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

This is the latest post in what I half-jokingly call The Kimberlin Saga^®.  If you are new to the story, that’s okay! Not everyone reads my blog.  The short version is that Kimberlin has been harassing me for over two years, his worst conduct being when he attempted to frame me for a crime.   I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word.  You only have to believe your eyes.  And more recently when his wife came to us claiming that this convicted terrorist had threatened her harm, we tried to help her leave him, and for that, he is suing myself, John Hoge, Robert Stacy McCain and Ali Akbar for helping his wife and he is suing Hoge, McCain, Akbar, DB Capital Strategies, Michelle Malkin, Glenn Beck, James O’Keefe III, Patrick “Patterico” Frey, Mandy Nagy, Lee Stranahan, Erick Erickson, Breitbart.com, the Blaze, Mercury Radio Arts, Red State, the National Bloggers Club, and  Simon and Shuster alleging that we are all in organized crime for reporting factually about the spate of SWATtings committed against myself, Frey and Erickson.  So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

This is continuing a series I began with this post and continued with this post, this post and this post.  This is the last in that series.

And like the last few times, I am going to start off by asking for your help in paying for the real, full transcript from this week’s proceedings by donating to Bomber Sues Bloggers!  Don’t whine to me you aren’t seeing the whole thing!  Donate, and read it all (minus a few redactions to protect the innocent).

And bluntly, we need this transcript, so we can present it in the RICO case.  It will hopefully give us collateral estoppel on numerous issues, especially the ones where he is seeking a preliminary injunction against us, since the primary argument is that we have been calling him a pedophile.  Under collateral estoppel, the court will say “you had your day in court, and we are not litigating these issues twice.”  It might help us dismiss all or part of the action.

Blegging out of the way, let’s continue.  And if you need any background, I suggest you go to the first post in this series, here.

And let me take this opportunity to say thank you for the McCainalanche for this series.  It’s greatly appreciated.

Do I really have to tell you that
you need popcorn for Stacy
McCain's testimony?

So last time we finished the testimony of myself and went over the testimony of John Hoge and Ali Akbar.  Next up we have Stacy McCain, so we are clearing the decks, so to speak.

Even the recordings don’t quite capture how angry Stacy seemed to me.  And again, that’s not a criticism—he had a right to be angry—but you do worry how the jury was going to take that.  I think on balance, there was enough funny about his presentation that he came off well.  And if the jury was wondering why they were there by that point—and they might have been—McCain’s anger at being there would jive well with their feelings.

Early on, Brett attempted to paint Stacy as a racist.

Kimberlin:       You know what the Southern Poverty Law Center is?

Ostronic:         Objection, your honor.

Court:              What does the Southern Poverty Law Center have to do with this case?

Kimberln:        Well, Mr. McCain...

Court:              Southern Poverty Law Center, what does that have to do with this case?

Kimberlin:       Mr. McCain is considered a neo-confederate.

Ostronic:         Objection, your honor.

Court:              Well...

Kimberlin:       The Southern Poverty Law Center is one...

Ostronic:         Objection, your honor.

Kimberlin:       ...of the esteemed...

Court:              Hold on a sec...  Counsel, I appreciate you objecting to my question...

Ostronic:         I’m sorry.

Court:              I’m not going to overrule myself.  [Laughter.]  What does the Southern Poverty Law Center have to do with this case?  I’m not asking about Mr. McCain.  I’m asking you about why you are asking him...

Kimberlin:       I’m asking...

Court:              ...about the Southern Poverty Law Center.

Kimberlin:       ...asking him, the Southern Poverty Law Center is the leading, one of the leading civil rights organizations in America.

Court:              I understand all of that, but what does it have to do with this case?

Kimberlin:       Because...

Court:              And the claim that you’re making against these gentlemen?

Kimberlin:       Because, the Southern Poverty Law Center regularly outs racists.

Court:              Well, so what...

Ostronic:         Objection.

Court:              ...if they do?  What does it have to do with this case?  This case isn’t about racists or racism.

Kimberlin:       It’s about hate, it’s about hate, these people hate me.  And they’ll do anything to destroy me.

Court:              But why are you asking this witness about the Southern Poverty Law Center.  First of all, he couldn’t testify as to anything they said of him, because it wouldn’t be an exception to any hearsay rule.  So you never would be able to get that in evidence, anyway.  The objection’s sustained.

Yes, Martin Luther King, Jr. dreamed that his children would be judged by the content of their character, and Brett Kimberlin is terrified that he will be judged by the content of his character.  It’s totes the same!  (Note: sarcasm.)

Next up, you get McCain being required to read from his blog.  Folks, I do not have the energy to transcribe how he read off his own words.  So what you will see is a cut and paste of the original text with the assumption that what McCain actually said was close.  And mostly not even that, unless he added something that is interesting.  So for instance, we have this exchange discussing his post “How to Get a Million Hits on Your Blog in Less Than a Year”:

Kimberlin:       Let’s just cut to the chase, here.  Point number 4.

McCain:          Point number 4: Make Some Enemies.  “We'll have none of your ‘bipartian civility’ around here, you sissy weaklings. This here is the Intertoobs, and we're As Nasty As We Wanna Be. The fact that The Moderate Voice has turned into a reliable vessel for DNC talking points should tell you all you need to know about the fate of bipartisanship in the blogosphere.

“At the same time, however, don't confuse cyber-venom with real-world hate. Maybe Ace of Spades really would like to go upside Andrew Sullivan's head with a baseball bat, I don't know. But at some point you understand it's just blogging about politics, and you start wondering if maybe it shares a certain spectator-friendly quality with pro wrestling. For all we know, Ace is spending weekends at Sully's beach shack in Provincetown.”

A sense of humor, sir, is not a crime in this country.

Court:              You’re defaming pro wrestling right now.  [Laughter]

McCain:          Hey, Jesse Ventura sued somebody...

So obviously, the majority of that is a cut and paste from this post, with a little added in the beginning and the end.  That will either bother you or it won’t but there is a rule of diminishing returns.  But I did think his comment at the end about the right to have a sense of humor was a home run, so I did this quick and dirty transcription method.  He was indignant, but still funny, and my sense is the jury liked him, to the extent that they didn’t have a poker face.

Next Kimberlin had McCain read more of rule 4, and then a large chunk of rule five.  It was kind of a unique moment when he read the words “donkey sex” in the courtroom, but again, I think everyone got it for the humor it was.  (Go to the original post to get the context.)

And here Brett is trying to explain why he had him read this off:

Kimberlin:       So... in other words make enemies, and raise money and use sex to do that.

McCain:          Everybody loves a pretty girl.  Christina Hendricks.

Kimberlin:       Now you have used these things when you’re blogging about me.  I’m your enemy, huh?

McCain:          You’re?  Do you hate me?  With a passion, sir.

Kimberlin:       I’m saying, you created an enemy, right?  Is that what you’re saying.

McCain:          No, I’m saying that you attacked me.

Kimberlin:       And then, and then...

McCain:          You attacked my family, sir.

Kimberlin:       ...my wife.

McCain:          You have sicked your friends on my family.

Kimberlin:       Oh, please.

So...  a few points.

First, Brett thinks that sex sells, even when it involves underage girls?  Um...

Second, it all reminds me of what his wife said to me once.  She said that Brett has so little comprehension of the feelings of others, that he literally doesn’t understand why anyone would be mad at him.  Accordingly, he thinks everyone is lying, crazy, etc., because when they say, “you have done things that are outrageous and accordingly I am outraged,” he has zero comprehension of that.

Kimberlin also gets into the idea that there is a “Team Kimberlin” asking this question:

Kimberlin:       Do you tie me to Neal Rauhauser?

McCain:          You’ve tied yourself to Neal Rauhauser.  You told a Maryland Court that he is your associate.  He has claimed you as his client.  Neal Rauhauser has represented your other non-profit.

Kimberlin:       That’s hearsay.

McCain:          I’m answering your question.

Ostronic:         Objection [unintelligible].

Court:              It’s your question, sir.

Kimberlin:       I know.

McCain:          Can I answer the question?

Court:              Yes, you can.

McCain:          Thank you.  Neal Rauhauser, you stood in court and said that Neal Rauhauser is your associate.  He’s attended multiple hearings where he was not a party that you were involved in.  Neal Rauhauser has described you as his client.  Neal Rauhauser represented himself as an agent of your non-profit Velvet Revolution dot US.  So, he is your associate.

Kimberlin:       And was Neal Rauhauser a defendant in the lawsuit that Mr. Walker filed in...

McCain:          I think he named him as a defendant.

Kimberlin:       So maybe that’s why he was my associate.

No, he is Brett’s associate because he admitted to it, in front of Judge Johnson.  Let’s go to that official transcript for a moment.  It is apparent from the transcript when Brett whines that I filed a peace order against Rauhauser and sent process servers looking for Rauhauser at his house as follows.  First, on page 6: “He [Walker] filed a false peace order against an associate, sending the police out to my house to serve him when he has never even visited my house.”  Neal was the only person I had ever filed a peace order against at that time, so he had to be talking about him.  And to remove any ambiguity, on page 51, the subject comes up again: “Mr. Walker also filed a peace order against another man named Neil Ralhouser (phonetic sp.).”  That notation means the stenographer wasn’t sure how to spell it, but did his/her best.  So first time Brett refers to his “associate” and the second to Neal, but it’s the same person.

They went on about the mechanics of blogging and then the judge decided to give the jury a break.  At that time there was a bench conference, again, and after seeing how they were doing on time, and hearing Brett say he would call his eldest daughter next, Judge Johnson asked:

Court:              Now what is your daughter going to testify to, now?  Now, that we’ve heard the defendants have all given testimony.  This one isn’t finished, but they’ve all given testimony.  What’s the purpose of you putting your fifteen year old daughter in the middle of all of this?  What’s she going to add...

Kimberlin:       She’s already in the middle...

Court:              What’s she going to add...

Kimberlin:       ...she’s already in…

Court:              to all of this?

Kimberlin:       She’s, she’s in the middle...  they’ve attacked her.

Court:              But she’s not a party.

Kimberlin:       She’s not a party!  And it goes to harm, and it goes to harm to me and it goes to malice.

Court:              Well, you, you can testify about that.

Kimberlin:       I may not testify.  I don’t have to testify.

Court:              But I’m not going to...  I’m very seriously considering not allowing a 15 year old child to be put in the middle of this, when nothing she has to say is relevant to what now...  if she’s...  what you’re...  [A.W. I think the judge was so annoyed words were hard to come by.]  It’s not that another witness couldn’t be, give probative testimony in a case like this, that’s not the case at all.  But what I’m saying is what you’re telling us that your daughter will testify to isn’t probative as to whether these gentlemen defamed you.

Kimberlin:       It’s probative as to whether my wife.

Court:              Your wife’s not a party.

Kimberlin:       No, not they’re saying that they’re relying on my wife’s statements or the pleadings filed by Mr. Walker.

Court:              The answers, the answers to questions... that information came in about your wife because of the questions you asked.

Kimberlin:       I’m not saying that.  You know, they would have brought that in anyway.

Court:              Well, but they didn’t.

Kimberlin:       Okay, but they’re not done.  Well, and, and...

Court:              They might be.

Kimberlin:       Maybe they are, but my... my point is...

Court:              You’re not understanding me, are you?

They go on like this back and forth for a while.  But you get the idea.  The judge was actually thinking of prohibiting her from the stand.  A few seconds later.

Kimberlin:       If anybody would know I am not a pedophile, it’s my 15 year old daughter.

Court:              Let me just tell you something.  You’re going to tell me that kids know everything about their parents?  Please.

Again, it goes on, around and around, the judge trying to impress Brett with how useless his daughter’s testimony was, and Brett continuing to insist on it.

Kimberlin:       So, I really want her to testify.  And I...

Court:              I know you want her to testify.  But that’s not the basis for receiving evidence that the person wants it.

Can we give Judge Johnson a “booyah?”  Booyah. 

Court:              You know the witness you really need?

Kimberlin:       Huh?

Court:              Is your wife here?

Kimberlin:       She’s, she’s packing, we’re leaving on vacation tomorrow.

Court:              Is she gonna testify?

Kimberlin:       She’s not going to testify.

Court:              If she was going to testify, that would be one thing, but a 15 year old.

Kimberlin:       You know, but my wife has has some problems mental problems.

Court:              I won’t make you talk about your wife.

I will interject that I know he is lying about her mental state.  No, I am not a psychologist, but she was absolutely normal, bright and so on.  I wish she had the strength to stand up to her husband and get those kids away from him, but that’s weakness, that’s all.  And bluntly, I don’t know what it is like to live with a man as evil as he is for so long, so I won’t judge.

And no one on our side bought his claim that she was home.  No one has seen a verifiable recent picture with the family, and I have information that places her in the Midwest.  I won’t say where or how I know, because she might want to avoid her husband, but maybe the judge is fooled by this routine, but I am not.  And then we get more on his daughter’s suffering.  The judge said that you can’t bring in bullying evidence and Brett made this argument:

Kimberlin:       Well, then I can ask her what happened with her.  In other words, did someone say something at school that caused you to be bullied, and not to be allowed to have any more sleepovers, or not to be allowed to come over to the house.

As I said on Da Tech Guy’s radio show, I am proud if parents are warned.  Ideally he should be back in prison, but at least the parents are warned.  And whatever you think of the evidence that Brett is a pedophile, there is enough cause for concern that any good parent would keep their kids from having sleepovers at Brett’s house.  If I was blessed with a daughter, I would never let her alone with him, just based on what is in Citizen K, without even considering Mrs. Kimberlin’s allegations, or the music he made about having sex with teenagers.  Seriously, if you had a daughter, and you lived nearby, wouldn’t you want a head’s up?

At the same time, I don’t want her to have been bullied, made fun of, etc.  If there is any truth to that claim that isn’t right.

Going on, still in this bench conference (that lasted over 15 minutes):

Court:              What I am asking you is what is it that the witness [his daughter] is going to say is admissible, that goes to the elements of this charge, these counts?

Kimberlin:       Well, first of all, they, the first one is they made a false statement.  It’s false that I’m a pedophile.

Court:              Of course a daughter is going to come in and say that her daddy is not a pedophile.  That is the most self-serving comment... ever.  That’s like a mother comes in, a mother comes in, and says...

Kimberlin:       Let them, let them, let them attack her and say...

Court:              I am not going to let anybody attack a 15 year old girl.

And the judge did state the obvious:

Court:              There’s no doubt about the friction between you all.  [Chuckles.]  That’s pretty...  if there is anything proven in this case it’s you all don’t like each other.

And he tried to explain how badly he was coming off.

Court:              I mean you have used the word pedophile, today, more times than anybody has.

Kimberlin:       Well, I know.

Court:              You keep using it, over and over and over again.

Kimberlin:       Because that’s what they say and it’s per se defamation.

Court:              But from a strategy point of view, do you really want to keep saying that?

Kimberlin:       Um, well, I mean, that’s, that’s the nexus of this case.

Court:              See, this is the problem when people represent themselves.  You can’t take, can’t step back and listen to how it sounds, cause you’re in it.

In other words, the judge was saying that when Brett says the word “pedophile,” he sounds like a creep.  Finally the court gets to the bottom line:

Court:              And then the other thing you have to worry about is what the jury is going to think of you, putting a 15 year old on the witness stand.  You haven’t thought about that.

Kimberlin:       Yes I have.

Oh, yes he has, but the little “all-around sociopath” doesn’t comprehend the problem, because the little napoleon is focused on The Passion of the Brett.  Anyway, Brett finished that discussion still determined to bring his daughter on the stand and the judge very reluctantly allowing him to (the judge had cause to exclude her, or at least tighten up how long she was on, but his lenience, again, is a blessing in disguise in that it takes away another issue for appeal).  So Kimberlin gets Stacy back on the stand, and had him read more of his writing.  This time it was from this piece:

Kimberlin:       And, and I’d like for you to just read it.  Just read here and here.

Court:              This is marked.

Kimberlin:       It’s plaintiff’s exhibit 24.  Just from there to there.

McCain:          “The Washington Post is a disgrace to journalism that employs hired liars like Monica Hesse. The Washington Post and Monica Hesse are engaged in a conspiracy to conceal the truth about Brett Kimberlin.  In 2007, Monica Hesse did not tell the truth about Brett Kimberlin, and in 2013...”  [unintelligible] let me get my glasses here, hang on a second... okay, have to finish...  I’ll begin the sentence where I...  “In 2007, Monica Hesse did not tell the truth about Brett Kimberlin, and in 2013, she will not tell the truth about Brett Kimberlin.  The truth about Brett Kimberlin has never been printed in the Washington Post, nor will it ever be. No honest person would work for the Washington Post, which only publishes evil lies.”

                        Would you like my opinion of the New York Times?

Of course McCain would probably be the first to admit that this prediction was wrong given that Eugene Volokh spoke the truth about Kimberlin, but there you go.  Brett also got McCain to admit that he criticized his daughter’s singing ability.  I myself profoundly don’t care about her singing abilities, but are we going to start suing music reviewers?  Lord, Simon Cowell would be in the poor house.

With that, Brett ended his direct examination.  Then Ali had a cross examination first asking him about whether Stacy is a racist and then the same questions he asked John about whether the National Bloggers Club told him what to write about Brett.  Then on redirect Brett tried to claim that Stacy is a racist again and the judge shut that down, saying just because Ali asked without objection didn’t suddenly make it relevant.  That’s when Stacy scowled and said, without a question to prompt him, “you’re white, by the way.”  So that corrects my earlier paraphrase.

And I want to quote this exchange for you, because I think it goes to just how “blind” justice was, in a good way.  The elephant in the room is that Judge Johnson is black and Kimberlin kept trying to claim McCain was a racist as a way of biasing the judge or the three black jurors against him.  So look at how Judge Johnson handled that:

Kimberlin:       The evidence is pretty clear that Mr. McCain, in his history, has engaged in a lot of rhetoric, even called hyperbole or whatever, about whites and blacks, living together, intermarrying, things like this.

Court:              So?

Kimberlin:       I’m just saying.

Ostronic:         I’m going to object, it’s not in evidence.  [pause]  Sorry.  [A.W.: the judge kept indicating “I’ve got this”—he even said this a minute ago.  So I assume the judge indicated nonverbally, again, that his objection was not necessary at this time.]

Kimberlin:       It’s not in evidence.  I’m trying to get it in evidence.  Anyway...

Court:              We started this case talking about the First Amendment.  So what if he did that?

In other words, a person has a free speech right to be a racist, and that is not even relevant to this case even if it is true—and the judge was clearly not assuming it was true except for the sake of argument.  Maybe if Kimberlin was black or something like that, it would be relevant, but he isn’t, so who cares?  I honestly think Judge Johnson was seeing right through Brett’s grubby little attempt to sway the jury with this irrelevancy and if anything it was annoying him, because Brett evidently thought Judge Johnson was too stupid to see him trying to pull his “strings.”  I suspect like most people, Judge Johnson didn’t want to be anyone’s puppet.

Brett also tried to do something else clever, but McCain was not stupid enough to fall for it: he tried to make McCain testify against us.  After reiterating that McCain never called him a pedophile, we had this exchange:

Kimberlin:       If somebody called somebody a pedophile would that be libelous?

McCain:          Would that be libelous?  If the person was... you know, its… if it’s a matter of opinion, it’s not a word that I have used.  That’s the point.

Kimberlin:       I’m trying, I’m trying to give you some credit, here.  You’re a smart editor, you’re a newspaper editor.  You know the fine line between...

McCain:          So what’s your...

Kimberlin:       ...what’s acceptable and what’s not.  So, I’m trying to get you to tell this jury why you didn’t use the word pedophile and all these guys did.

McCain:          Well, because I suppose because long years of experience and it was not necessary to use the word pedophile, in order to make the point, let the readers draw their own conclusion by citing the book, Citizen K, to cite articles in the Indianapolis Star, to cite other evidence that was relevant to the thing.  In other words, you report the facts and let people make up their own minds.  It’s not my job to tell people what to think about you.  I tell them the facts, and they make up their own minds.  See, this is the great thing about the blogosphere... you know, fifteen years ago, before the internet and the blogosphere and stuff like that, if it, if the Washington Post and the New York Times and the ABC, NBC, if those people didn’t want to report a story most people would never hear about it, right?  And, and, if you, you would publish something and maybe it didn’t make an impact but now if the Washington Post publishes something that is, for instance, the Monica Hesse story, that is incomplete, other people, including average people, average people who have no especial qualifications, okay?  If they see part of the story that’s missing, okay, they can say look here, here’s what Monica Hesse didn’t report.  And, why isn’t Monica Hesse reporting this?  What is the cause of Monica Hesse’s bias?  My criticism of the Washington Post is that they didn’t report very important things about you, sir, and these... other people might read, if they read the same things that I’ve read, if they read the same things that other people have read, they might use the word the word pedophile, and whether or not that would constitute defamation is a matter of law.  But they didn’t just make it up out of whole cloth, sir, there are facts involved in this story.

McCain goes on to tell how he originally got involved in the story, talking about Neal Rauhauser.

Kimberlin:       That’s all fine and dandy, but the point is you, Mr. Publisher and copyright editor, Washington Times, [inaudible] reporter, award winning this and that, knew you better not use that word pedophile.  You better not use that word pedophilia.  You knew it.  And...

Court:              There’s going to be a question?

There was a question, but it was leading so we went a few rounds over that. 

But look the difference was between me saying, “look at x, y, and z, gosh I think he is a pedophile” versus Stacy saying, “look at s, y, and z, and make up your own mind.”  The fact Stacy chose to let people make up their own mind, and I shared my opinion doesn’t indict me because in both cases we giving you, dear reader, enough information to make up your own damn mind.  Or as Ken White explained a long time ago:

Statements of opinion enjoy broad First Amendment protection. Now couching something as an opinion isn't an automatic or complete defense — I might be sued for saying "In my opinion Joe Blow robbed a bank last week," because that implies undisclosed facts that may be false. But my statement is protected by the First Amendment when I disclose the facts underlying it, or when those facts are generally known. So if Joe Blow is arrested for bank robbery and it's on the front page of the paper, my statement "Joe Blow is a bank robber" is almost certainly protected opinion based on generally known facts. If I say "the newspaper says that Joe Blow was seen putting on a ski mask in the street, and bank tellers say someone with a ski mask robbed them, and I saw Joe Blow running down the street from the bank afterwards. Joe Blow is a bank robber," I have disclosed the facts that form the basis for my opinion, making it protected (unless, for instance, I lie about seeing Joe Blow run down the street.) This doctrine protects the right to opine about news stories and court proceedings.

Or to pick a more timely example, you saw the horrible story of Tony Stewart striking a man on the track and the man dying from the blow.  Here’s an example of the coverage showing the amateur video:

The question right now is whether that is murder or just an accident.  I will say bluntly, I don’t feel like I can say either way, but police are looking into it, last I heard.  But a lot of people looked at that footage and said that Stewart was a murderer.  And as long as it is clear in context that all they are judging by is that footage, that’s protected opinion.

Anyway, Brett says “no more questions again, and Ostronic offers one question.

Ostronic:         Mr. McCain, of everybody in the room right now, who would you say is your closest friend?

McCain:          Ali Akbar.

Which isn’t subtle but it got the point across.  So then Akbar asked on re-cross a few more questions about Citizen K and the evidence that Brett is a pedophile and some mild points about the racism issue.  Then it was time for a re-redirect from Kimberlin (the judge was decidedly sick of this by now).  There, McCain had had probably the best answer to Brett’s refrain that somehow when the charges were nolle prossed (voluntarily dismissed, more or less), that this meant he was innocent.

Kimberlin:       Did you write any article, or did you see any article by any of these men, defendants, after those charges were dropped, that said they were nolle prossed?

McCain:          I don’t know what I saw.  I mean, I, you know, read a lot of articles obviously.

Kimberlin:       Did you write story saying...

McCain:          Have I…?

Kimberlin:       ...gee, Brett was falsely accused and my God, I’m so sorry.  You know.

Akbar:             Objection.

McCain:          You weren’t falsely accused.

Court:              Overruled.

McCain:          Nolle prossed does not mean you were falsely accused.  I’ve had traffic tickets that were nolle prossed.  That didn’t mean I wasn’t going 85 miles an hour.

The legal distinction between “nolle prossed” and “innocent” summed up in a way only Stacy McCain could say it.

So that was pretty much the end of Stacy’s testimony.  Next up was the eldest daughter, but bluntly, I think the whole thing was purely an indulgence, letting her talk about her music career and then pretty much being stymied in everything else.  The only thing of value to come out of it is that she repeated Brett’s questionable claim that his wife was home packing for a trip.  And she said that her father had never touched her in an inappropriate manner.  I hope and pray that she was telling the truth on that point.

And then he finished with her and there was no cross-examination.  So we were done with her and Brett announced that he was resting his case.  At that point our attorney stood up and moved for a directed verdict.  Said there was no evidence of falsity, damages or malice.  Basically all he proved is that we said bad things about him.

And it went around in circles.  The judge tried to get him to understand that he needed evidence on these points and Brett kept failing to understand.  For instance at one point the judge said:

Court:              Are you suggesting that a person could file a lawsuit, just go into court and say that the defendant called me a pedophile and rest?

Kimberlin:       I’m not saying that.  I’m saying that they, they called me a pedophile and it is false, and they did it maliciously, and once they...

Court:              What evidence is there that it is false?

Kimberlin:       What evidence it is false?

Court:              Mmm-hmm.

Kimberlin:       [long pause]  You ask what evidence that it is false?  It’s a crime, they said I committed a crime.

Court:              You just said that

Kimberlin:       I mean...

Court:              Hold on a sec, you just said they called me a pedophile and it was false, my question to you...  well, let me ask you another way, why did you say that it is false?  I understand that you say you’re not a pedophile.  But you don’t want to argue that.  But who has testified to that?

Kimberlin then starts talking about Shapiro a defamation per se case, which doesn’t suspend the requirement of proving falsity.  You can read it, here.  At most it means that makes it easier to show damages, if he shows it is false.  For instance, I can call Brett a bomber, and that would be defamation per se... if it is was false.  But you know by now it is true.  They went round and round on this but it is worth quoting another exchange on this point.

Court:              I’m asking you who, who in this courtroom yesterday or today, said that those statements were false?

Kimberlin:       Your honor, in a defamation case...

Court:              You hate answering questions don’t you?

He wasn’t even annoyed, just catching on to his game.  Dodge, dodge, dodge...  At another point the judge said this:

Court:              Wouldn’t somebody have to say these things are not true?

And Ali made his own argument, and ended with “Brett Kimberlin is a pedophile.”  After he finished the judge told us to remain seated and he would be back soon with a decision.  Twenty minutes later Judge Johnson came back and gave us a ten minute “bench opinion.”  Again, it is not something that can be quoted in a compact way.  Johnson has many gifts, but brevity ain’t one of them (and it’s not my gift, either).  Here’s one highlight from the court’s statement.

With respect to the count alleging that the the defendants showed him in a light, a false light that is really the easier of the two and the court will grant judgment in favor of the defendants with respect to that count.  There is not one scintilla of evidence in this case that any statements that were made by these individuals were false.

So that is that.  And that is the essential flaw in defamation.  Falsity is an element of defamation, too.  But the judge felt like discussing whether accusing a person of being a pedophile was defamation per se, so he discussed that at length and decided it wasn’t.  Pedophilia is a mental condition, the court said, and not a crime.  If you act on it, it is a crime, but not merely the mental state.

But, even if it was defamation per se, you still have to prove falsity, and as the judge said, “[t]here is not one scintilla of evidence in this case that any statements that were made by these individuals were false.”

And that is that.  I have already provided analysis of the potential long-reaching legal effects of that decision, here, so I won’t repeat my analysis, except to add this.  Now, in the RICO case Brett has to explain to the judge how our alleged false statements hurt his reputation more than the statements in this case that were found not to be defamatory.  You can make the argument that even with his checkered criminal past, being accused of being a pedohile harmed his reputation.  But it is not reasonable to say hypothetically, “well, sure, he is a convicted bomber, drug dealer, and an adjudicated pedophile, but I really didn’t think badly of him until these people accused him of being a SWATter!”

The only question is whether Brett will continue to press these ridiculous claims.  For his part, Bill Schmalfeldt has suggested that Kimberlin re-evaluate his RICO suit.  We shall see if he does.

Regardless, Brett’s grubby little attempt to get a preliminary injunction in the RICO was based in significant part of claims we were falsely calling him a pedophile.  So we are likely to need the transcript specifically to address that.  So hit the freaking tip jar at Bomber Sues Bloggers!

And thank you to those who have already helped me out, both by donating and every other way.  I am truly grateful.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

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

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

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

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

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

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