The Brett Kimberlin Saga:

Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Wednesday, May 1, 2013

Stanley Cohen Reveals Waaaay Too Much About his Planned Defense of Mona Eltahawy (Update: Cohen Gets Cheesy)


Update: Oh my... @StanCohenLaw is talking about me.  See below.


Offending message: This anti-jihad poster is currently in 10 stations across Manhattan after a court victory by conservative commentator Pamela Geller
You might remember Mona Eltahawy.  She is the Egyptian American feminist activist who has decided to spray paint over the horrible hate speech of Pamela Geller and the American Freedom Defense Initiative (AFDI).  To back track a little bit, Geller et al wanted to put up the following poster in various spots in the New York subway system (after paying the appropriate fee to rent the space) (right):

It says, in case you can’t read it, “in any war between the civilized man and the savage, support the civilized man.  Support Israel.  Defeat Jihad.”  The local officials refused to put that poster up, claiming that somehow it was bigoted against all Muslims.  I don’t get that.  It seems to be saying little more than support Israel against those waging “holy war” against it.  Are all Muslims the enemies of Isreal?  Not by a long shot.  And certainly the term “savage” does not denote all Muslims, or exclude other faiths.  There have been savages and civilized people of every faith tradition imaginable.  I don’t doubt that Pamela Geller would agree with that.

Anyway, so Geller and the AFDI had to go to court and win the right to speak freely in this forum.  The state of New York claimed that this poster was so likely to incite violence that they could exclude it.  Folks, I don’t see it, and neither did the courts.  A federal court ruled that excluding Geller et al's poster violated their First Amendment rights and commanded state authorities to allow it to be posted.  You can read about that decision and much of this background, here.

So the posters went up, but the forces opposed to free speech were not done yet.  Numerous ordinary citizens, and journalist and MSNBC contributor Mona Eltahawy decided to take private action to stop this scary, scary poster.  Many of them put stickers over it and tore down such posters.  But Eltahawy chose to spray paint over it.  But apparently the AFDI and assorted allies including Pam Hall and the New York Post had advance warning, and they went with a video camera to the same poster that Ms. Eltahawy wanted to paint, resulting in this scene.


Watching it again, I think the first time she asked the cop why he was arresting her I saw him chuckle a little.  Really, her sense of entitlement is nothing less than galling.

And this is the same idiocy (meaning Ms. Eltahawy’s idiocy) from Ms. Hall’s camera:


To me what offended me the most was how this attempt to suppress another person’s speech was justified as supposedly free speech.  Let me put it simply.  Freedom of expression gives you the right to purchase and burn an American flag.  It doesn’t give you the right to steal another person’s flag and burn it.  Your right to speak is correctly trumped by my right to my property—rented or owned.  And that consideration is even more compelling when my property is being used to express myself, because then your expression has the effect of silencing my expression.  If you burn my flag, I can no longer wave it.

The correct answer to speech we don’t like isn’t suppression—by government action or by private conduct.  The correct answer to speech we don’t like is more speech showing why the other speech is wrong.  And it isn’t because we like every single thing done that is covered by free speech, but because we don’t trust anyone with the authority to decide what is and is not protected.

So anyway, I saw that the New York District Attorney was subpoenaing her tweets and that eventually led me to discuss the matter with her attorney, Stanley Cohen.  Mr. Cohen is a private attorney who has taken on the case pro-bono, as I understand it. Honestly, I didn’t think he would discuss the case so openly with me, but I was happily proven wrong.

We started talking about the issue of the twitter subpoena.  His position was that some of her direct messages were to confidential sources.  Given that Ms. Eltahawy did a lot of apparently good reporting from the Egyptian revolution, it seems reasonable to think that a few of her twitter friends might actually have their lives endangered if the text of those direct messages became known.  So that might fly.  You can find the tweets covering this topic, but I won’t reproduce them here because they aren’t very interesting.

But then we got into the meat of her coming defense.


His reply:


So that seems to be that he is admitting that she intentionally painted the sign.  Which he kind of has to, because you saw that video, too.  But he was denying any intent to paint Pamela Hall.  Which, by the way, is just plain bogus.  She may have wished that Hall had moved, but when she didn’t, she chose to spray anyway and let Ms. Hall be hit in the process.  That is intentionally spraying the woman.  Indeed, when the cops arrived, she seemed to think they would tell Ms. Hall to step aside.

So I asked for a little more:


His reply:


Ah, necessity.  It is sort of a cousin to self-defense, indeed it is often merged with it.  This is what the New York Penal Code §35.05(2) says on the subject:

conduct which would otherwise constitute an offense is justifiable and not criminal when... Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.  The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.

That’s a lot to jumble through but the key language is that the action has to be “necessary as an emergency measure to avoid an imminent public or private injury which is about to occur.”  The thing to get about the law of necessity or self-defense is that it is designed to fill in those moments when seconds count but the police are minutes away, as the cliché goes.  In other words, a guy is breaking into your home, the cops have been called, but you have to survive until they get there.  It has to be so immediate you cannot afford to wait for the police to stop the criminal.

So what imminent public or private injury was Ms. Eltahawy trying to avoid?  The poster wasn’t about to fall down and hurt a person.  I pressed Mr. Cohen on this question:


You can see he expanded a little more on his necessity defense and I replied:


He gave an answer:


Folks, do I have to explain this to you?  The fear that someone might do something bad “a few months later” doesn’t qualify as an imminent threat.  An imminent threat isn’t “I think someday this person might hurt another.”  It is “the guy is here, I (reasonably) think he has a gun and I (reasonably) think he is about to kill someone” or otherwise presents an immediate threat that cannot be addressed by simply waiting for the cops to arrive.  So I pressed him on this:



And regular readers know that I really do not think a poster is responsible for it.  Give me a break.  But I wanted to keep the conversation going.

Another thing to pay attention to, here, after all is that second paragraph in the statute quoted above.  The upshot is that before you present a defense of necessity, a judge has to decide that you have presented sufficient evidence to allow you to present it.  Cohen has to make a showing that this was necessary to avoid an imminent injury and so on.  And I don’t see how any judge could see how this defense of necessity is raised by the evidence we know of.

But he truly gave his game away, here:


This will get more explicit as we go along, but what he is saying is he is trying to get the jury to refuse to follow the law because they don't like the speech.  This is jury nullification.  And it has a decidedly checkered history.

On one hand, one can recall the famous Zenger trial, which I mentioned previously, here.  This was before the American Revolution and Zenger was a newspaper man charged with seditious libel for having printed ugly things about the governor of New York.  Jury nullification kept him out of prison.  It can rightfully be said that in that case jury nullification defended freedom of expression.

It also was used to suppress it.  On June 12, 1963, Medger Evers was shot to death.  Mr. Evers was an African American civil rights leader and a racist Klan type named Byron De La Beckwith shot him dead in retaliation for his speech and because he generally hated black people.  Mr. Evers’ voice was silenced, but society could have demonstrated that such conduct would not be tolerated by convicting Beckwith.  Beckwith was tried twice in the 60's in Mississippi by all white juries and they resulted in a mistrial by a hung jury despite overwhelming evidence of Beckwith’s guilt.  For the jurors who refused to convict, this was jury nullification.  Finally in 1994 they were able to convict him and he died in prison about six years later.

Freedom of expression cannot long survive in a lawless society.  If one man can kill another because he doesn’t like what that person was saying and get away with it, because the community doesn’t like what the victim was saying either, then we endanger free speech itself.  After all, they might kill or terrify every other person who might stand up in Evers’ place.

And hidden in those dueling examples is the fact that there really are two doctrines of jury nullification.  The first is very modest and mainstream.  It is the assertion that the jury is the final decision-maker on what the law is.

The Zenger trial represents that principle in action.  At the time the common law was such that any time libel was asserted—be it “seditious” or not—truth was a defense.  It was the standard way courts read such statutes.  But in that case, the court decided that truth was not a defense, that essentially saying anything bad about the Governor was criminal.  So Zenger’s defense attorneys were not allowed to put on a defense of his statements being true.  In their closing statement, they implored the jury to find that the law allowed for truth as a defense and since they were not allowed to put on a defense that it was true, that they must acquit.

By comparison, even back in the 1960’s it was illegal for a white man to murder a black man in Mississippi.  There was no question of the law.  There was no question of the facts.  The members of the all-white jury who refused to convict had let Beckwith go free for all those years because they didn’t like black people and especially didn’t like people who advocated for equal rights for black people.  And the only thing that changed in 1994 when Beckwith was finally convicted was that those racist and anti-speech attitudes had changed.

This illustrates the second breed of jury nullification: when it is obvious that what was done was illegal, but they want you to let them get away with it anyway.  The first is about respecting the law, possibly in the face of a judge who doesn’t respect the law.  The second is about ignoring the law and bringing in your subjective concept of justice, which can be extremely unjust.

And as it was becoming clear in my conversation, Cohen was talking about the latter theory of jury nullification.  Consider, for instance, this comment:


And there are cases where people have trespassed at nuclear power plants and chained themselves in front of the entrance in order to prevent the plant’s operations, and those people then 1) screamed like banshees when the cops dragged them away and 2) argued for jury nullification when they were tried for trespass.  At least they didn’t act surprised they were being taken away.  I imagine similar things have happened in regard to nuclear weapons and it’s a similar principle.  I do not know if such jury nullification was successful in those cases.

I tried to show him the danger of this approach:





Indeed, this was a point I made in a post entitled The Danger of Hate Speech Laws... to Islam.  In that post, I showed how several passages from the Koran would likely be seen as “hate speech” and then I said this:

The point of that exercise isn’t therefore to condemn Islam or the Koran as hate speech, but instead to show how easily it could be done, so I can show the danger in a legal regime that allows for the banning of so-called “hate speech.”  In other words, American Muslims should oppose hate speech laws if only because they might find their own religion banned under the same laws.

Of course in that context I was talking about official censorship, and not censorship by mob, but the principle is the same.

And indeed her approach is even more short sighted than that.  You see, in summer of 2012, Ms. Eltahawy wrote a very good article attacking how women were treated in the Islamic world, called Why Do They Hate Us?  She makes the point that for all the talk about a supposed "War on Women" in America, the real misogyny was in the Islamic world.

And of course she was denounced for this.  According to a too-glowing Village Voice piece:

Many academics found Eltahawy's article frustrating. "I was completely outraged when it came out," says Ellen McLarney, a professor of Middle Eastern studies at Duke. "It was a blanket condemnation of Arab and Muslim men as being across-the-board misogynistic and patriarchal and oppressive to women in a way that was not contextualized at all. It pandered to western views of Arabs and Muslims that have a dark colonial history."

Leila Ahmed, a Harvard Divinity School professor whom Eltahawy calls a personal hero, wrote in a reaction piece for Foreign Policy that she "found almost every paragraph of Eltahawy's essay . . . troubling as, again and again, broad brushstrokes and sweeping generalizations erased subtle nuances and garbled and swept aside important differences." Speaking to the Voice about Eltahawy, Ahmed says it is too simple to simply blame the oppression of women on Islam. "There is a whole variety of women working on this issue in Egypt and in the Arab world, and many of them are deeply religious," says Ahmed, adding that she worries Eltahawy's piece "implies that Arab women need the West to come and rescue them. It's as if only we here in the West can understand these issues, whereas over there they don't."

They were being gentle, but what a lot of people would say is that this article is hate speech.  Indeed, let us recall that Theo Van Gogh made a movie on a similar theme and was murdered for it.  Thus again, a deeper person would have seen the danger presented by any regime where “hate speech” is suppressed, by government edict or just by mob action.  But if she is troubled by the implications of her arguments, she sure isn’t showing it.

So I went on, 140 characters at a time:


Which led to this response.


Now the first part of that is nonsense.  In a regime where unwelcome speech can be suppressed by vandalism, the minority voice is not going to be helped.  It’s just that simple.  Later on, he argued that the Torah might be seen as hate speech but I made a simple point in response:


The Torah, the first five books of what we Christians call The Old Testament, is part of the Christian bible.  So it is difficult to call the Torah hate speech without calling the Christian bible hate speech.  And as a practical matter, we Christians dominate this country.  Eight out of ten Americans are Christian.  There is no way in hell you can convince such people to allow for suppression of the Christian Bible.  It’s just not going to happen.  But it could happen to the Koran.

Let me lay out how it could happen.  A nuclear blast hits New York City, and Islamofascist terrorists take responsibility for this.  And in the wake of this horror, a large number of Americans conclude that Islam is inherently evil and that this religion must be suppressed.  Soon vandals are charging into mosques burning the Koran or perhaps doing worse.  And then juries let them get away with it, because they agree that the Koran is evil.  Maybe not all of them feel this way, but you only need one person to hang a jury and make conviction impossible.  That is all Beckwith needed.

When I was on trial for a crime I did not commit—indeed one I was being framed for—I made it clear to my attorney that even though I had learning disabilities, he was forbidden from making any defense based on reduced capacity and the like.  I did not want my defense to hurt the standing of any other disabled person.  Maybe Cohen thinks this defense is a good idea, but I am surprised that Ms. Eltahawy would allow such an anti-free-speech defense to be put forward, if only because she might find her own speech being suppressed next.  But then I watch that video and watch her smug sense of entitlement—she did not even understand she did something you normally get arrested for—and it becomes less surprising by the moment.  This is a woman who of very little depth.

But let’s look at that tweet again:


What the bit about “family planning” was almost certainly referring to was cases involving abortion clinics.  Now sometimes this was equivalent to the nuclear protests.  They trespass, they block the entrances, they peacefully try to lay their bodies in between the pregnant women and the clinics so as to save what they saw as a human life inside.  I don’t support this action, but at least we are in the ambit of typical civil disobedience where you feel the law allows people to do things that are unjust, or they prevent you from doing something you feel is just (such as Dr. King wishing to protest racism and not being allowed to get the permits because Bull Conner didn’t agree with his message) and so you break the law.

But there are darker examples.  It has also been argued that violence, even the murder of abortion doctors is justified.  Now, ordinarily, if a man is about to murder a fully-born baby—as in, there is an imminent danger of the murder—you are allowed to use lethal force to stop him.  What you can do to defend your life, you can do to defend someone else’s life.  But like it or not, abortion is legal in America and that means as a matter of law the doctor is not about to kill anyone.  That is why it is wrong to kill an abortion doctor: because the rule of law must prevail.

And indeed the same logic applies here to Cohen’s necessity defense.  Just as a pro-lifer may believe that the law is wrong and that abortion doctors are murderers, Mona Eltahawy believed that the law was wrong and this speech was in fact dangerous.  And just as a pro-lifer may not disregard the legal finding that abortion is not murder and kill an abortion doctor, Ms. Etahawy may not disregard the legal finding that Pamela Geller had a right to put up that message and try to silence it by mob action.  This is not to say what Eltahawy did was equivalent to killing an abortion doctor, but it is a difference of degree and not kind in that respect: she was justifying her illegal action on a set of facts the law doesn't recognize. 

But there is another significant difference, here:



His response:


That is lawyer talk for: “the difference is irrelevant.”


And I tried, and tried, to make him see the danger of his approach:


His irrelevant response:


And it truly is irrelevant.  Necessity is available as a defense to any crime.  So if necessity justifies the destruction of “hate speech” it justifies the theft of it, for the purpose of destroying it.




Which is irrelevant.  And then this weird response:



He did that a lot, imagining different horrible messages that might be on a poster, as if I cared what the message was.  Why was the concept of viewpoint-neutrality so difficult for him to wrap his head around?

In any case, I told him flat out that I thought this defense was improper and if I was a judge I wouldn’t allow it.


And there more clearly than ever he gave away his game.  This is not about civil disobedience, or necessity, but jury nullification.  And not the kind where you merely say that the jury had a right to decide what the law was, but where you said the law should be disregarded.  He wanted them to decide she should get away with it, because they don’t like the speech involved.

I took him to task.






And for some reason that sent him completely off the rails.


Mmm, yes, the problem in Israel is the racist murder of Palestinians by Isrealis.  Glad he has that straight.  (Note: I am being sarcastic.)  But I was trying to keep the conversation going, so I ignored that point.


I mean it is weird in one moment to say you hate how Israel allegedly does this and then the next moment say, “hey, let’s do that!”

And about then he decided he had argued long enough, and blocked me.  And then said this afterward:


So says the guy who foamed at the mouth regarding the imaged crimes of Israel, all while I insisted that a person had a right to speak freely without having a crime committed against them.   I know, I am radical this way.

But more importantly, he gave away entirely too much.  He told the entire world that he planned to use a plainly bogus necessity defense as a way to try to convince a jury to ignore the law and allow for the suppression of speech his client doesn’t like.

Now one reasonable objection is that this is just an attorney giving the best defense he or she can.  Well, the actual classic phrase is from the model rules of professional conduct for attorneys, which states in relevant part that the lawyer should “zealously ... protect and pursue a client's legitimate interests, within the bounds of the law[.]”  And while the state rules don’t use that exact phrase it states that a “lawyer shall not intentionally... fail to seek the objectives of the client through reasonably available means permitted by law and these Rules.”  Which is not as direct or eloquent as the first quote, but it is basically the same idea.  Work as hard as you can.  This is a command, not merely a suggestion.  But you cannot break the law or the rules of ethics.

And it is important to note that the law also requires that the lawyer ensure that the legal theories are at least plausible and reasonable.  No competent lawyer today could say that a state can legally ban all interracial marriage or allow for slavery (except as a punishment for a crime, allowed in the Thirteenth Amendment).  Would he argue that a white man had a right to shoot a black man who was sleeping with a white woman on the theory that interracial sex harms society?  Of course not.  The argument has to have some plausibility and I would argue that my hypothetical is just as fanciful as his theory that Ms. Eltahawy was harmed my speech she didn’t like.

No lawyer can pretend this was justified as necessary to prevent an imminent harm to others with a straight face.  Not when the best example he could come up with was an alleged hate crime that occurred months later, whose relationship to the poster is not established.  I can understand that Cohen’s client doesn’t have very many other options.  But I will remind you of a point that Ms. Eltahawy made herself.


If I was her attorney... well... you can’t force a client to take a plea bargain.  And compared to other lawyers I am probably unusually respectful of their right to disagree with me.  But I would have told her in the strongest terms she would be nuts not to take the deal.  It was a gift and why she would want to risk a few weeks in jail instead is beyond me.  And considering the fact she has no rightful legal defense, that seemed self-evidently the best way to extricate herself from this mess.

In any case, if the New York DA is watching Ms. Eltahawy’s twitter, they are probably watching Mr. Cohen’s as well.  And I don’t think he helped his client in this exchange.

Update: I missed this but apparently he then decided to denounce me in a series of tweets.













So putting aside his bizarre argument that I was supposedly “driven by Zionism” (no, I am driven by a love of free speech), he is arguing that he has only a duty to the client and he must provide the most zealous defense possible.

Yes, but once again it must be within the bounds of the law.  That means that his defense of necessity must actually be suggested by the evidence and he couldn’t make that case.  A person being harmed two months after the fact when causation is not established—indeed as a matter of law, cannot be established—is not an imminent harm.

And incidentally all of those arguments about the implications of his approach is precisely what any good judge will say to him when hopefully his attempt to infect jury nullification into the case is shut down.  Indeed, there is nothing more appropriate in law than the argument that this is establishing a bad precedent.

And I will add that zealous advocacy doesn’t mean that you advance any argument however ridiculous.  Maintaining the respect of the judge is important, too.  He has certainly lost my respect.

And don’t even get me started with his silly comment about cheese...

  

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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 Blogger’s Defense Team button 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.
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2 comments:

  1. Tanny O'HaleyMay 2, 2013 at 12:14 AM

    "And incidentally all of those arguments about the implications of his approach is precisely what any good judge will say to him when hopefully his attempt to infect jury nullification into the case is shut down."

    A good judge in my opinion is assuming a lot. When I experience and read about more judges doing right, then my opinion will change. Just remember what has happened to you.

    ReplyDelete
  2. UnknownMay 2, 2013 at 9:12 PM

    > It seems to be saying little more than support Israel
    > against those waging “holy war” against it.

    ... Yes it does but those exalted liberal institutions don't teach logic... darn it Aaron I'm turning into a conservative and it's all your fault :☭

    ReplyDelete

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