Big Hearing Tomorrow Against Brett Kimberlin (And the Maryland Court of Appeals Shows Its Contempt for Kimberlin)

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 since last December, 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.

First, let me apologize for the light blogging.  Especially with the election within two weeks I wanted to be posting, posting, posting, but a stomach flu interfered with that.

But let me bring you up to date for Kimberlin matters.  As the estimable Mr. Hoge has noted on October 5 discovery was due and in an unusual step, the court asked that Kimberlin file that discovery with the court.  While I cannot disclose what exactly Kimberlin provided, I can let Dan Backer’s motion for sanctions and to hold Brett Kimberlin in contempt speak for itself, to the extent that it is a public document (some of the exhibits are items that the court has ordered to be placed under seal and Backer has respected that order).  That hearing to determine if Kimberlin is in contempt of court is scheduled for tomorrow.  Any prayers and any other form of support is appreciated.

I suggest you follow Mr. Hoge’s blog and potentially his twitter account for the latest news on that, and follow his scribd account for numerous interesting documents in the case and other Kimberlin-related information.  My attorney has asked me to limit the color commentary for the time being, so Hoge will be freer to speak on the matter than I will and I do expect him (and perhaps others) to be in attendance tomorrow.

I am asked to limit the commentary when it comes to the Virginia and Federal cases.  Now on the other hand, I can speak freely about anything going on in Maryland.  And Kimberlin suffered another defeat earlier this week in that jurisdiction.

Previously, I told you about how Kimberlin, a convicted terrorist and perjurer, showed contempt for the Maryland Court of Appeals.  Well, apparently the contempt is mutual.  This showed up earlier this week on the Maryland Court of Appeals website under Petitions for Certiorari:

That takes a moment to explain.  The first court to get a bite at a peace order petition is a District Court—more or less a small claims court.  Think Judge Wapner and The People’s Court.  They are used to dealing with people who represent themselves and so they relax the rules of evidence and follow the law less strictly, especially (in my experience) in Maryland.

In short they treat the First Amendment as a small claim, as my friend Lee Stranahan once pointed out.  Which seems like a bad approach.

Then you can appeal it to the Circuit Court where they apply the actual, you know, law, and the rules of evidence.  These concepts are like kryptonite to Kimberlin’s legal claims and so it is typical to see Kimberlin win on the looser standards of the District Court and then lose when he is required to actually prove his fantasies with actual evidence and to follow the law in the Circuit Court.  He has filed two peace orders against me, and in both instances, he has done so poorly in the Circuit Court that my attorney has been able to rest his case without presenting a defense, at which time the court dismissed the petition.  In other words, Kimberlin lost the legal “battle” without my side having to fire a “shot” in the Circuit Court.

There are two key things to get about the appeal from the District Court to the Circuit Court.  First, it is automatic: the Circuit Court cannot refuse to hear the appeal.  Second, the appeal is heard as a brand new trial.  That means the burden of proof is back on the person seeking a peace order and they must prove the statutory burden has been met.  We lawyers call this a trial de novo.

Now the first victory was on April 11, 2012 based on the claims that I assaulted Kimberlin and was harassing him by saying bad things about him on the internet.  That is before the majority of you fine people heard my story, starting with my blockbuster post outlining how Kimberlin had tried to frame me for that assault.  The second victory, on the second petition for a peace order, came on July 5 of this year.

In the meantime, Kimberlin had filed an appeal of that April 11, 2012 loss.  Now, the only court that can hear the appeal in Maryland is the Maryland Court of Appeals.  That is what they call their highest court, what many states call their “Supreme Court.”  And there are two important things to get, there.

First, the appeal would not be a new trial like it was before the Circuit Court.  Instead it would be a hearing to determine if the Circuit Court applied the correct law where a legal standard applied, and didn’t abuse its discretion where discretion applied.  This is something people fundamentally don’t get about appeals.  Too many movies and television shows will have a character say, “we have new evidence! We can win the appeal!”  But this is not a time to introduce new evidence except for extremely narrow circumstances (practically speaking, almost never).  It is simply to figure out if the lower court behaved correctly, again applying the correct law where a strict legal rule applies, and not abusing discretion where discretion is granted to the lower court.  So to win on this kind of appeal, you don’t go in there and argue that the court reached the wrong conclusion, but that they applied the wrong law or abused its discretion in such a way that calls the conclusions of the lower court into question.

Second, the appeal is discretionary.  That is, the courts do not have to hear the appeal, but instead only will hear it if they wanted to.  The request for them to hear it is call a petition for a writ of certiorari; why it is called that is not important, just know that this is what it is called. And there was a real danger that they would grant his appeal even if they felt Kimberlin’s case was frivolous for any one of a number of reasons.  For instance, they might have wished to review the case to make it clear to lower courts that mere speech, especially to a general audience, could not be prohibited under their peace order statute.  Heck, they might have wanted to declare the whole statute null and void as a matter of state or federal constitutional law.  The point is that a decision to hear the appeal can be for a number of different reasons.

But I can’t help but believe that by finding against Kimberlin on this, that they agreed with my argument that once again, Brett Kimberlin had lied to a court.  He lied by stating that the Circuit Court didn’t allow him to call me as a witness.  The real truth is simply that Kimberlin didn’t bother to ask.  He also lied by claiming that he was not allowed to present so-called evidence of harassment.  His real problem was he couldn’t figure out how to prove I wrote any of the allegedly harassing communications.

(And you, dear reader, can judge for yourself whether I harassed him or not.  Read this blog.  I have never taken down a single post about Kimberlin.  Is anything I wrote “harassing?”)

And he complained that the burden of proof was supposed to be on me, despite the fact it was, after all, a trial de novo.  (See?  There was a reason why I taught you that term.)

I got this news after a considerable delay.  I mean if the original peace order had been granted it would have expired in August and the Court of Appeals’ decision came a month after I filed my opposition to his appeal, and I have to wonder why it took them that long.  One suspicion I had was this.  Kimberlin had sent a copy of the transcript below as he was required to, but I have no idea what he had sent.  Is it possible that Kimberlin sent a counterfeit transcript, that supported his false version of events?  I wouldn’t put it past him, and I was concerned enough about it as a possibility that I attached my own copy of the transcript as an exhibit to my motion opposing this appeal.  Now if there was a contradiction between his copy and mine, the court probably wouldn’t have simply trusted me to tell the truth.  Instead the court might have taken the extraordinary step of obtaining the transcript itself, which would explain the delay.  But that is just speculation, based on what I know about his character.

What we do know is that for one reason or another they saw no good reason to take up Kimberlin’s appeal.  You can read what both he and I filed before the Court of Appeals here, and thus what arguments the court rejected from Kimberlin and what arguments they accepted from myself.  Since I basically called Kimberlin a liar, it seems reasonable to believe that the Court of Appeals reached the same conclusion.  In the future, Kimberlin would be wise to hire a lawyer to represent him on appeals, because the Court of Appeals is not likely to forget this episode any time soon.  The next appeal he files before them is likely to be tainted with the memory of the fraud he attempted to perpetuate on the court.

Some friends were concerned about what the Court of Appeals might do.  Maryland’s judiciary, they said to me, was very politicized.  Even accepting that premise—and I don’t know if that is true—there is a world of difference between judicial liberalism and political liberalism.  Political actors are free to be ad hoc and hypocritical in a way that courts cannot, because the rule they set down will apply not only to those they like, politically, but also to those they hate.  So even if they were inclined to favor Kimberlin—and Kimberlin is too scummy for most liberals—they would know that if they bent the rules for him they would have to bend it for everyone.  Even when a judge is relatively political, that is not the kind of game they play.

So an auspicious victory for justice and freedom of speech, which we hope to continue this Friday.

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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.