Exclusive: New Courthouse Developments in the Brett Kimberlin Saga

This is the latest post in what I half-jokingly call The Kimberlin Saga^®.  If you are new to the story, that’s okay! Not everyone reads my blog.  The short version is that Kimberlin has been harassing me for over a year, his worst conduct being when he attempted to frame me for a crime.  I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word.  You only have to believe your eyes.  So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

Well, the other day I discovered something when searching the Maryland Judiciary Case Search database that raised many interesting questions, but provided few answers.  There were four new filings in the database, all related to Kimberlin in one way or another.

First, is the blockbuster filing.  It appears to be a protective order otherwise known as a restraining order in most states involving some kind of domestic violence.  Here’s a redacted version of this record:

Now, regular readers of this blog are well aware of the peace order statute and its workings (read here, if you want to learn).  So much like the peace order process, there are three potential steps in the protective order process.  If the court is in session, the petitioner can seek a temporary protective order.  This can be ex parte, meaning without the other party present.  Or for whatever reason the other party might actually be present.  In any case, the court looks to see if there is “reasonable grounds” to issue the protective order.  This is a low standard.  If it finds such grounds exist, then a temporary order is issued and a new trial is set for the final peace order, which we will talk about in a moment.

But what if the court is not in session?  I mean very often a serious act of domestic violence doesn’t happen during business hours, right?  Well, in that case the person can either wait until the court is in session, or, if they feel they can’t wait, they can get an interim protective order.  It’s the same legal standard (and it is always ex parte) as the temporary order, but it can only last until the first or second day in which court is back in session, because it is done in front of the commissioner rather than a judge.  At that time, then you go for the temporary protective order and eventually the final protective order.  That is what appears to be happening here.

It is worth noting, by the way, that if the respondent shows up for the temporary protective order hearing, that often the court will hold a final protective order hearing instead.  The final protective order hearing, whenever it is held, requires the judge to find that there is clear and convincing evidence that appropriate grounds exist, the highest standard in civil law.

And before we go much further, one does wonder how exactly Kimberlin intends to defend himself, assuming he does defend himself.  As a convicted perjurer he can’t testify on his own behalf.

Now, lay persons might doubt this so let me establish this to be the case.  First, it is as plain as day in Md. Courts and Judicial Procedings Code § 9-104 which says in its entirety that “A person convicted of perjury may not testify.”  And the courts have not hesitated to apply it in the most extreme situation.

How extreme?  Consider this.  In State v. Latham, 182 Md. App. 597, 959 A.2d 90 (2008), we saw this rule applied in a criminal context to the defendant’s own attorney.  Specifically the defendant, Kevin Latham, had been convicted of murder and claimed he had received ineffective assistance of counsel:

On November 2, 2005, the postconviction court held a hearing at which Latham testified in support of his petition. David Eaton, who served as Latham's trial counsel, was precluded from testifying under Md.Code (1973, 2006 Repl.Vol.), section 9-104 of the Courts and Judicial Proceedings Article (CJP), because he had been convicted of perjury.

In other words, his own lawyer wanted to testify to the court about how bad he was at his job, in the hopes of giving his client a second chance and the court refused to let him testify, and ultimately found that he had not received ineffective assistance of counsel.  If there was any time a court would carve out an exception to this rule you would think it would be in 1) a criminal case, and/or 2) a case where a third person is harmed by the unavailability of that person to testify.  I mean to expand that second point a little, any argument to be made that not being able to testify is part of the price of the crime you committed loses significant force when it is a third person who suffers as a result.  But even then, the testimony is excluded and because ultimately the rule is about preserving the integrity of the courts, not about punishing the criminal.

And of course regular readers know by now that Brett Kimberlin is a convicted perjurer (among many other vile things).  But if you need a citation, I suppose Kimberlin v. White, 798 F. Supp. 472, 482  (WD Tenn 1992) works as good as any.

So were there any other witnesses who would tell a story that would help Kimberlin?  One can only guess.

Still, it helps to understand a little about the law of protective orders.  As I suggested above, it is very similar to a peace order but with important differences.  First, in order to be eligible for a protective order, you have to be “family,” broadly defined.  This is going to be really important in a moment, so let me quote from the statute, Md. Family Law Code § 4-501  (2013):

(m) Person eligible for relief. -- "Person eligible for relief" includes:

   (1) the current or former spouse of the respondent;

   (2) a cohabitant of the respondent;

   (3) a person related to the respondent by blood, marriage, or adoption;

   (4) a parent, stepparent, child, or stepchild of the respondent or the person eligible for relief who resides or resided with the respondent or person eligible for relief for at least 90 days within 1 year before the filing of the petition;

   (5) a vulnerable adult; or

   (6) an individual who has a child in common with the respondent.

Incidentally, cohabitants are defined in subsection (d) as “a person who has had a sexual relationship with the respondent and resided with the respondent in the home for a period of at least 90 days within 1 year before the filing of the petition.”

The key thing to get here, is that you have to fall into one of those categories to get relief from the court.  This doesn’t automatically mean that the petitioner has to be in one of those categories.  If the person is a minor child or a vulnerable adult, subsection (o)(2) provides that the following people can also file the petition on their behalf:

1. the State's Attorney for the county where the child or vulnerable adult lives, or, if different, where the abuse is alleged to have taken place;

2. the department of social services that has jurisdiction in the county where the child or vulnerable adult lives, or, if different, where the abuse is alleged to have taken place;

3. a person related to the child or vulnerable adult by blood, marriage, or adoption; or

4. an adult who resides in the home.

And as you can see that image I provided gives us no clue about who the petitioner is, or who needs to be protected.

Meanwhile the grounds for a protective order is very similar to a peace order.  The court has to find that “abuse” has occurred, and then defines abuse in subsection (b)(1) as follows:

(i) an act that causes serious bodily harm;

(ii) an act that places a person eligible for relief in fear of imminent serious bodily harm;

(iii) assault in any degree;

(iv) rape or sexual offense under §§ 3-303 through 3-308 of the Criminal Law Article or attempted rape or sexual offense in any degree;

(v) false imprisonment; or

(vi) stalking under § 3-802 of the Criminal Law Article.

So that is very similar to the litany of offenses that can trigger a peace order between people who are not “family” broadly defined.  I didn’t do a point by point comparison, but it is interesting that there is no listing for harassment.  So harassment can support a peace order, but not a protective order.

Another huge difference is that all the judge has to do is find one of those acts occurred.  By contrast, in a peace order statute, the judge must find that the act occurred and is likely to occur in the future.  Also I could be wrong, but there doesn’t seem to be any time limit in this statute (or perhaps I haven’t found it).  By comparison, in a peace order you must allege that the forbidden acts occurred in the last thirty days.

And there is one more difference.  When a judge issues a protective order, the subject of that order is prohibited from possessing any firearms.  This doesn’t occur under any peace order (thank God).  Now, Kimberlin is already forbidden by state and federal law from possessing a firearm, but he has already broken that law in the past.  When he was busted for the Speedway Bombings, they found an AR-15 among his belongings.

Do you think he might have any guns today?  And he is specifically required to actively surrender such weapons, but... how can he do that without admitting to owning them.

Further, I have seen enough of these hearings go down to know that the judge routinely asks the petitioner if the respondent has any guns.  What will that person say?  Will they implicate Mr. Kimberlin in a violation of criminal law?  One can only wonder.

So you can see that the protective order leaves us a large number of questions and few answers.  And that is only the first of four filings we are about to discuss.

Secondly, we have a peace order also filed against Kimberlin.  Again, the name of the person filing it is unknown.  But here’s the interesting thing.  Look at the image from the website:

As you can see, it appears to have been filed at the same time as the protective order.  This and the fact they both have the same respondent suggests that the cases are related.  Now one thing that I haven’t mentioned before regarding peace orders is that it is a requirement of law that respondent and petitioner does not have any of the kinds of relationships described above when talking about protective orders.  That is a husband can’t get a peace order against his wife.  He must get a protective order, if he otherwise qualifies.  It is his only option.  And I can say, having dealt with the process, that they are pretty good about making sure that no such relationship exists before you even get the form.  So this person who filed for a peace order is apparently legally a stranger to Kimberlin and he or she appears to be coordinating with whoever filed the protective order.

The third filing is a criminal charge, filed by Kimberlin against a third party, named Jay Elliott.  Now let me caution you, dear reader, that you know by now that Kimberlin’s criminal charges against have been found in the past to be utterly false.  This is a man, after all, who literally attempted to frame me for a crime and attempted to frame someone else for the Speedway Bombings back in the day.  So if you happen to know Mr. Elliott, do not take this as even slight evidence that he committed the crime he is accused of.  Kimberlin is the kind of guy who if he says the sky is blue on a sunny day, you go to the window and verify.  Here is a redacted version of the entry:

As you can see, he is being charged with harassment (Kimberlin’s favorite bogus complaint) and “unauthorized removal of property.”  If you pull up the statute, Md. Criminal Law Code § 7-203, you will see it bans the following behavior:

(a) Prohibited. -- Without the permission of the owner, a person may not take and carry away from the premises or out of the custody of another or use of the other, or the other's agent, or a governmental unit any property, including:

(1) a vehicle;

(2) a motor vehicle;

(3) a vessel; or

(4) livestock.

Well, presumably, Kimberlin isn’t accusing Mr. Elliott of stealing a cow.

Now let me engage in some very wild speculation.  What if Mr. Elliott was also the petitioner for a peace order?  What if Mr. Elliott was somehow involved in helping someone in his family leave the house and in the process he helped that person remove disputed property?  I’m not even suggesting Elliott did anything wrong: he might have believed it was this other family member’s property.  And it might even be the case.  But that would explain all of what we are seeing here.

But it’s wild speculation and could be utterly wrong.  It shouldn’t be credited as true.  We will find out what the allegations are on our own, though, so just keep it as a possibility.

But there is one other question.  How exactly is Kimberlin even being allowed to file these charges?  Lee Stranahan can tell you that they are asked to swear that these complaints are true upon pain of perjury.  And then the commissioner must find that there is probable cause.  How could there possibly be probable cause, if the evidence is legally incompetent?  After all, Kimberlin is not allowed to testify, because he is a perjurer.

And we still aren’t done.  This is an embarrassment of riches, dear readers.  Next up we have fresh criminal charges...  against Bill Schmalfeldt.  And for once I know something about these charges beyond their mere existence.  Here's the image of them, redacted as appropriate:

As regular readers know, Schmalfeldt was slapped with a peace order on June 14 with Mr. Hoge being the petitioner, and Mr. Hoge alleges that he has violated that order.  I had an interview with Hoge and the complaint particular surrounds when Schmalfeldt sent Mr. Hoge a tweet, at his twitter handle, sending it to his timeline—the exact conduct that got him in trouble in the first place.  Further, Mr. Schmalfeldt attempted to contact Hoge by writing the following on his blog:

I put it to those of you who are legally allowed to contact Mr. Hoge to ask him, what would he like me to confront truthfully? What have I lied about? What have I been less than truthful about that he needs to know in order to keep his dry blood flowing through his shrunken, hardened brain?

I have, in the past, helped women who were trying to escape abusive exes and so I have seen a lot of orders prohibiting “contact” and “attempted contact,” as Mr. Hoge’s peace order against Schmalfeldt does, and how courts have interpreted it.  Contact, in the eyes of such courts, includes asking a friend to ask you for him.  In other words if a man is prohibited from calling his wife, he can’t ask his friend to call her for him.  That is contact.  As far as I can tell, no one has taken Schmalfeldt up on his offer, but this still represents an attempt by him to make such contact.

He is being charged with five counts of violating this law in total.  As I have said before, each email, each tweet would be considered a separate violation.  And it helps for a moment to review Md. Courts And Judicial Proceedings Code § 3-1508 which outlines the punishment for violating such peace orders:

(a) Fines or imprisonment. -- An individual who fails to comply with the relief granted in an interim peace order under § 3-1503.1 of this subtitle, a temporary peace order under § 3-1504(a)(2) of this subtitle, or a final peace order under § 3-1505(d)(1)(i), (ii), (iii), or (iv) of this subtitle is guilty of a misdemeanor and on conviction is subject to:

(1) For a first offense, a fine not exceeding $ 1,000 or imprisonment not exceeding 90 days or both; and

(2) For a second or subsequent offense, a fine not exceeding $ 2,500 or imprisonment not exceeding 1 year or both.

(b) Arrest. -- A law enforcement officer shall arrest with or without a warrant and take into custody an individual who the officer has probable cause to believe is in violation of an interim peace order, temporary peace order, or final peace order in effect at the time of the violation.

So that is up to four years and nine months in prison, and a fine of up to $11,000.

Oh, and notice that word regarding arrest: “shall.”  That is law code-talk for “you don’t have a choice.”  They must arrest him.  We shall see if they actually do so.

Anyway, dear reader, you know you can depend on me to find out much more about all of the charges in question, but that will have to be for another post.  Stay tuned.

---------------------------------------

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.