious prosecution. RE- A. Plaintiff

withdrew the stalking and harassment claims because they did not allow any

private cause of action. The court, in a pretrial proceeding, dismissed the abuse of

process, conspiracy to abuse process, malicious prosecution and infliction of

emotional distress claims. RE-B. Plaintiff proceeded to a jury trial against four

defendants

on

the defamation and false light claims. The fifth defendant

confidentially settled the case in Appellant s favor.) However, after a

full

presentation of the evidence, the trial court, Judge Eric Johnson presiding, directed

a verdict on both counts. Appellant filed a motion for new trial but Judge Johnson

had resigned and the motion was ruled on by Judge Richard Jordan who ruled

in essence that since he did not have the transcripts, he was denying the motion.

RE-C He then issued a final order, and Appellant filed his third notice of appeal in

the case. This Court consolidated all three

of

those appeals and ordered

Appellant s lead brief to be filed

on

July 31, 2015.

QUESTIONS PRESENTED

FOR

REVIEW

WHETHER COURTS ARTICLE 9-104, WIn H PROHIBITS

ANYONE CONVICTED OF PERJURY FROM TESTIFYING IN NY

MARYLAND COURT, IS UNCONSTITUTIONAL AS A VIOLATION

OF THE FIRST AMENDMENT S GUARANTEE TO MEANINGFUL

ACCESS

TO THE

COURTS, THE FIFTH AMENDMENT S

DUE

PROCESS CLAUSE, AND THE FOURTEENTH AM EN DM EN T S

EQUAL PROTECTION, UNDER BOTH

THE

UNITED STATES

ND

MARYLAND CONSTITUTIONS, AND OTHER ARTICLES

OF THE

UNITED STATES AND MARYLAND CONSTITUTIONS.

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2. WHETHER T HE CIRCUIT JUDGE ERRED IN illS RULING

OR

A

DIRECTED VERDICT ON THE DEFAMATION AND FALSE LIGHT

COUNTS.

3. WHETHER THE CIRCUIT COURT JUDGE ERRED IN NOT

FOLLOWING THE LAW WITH REGARD TO

illS

ORDERING A

DIRECTED VERDICT, RATHER THAN ALLOWING TH

JURy

TO

ISSUE VERDICT.

4. WHETHER THE TRIAL JUDGE EXHIBITED PREJUDICAL

CONDUCT IN THE CASE THAT DEPRIVED APPELLANT OF A

FAIR TRIAL.

WHETHER TH CIRCUIT COURT ERRED IN DENYING

PRETRIAL APPELLANT S CLAIMS F OR ABUSE

O

PROCESS,

CONSPIRACY AND INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS.

ST TElVIENT F CTS

Appellant Brett Kimberlin filed a complaint for damages against five

individuals

in Montgomery County Circuit Court, alleging defamation, false light,

intentional infliction of emotional distress, abuse of process, conspiracy to abuse

process, stalking, harassment and malicious prosecution. RE- A. Plaintiff

withdrew the stalking and harassment claims because they did not allow any

private cause of action. The court, in a pretrial proceeding, dismissed the abuse of

process, conspiracy to abuse process, malicious prosecution and infliction of

emotional distress claims. RE-B. Plaintiff proceeded to a jury trial against four

defendants

on

the defamation and false light claims. The fifth defendant

confidentially settled the case in Appellant s favor.) However, after a full

presentation of the evidence, the trial court, Judge Eric Johnson presiding, directed

a verdict

on

both counts. RE-D 271. Appellant filed a motion for new trial b ut

Judge Johnson h ad resigned and so the motion was ruled o n b y Judge Richard

Jordan who ruled in essence that since he did not have the transcripts, he was

denying the motion. RE-C He then issued a final order, and Appellant filed his

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third notice of appeal

in

the case. This Court consolidated all three of those

appeals and ordered Appellant s lead brief to be filed on July 31, 2015.

STATE MENT OF

T

FACTS

Appellant Brett Kimberlin is a father, husband, composer and director

of

a

Maryland based non-profit called Justice Through Music, that works with bands

and musicians worldwide to promote pluralism, tolerance and progressive values.

Because

of

Appellant s work,

in

2011, he became the focus

of

a reign

of

terror by

a group of conservative extremists headed by the late Andrew Bretbart, who, in

2009, famously destroyed the national community organization ACORN through

the use of edited videos secretly recorded at ACORN offices in Baltimore,

Maryland.

An activist blogger named Seth Allen began defaming Appellant on his blog

in

2011 and therefore Appellant sued him in Montgomery County Circuit Court for

defamation. nNovember 2011, at a trial before Judge Richard Jordan, Appellant

won a judgment against Mr. Allen for defamation, which included injunctive and

monetary relief.

Aaron Worthing, who was well known online as the publisher of the anti-

Muslim Everyone Draw Mohammed blog, was outraged

by

the judgment and

offered to assist Mr. Allen in getting it overturned on a motion for new trial. Mr.

Worthing portrayed himself as a Virginia attorney and, in December 2011, filed

several pleadings on Mr. Allen s behalf to overturn the judgment. RE-D, p. 58

(All page numbers in this brief refer to the trial transcript page numbers in the

Record Extract, Exhibit D).

Appellant learned that Mr. Worthing was actually an attorney named Aaron

Walker from Manassas, Virginia. Because Mr. Worthing had filed documents in

the Circuit Court, Appellant advised the court that Mr. Worthing had filed the

documents under a pseudonym, and that he was really AaronWalker. nJanuary

9, 2012, at a hearing scheduled in the case,

r

WalkerlWorthing came to Court

and demanded that the judge seal his identity because Muslims could target him

3

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for being the publisher of the Muslim hate blog. 58, 66 After the hearing,

Mr.

Walker followed Appellant to the Circuit Court waiting room, committed battery

against him, and took his iPad. Police responded and Appellant was treated at

Suburban Hospital for a contusion

to

the eye and back pain. Appellant later filed

for a Peace Order and criminal charges for assault againstMr. Walker.

A few days later, after Mr. Walker s employer found out about the assault and

his activities as publisher

of

the Muslim hate blog, the employer fired Mr. Walker

for attacking Muslims, doing so on company time and on company premises, and

for placing other employees in danger. 75 6

Mr. Walker blamed Appellant for his misfortunes and therefore he rallied a

group of right wing extremists to destroy the reputation and employment

of

Appellant through a series of campaigns based on false narratives and malicious

legal actions. He acted in concert with Appellees Ali Akbar, William Hoge and

Robert Stacy McCain to launch an online campaign called Everybody Blog

About Brett Kimberlin, using the template of his Muslim hate blog Le. create a

false narrative and then use social media to get others to pile on.

In

the case

of

the

Muslim blog,

Mr.

Walker s false narrative was that the Prophet Mohammed was a

pedophile and a terrorist, and that was what he also called Appellant.

From May 2012 through September 2013, Appellees published thousands of

blog posts, Twitter tweets and other forms of social media falsely alleging that

Appellant (1) got Appellee Walker fired from his job, 2) made up the entire story

about the court room assault, 72 (3) forged hospital records from the assault, 71

and (4) was a pedophile who raped his wife. The stress from all this proved too

much for Appellant s wife and she suffered a mental health issues. Appellant

sought to have her evaluated onI

y

to

find that Appellees Walker and Roge were

in

the courtroom. They twisted the hearing to create more false narratives, such as

telling their readers that Appellant had falsely imprisoned his wife, threatened her

and sexually abused her. They then stalked Appellant s wife, contacted her,

offered to pay her money to lie about Appellant, launched a fundraising campaign

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which raised thousands

of

dollars to save Appellant s wife, and foisted an

attorney on her to represent her in family law proceedings.

Appellant s wife told Appellee s Walker and Hoge that she did not want their

money, their assistance, their lawyer or their fundraising. She repeatedly

contacted them and told them that the things they were saying about Appellant

were not true and to remove them from the Internet. Appellee s Walker and Hoge

refused to remove the defamatory information they had published on the Internet.

Instead, they doubled down and falsely asserted that Appellant was threatening his

wife and that she was under duress and that she needed protection. Appellant

Walker even wrote to her that Appellant was an unfit father and that she could

get protection from the prosecutor if she would accuse Appellant

of

a crime.

Appellee Walker called the FBI and falsely told them that Appellant had child

pornography in his home and that he watched his young daughters undress.

Finally, Appellant asked the family court to order an investigation of these false

allegations, which was granted, and the Department of Child Services conducted

extensive interviews

of

everyone in Appellant s family and determined that the

allegations were wholly specious and without merit.

Appellees then began a full-throated defamation/false light campaign against

Appellant by posting articles and tweets calling him a pedophile, rapist, and sex

abuser. They created or appropriated an online graphic of a Pedo Bear (an

online graphic connoting an evil child sex predator) with Appellant s photo

superimposed on it and repeatedly posted this in tweets and articles over months.

aron

Walker-Ailergic2Bull, Twitter@AaronWorthing,

• August 28, 2013-Bethesda Gazette-Comments believed to be written

or

directed by Defendant Walker under one or more names-Brett committed

rape

• August

5

2013-Vile, Brett Kimberlin s Manipulation

of

His Daughter

• August 2 2013- Brett Kimberlin is an out-and-out pedophile

• August

6

2013-The Pedophile Brett Kimberlin s Brass Knuckle Defense

• August 5 2013-So Why is the Pedophile Brett Kimberlin Mad at Us

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• August 3, 2015-For the Pedophile Brett Kimberlin, It s All About the Kids

• August 1 2013-if you just believe

in

helping get her kids away from her

pedophile husband

• July 31, 2013-Pedophile Brett Kimberlin Violates A Domestic Violence

Protective Order

• July 30, 2013-Brett Kimberlin is a Pedophile

• August

1

2013-Twitter-LG is the paid troll

of

pedophile Brett Kimberlin

• August 1 2013-Twitter-I suggest we rechristen Team Kimberlin as Team

Pedophilia

• August 6, 2013-Twitter-The Pedophile BrettKimberlin Brass Knuckle

Defense

• August 5, 2013-Twitter-Why is Pedophile BrettKimberlin MadAt Us

• August 4, 2013-Twitter-Brett Kimberlin will have his trial. But I

don t

have to wait to call him a pedo.

• August 3, 2013-Twitter-Yes, Brett Kimberlin is a pedo regardless of

charges

• July 31, 2013-Twitter- Brett Kimberlin Violates A Domestic Violence

Protective Order

• July 30, 2013-Twitter-next hearing date will be in circuit court, where

PedoBrett tends to lose.

• July 29, 2013-Twitter-Brett Kimberlin is a Pedophile

• July 29, 2013-Twitter-What does Brett Kimberlin, who tried to have sex

with a 12-year old, deserve?

• July 29, 2013-Twitter-I am not calling him allegedly anything. He is a

pedophile.

• July 29, 2013-Twitter-So I am going

to

say something definitive. Brett

Kimberlin is a pedophile.

William Hoge-Hogewash an d witter@wjjhoge

• August

15

2013-She not only needs help with the legal expense involved

in getting herself and her daughters free from Brett, she needs help

resettling herself

• August 14 2013- The Kimberbots are the fanboys, cheerleaders, and

enablers who tweet and blog their admiration and support for The Dread

Pedo Kimberlin

• August

13

2013- You can donate

to

help Tetyana get herself and her

children away from her abusive husband. Click on the Tetyana s Fund link

to learn more.

• August 13 2013- Tetyana Kimberlin is trying to get herself free frotn her

abusive husband. She

is

trying

to

get her children away frotn her pedophile

husband.

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• August 12, 2013- During that time, he has used mentally abusive tactics to

keep her and her children bound to him

• August 1, 2013-Brett Kimberlin, Dread Pedo Kimberlin

• July 30, 2013- However, I do believe that Brett Kimberlin most likely is a

pedophile.

• July 29-August 15, 2013-Twitter-Team Kimberlin Post

of

the Day

(directing readers to his Hogewash posts above)

• July 29, 2013-Twitter-Brett Kimberlin:Pedophile?

Robert

Stacy

McCain The Other McCain

• July 2013-If Brett Kimberlin hates he will do anything within his

power to harm you - even though he derives no benefit from these

destructive acts other than the sadistic vengeful pleasure

of

inflicting harm.

• July 18, 2013- Evil is what Brett Kimberlin is. Evil is what Brett Kimberlin

does. Everyone who assists Brett Kimberlin is an accomplice to evil, and

silence about Brett Kimberlin's evil is a fonn

of

assistance.

l

Akbar Twitter @ali

• August 13, 2013-Twitter-We're about to raise some money for an abused

immigrant trying to escape BrettKimberlin.

• August 9, 2013-Twitter-pointed out Brett Kimberlin's pedophilia

• July 31, 2013-Twitter-Pedophile and terrorist bomber Brett Kimberlin

• July 31, 2013-Twitter- Police, and everyone who has written

seriously

on

the matter believe that BrettKimberlin killed a grandma to

sleep with a yr old.

• July 31, 2013-Twitter- Brett Kimberlin has no moral equivalent this side

of

Satan.

• July 31, 2013-Twitter- BrettKimberlin is a pedophile.

• July 31, 2013-Twitter-So

we ve

uncovered BrettKimberlin's big secret:

he s a pedophile with other pedophiles around his children

In

addition to the above, Appellee's Walker and Roge filed more than a dozen

malicious lawsuits, peace orders, and criminal charges against Appellant, all

which were dismissed

or

nolle prossed. These meritless legal actions were filed

by these Appellees as part of their reign

of

terror and as a strategy to use them

fo r

an improper purpose - Le., to file the pleadings with scandalous and defamatory

allegations, and then publish articles and tweets breathlessly repeating the false

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allegations as

they were gospel while raising thousands of dollars from gullible

readers.

Appellees Strategy To

Deprive Appellant

Of A Defense To These Charges

In

1972, when Appellant was a teenager,

he

was called before a Federal Grand

Jury investigating matters

at

his high school.

He

was not represented by counsel

l/Here is a list of the meritless legal actions filed by these Appellees and their

results as listed in the Complaint.

Defendant Walker has filed the following lawsuits, Peace Orders and

criminal charges against Plaintiff since January 2012:

• January 31, 2012, Montgomery County District Court, One Count Perjury

nolle prossed February 10, 2012)

• April 17, 2012, Montgomery County District Court, Five Counts Perjury

nolle prossed April 30, 2012)

• Janua ry 30, 2012, Pr inc e William Virginia Circuit Court, Multiple Counts

Alleging Criminal and Civil Torts dismissed by judge December 4, 2012)

• June 22, 2012, United States District Court Maryland, Greenbelt, Multiple

Civil Torts, dismissed by judge November 26, 2012)

• March

13,2013,

Montgomery County District Court, Peace Order denied

by judge on March 13,2013)

• De cember 2011, Montgomery County Circuit Court, numerous filings f or

Seth Allen alleging fraud and perjury denied January 9, 2012)

• July 30, 2013, Montgomery County District Court, prepared false pleading

in Family Court matter alleging sex offense denied August 12, 2013)

• July 29, 2013, Montgomery County District Court, prepared criminal

charge for third degree sexual assault nolle August 23, 2013)

Defendant Hoge

has filed the following Peace Orders and criminal charges

against Plaintiff since February 18, 2013:

• February 18, 2013, Carroll County District Court, Two Counts Harassment

nolle prossed April 17, 2013)

• March 22, 2013, Carroll County District Court, One Count Harassment

nolleprossed April 17, 2013)

• March 22, 2013, Carroll County District Court, Peace Order denied March

29,2013

• April 3, 2013, Carroll County Circuit Court, Peace Order Appeal denied

July 2, 1013)

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and was later indicted for perjury. After a trial, he was found guilty and served

8

days

in

the county jail as part

of

a probationary sentence.

The

judge intended that

Appellant be sentenced under the federal Youth Corrections Act, 8U.S.C. 5005-

26

(repealed), which provided for expungement

of

the records at the age

of

22,

and

he

did not make any finding that Appellant would not benefit from the YCA

which is required if the judge intends to sentence an offender as an adult. See 8

U.S.C. 5010(d). When Appellant reached that milestone and requested the

expungement, the judge was unable to do so because the Seventh Circuit Court

of

Appeals did not allow retroactive application of an intervening Supreme Court

case, orszynski

v

United States 418 U.S. 424 (1974).

Appellees knew about Appellant s perjury conviction and decided that they

could file legal actions against Appellant with impunity because

of

an arcane

Maryland rule that prohibits persons convicted of perjury from testifying in any

matter, whether as a victim, defendant, plaintiff or witness. That Rule, Court s

Article 9-104. states simply and categorically the following:

person convicted

of

perjury may not testify.

In the instant case dluing pretrial proceedings, Appellees, at every hearing

,md every stage of the case, moved the different judges to prohibit Appellant

from testifying under Rule 9-104. Several judges refused to allow Appellant to

testify at various hearings, while others allowed him

to

do so, but Appellant

never knew what was going to happen at any hearing because of these

inconsistent rulings. Finally, once Appellant was served with Interrogatories by

the Appellees and asked to answer them under oath, he filed a motion for

protective order, citing inconsistent 9-104 rulings. Instead, the judge imposed

sanctions against Appellant for not answering them lmder oath. Id.

Appellant then filed a pre-trial motion to prohibit Appellees from

seeking

to

disqualify Appellant as a witness based on the 40+plus year old

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teenage perjury conviction, and Appellant asked that the Court find Rule 9-

104 unconstitutional as a denial of due process. equal protection and victims

rights.

On

August 7. 2014, five days before the trial was to begin, Judge

Richard Jordan held a hearing on the motion and stated that it was his opinion

that the Rule 9 1 4 is unconstitutional and that it would be found so

if

it were

ever challenged. However, he refused to make a formal pretrial ruling,

instead leaving it to the trial judge.

THE COURT. I know

ifs

statutory.

I'ln

not sure the statute is

constitutional. That somebody who was convicted

of

perjury 40 years

ago can never testify ever again, no matter what claim he brings, or his

(sic) claim

is

brought against

him ?

I think that's a highly suspect

statute, in all honesty. I know that hasn't been raise, but I mean,

if

Mr

Kimberlin were sued for an automobile accident and that statute would

seen to say that he couldn't say, hey, I had the green light. He just has

to sit back and let the other side tell their story. If he were charge with

a crime, he couldn't testify in his own defense. I have to say the statute

is remarkable. I can understand its existence. I have

to

highly question

that that would be found constitution (sic) if challenged.

[RE-E at page 6]

On the first day

of

trial. Appellees again asked the judge to prohibit

Appellant from testifying and Appellant asked the judge to find the statute

unconstitutional. After a hearing, the judge refused to

find it unconstitutional

but ruled that Appellant could testify. By that point, literally minutes before

testimony was to begin, Appellant was wholly unprepared

to

take the stand.

Judge

l\'lcGann's

Pretrial

Rulings Dismissing Several Claims

Appellees filed a pretrial motion to dismiss

all

the claims, which was

heard by Judge McGann on July

1

2014. He ruled that the defamation and

false light claims were Appellant's money counts but over Appellant's

objection, dismissed four other

claims abuse of

process, conspiracy to abuse

process, malicious prosecution, and infliction of emotional distress.RE-B.

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he rial

The trial was scheduled for two days August and 12 2014. Day one

was reserved for jury selection. On day two Appellant told the jury that he

would show that Appellees engaged in wholesale defamation

of

him over a

period of years which included calling him a rapist pedophile and tTIurderer

and that they falsely said that he caused Mr. Walker s termination and

concocted the assault by Mr. Walker in order to rally their readers against

Appellant and create opprobrium.

he Testimony

of

Appellant s aughter

Appellant stated that he would call his year old daughter as his first

witness to describe to the jury the ha nn suffered by Appellant to discuss

Appellant s reputation before and after the defmnation to testify about

damages to Appellant and his family and to refute the Appellees statements

regarding rape pedophilia false light. Appellees objected to Appellant

calling his daughter to testify 46 and the trial judge spent a great deal of time

telling Appellant that she could not testify about the subject matters at trial.

Appellant proffered his daughter

as

his first witness but the judge refused to

allow her to testify at that time. Finally he did let her testify after the

Appellees had testified but then greatly limited her testimony on the elements

of defamation and false light. Here are some of the statements and rulings by

the trial judge with respect to that witness.

• She s not a party. 4

• But where is the segue? How does it COlUlect to these

defendants? 42

• And what is she going

to

testify that any of these men did

to her? 43

• I mean she can t just get

up

there and testify about what

was going on in the family or any of that because first

of

all how do you COlUlect that to - it s like saying you sat

next to somebody that had a cold and you caught a cold.

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• Well my question still is how does your (sic) testify to

[falsity

of

pedophilia] 45

• She can t testify. 47

• No one is doubting [harm] but you have to understand

something, you are the party in this case. not your

daughter. She s not a here. 48

• She is not a party. 50

• Sir, but you ve got to understand something. We have

rules here. You can t just bring people in to testify when

they A, they didn t witness anything that they re

competent to testify about and B she is not a party to this

lawsuit, so even if they did harm her as were.....50

• Well, I don t even reach that. I mean reach, I don t know

what you re going

to

ask her, but

ln

telling you you re

risking putting this little girl, your daughter on the witness

stand and having her testimony not being admitted.

Because what you re telling the Court that going to

testify to, she s not cOInpetent to testify

to

fonn a legal

point of view. A lay witness can t come in here and say

somebody suffered from depression. 52

• Mr.

Kimberlin: She certainly has a right to testify about

my

character

md

my character as a father .... my

reputation is at issue. 52

• The Court: Well, you don t get to put on the character

witness first before you take the stand....

53

• See you re locked in on your argument and you seem to

think that the Court

is

against you The Court is not. The

Court is making sure everybody plays by the rules. If you

were allowed to do what you want to do, a defendant in

any case or a plaintiff could come in the court and not

testify, not do but just put character evidence up

there. That

is

expressly prohibited by the rules of

evidence. You have to put your character at issue. . ...

[She

can t

testify] if going

to

ask her about your

character.... Now if you put your character

as

issue and

you want

to

put on a witness

to

say that he s a good

father,

he s

this or that, fine. But you don t get to do that

first. That s just the rules of evidence. Otherwise a party

could COlne into court, just bring a bunch

of

character

witnesses and then rest. That s the reason for the lule.

So m not telling you she can t testify m telling you

she testify in that order. 53-4

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W he n App el la nt s dau ghte r finally t ook the stand after the four Appellees

ha d testified the Court refused to allow her to testify regarding hann to

Appellant his reput ation damages o r emot ional distress. 233

et

seq.

Moreo ver w he n she t es ti fie d that Appellant never s ho we d any ev ide nce of

pedophilia 238 the

Cotut

cu t of f

the line of inquiry:

Q. Have

ever shown

an y

sexual interest in any

of

yo ur friends a t a ny

age?

MR.

OSTRONIC: Objection.

TH E

COURT: Sustained.

Q. How about with y our sister -

TH E

COURT: Sustained

239

TH E

COURT: Sustained. Sir you re going way

of f

base.

MR. KIMBERLIN:

Your

Honor I need to let this

jury

understand

that

we ve

suffered.

MR. OSTRONIC: Objection

Q.

Do

you want this stuff to stop?

WITNESS: DefInitely yes.

Q.

Do

you think t ha t it s hurting you and your career [as a music

artist]?

MR. OSTRONIC: Objection.

TH E

COURT: Sustained. 240

Q. Is i t affe cting -

TH E

COURT: Sustained. Id.

The Testimony Of The Four

Appellees

Appellant called each

of

the Appellees to testify and introduced dozens

of

articles and Twitter tweets over a period

of

months that they admitted

publishing online which showed that they defamed him and portrayed

hi m

in

a

false light.

Aaron

Walker

Q.

Did

you later tell people that you were tenninated [from employement]

because of me?

A. Yes.

76

Q.

A nd i n the pa st three years how ma ny b log posts roughly h ow m an y

blog posts have you made about me?

A

Maybe 100

r

n ot sure. 7 8

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Q. Okay, you have a Twitter accolIDt, tight?

A.

Uh huh. . . .

Q. How Inany approximately tweets have you made about

me in

the past

years?

A. I honestly don t know.

Q.

Would

it

be

more

that

1,000 1

A. Probably.

Q.

Would

it be

more t n 5,000?

A. I

don t

know.

79 .. .

Q. Have you ever called me a pedophile?

A. I

have said that

I

believe based on the evidence that you are.

Q. Have you published blog posts that call me a pedophile?

A. Yes.

Q. Have you published tweets that call me a pedophile?

A. Again, based on the information I have I have called you a pedophile.

Q. How many blog posts do you think you have published that say

I m

a

pedophile?

A. I don t know.

Q.

One?

80

A. Maybe six,

don t know.

Q. Ho w many tweets do you think you have published (sic) said

I m

a

pedophile?

A.

Maybe

30

. . . .

Q. Okay, now in the thousands

of

tweets that

you ve

made about me, are

there positive tweets or are they all negative?

A. .

..

can

t think

of

the last time

said something that would tend to

put

you in a good light

....

Q. Okay. I going to hand you Plaintiff s Exhibit

A. It appears to

be

a blog posted about you, okay.

Q. Now what

is

the title

of

that blog post ?

A. Brett Kimberlin is a pedophile. 82 .. .

Q.

An d

could you tell the

jury

what the title

of

that [Exhibit 9] is?

A.

Th e

Pedophile Brett Kimberin s hBrass Knuckle Romance end quotes.

Q. Dh-huh, and

on

Twitter you mentioned that you read a lot

of

tweets about

me.

Ar e

you fmniliar with the name that is used

on

the internet called

Pedo

Bear?

A. Yeah, I ve heard of it.

Q.

Okay, can you tell the

jury

what a Pedo Bear is?

A.

It s

a darkly comic cartoon character. . . .

i t s j us t

they use it to depict

something as a pedophile

....

But it is the character is supposed to be this evil

pedophile ....

Q.

have you ever used that graphic

on

your to tweet

or on

your blog?

14

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ECF 19 Redacted

Documents

Transcript of ECF 19 Redacted