Appellate Court Affirms Brett Kimberlin’s Status as an Adjudicated Pedophile

Or: “Catching Up with Kimberlin v. Walker, et. al.”

With a headline like that, you know you
will need popcorn!

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 convicted terrorist Brett Kimberlin has been harassing me for over three 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.  Indeed, he sued me for saying this and lost on the issue of truth.  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 sued myself, John Hoge, Robert Stacy McCain and Ali Akbar for helping his wife and for calling him a pedophile.  He lost on the issue of truth.  He is also suing Hoge, Akbar, Dan Backer, DB Capital Strategies, Patrick “Patterico” Frey, Mandy Nagy (who is significantly incapacitated by a stroke), Lee Stranahan, the National Bloggers Club, and  others alleging that we are all in conspiracy to defame him because we reported factually about the spate of SWATtings committed against myself, Frey, Erickson and others.  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.

The headline, here, is that Brett Kimberlin has lost his latest appeal of his lawsuit involving charges that he is a pedophile.  This is the same case that David Weigel wrote about in the Daily Beast.  And you can see where I wrote in the immediate aftermath of that victory in the lower court here and here.  To explain how we get there, however, is going to take a while.  Bluntly, I don’t write posts trying to chase the lastest breaking news.  I try to give you thoughtful analysis you can read for a while and this post is no exception.  If you read every embedded document, you are looking at around 300 pages of text by my best estimate.  So there’s nothing wrong with saving it for when you really have a long time to read.

Let’s start with a quick background about the case.  The short version is that in 2013, Brett Kimberlin’s wife, Tetyana Kimberlin, separated from her husband and came to myself and John Hoge for help.  She told us that Brett Kimberlin had seduced her when she was fourteen years old in Ukraine, that he brought her to America when she was fifteen and carried on a sexual relationship in violation of Maryland law (because she was below the relevant age of consent), and various other horribles.  This lined up with other evidence that suggested Brett was a pedophile.  She ended up filing charges based on that crime, but at some point reversed course and stopped cooperating as a witness, causing those charges to be dropped.  Brett sue me and several of my friends (John Hoge, Robert Stacy McCain, Ali Akbar and two persons who allegedly wrote as KimberlnUnmasked) for alleged stalking and harassment (which is not a cause of action in Maryland), malicious prosecution, malicious use of process, intentional infliction of emotional distress, defamation and false light.  First, we won a grant of summary judgment in our favor on all but the defamation and false light claims.  Then we won a judgment (what is called a directed verdict in most states) at trial on the issue of false light or defamation, because Brett literally had no evidence that anything we said was false.  In other words, he thought he could get up there, prove we said bad things about him and then rest his case, or he wanted the court to accept that argument.  He has now lost that argument, twice.

So that’s a thumbnail picture of the case below.  A more detailed picture will pop up in my brief, which you will see soon.  Like last time I talked about Brett’s litigation, we have some catching up to do.  It is almost a year and a half since our August 12, 2014 victory over Kimberlin in this matter and a great deal has happened.

I won’t bore you with every document involved in that—though I am still giving you a lot.  There was a fair amount of paper flying about, including at least two motions to dismiss by counsel Patrick Ostronic.

Let’s start by giving you Brett’s brief asking for the Court below to be reversed.  But let me preface this as follows.  Regular readers know not to trust much of what Brett says.  Well, this is less honest than usual.  For instance, it contains false allegations against his own wife that she has mental illness.  I am no doctor, but I have spent enough time around her that I feel confident that there is nothing wrong with her and he has produced literally no evidence showing otherwise.  We’ll go into his dishonestly in more detail when you see my response, but keep that in mind as you read this:

   BK Brief Filed July 31 Redacted

After I received that, it became very clear that I wanted to represent myself on the appeal.  So Patrick Ostronic and I filed a “consent motion” withdrawing him as counsel.  It is a consent motion because both Patrick and I agreed to this, frankly as a matter of strategy.  I felt that in this situation two lawyers arguing to the court was better than one.  In other words, lest there be any confusion on this point, I think I was well-represented by Mr. Ostronic.  But bluntly, the arguments I expected Patrick to make for John Hoge and Robert Stacy McCain would benefit me, and the arguments I expected to make would benefit John and Stacy.  I don’t mean to say that Patrick would be arguing on my behalf or I would argue on their behalf, just that the reasons why I think I should win applies equally to John and Stacey, and the reasons why Ostronic thinks his clients should win applies equally to me.  That’s why Ali Akbar never made any kind of appearance in this case and won anyway—because the arguments we made so clearly applied to Ali, that they couldn’t not rule in his favor.  So we saw it as a way to reinforce the arguments of the other.

So here’s that motion to withdraw:

   Motion to Withdraw (Redacted)

Then, before that motion to withdraw was granted, I filed what I call my Omnibus Filing, which is three documents in one.  First, there is a Brief, which responds to Brett’s points on the merits.  Second, there is a motion to dismiss which says that because Brett did various things wrong his Brief should be dismissed.  Finally, there was a motion for leave to file a motion to dismiss in excess of the page limit, because ordinarily a motion to dismiss is limited to ten pages.  Really, all you need to read from that motion for leave is this line displaying my often dry sense of humor:

The discussion of the law and its application to the present facts amounts to about three pages total. It is the necessity of correcting every time the Appellant misstated the truth that take[s] up the bulk of the Motion to Dismiss. Therefore, the length of the Motion to Dismiss is dictated almost entirely by the number of times the Appellant has misstated the truth. Accordingly, the Motion to Dismiss is twenty-five pages long.

So that would be approximate twenty-two pages of continual bull___t.  By the way, “misstated the truth” is a legal code phrase.  Lawyers typically are not supposed to accuse the other side of lying, however clear the evidence is that they are.  So we say “misstated the truth” or some variation of it, which those embedded in legal culture understand as meaning literally the same thing.  Sometime I do directly say the word “lie” with Brett because his behavior is outrageous enough to justify a minor breach of decorum—and to be clear it is only a rule of decorum, not an enforceable rule.

So without further ado, here is that omnibus filing:

   Omnibus Filing (Redaction)

(As per usual, many of these motions are unsigned, because they are uploads of the raw Word documents.  The originals were signed.)

You will note that I am piggy-backing on a motion to dismiss by Patrick Ostronic that you haven’t seen, yet.  Bluntly, what happened with Patrick’s is it was denied without prejudice, giving him the right to re-file on the theory that they were not going to dismiss it before they go to the judges, but the judges can consider this.  In essence, they told Ostronic: re-file it when you file your motion to dismiss.  As you will see in a minute, that is exactly what he did.  If there is any difference between what he originally filed in his motion to dismiss and what he re-filed, it is so negligible that it is not worth noting.

Patrick also filed for an extension of time while they considered his motion to dismiss.  If memory serves the extension was granted, though the dismissal was not.  So there’s that.

Anyway, without further ado, here’s Mr. Ostronic’s omnibus motion:

   Appellees Brief - 8September FPO FINAL Redacted

While there is a great deal of echoing and adoption of my arguments by Patrick, it might not be correct in the first place to call them “my arguments.”  I will say in all bluntness that first as my lawyer and then as my colleague discussing matters under joint defense privilege, that we spoke freely about the merits of the appeal.  I won’t breach the relevant privileges, but I can’t say for sure who recognized the validity of what argument first.  My purpose was to gather the best ideas in writing my brief, not to take credit for them.  So if you think a point is particularly good, don’t assume it means I am smart: the idea might have originated with Patrick.  Honestly, I don’t remember one way or the other.

Anyway, at this point the Empire Midget Struck Back.  For instance, when a motion to withdraw as counsel is filed the other side can oppose it, but it is almost never done, if only because it is such a waste of time.  But Brett is a viscous little man, and so he felt the need to challenge it as well as challenging my motion to dismiss and Patrick’s request for an extension of time.  Here’s that dumb filing:

   Brett's Opp to MTD

And here’s my response.

   Reply MTD (Redaction)

Really, Brett needs to stop attacking me personally, because then it gives me a chance to present in general terms my story of triumphant struggle.  Every time he calls me incompetent, I get to say I went to Yale Law School in spite of my disabilities.  Which do you think is more effective?  You would think that a person with such an awful personal history would want to take the high road if only to avoid giving us an excuse to bring up that awful personal history.

Anyway, next up, Brett filed his reply, ostensibly to Patrick’s omnibus filing, but... well, we will talk about that in a moment.  Here it is, missing only it’s pretty little cover page:

   Kimberlin Appellate Reply Redacted

And then following that, I filed a motion to strike that reply, which you can read, here:

   Mot. to Strike (Redaction)

I will note that when I include an exhibit that shows what Brett’s filings look like if you exclude the improper parts, it is a bit of dry humor mixed in.  I mean, I chuckle every time I see entire pages blocked out.  Whether you do the same depends on your demeanor.  And it serves the overall purpose of making the court realize how thoroughly the dishonesty permeates his writing.

Now, was that motion granted?  Well, if you read carefully, I am asking primarily for one of two things: that the court strike the improper parts or disregard them.  The first was not done.  But when I show you the opinion, it seems pretty obvious that the second was done.

Anyway, next as an additional twist, the Court on its own issued an order to show cause.

   Order to Show Cause

Basically they demanded that Brett explain why he left out so many vital transcripts in the process.

Here’s Brett’s response.

   BK Show Cause Answer

And my response to that:

   Opp to Show Cause (Redaction)

I didn’t get what I asked for in that document—to have the court reject his answer to the show cause motion—but it gave me a chance to de facto rebut what the new state of the record said, albeit briefly.  For instance, you see me say:

Likewise, the Appellant claims that “Appellant presented testimony at the summary judgment hearing on July 1, 2014.” (Reply 13) Now that this Court has a complete record of what happened at that hearing, it can see that in fact, no testimony was presented at that hearing. In fact, there was no evidence whatsoever presented by the Appellant at a hearing in which he was required to provide at least some evidence supporting each element of his claims. Thus, this Court can see that not only was Judge McGann correct to grant summary judgment regarding some counts, but this Court might wonder why any of the Appellant’s counts survived that hearing.

This was naturally an argument about Brett’s deception as a reason to actually dismiss the case, but it simultaneously makes an important legal point: that Brett had no evidence in the record at the summary judgment hearing.  That will be important in a moment.

In any case, as I suspected they would be, the court was lenient (ugh), but probably because it knew the case was a dog and Brett would lose on the merits, anyway, and appellate courts are loath to dismiss cases like this.  So they responded as follows:

   Order Accepting Show Cause Answer

And that brings us to yesterday’s decision, affirming the court below.

   1553s14

Like with Judge Mason’s opinion, there are a lot of parallels between my arguments and theirs, but as I noted above, I am not sure how many of those arguments were mine to begin with, so there is less ego stroking involved.  The only major deviation is the difference between how I approach the issue of summary judgment, but my argument was based on the record as it was when Brett filed it.  They based their decision on the record as it existed after they added in the appropriate transcripts.  Since my brief was written before they supplemented the record this way, my argument was off topic.  On the other hand, they did take the view I offered in my opposition to show cause.  So is that influence, or did the court just notice a blindingly obvious point?  I report, you decide.

Now, you might think that this is the last of the documents I have to share with you and you are wrong.  There is one more document I filed, just as soon as I could get out and about after the blizzard.  It asked for a chance to supplement the record in light of Judge Mason’s ruling in Kimberlin v. National Bloggers Club (II), which I discussed here.  Its moot now (which is legalspeak meaning that it doesn’t matter given what the Court of Special Appeals ruled), but it still might provide interesting reading:

   Motion for Leave (Redaction)

Stay tuned, and stay happy warriors.  Brett’s vexatious litigation has taken a very severe blow.  I don’t think he understands how bad it really is, just yet.

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My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) 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.